Hernandez v. D.M. Unger

RDj □□□□ □

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

enn ne □□ eee ee ee ne □□ on ee en XK

CHARLES HERNANDEZ,

Petitioner,

MEMORANDUM & ORDER

-against-

13 CV 4706 (RJD)

D.M. UNGER, Superintendent,

Respondent.

nn ne a ne ee X

DEARIE, District Judge.

Before the Court is the application of petitioner Charles Hernandez for a writ of habeas

corpus pursuant to 28 U.S.C. §2254.

A gunfight in the courtyard of a Coney Island housing project, at approximately 4:00 a.m.

on September 19, 2004, resulted in the death of two young men, Allen Lewis and Yusuf

McEaddy. Asa result of his role in this incident, Hernandez was charged with one count each of

intentional and depraved-indifference second-degree murder as to Lewis, one count of second-

degree reckless manslaughter as to McEaddy, and one count each of criminal possession of a

weapon in the second and third degrees (“CPW2” and “CPW3,” respectively).

Hernandez’s first trial in Kings County Supreme Court ended in a hung jury. He testified

as his retrial and admitted that he shot Lewis but claimed he did so in self-defense. At the close

of the evidence the court dismissed the reckless manslaughter charge and submitted the

remaining charges to the jury, who acquitted Hernandez on both theories of the murder of Lewis

while convicting him on the two weapons counts. At the time of the gunfight, Hernandez was on

parole from a prior conviction for first-degree assault. Because he also had a prior conviction for

CPW2, Hernandez was adjudicated a second violent felony offender and sentenced to 15 years

on CPW2 and 7 years for CPW3, to run concurrently. He was paroled in late 2018.

Hernandez’s application for habeas relief advances two principal themes pled as eight

separate claims. His first two claims allege that his CPW convictions “resulted in a miscarriage

of justice” and that he was “deprived of a fair trial.” Petition at 7. His remaining five claims

challenge, on due process, fairness, and statutory grounds, the validity of his adjudication as a

second violent felony offender. Id. As discussed below, none of these claims presents a basis

for habeas relief.

Accordingly, the application for a writ of habeas corpus is denied and the petition is

dismissed.

BACKGROUND

A. Trial

Trial eyewitnesses to the shootout included two women, Shaquil Butler and Sandra

Vicks, whose apartments overlooked the partially lit courtyard where the violence occurred.

According to Butler, Hernandez emerged from a building and opened fire first, striking Lewis,

who stumbled, fired back once and tried to run, when Hernandez then fired again, between four

and eight times. Hernandez then went towards Lewis’s body, lying motionless on the ground;

Butler watched Hernandez strike Lewis in the face with his gun and then stomp on him

repeatedly.

Next, Butler noticed a second person (the other shooting victim) lying on the ground

closer to the boardwalk side of the courtyard. She then saw Hernandez also take notice and run to

see whether that other victim was alive. Hernandez then returned to Lewis’s body, picked up

Lewis’s gun, and hit him with it again, saying “this is all your fault.” Trial Transcript (“T.”) at

331. The other witness, Vicks, testified that she saw Hernandez firing several shots toward

Lewis and that he looked enraged. She did not see Lewis or anyone shooting a weapon. After

calling 911 and returning to her window, Vicks saw two bodies on the ground; Hernandez was

next to one of them, pulling that victim’s jacket while kicking him and telling him to wake up.

Vicks also saw Hernandez with a gun still in his hand go toward a nearby group of onlookers and

tell them to get help, and watched Hernandez leave and return to the courtyard several times. !

The prosecution also called victim Lewis’s mother, Joyce Ealey, who testified that before

the shootout Hernandez, her son, and she were among the guests at a large party that ended

abruptly after a dispute arose between two other youths. She had urged her son—ultimately

without success—not to go outside, where she feared the conflict would escalate. She did not

witness the gunfight but when she heard the shots she immediately feared for her son.

Police responding to the report of a shooting and the involvement of a black male dressed

in army camouflage fatigues saw a man matching this description (later identified at Hernandez)

running from the courtyard. Seeing the police, Hernandez tossed the two weapons he was

carrying over a fence into the bushes—a Glock .9-millimeter gun and an Intratec-9 handgun.

Police promptly recovered both guns as they arrested Hernandez.

The ballistics evidence generally corroborated the prosecution’s account. Inter alia,

eleven cartridge cases were recovered from the scene; ten had been fired from the Glock

handgun—the weapon Hernandez admits using—while the eleventh was fired from the Intratec-

9—the weapon attributed to Lewis. T. 526-556.”

' Vicks knew Hernandez from the building. Butler, however, knew Lewis but not Hernandez,

but described him as wearing an all-camouflage outfit. She later failed to identify him ina

lineup. Hernandez’s own testimony, however rendered any potential identification issue moot.

2 Police also recovered five .380 caliber bullets and concluded they came from two different

guns; although some 9-millimeter guns can fire 38 caliber bullets, analysis concluded that

Hernandez, in his testimony, placed himself at the same party Ealey described. He was

there with McEaddy (the other eventual shooting victim), who was his friend since childhood.

Hernandez testified that he was unarmed, and that as McEaddy and he left the party, they were

ambushed by Lewis and his two companions, Brian and Mike. Lewis and Brian each pulled out

a gun (Brian’s was the Intratec-9 that was later recovered). Suspecting Mike was also about to

pull out a gun, Hernandez “hit him” and “rushed him and his back went up against the gate,”

causing Mike to “drop” his gun, which Hernandez then retrieved as Mike fled. T. 611. (This

was the Glock .9 millimeter that Hernandez later tossed as the police arrived). Lewis then began

shooting at Hernandez; Hernandez first testified that he had no “independent recollection of

pulling a trigger,” and then admitted, “I shot back at him.” (T. 610). The following ensued:

Q: And on that date, there came a time when you came in to possession of a loaded

handgun, correct?

A: Yes.

Q: And you then used that handgun, you pointed it and you fired it at Alan Lewis. . .?

A: Yes.

Q: And you pulled the trigger, you fired it more than once, right?

A: Yes. (T. 612-13).

Hernandez then admitted the essence of much of what Vicks and Butler had said

happened next: namely, that after he was done firing the weapon, he ran over to McEaddy’s

body, then back to Lewis’s, and seeing that he was also dead, picked up the Intratec-9 handgun

lying nearby and struck Lewis with it, hitting him in the face and chest several times. T. 613-14.

Finally, Hernandez admitted that after leaving the courtyard, when he reached the front side of

those recovered in this case could not have been fired from either of the recovered 9-millimeter

weapons. Additionally, the bullets recovered from Lewis’s body were too deformed to

determine conclusively which gun fired them, and the bullet recovered from McEaddy’s body

was not fired by either of the guns recovered from the scene.

4 .

the building still dressed in head-to-toe camouflage, he had that Intratec-9 in one hand and .9

millimeter Glock (which he’d taken from Mike and used to kill Lewis) in the other.

B. Sentencing

At sentencing, the prosecution filed a statement reporting that Hernandez was convicted

in 1992 in Kings County Supreme Court of CP W2 and assault in the first degree, and

incarcerated from May 1992 through September 2003—facts that Hernandez confirmed upon the

court’s inquiry. Sentencing Transcript (“ST.”) at 3. The court then adjudicated Hernandez a

second violent felony offender pursuant to N.Y. Penal Law §70.04.

The court permitted Ealey to speak about the impact of her son’s death. She described

Lewis as “innocent” and told Hernandez she hoped he would “rot in hell” and that he “deserve[d]

to be behind bars in a cage.” ST. at 5. Hernandez expressed remorse that “[t]wo people lost

their lives over something senseless.” Id. at 8. He again stated that he “didn’t go looking for any

trouble” and that he “did not possess a gun before th[e] incident took place.” Id. at 8-9.

The sentences required by the second violent felony offender statute were eight to fifteen

years for CPW2 and five to seven years for CPW3. N.Y. Penal Law § 70.04 (3)(b)-(c) (eff. until

Sept. 2020). The prosecution requested the maximums.

Before imposing sentence, the Court remarked that “[t]his is the classic case that

illustrates what’s wrong with people having guns,” and that “[t]wo young men lost their lives

needlessly.” ST. at 9. The court also told Hernandez that “what [he] did was pretty egregious,

3 As was fully explored at trial, Hernandez’s testimony was inconsistent, in numerous ways, with

portions of the many prior statements he had given in the case, including several oral statements

followed by a written statement to police, and, later, testimony under a waiver of immunity

before the grand jury.

having these guns and firing that number of shots in that housing project at that time.” Id. at:10.

The court then imposed the maximum terms but declined the state’s request that they run

consecutively, remarking to Hernandez, “I’m going to run those sentences concurrently because

the evidence established the second gun you possessed was in the possession of someone else

and you picked it up after the shooting.” Id. at 11.

Cc. Appeal

Of the grounds Hernandez raised on direct appeal, relevant here is his claim that the

verdicts were inconsistent in that the murder acquittal necessarily meant that his possession of

the gun was innocent, which, in turn, meant (according to Hernandez’s argument) that the

evidence was legally insufficient to support the CPW convictions. Also relevant here is his

claim that counsel was ineffective at sentencing for failing to object—again, on the basis of the

murder acquittal—to Ealey’s victim impact statement and to the court’s reference to the death of

two young men. Finally, Hernandez advanced an excessive-sentence claim. The Appellate

Division, unanimously affirming Hernandez’s conviction, rejected each of these claims. People

v. Hernandez, 67 A.D.3d 703 (2d Dep’t 2009), lv. app. denied, 13 N.Y.3d 939 (2010).4

The appellate court first concluded that the sufficiency and inconsistent verdict claims

were unpreserved for appellate review, citing the state’s contemporaneous objection requirement,

NY CPL § 470.05(2), and held, “in any event,” that the claims lack merit. Id. at 703-704. The

appellate court held specifically that the evidence “was legally sufficient to establish

[Hernandez’s] guilt beyond a reasonable doubt,” and that the verdict “was not against the weight

“ Not relevant here, the Appellate Division also rejected Hernandez’s claim that he was denied

his right to remain silent.

of the evidence.” Id. at 704. The court also held that the “verdict was not repugnant” because

the “acquittal on the count of murder in the second degree did not negate any of the elements of”

CPW2 or CPW3. Id. Finally, the court held that Hernandez “was not denied the effective

assistance of counsel,” and that “the sentence imposed was not excessive.” Id.

D. State Post-Conviction Proceedings

In October 2012, Hernandez challenged his second violent felony offender adjudication

in a pro se motion to set aside his sentence pursuant to NY CPL § 440.20. Relying on certain

legislative changes that he believed lowered the classification of CPW2 and CP W3, Hernandez

argued that neither crime qualified as a violent felony for purposes of the sentencing

enhancement. The sentencing court denied the motion by Decision and Order dated January 9,

2013 (“the 440,20 Decision”), specifically rejecting Hernandez’s claim on the merits:

The defendant contends that he should be resentenced ‘because [he] was sentenced

after the ameliorative amendment’ to the gun possession law. In fact, however, the

gun possession law has been amended to increase the severity of the crime and

raise the penalties. Both crimes for which he was convicted are classified as

violent felonies and, therefore, he was properly sentenced as a violent felony

offender.

440.20 Decision at 1 (citing “[f]ormer PL § 265.02(2) and 265.02(4)”).

By Decision and Order dated January 29, 2013 the court denied Hernandez’s motion for

reconsideration, stating simply that it “adheres to its decision dated January 9, 2013.” Leave to

appeal the 440.20 rulings was denied on June 13, 2013.5

DISCUSSION

> Before moving to vacate his sentence under 440.20, Hernandez had first moved under 440.10

vacate his conviction on the grounds not relevant here.

A. General Habeas Standards

Habeas relief is authorized “only on the ground that [an individual] is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). If

rejected:in the first instance by the state courts, federal review of these claims is highly

deferential. As the habeas statute provides:

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 adjudicated on the merits in State court proceedings unless the

adjudication of the claim . . . 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(1), as amended by the Antiterrorism and Death Penalty Act of 1996

(“AEDPA”).

This statute “erects a formidable barrier to federal habeas relief,” Burt v. Titlow, 571 U.S.

12, 19 (2013), because it embodies “a foundational principle of our federal system: State courts

are adequate forums for the vindication of federal rights . . . and are thus presumptively

competent [ ] to adjudicate claims arising under the laws of the United States.” Id. at 19.

Federal habeas courts “will not lightly conclude that a State’s criminal justice system has

experienced the extreme malfunction for which federal habeas relief is the remedy.” Id. at 16

(internal quotations, citations and alterations omitted). See also Virginia v. Le Blanc, 137 S. Ct.

1726, 1728 (2017) (“In order for a state court’s decision to be an unreasonable application of this

Court’s case law, the ruling must be objectively unreasonable, not merely wrong; even clear

error will not suffice”) (internal quotation marks and citations omitted); but see Brumfield v.

Cain, 135 S. Ct. 2269, 2277 (2015) (“As we have also observed, however, even in the context of

federal habeas, deference does not imply abandonment or abdication of judicial review, and does

not by definition preclude relief”) (internal quotation marks, citation and alterations omitted).

In short, the “contrary to or unreasonable application” standard codified by AEDPA

“means that a state court’s ruling must be so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Shoop v. Hill, 139 S. Ct. 504, 507 (internal quotations and citations omitted).

Accord Orlando v. Nassau Cty. Dist. Attorney’s Office, 915 F.3d 113, 121 (2d Cir. 2019)

(“unreasonable application” standard of § 2254(d)(1) is a “bar [that] is not reached where

fairminded jurists could disagree on the correctness of the state court’s decision”) (internal

quotation and citation omitted).

B. Analysis of Petitioner’s Claims

1. Threshold Issue: Timeliness

Early activity in this proceeding reflected a concern with the timeliness of the petition.

See ECF No. 4 (order dated November 7, 2013 directing petitioner to show cause why his claims

should not be dismissed as time-barred); No. 5 (petitioner’s responsive affirmation dated

November 25, 2013); No. 6 (order dated December 23, 2013 directing respondent either to

address timeliness if it contested the issue or to answer the petition); and No. 8 (respondent’s

submission dated January 21, 2014 contesting timeliness). Following reassignment of the case to

the undersigned, the Court deferred ruling on the timeliness question and by order dated

September 16, 2019 directed respondent to answer the petition.

Relevant here, AEDPA requires a state prisoner to file for federal habeas relief within

one-year of the date on which his conviction becomes final, which is ordinarily the date on

which direct review has concluded. 28 U.S.C. § 2244(d)(1)(A); Williams v. Artuz, 237 F.3d

147, 150 (2d Cir. 2001). The time during which any state post-conviction proceedings are

pending, assuming they were timely filed, is not counted. 28 U.S.C. § 2244(d)(2). Included in

this uncounted time is the period between the denial of a post-conviction motion in one court and

a timely-filed application for leave to appeal it to a higher court. Evans v. Chavis, 546 U.S. 189,

190-99 (2006).

Assuming without deciding the correctness of respondent’s arithmetic and its counting

assumptions in Hernandez’s favor, the petition was filed 134 days late. For his part, Hernandez

asks that the statute of limitations be equitably tolled. He attests that during the relevant period

he was twice transferred to a new facility and that there was a lengthy delay between the state

court’s issuance of the denial of his 440.10 motion and his actual receipt of the order.

Equitable tolling exists because AEDPA’s one-year time-bar is considered a statute of

limitations only rather than a jurisdictional bar. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.),

cert. denied, 531 U.S. 840 (2000). Still, tolling is appropriate only in the “rare and exceptional”

case where the petitioner “demonstrate[s] that he acted with reasonable diligence during the

period he wishes to have tolled, but that despite his efforts, extraordinary circumstances beyond

his control prevented successful filing during that time.” Romero v. Ercole, 2009 WL 1181260,

at *2 (E.D.N.Y. Apr. 30, 2009) (internal citation and quotation omitted); see also Holland v.

Florida, 560 U.S. 631, 649 (2010). Federal habeas courts, however, have not been receptive to

the grounds Hernandez invokes here—facility transfers and delayed receipt of a court’s order.

See generally Walker v. Sheahan, 2013 WL 2181039, at *3 (E.D.N.Y. May 20, 2013)

(“Transfers between prison facilities, solitary confinement, lockdowns, restricted access to the

law library and an inability to secure court documents do not qualify as extraordinary

circumstances”) (internal quotation and citation omitted).

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In light of the totality of the circumstances, however, including the length of time the

petition has been pending here, the Court finds that the fair and prudent course is to proceed to

address the merits of Hernandez’s claims without formally ruling on the timeliness question.

2. Grounds One and Two

As noted, Hernandez asserts in Ground One that his convictions “resulted in a

miscarriage of justice” and in Ground Two that he was “deprived of a fair trial.” Petition at 7.

He offers nothing more: no legal theory, factual support, or incorporation by reference of claims

raised in his state appellate or postconviction proceedings. Indeed, none of those claims (as the

summary supra reflects) speaks in the vocabulary of trial unfairness or the miscarriage of justice,

or argues those themes substantively. Accordingly, Grounds One and Two present unexhausted

claims that cannot form the basis of a grant of habeas relief. See generally 28 U.S.C.§

2254(b)(1)(A) (“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 unless it appears that [ ] the

applicant has exhausted the remedies available in the courts of the State.”); Picard v. Connor,

404 U.S. 270, 275 (1971) (discussing exhaustion requirement); Daye v. Attorney Gen. of State of

New York, 696 F.2d 186, 191 (2d Cir. 1982) (same).

Because claims of trial unfairness and miscarriage of justice are based on the trial record,

under New York law they should have been raised on direct appeal, NY CPL §440.10(2)(c), so

in the parlance of habeas jurisprudence the Ground One and Ground Two claims are deemed

exhausted but procedurally barred because Hernandez can no longer return to state court to

pursue them. See, e.g., Mitchell v. Griffin, 2019 WL 6173788, at *5 (E.D.N.Y. Nov. 20, 2019)

(collecting authorities). A federal habeas court may review such claims only if the petitioner

shows cause for the default and prejudice if it is not considered (because it has merit), or that

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failure to consider the claim will result in a miscarriage of justice because he is actually innocent.

Id. (collecting authorities). Hernandez has not made these showings or even addressed this

aspect of his claims.

In any event, these claims would not establish a basis for habeas relief. Indeed, cries of

unfair trial and the miscarriage of justice here are dubious from the outset in light of the murder

acquittal and the uncontroverted testimony establishing Hernandez’s possession and unlawful

use of a weapon.

Doctrinally, “miscarriage of justice” in the habeas context is understood as a claim of

factual innocence as distinguished from legal insufficiency. See generally Bousley v. United

States, 523 U.S. 614, 623 (1998); Schlup v. Delo, 513 U.S. 298, 321 (1998). Such a claim

requires, however, that a petitioner produce, infer alia, “new reliable evidence...that was not

presented at trial,” Schlup, 513 U.S. at 324, which Hernandez has not done. The fair-trial claim

is similarly unsupported and hyperbolic, as Hernandez has not pointed to any feature of his trial

that would rise to the level of unfairness necessary to implicate this due process guarantee. See,

e.g., Estelle v. McGuire, 502 U.S. 62, 72 (1991) (fair-trial inquiry is whether alleged error “so

infected the entire trial that the resulting conviction violates due process”) (internal quotation and

citation omitted); Dowling v. United States, 493 U.S. 342, 352 (1990) (due process/fair trial

inquiry is whether alleged error is “so extremely unfair” that it “violates fundamental

conceptions of justice”) (internal quotation and citation omitted).

To the extent Hernandez intends through his use of the labels “unfair trial” and

“miscarriage of justice” to advance the sufficiency claim he raised on direct appeal, he still fails

to present a basis for habeas relief.

12

First, because the state court rejected that claim in the first instance as unpreserved, it is

barred from review here by the independent and adequate state law doctrine. See generally

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017); Coleman v. Thompson, 501 U.S. 722, 729 (1991)

A state procedural bar “is ‘adequate’ if it ‘is firmly established and regularly followed by the

state in question’ in the specific circumstances presented.” Murden v. Artuz, 497 F.3d 178, 191

(2d Cir. 2007) (internal quotation and citation omitted), cert. denied, 552 U.S. 1150 (2008)

(quoting, Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)). The requirement that an issue

be preserved by contemporaneous objection as required by NY CPL § 470.05(2) is a firmly

established and regularly followed rule for these purposes. Richardson v. Greene, 497 F. 3d 212,

217-18 (2d Cir. 2007); Petronio v. Walsh, 736 F. Supp. 2d 640, 653 (E.D.N.Y. 2010).°

This bar applies “even where”—as here—‘the state court has also ruled in the alternative

on the merits of the federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see

also Harris v. Reed, 489 U.S. 255, 264 n. 10, (1989) (“a state court need not fear reaching the

merits of a federal claim in an alternative holding”) (emphasis in original). Finally, this

“independent and adequate state ground” bar may be lifted only if a petitioner demonstrates

“cause” for failing to comply with the state rule and “actual prejudice” if the claim is not

reached, or that a lack of federal review will result in a fundamental miscarriage of justice

because he is actually innocent. Harris v. Reed, 489 U.S. 255, 262 (1989); Wainwright v. Sykes,

In the context of challenges to the legal sufficiency of the evidence, this rule requires that a

defendant identify the specific evidentiary deficiency rather than, as defense counsel did here, T.

at 672, merely move for dismissal on the ground that the state failed to meets its burden of proof

beyond a reasonable doubt. People v. Hawkins, 11 N.Y.3d 484, 492 (2008).

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433 U.S. 72, 87 (1977). As already noted, Hernandez has not even addressed this feature of his

claim, so it is barred from federal review.

In any event, Hernandez’s sufficiency claim is plainly without merit. Under Jackson v.

Virginia, 443 U.S. 307 (1979), “the relevant question 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 the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original).

The Appellate Division’s rejection of Hernandez’s sufficiency claim is not an unreasonable

application of Jackson, or unreasonably factually, within the meaning of AEDPA.

Under the version of the NY Penal Law provision in effect at the time of Hernandez’s

crime (September 2004), a person was guilty of CPW2 when, “with intent to use the same

unlawfully against another” he “‘possesse[d] a loaded firearm.” NY PL § 265.03(2) (eff. until

Dec. 20, 2005).’ Hernandez of course admitted at trial that he possessed a loaded firearm and

fired it at Lewis repeatedly. But he argued on appeal that his CPW2 and murder verdicts were

inconsistent in that the acquittal of murder necessarily negates the unlawful intent element of

CPW2. The Appellate Division did not misapply Supreme Court law—or even New York law—

in concluding otherwise.

First, to the extent Hernandez’s sufficiency-of-the-evidence challenge to his CPW2

conviction hinges on his inconsistent verdict claim, it fails to present a federal issue cognizable

on habeas. See, e.g., Roberts v. New York, 2019 WL 3302381, at *9 (E.D.N.Y. July 23, 2019)

7 At the relevant time a person was guilty of CPW3 when he “possesse[d] any loaded firearm”

outside his home or place of business. NY PL §265.02(4) (eff. until Dec. 20, 2005). Sufficiency

as to CPW3 does not require discussion: Hernandez admitted that he possessed a loaded firearm.

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(“It is well established that a challenge to a jury verdict as inconsistent is not a ground for habeas

relief’) (collecting U.S. Supreme Court authorities). Indeed, whether on federal habeas or in

other proceedings, courts simply do not undertake “individualized assessment[s] of the reason

for the [claimed] inconsistency.” United States v. Powell, 469 U.S. 57, 66 (1984). As the

Supreme Court understood when announcing this rule, inconsistency among verdicts often

reflects nothing more than “mistake, compromise or lenity” on the part of the jury. Id. at 65.

In short, Hernandez’s inconsistent-verdict claim is a red herring in the Jackson

sufficiency equation and, once removed, leaves a plainly meritless claim requiring little

discussion. Viewing the evidence in the light most favorable to the prosecution (and, again, not

considering the later-rendered murder acquittal), there was abundant evidence from which a

rational juror could have inferred the requisite intent on the part of Hernandez to use a gun

unlawfully: most probative is the testimony of both eyewitnesses and Hernandez which establish

that Hernandez fired a loaded firearm repeatedly at Lewis in the course of a gunfight and that he

was enraged while doing so.

3. Grounds Three through Eight: the Sentencing-Related Claims

Hernandez alleges that his “sentence would have been different if [his] attorney had

performed effectively” (Ground Three); that “he was “denied his . . . Constitutional right to Due

Process of Law by the Court’s sentence” (Ground Four); that the state “must follow statutory

law” because it “is superior to case law as a source of law” (Ground Five); that the state

“intentionally and knowingly sentence[d] [him] to a wrong penal law statute that’s been

amended” (Ground Six); that his sentence is “unauthorized and invalid” (Ground Seven); and

that he “must be afforded ...the benefit of new statutory law, due to an ‘ameliorative

amendment’ to criminal possession of a weapon...which reduces the punishment” for these

15

crimes (Ground Eight).

a. Grounds Five through Eight

Grounds Five through Eight, variations on a single theme, advance here the same

sentencing challenge Hernandez raised in his 440.20 motion in state court, where it was rejected

on the merits. The claim fails to present a question cognizable in this Court: as the Supreme

Court has instructed habeas courts: “[w]e reemphasize that it is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions. In conducting a

habeas review, a federal court is limited to deciding whether a conviction [or sentence] violated

the Constitution, laws, or treaties of the United States.” Estelle, 502 U.S. at 67-68.

The 440.20 court’s determination that the New York crimes of CPW2 and CPW3, at the

time Hernandez committed them, qualified as violent felonies for purposes of the New York

second violent felony offender statute concerns purely a question of New York law. Likewise,

that court’s determination that the statutory amendments on which Hernandez relies were not

“ameliorative” but instead increased the severity of these crimes concerns only matters of New

York law. These rulings, correct or not, are simply not reviewable here. Lewis, 497 U.S. at 780

(“Federal habeas corpus relief does not lie for errors of state law”), Even if the rulings were

reviewable, Hernandez would be entitled to habeas relief only if these rulings somehow reflect

an unreasonable application of the holding of a Supreme Court decision, which Hernandez has

not, and could not, show. .

In any event, the 440.20’s court’s determination that Hernandez was properly adjudicated

a second violent felony offender is correct. New York Penal Law § 70.04 provides that “{a]

second violent felony offender is a person who stands convicted of a violent felony offense as

defined in subdivision one of section 70.02 [of the Penal Law] after having previously been

16

subjected to a predicate violent felony conviction as defined in paragraph (b) of this

subdivision.” PL § 70.04(1)(a). The “criteria” for qualifying prior convictions listed in the

referenced subparagraph(b) include a specific reference back to the same classificatory

“subdivision one of Section 70.02”. See id. at (b)(i) (to qualify as a violent felony offense, the

prior conviction “must have been” for “a violent felony offense as defined in subdivision one of

section 70.02.”). In short, for a defendant to be designated a second violent felony offender, both

his triggering (i.e., current) crime of conviction and his prior convictions must be for “violent

felony offenses,” and for both the current and prior convictions the definition of “violent felony

offense” at “subdivision one of section 70.02” controls.

Hernandez, as noted, was convicted of CPW2 and CPW3. At the time of he committed

these crimes (September 2004), subdivision one of section 70.02 classified CPW2 as a “Class C

violent felony offense” and CP W3 as a “Class D violent felony offense.” NY PL § 70.02(1)(b)-

(c). Thus, he “stands convicted” of a violent felony offense. His two qualifying prior

convictions were for CPW2—a violent felony offense—and first-degree assault, whose status as

a Class B violent felony offense he does not dispute. See PL § 70.02(1){a).

The statutory amendments on which Hernandez appears to rely in his seeking relief from

his sentence did not change the classification of either of these crimes as violent felonies.’ At the

time of Hernandez’s crimes, as noted, a person was guilty of CPW2 when, “with intent to use the

same unlawfully against another” he “possesse[d] a loaded firearm.” NY PL § 265.03(2) (eff.

until Dec. 20, 2005) and a person was guilty of CPW3 when he “possesse[d] any loaded firearm”

8 His state-court motion papers reference the 2005 and 2006 amendments. See L. 2005, c. 764,

§3 eff. Dec. 21, 2005; L. 2006, c. 742, § 2, eff. Nov 1., 2006; and L. 2006, c. 745 §1 eff. Dec. 15,

2006.

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outside his home or place of business. NY PL §265.02(4) (eff. until Dec. 20, 2005). As the

440.20 court ruled, the amendments: (i) elevated the severity of mere possession of a loaded

firearm—CPW3 at the time of Hernandez’s crimes—by reclassifying it as a type of CPW2, see

PL §265.03(3) (eff. Dec. 15, 2006); and (ii) merely renumbered possession of a loaded firearm

with intent to use it unlawfully against another within the CPW2 statute, from subparagraph (2)

to subparagraph (1)(b). See PL §265.03(1)(b). Most crucially, the amendments did not disturb

the classification of CPW2 as a Class C violent felony offense under PL §70.02(1)(b).

In sum, four of the petition’s six distinct sentencing challenges (Grounds Five, Six, Seven

and Eight), all premised on Hernandez’s misunderstanding of the amendments to New York’s

CPW statute, plainly fail to present a basis for habeas relief.

The remaining two sentencing challenges require little discussion.

b. Ground Four

Ground Four, as noted, alleges, without factual support or elaboration of a legal theory,

that Hernandez was denied his “Constitutional right to Due Process of Law by the Court’s

sentence.” Petition at 7. To the extent the alleged deprivation of due process lies in his belief

that he was deprived of the “benefit of new statutory law,” the foregoing statutory analysis

disposes of this claim. The claim is otherwise unexhausted: on direct appeal Hernandez argued

that his sentence was excessive but did not frame is as a federal due process violation.

Even making one of several available—and here, purely academic—procedural

assumptions in Hernandez’s favor,” the due-process branch of the sentencing challenge plainly

For example, the Court could deem the due process claim exhausted but procedurally barred,

which would render the claim reviewable only if Hernandez had shown cause and prejudice,

which he has not. Alternatively, the Court could geem the due process theory to have been

does not present a basis for habeas relief. As noted, Hernandez received the maximum sentence

authorized by New York’s second violent felony offender statute. See NY PL § 70.04(3). That

ends the constitutional inquiry. See Cruz v. Griffin, 2019 WL 6220806, at *19 (S.D.N.Y. Oct.

24, 2019) (“It is well settled that when a sentence is in accord with the range established by state

statutory law there is no constitutional issue presented for habeas review,” citing White v. Keane,

969 F.2d 1381, 1383 (2d Cir. 1992)).

c. Ground Three

Ground Three alleges that Hernandez’s sentence “would have been different if [his]

attorney had performed effectively.” Assuming arguendo that Hernandez intends here to

advance the sentencing-ineffectiveness claim he raised on his direct appeal, the claim fails to

present a basis for habeas relief.

As noted, Hernandez argued on appeal that his lawyer failed to make two objections that

Hernandez believes were required by his acquittal on the murder charges: namely, challenges to

the victim impact statement made by Lewis’s mother and to the court’s explicit references to the

fact that two young men died in the gunfight. The Appellate Division, as noted, rejected this

claim on the merits, see Hernandez, 67 A.D.3d at 704 (Hernandez “was not denied the effective

assistance of counsel”).

With an ineffectiveness claim, Hernandez’s burden to show an unreasonable application

of Supreme Court law—here, the familiar two-prong test of Strickland v. Washington, 466 U.S.

sufficiently implied (and thus fairly presented for exhaustion purposes) by Hernandez’s appellate’

excessive-sentencing claim. In that scenario, Hernandez would have to show that the Appellate

Division’s merits holding—that his sentence “‘was not excessive,” Hernandez, 67 A.D.3d 704—

somehow involved an unreasonable application of Supreme Court law, which he has not.

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668 (1984)—is particularly high. See Harrington v. Richter, 562 U.S. 86, 105 (2011)

(“[e]stablishing that a state court’s application of Strickland was unreasonable under §2254(d) is

all the more difficult [because] [t]he standards created by Strickland and §2254(d) are both

highly deferentia!, and when the two apply in tandem, review is doubly so”) (internal quotation

and citation omitted) (emphasis added); Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (“review

of [state court]’s decision is ... doubly deferential [because] [w]e take a highly deferential look at

counsel’s performance [under Strickland] through the deferential lens of §2254(d)”) (internal

quotations and citations omitted) (emphasis added). In short, under AEDPA, “the question is not

whether counsel’s actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standards.” Id. (emphasis added).

The answer is, plainly, yes.

As in his sufficiency arguments, Hernandez again misapprehends the legal significance of

his acquittal. First, it was not inappropriate for the court to remark upon the deaths that resulted

from the gunfight: Hernandez, in his trial testimony, admitted that he caused at least Lewis’s

death by shooting at him repeatedly, and even at sentencing, Hernandez himself acknowledged

that “[t]wo people lost their lives over something senseless.” ST. at 8. The sentencing court was

not relying upon a crime for which Hernandez had been acquitted when it mentioned, as

Hernandez had already commented, that Hernandez’s gun possession occurred during

circumstances that left two young men dead. As for Lewis’s mother, New York law grants

sentencing courts discretion to allow statements from such persons in circumstances materially

the same as those presented here. See, e.g., People v. Hemmings, 304 A.D.2d 502, 503 (lst

Dep’t 2003) (defendant acquitted of murder but convicted of CPW2; court “properly exercised

its discretion” when permitting deceased victim’s family to speak at sentencing), aff'd, 2 N.Y.3d

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1, 5-7 (2004); People v. Rivers, 262 A.D.2d 108, 108-09 (1" Dep’t) (holding that court “properly

exercised its discretion in permitting family members of a police officer who died during [the]

incident to speak at sentencing even though defendant was acquitted of all charges relating to the

officer” but convicted of second-degree assault), lv. app. denied, 94 N.Y.2d 828 (1999).

Accordingly, it was not an unreasonable application of Strickland for the Appellate Division to

have concluded that counsel did not perform deficiently in failing to object to these permissible

features of the sentencing proceeding.

In any event, the ineffectiveness claim would fail the prejudice half of the Strickland test.

See Strickland, 466 U.S. at 688, 694 (to prevail, petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness,” and that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”). On this record, it was not an unreasonable application of

Strickland for the Appellate Division to have concluded that the court would have imposed the

same sentence even if counsel had objected. First, for the reasons just discussed, either objection

Hernandez faults counsel for not making likely would have been overruled. Second, apart from

the court’s reference to the two victims, the court’s full statement to Hernandez when imposing

sentence reveals the heart of its sentencing rationale:

As far as you, Mr. Hernandez, you have this prior felony conviction for a similar

charge. You did a lot of jail time on that case. You were on parole when this case

happened. I really don’t think you have taken full responsibility for your conduct

here by what you are saying. You know, there’s not too much sympathy I can

show for you. You are behaving yourself in court and accepting this like a man.

But what you did was pretty egregious, having these guns and firing that number

of shots in that housing project at that time. ST. at 10 (emphasis added).

The court correctly sentenced Hernandez for what he was convicted of: “having [ ] guns”

and “firing” them “in that housing project at that time.” Also contributing to the severity of the

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sentence, as the court remarked, were Hernandez’s criminal history and perceived lack of full

responsibility. And even so the court found a reason to reject the prosecution’s request that the

two statutory-maximum terms run consecutively: displaying a precise grasp of the trial record,

the sentencing elected to run the two maximum terms concurrently “because the evidence

established [that] the second gun” that Hernandez used “was in possession of someone else” first

and Hernandez “picked it up after the shooting.” Id. at 11.

In sum, Hernandez could not conceivably overcome the double-deference afforded the

Appellate Division’s rejection of his ineffectiveness claim.

CONCLUSION

For all the reasons discussed, the application of petitioner Charles Hernandez for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. Because Hernandez has not

“made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), a

certificate of appealability will not issue.

SO ORDERED.

Dated: Brooklyn, New York

Decemberg 2019

( s/RJD

_-RAYRDNDI-DEARIE

United Sta istrict Judge

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