Rivera v. Griffin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------x

ENRIQUE RIVERA,

Petitioner, MEMORANDUM & ORDER

15-CV-2657(EK)

-against-

THOMAS GRIFFIN,

Respondent.

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I. Introduction ............................................... 2

II. Background ................................................. 3

A. Rivera’s Arrest and Questioning ........................... 3

B. Suppression Hearing ....................................... 5

C. Petitioner’s First Trial .................................. 7

D. Pretrial Hearings Before Petitioner’s Second Trial ........ 7

E. The State’s Case .......................................... 9

1. The State’s Medical Evidence ............................ 9

2. The State’s Eyewitness Testimony ....................... 10

3. Defense’s Cross-Examination of Eyewitnesses ............ 14

4. Petitioner’s Statement ................................. 15

5. Cross-Examination of Detective Darino .................. 16

F. Defense’s Case ........................................... 16

1. Julio’s Testimony ...................................... 16

2. State’s Cross-Examination Regarding Julio’s Statements to

Ms. Serrano and Mr. Cordova ......................... 19

3. Defendant’s Testimony .................................. 19

G. Cross Examination of Petitioner .......................... 23

H. The Charge Conference and Verdict ........................ 24

I. Sentencing ............................................... 24

J. Post-Conviction Proceedings .............................. 27

III. Legal Analysis ........................................... 28

A. Failure to Charge Lesser-Included Offense ................ 28

B. Petitioner’s Miranda Claim ............................... 30

C. Petitioner’s Brady/Giglio Claim .......................... 36

D. Excessive Sentence ....................................... 40

E. Actual Innocence ......................................... 44

IV. Conclusion ............................................... 45

ERIC KOMITEE, United States District Judge:

I. Introduction

Petitioner Enrique Rivera seeks a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted

of first-degree manslaughter in New York Supreme Court, Kings

County, for the stabbing death of Edgar Ojeda during a bar fight

in Brooklyn on February 27, 2005. In June 2009, Petitioner was

sentenced to twenty-five years in prison, to be followed by five

years of supervised release. He has been incarcerated for over

fifteen years, and is currently at the Green Haven Correctional

Facility in Stormville, New York.

Petitioner raises five arguments in his petition:

first, the trial court violated his due process rights by

failing to charge the lesser-included offense of second-degree

manslaughter; second, the prosecution committed a Brady/Giglio

violation by delaying the disclosure that two witnesses recanted

their testimony; third, the trial court should have suppressed

his post-arrest statements because they were involuntary;

fourth, his sentence is excessively long; and fifth, he is

actually innocent. See Petition, ECF No. 1 (incorporating by

reference Petitioner’s state-court appellate briefs).

II. Background

A. Rivera’s Arrest and Questioning

At approximately 4:20 a.m. on February 28, 2005, two

detectives — John Darino (72nd Precinct Detective Squad) and

James Gaynor (Brooklyn South Homicide Squad) — located

Petitioner at a friend’s home in Flushing, New York. H11 17:4-

19:152 (Darino). Detectives Darino and Gaynor brought Petitioner

to the 72nd Precinct in handcuffs. H1 20:3-6 (Darino). At

roughly 5:00 a.m., the detectives placed Petitioner in an

interview room, where they uncuffed him. H1 20:7-19 (Darino).

Approximately fifteen minutes later, detectives Darino and

Gaynor began speaking with Petitioner. H1 20:20-21:5; 25:7-15

(Darino).

During questioning, Petitioner, who was approximately

thirty years old at the time, stated that he wielded a knife

during a fight at the bar on the date of Mr. Ojeda’s death.

H1 24:10-25:2 (Darino). Petitioner then handwrote a document

acknowledging that he had stabbed Mr. Ojeda, but claiming he had

done so in self-defense:

On the night of February 27, 2005, I, Enrique Rivera,

went out for a few drinks. The bar was located at

1 “H1” refers to the suppression hearing held before Justice Collini on

June 6, 2006.

2 All pagination cited in this Order reflects the transcript of the

identified part of the record rather than the “ECF” pages of the files

submitted on the docket.

39th Street and Third Avenue. While I was having a

few drinks I had a small confrontation with a guy. It

was just words, but as the night goes on, I’m getting

these eyes . . . contacted but nothing to it. Now, as

I go to the bar to get my second round, the guy is

still looking at me and I happen to look back at him.

So he said ‘What’s up?’ and I asked him what seems to

be the problem. And right away the crowd rose. Then

I felt punches and grabbing. So I take out a knife,

used it in self defense, swinging it at the crowd not

knowing that I really hurt anyone. I got out of

there, got in my car and went home. I didn’t know

someone was hurt. It was self defense. I didn’t mean

it. I was just scared. I know by saying sorry is not

going to bring that person back, but I really didn’t

mean this to go down this way. I’m very sorry.”

Darino3 371:3-20 (reading Petitioner’s statement into the trial

record).

Several hours later, Petitioner spoke with Assistant

District Attorney Jennifer Sipress at the police station, where

he substantially repeated his written statement.

Petitioner was charged with murder in the second

degree, N.Y. Penal Law § 125.25(1), and criminal possession of a

weapon in the fourth degree, N.Y. Penal Law § 265.01(2). Kings

County Indictment Number 1453/2005. Petitioner’s case was

assigned to Justice Robert J. Collini.

3 Citations to a name indicate testimony given by that witness during

the trial before Justice Marrus on May 6 through May 13, 2009. “Tr.” denotes

non-testimonial portions of the trial record.

B. Suppression Hearing

On June 6, 2006, Justice Collini held a pre-trial

suppression hearing. As relevant here, Petitioner sought to

suppress his statements as involuntary.

The prosecution called Detective Darino, who testified

that he read Petitioner his Miranda rights from a preprinted

document at the police station before speaking with Petitioner

in the interrogation room. H1 21:6-13 (Darino). Petitioner

initialed the so-called Miranda rights form, responding “yes”

(in writing and orally) to each question as Detective Darino

read the document aloud to Petitioner. H1 21:19-22:25 (Darino).

Petitioner signed the document. H1 24:5-6. This document was

admitted into evidence. H1 22:4-13.

After completing the Miranda sheet, Petitioner agreed

to speak to the detectives. H1 24:7-9 (Darino). Detective

Darino informed Petitioner that “we are conducting an

investigation of an incident that occurred at El Borinquen Bar

on 39th and Third Avenue.” H1 25:12-15 (Darino). He testified

to Petitioner’s oral statement, which was consistent with the

written one. See H1 24:12-25:6 (Darino).

After Petitioner made this statement, Detective Darino

gave Petitioner a pen and paper and asked him to write down the

statement he had made. H1 25:22-26:1 (Darino). Petitioner and

Detectives Darino and Gaynor signed the document after

Petitioner completed his written statement. H1 26:13-27:1

(Darino). This document was admitted into evidence. H1 27:5-

14.

Following Petitioner’s interview with the detectives,

around 10:00 a.m., Petitioner spoke to ADA Sipress from the

Kings County District Attorney’s Office at the police station.

H1 27:20-24. Detective Darino attended the interview and

testified that the entire conversation was videotaped.

H1 27:25-28:8. The videotape was admitted into evidence and

played at the hearing. H1 28:14-30:2 (Darino). It showed that

ADA Sipress read Petitioner’s Miranda rights and then asked him

whether he wished to answer her questions. H1 43:16-18.

Petitioner replied, “We here.” H1 44:26-4 (Darino). He then

proceeded to answer the ADA’s questions, giving a similar

statement to his prior statement to the detectives. H1 44:25-

45:4 (Darino); Sipress 448:15-18.

Justice Collini denied Petitioner’s motion to suppress

his statements. He concluded that Petitioner “willingly

proceeded to make a statement and answer questions during

interrogation.” H1 109:8-10. Justice Collini also noted that

the state “was absolutely correct that the Defendant indicated

his acquiescence” to ADA Sipress’ questioning by stating “we

here.” H1 46:2-9.

C. Petitioner’s First Trial

On June 27, 2006, Petitioner’s first trial resulted in

a hung jury and dismissal (by the Judge) of the weapons charge.

See Rivera v. Firetog, 11 N.Y.3d 501 (2008). On October 23,

2007, the Appellate Division, Second Department granted

Petitioner’s motion to prevent retrial on the same indictment,

but the New York Court of Appeals reversed. Rivera v. Firetog,

44 A.D.3d 957 (N.Y. App. Term 2007), rev’d 11 N.Y.3d 501 (2008).

D. Pretrial Hearings Before Petitioner’s

Second Trial

Justice Alan Marrus presided over Petitioner’s second

trial. The same counsel (Mr. Joel Dranove) represented

Petitioner throughout all aspects of his first and second

trials. Petition at 12; H1 2:3-4 (Mr. Dranove entering his

appearance at Petitioner’s suppression hearing before the first

trial).

On May 4, 2009, Justice Marrus held a pre-trial

hearing before Petitioner’s second trial. H24 2:1-20. The

following day, immediately before jury selection, the

prosecution disclosed that they no longer intended to call two

witnesses on their witness list: Ms. Jahaira Serrano

(Petitioner’s cousin) and Mr. Rudy Cordova (Ms. Serrano’s

4 “H2” refers to the second pretrial hearing, held before Justice Marrus

on May 4 and May 5, 2009.

boyfriend). H2 21:16-22:25. Neither of these witnesses

testified at the prior trial, but Mr. Cordova testified before

the grand jury prior to Petitioner’s first trial. S.5 11:12-

12:4.

The state explained that these witnesses had

previously made “oral sworn statements” to the DA’s Office and

detectives inculpating Petitioner. H2 22:6-13. But when the

witnesses “were later interviewed” “in the middle of” the first

trial, they “recant[ed]” their testimony, stating that they

“didn’t see what they said they saw” and “couldn’t remember”

what happened. H2 22:13-23:3.

In response, the defense noted that this revelation

was occurring thirty-five months after the last trial, and that

counsel “wrote to the prosecution and asked her [for] any

favorable evidence” “two weeks ago.” H2 27:25-28:5. Counsel

requested the witnesses’ contact information, stating that “I

think they’re, at a minimum, able to present evidence that is

favorable to the defense.” H2 27:21-24. Justice Marrus noted

that the witnesses’ inconsistent statements “probably makes them

useless witnesses for anyone,” but directed the state to turn

over their “contact information.” H2 29:11-25; 30:16-24.

5 “S” refers to the transcript of the sentencing before Justice Marrus

on June 8, 2009.

Justice Marrus then called the jurors into the courtroom for

voir dire. H2 33:3-9.

On May 6, 2009 (the next day), immediately before the

jury entered for the first day of trial, defense counsel stated

that he had faxed a request to the court earlier that morning

for “assignment of an investigator.” Tr. 4:4-8. Counsel stated

that he was unable to “track down” some of the individuals “from

the phone number” the state provided. Tr. 4:13-14.

Justice Marrus granted the defense’s application for a

court-appointed investigator on the condition that the defense

submit an affirmation as to Petitioner’s indigency, which

defense counsel stated they would present on “Monday” — five

days later (May 11). Tr. 4:15-5:5. The jury then entered for

the first day of trial. Tr. 5:6-7.

E. The State’s Case

In its case-in-chief, the state presented, among other

evidence: (1) eyewitness testimony of Petitioner fighting with

the victim; (2) forensic testimony that the victim’s blood was

found on the hat Petitioner wore to the bar on the night in

question; and (3) Petitioner’s statement that he waved a knife

in self-defense during the fight.

1. The State’s Medical Evidence

Dr. Frede Frederic (the forensic pathologist who

autopsied the victim’s body) testified that the victim was

killed by a five-inch-deep stab wound to the “left side of the

chest” that punctured his lung. Frederic 66:17-67:2; 69:17-22;

70:11-22; 75:2-11. There were two other, shallower stab wounds

on the victim’s back. Frederic 71:13-22; 72:4-14. The wounds

were not caused by someone “waving a knife around,” but were

consistent with someone “punching” the victim using a “knife or

[] sharp instrument.” Frederic 76:8-12; 77:1-11; 77:12-16. Dr.

Frederic also testified that the victim would not have

“gush[ed]” blood but the instrument used to stab the victim

would have had blood on it. Frederic 79:9-24.

The state also called Linda Razzano, a forensic

scientist, who testified that the victim’s blood was found on

the hat Petitioner wore to the bar that night. Razzano 319:5-

19; 323:13-18. Police recovered Petitioner’s hat from his

mother’s apartment the day after the incident while

investigators were attempting to locate Petitioner. Gaynor

116:18-117:7; 120:17-121:1; 121:16-122:4. Petitioner did not

dispute that he wore the hat to the bar or that the victim’s

blood was found on it. Petitioner 634:9-25.

2. The State’s Eyewitness Testimony

The state called four witnesses who were present at

the bar that night. Three of those witnesses were the victim’s

friends who accompanied the victim to the bar — Jonathan

Dominguez, Carlos Solomon, and Marcus Carrasquillo — and one was

a bouncer at the bar who was off-duty that day — Enrique

Navarette.

The witnesses testified as follows. All male patrons

were “patted down” for weapons upon entering the bar. Navarette

140:1-21; Dominguez 210:13-211:3; Solomon 247:25-248:6. At some

point that night, a man, whom Mr. Solomon identified as

Petitioner, approached the victim. Solomon 229:2-230:12. Mr.

Solomon stood next to the victim as Petitioner and the victim

exchanged words. Solomon 230:12-14; 230:18-21; 231:14-21

(Petitioner “whispered something into” the victim’s ear and the

victim responded with words). Solomon 230:12-14. As Petitioner

and the victim spoke, two men who would be identified at trial

as Petitioner’s brother Julio and their friend “Little Julio”

joined Petitioner’s side. Solomon 231:22-232:9.

A fight then erupted. Navarette 143:25-144:4 (“I saw

the two groups talking. And then all of a sudden there was a

couple of, you know, there was a push.”). Various witnesses

testified as to what happened next: Mr. Navarette (the off-duty

bouncer) testified that he saw Petitioner “push” the victim

“twice, maybe” in the “shoulder, chest” area. Navarette 144:5-

145:4. Similarly, Mr. Solomon, who was standing beside the

victim talking to Julio, testified that “all of a sudden” Mr.

Solomon “seen the defendant strike my friend” in the “chest

area” or “top of [his] shoulder” twice. Solomon 233:6-13;

233:21-234:5; 264:15-265:4. No witness testified that anyone

other than Petitioner made contact with the victim. These

statements constituted the most explicit witness testimony in

support of the inference that Petitioner stabbed the decedent.

The other two prosecution witnesses did not see the fight, but

confirmed that the victim reported having stab wounds

immediately after the fight ended. Dominguez 194:9-195:16;

Carrasquillo 297:10-17. No witness saw a knife in Petitioner’s

hands, Navarette 144:15-17; 162:14-19; 168:5-10 (acknowledging

that he saw Petitioner’s hand but did not see a knife); Solomon

267:2-7; Darino 403:12-24, or saw him strike the victim’s back,

where two stab wounds were found, Navarette 168:20-169:3;

Solomon 265:5-9.

Moments later, the on-duty bouncer disrupted the

fight. Navarette 145:6-11 (Mr. Navarette and the on-duty

bouncer “came over and we split everybody . . . up”); Dominguez

195:19-21. Petitioner exited the bar either with Little Julio

or shortly before him. Navarette 145:8-13; 164:18-25; Dominguez

194:20-22 (witnessing “two guys” being “kick[ed] [] out”);

Solomon 235:3-6 (two men “ran out the door”); Carrasquillo

295:22-23 (“two people r[a]n towards the door”). Bouncers then

blocked the exit, trapping Julio (Petitioner’s brother) inside

for “maybe 20, 30 seconds” until bouncers let him leave.

Navarette 145:8-21; see also Dominguez 197:7-9; 206:18-24;

Solomon 235:7-235:11. During this interval, Mr. Solomon and Mr.

Dominguez attempted to strike Julio. Solomon 235:12-236:17

(stating that he “threw a punch” at Julio). The entire episode

took “like a minute.” Dominguez 212:13-15.

Immediately after the fight dissipated, the victim

told his friends he had been stabbed. Navarette 147:14-21;

Dominguez 194:20-23; Solomon 237:8-13; Carrasquillo 297:9-13.

Witnesses observed blood leaking from the victim’s upper body.

Navarette 147:22-148:2 (“upper chest area”); Dominguez 195:2-10

(observing blood “leaking down” from the victim’s “neck by the

shoulder blade”); Solomon 237:14-20 (“blood starting shooting

from his neck in the air”); Carrasquillo 297:12-16. They rushed

the victim to Mr. Solomon’s car to get the victim to the nearest

hospital, where he died shortly after arrival. Dominguez 197:1-

4; 197:22-199:25; Solomon 238:1-242:12; Carrasquillo 297:23-

299:13.

The day after the incident, Mr. Navarette and Mr.

Solomon identified Petitioner in a lineup at the police station.

Navarette 148:21-150:2; Solomon 242:16-244:11. After viewing

the lineup, Mr. Solomon told police what he “remember[ed]

[Petitioner] doing” during the fight. Solomon 244:12-15. Mr.

Navarette testified that he identified Petitioner as being “part

of the altercation,” and that he had previously told police what

he saw Petitioner “doing.” Navarette 149:16-150:17; 152:14-

153:16.

3. Defense’s Cross-Examination of Eyewitnesses

On cross-examination, the defense elicited testimony

that the bar was “dark.” Navarette 161:3-25. Each witness

acknowledged that they did not see a knife in Petitioner’s

hands. Navarette 144:15-17, 162:14-19, 168:5-10; Solomon

267:2-7; Darino 403:12-24.

The defense also established that Little Julio and

Petitioner were both wearing dark camouflage jackets on the

night in question, Navarette 137:12-14 (“One gentleman had on a

camouflage jacket with a hoody, and the other gentleman, if I’m

not mistaken, was a camouflage hoody.”); Solomon 232:10-233:5;

282:3-7 (the two were wearing “same type of pattern” camouflage

jackets); Julio 465:20-466:5 (testifying for the defense that

Petitioner and Little Julio both wore “camouflage jackets” and

hats), and that Mr. Solomon, who threw at least one punch at

Julio, had the “same complexion,” “facial structure,” and height

as Petitioner, and also wore camouflage attire. Navarette

163:2-164:3; Solomon 248:8-11 (Mr. Solomon wore a “camouflage

shirt”).

However, the state’s witnesses also testified that

Little Julio was “shorter” and “chubbier” than Petitioner.

Navarette 137:18-138:10 (“One gentleman was taller and thinner.

The other was a little shorter and stockier.”) (identifying

Petitioner as the “taller and thinner” man wearing a “camouflage

jacket with the hoody”); Solomon 233:3-5 (describing Little

Julio as “short” and “chubby”).

4. Petitioner’s Statement

The state introduced Petitioner’s post-arrest

statements into evidence — both his written statement, and the

videotaped statement to ADA Sipress, which was played at trial.

Sipress 440:17-23. As he did during the suppression hearing,

Detective Darino testified that he read Petitioner his Miranda

rights from a preprinted form at the police station and that the

victim both orally and in writing waived his rights. Darino

362:1-369:21. Detective Darino further testified that he did

not prompt Petitioner to make the statements in question.

Darino 366:6-13 (saying it was “more of a narrative”); but see

H1 25:3-6 (Darino) (saying it was a “question and answer” and

not a “narrative”).

Detective Darino also testified that he questioned

Julio the same morning while Petitioner was also at the police

station. Detective Darino testified that Julio “voluntarily

came back” to the precinct with detectives that were looking for

Petitioner and willingly answered questions. Darino 383:19-

384:5.

5. Cross-Examination of Detective Darino

On cross-examination, the defense established that

Detective Darino did not know of any contemporaneous notes made

by detectives regarding their unrecorded conversations with

Julio or Petitioner. Darino 395:18-21; 400:15-20. Detective

Darino also acknowledged that he wrote in a contemporaneous

police report that Petitioner “made an admission to stabbing the

victim” even though Detective Darino had not himself heard

Petitioner say as much. Darino 428:1-25. However, Detective

Darino categorically denied telling Petitioner that his brother

Julio was at the police station or that Julio would be charged

for murder unless Petitioner made false statements. Darino

383:16-18; 416:11-417:7.

F. Defense’s Case

In its case, the defense argued that (1) investigators

(primarily Detective Darino) coerced Petitioner into making

false statements by threatening to charge his brother Julio with

murder; and (2) in closing, that Petitioner’s friend Little

Julio may have been the culprit, Tr. 694:8-695:11; 699:12-701:1.

In support of this theory, the defense called Julio and

Petitioner to testify.

1. Julio’s Testimony

Julio (Petitioner’s brother) testified that he went to

the bar with Petitioner and two friends, Little Julio and JP,

where they met Petitioner’s cousin, Ms. Serrano, and her

boyfriend, Mr. Cordova, at the bar. Julio 461:12-463:3.

At some point on the night in question, Julio turned

around and saw three men surrounding Petitioner (with Little

Julio at Petitioner’s side). Julio 467:9-25. Julio came over

and placed himself between and in front of Petitioner and Little

Julio, facing Mr. Solomon and the victim. Julio 468:8-18. As

the group exchanged words, a “dark”, “skinny,” “tall” man (Mr.

Solomon) struck Julio and a fight erupted. Julio 468:16-469:5.

Julio testified (consistent with his statement to investigators)

that he witnessed a punch come over his shoulder toward the

victim, and that the sleeve “could have” been camouflage. Julio

469:1; 470:6-18. Shortly thereafter, the bouncer grabbed

Petitioner to break up the fight. Julio 512:21-513:9.

Julio testified that he left the bar shortly after

Petitioner, and that the group reunited on the sidewalk a few

blocks away. Julio 473:4-16. Petitioner, Little Julio, and

Julio briefly met Ms. Serrano and Mr. Cordova there before

everyone decided to go home. Julio 474:20-21; 524:5-7; 525:12-

13. Julio testified that, while they were there, he spoke with

Petitioner for about “five minutes” about the fight, and that

Petitioner appeared “fine.” Julio 473:24-474:14.

Julio testified that police (including Detective

Darino) came to his home early on the morning of February 28 and

brought him in handcuffs to the police station. Julio

477:6-7. At the police station, Detective Darino and another

detective, Hector Rivera, placed Julio in a room where they

removed his shoelaces and belt. Julio 478:21-23. The

detectives questioned Julio without recording the

conversation. Julio 481:1-13. During this conversation,

Detective Rivera told Julio “about three times” (in Detective

Darino’s presence) that if Julio did not help them find

Petitioner, Julio “could be charged with the murder.” Julio

480:10-17; 484:15-21.

Julio testified that he was questioned again at the

police station by “a lady” (ADA Sipress) in the presence of

detectives Darino and Rivera. Julio 484:22-485:7; Sipress

443:23-24. During questioning, Julio testified, “the lady”

repeatedly stopped and started the tape, and when the tape was

stopped, Detective Rivera asked Julio whether it was a

“camouflage jacket” that Julio saw punch over him. Julio

486:1-21. Julio replied, “four or five times” that it “could

have been.” Julio 4:22-487:1. This testimony, however, was

disputed. At the close of argument, the state recalled ADA

Sipress, who testified that she never “stopped and started” the

tape during her conversation with Julio. Sipress 678:15-679:2.

The state then played the tape, which apparently was continuous.

Sipress 681:20-24.

2. State’s Cross-Examination Regarding Julio’s

Statements to Ms. Serrano and Mr. Cordova

On cross-examination, the state asked Julio questions

designed to elicit the pre-trial statements Ms. Serrano and Mr.

Cordova had apparently recanted: namely, that Julio told Ms.

Serrano (in the presence of Mr. Cordova) that Petitioner told

Julio he had stabbed the victim. Julio 523:23-526:1 (asking

whether Julio told Ms. Serrano on the street after the bar that

Petitioner “had stabbed the guy several times,” “got him jigged

in the arm . . . and in the neck,” or that Petitioner “went

crazy and start[ed] stabbing the guy”). Julio denied each of

these questions and testified that Ms. Serrano told him that

“somebody got stabbed.” Julio 524:25-525:17.

The next day, the defense questioned Julio as to

whether he spoke to Ms. Serrano or Petitioner first after the

fight. Julio 535:1-5. Julio testified that he spoke to Ms.

Serrano before speaking to Petitioner. Julio 533:1-535:19.

3. Defendant’s Testimony

Petitioner testified in his own defense; he described

the night as follows. At some point, Petitioner went to the

bar’s restroom to take a phone call. Petitioner 543:9-13. A

young man entered and told Petitioner “this ain’t no phone

booth.” Petitioner 543:24-544:3. Petitioner did not respond

and left the bathroom to rejoin his friends outside. Petitioner

544:10-12. While talking to Little Julio, the man “walked out

of the bathroom and brushed into [Petitioner],” giving him an

“aggressive” “stare.” Petitioner 544:22-545:4. Then, as

Petitioner was buying drinks, he turned around and saw the man

again. When they made eye contact, the man “bopped his head

like ‘what’s up?’” Petitioner 545:24-546:2.

In response, Petitioner approached the man and asked

him “what seems to be the problem?” Petitioner 546:3-4. The

man responded “I ain’t got no problem. You got a problem?”

Petitioner 546:4-5. Little Julio then came over “like a little

Tasmanian devil.” Petitioner 546:5-25; 563:20-564:4. As

Petitioner told Little Julio to “chill,” the “taller kid” (Mr.

Solomon) “took a swing” at Petitioner. Petitioner 547:8-

13. Petitioner reacted with “at least three” closed-fist

punches aimed at Mr. Solomon and the victim’s faces. Petitioner

547:17-549:2; 626:5-24. Petitioner testified that he did not

have a knife. Petitioner 548:19-25.

Around the time Petitioner threw a punch, Julio and JP

arrived. Petitioner 549:5-11 (Julio arrived “after” Petitioner

threw a punch); 564:5-8 (Julio arrived “when” Petitioner threw a

punch). The bouncer then “manhandled” Petitioner “to the door.”

Petitioner 549:6-11. Petitioner attempted to “get back in,” but

the bouncers prevented Petitioner from re-entering. Petitioner

550:1-7. Inside, he heard “people screaming, shouting, the

chairs being, scratching the floor.” Petitioner 550:13-16.

Unable to enter, Petitioner went toward his car,

which was parked nearby. Petitioner 550:21-22. He then saw

Little Julio leave the bar and walk in his direction.

Petitioner 551:4-17. The two entered Petitioner’s car and

Petitioner attempted to contact Julio. Petitioner 551:18-

552:12. Julio told Petitioner to meet him, JP, and Ms. Serrano

at a nearby intersection. Petitioner 552:13-553:3. Petitioner

drove Little Julio to reunite with the group (Julio, JP, Ms.

Serrano, and Mr. Cordova). Petitioner 552:11-553:3; 554:1-4;

570:14-24. After meeting, everyone decided to go home for the

night. Petitioner 554:16-19.

Petitioner testified that, at some point while Little

Julio was in his car, Petitioner noticed “dry” “blotches” of

blood on the “chest” or “shoulder part” of Little Julio’s

jacket. Compare Petitioner 553:4-20 (Petitioner noticed blood

on Little Julio’s jacket before driving to meet Julio); 569:6-9

(Petitioner did not notice “anything unusual about” Little

Julio’s jacket before meeting Julio); 570:11-17; 628:16-18;

630:2-11; 631:22-632:1 (Petitioner noticed the blood under the

lights of a gas station when dropping off Little Julio at his

home after meeting Julio). Petitioner also testified that he

was “not sure” where in the car he put his hat, but that he

“probably had it on.” Petitioner 556:4-9; 571:1-5.

Petitioner testified that he did not know the outcome

of the bar fight until around 3 p.m. on February 27, when his

friend JP (who was also at the bar the night before) informed

Petitioner that there was a “police line” at the bar.

Petitioner 574:21-575:13. Later, in the early hours of February

28, detectives brought Petitioner to the police station and

began questioning him in an interrogation room. Petitioner

575:22-576:17.

At the police station, Petitioner testified, he denied

responsibility for the homicide. Petitioner 577:13-19. In

response, Detective Darino “kept coming back and forth” into the

room, telling Petitioner “we have your brother here being

charged with murder” and that “your brother’s about to face life

in jail just cause he tried to save your ass at a fight . .

. when you can easily just plead self defense . . . . Get a

little eight to ten years instead of y’all both facing life in

prison.” Petitioner 576:18-579:6.

Eventually, Petitioner told Detective Darino “how I’m

going to plead self defense” and asked “what you want me to

say?” Petitioner 579:8-19. Detective Darino told Petitioner to

write that “you had a knife and struck the guy, you know, in

self defense,” and “I’ll let your brother go.” Petitioner

579:12-14. Petitioner wrote the statement, misspelling his own

first name in the process. Petitioner 579:15-580:2. When

Petitioner was about to sign his written statement, Detective

Darino told Petitioner to “hold on” because he had “more papers

for you to sign.” Petitioner 580:24-581:18. Detective Darino

then read Petitioner his Miranda rights for the first time off a

preprinted sheet after Petitioner’s statement was written.

Petitioner 581:21-582:6.

Detective Darino then took Petitioner to another room

to meet with ADA Sipress. Detective Darino told Petitioner to

repeat “what you wrote down.” Petitioner 583:20-22. Petitioner

then gave ADA Sipress a “false statement.” Petitioner

583:15-17.

G. Cross Examination of Petitioner

On cross-examination, Petitioner repeated that he

threw “at least three” closed-fist “swings” at the “faces” and

“upper body” of the victim and Mr. Solomon, who were standing in

front of Petitioner during the fight. Petitioner 626:5-627:24.

Petitioner also acknowledged that he had never mentioned the

blood on Little Julio’s jacket during the first trial (at which

Petitioner testified for two hours) or to detectives during the

initial investigation into the victim’s death. Petitioner

635:1-637:18.

H. The Charge Conference and Verdict

Justice Marrus held a charge conference after the jury

was excused at the close of argument. The defense requested

that the court submit instructions on second-degree manslaughter

on the grounds that the jury could find Petitioner acted

recklessly but not intentionally. Justice Marrus refused

because “[t]here is no reckless theory in this indictment” and

“neither” side was “going with that theory.” Tr. 648:2-23.

Accordingly, Justice Marrus instructed the jury on second-degree

murder and first-degree manslaughter. On May 13, 2009, the day

argument closed, the jury found Petitioner guilty of first-

degree manslaughter but acquitted him on the second-degree

murder charge.

I. Sentencing

Sentencing occurred approximately a month after the

verdict. There, defense counsel made an “oral 330.30” motion to

set aside the verdict and asked the court “to reconsider denying

[me] the time I need to put the affidavits in.” S. 3:9-15. It

was not entirely clear what the affidavits would have said.

Nevertheless, the court agreed to hear the oral motion if the

defense was “ready” to make it. S. 3:18-23. Defense counsel

agreed to make the motion. S. 3:24.

The defense moved “on the grounds indicated initially

in my May 6, 2009 letter” regarding the “recant[ation]” of Ms.

Serrano. S. 4:11-15. Defense counsel explained that an

“investigator was appointed,” and that defense counsel gave the

investigator the contact information the state provided for

witnesses Ms. Serrano and Mr. Cordova on May 6. S. 4:23-5:3.

The investigator subsequently learned that the contact number

for at least Ms. Serrano was “not in operation.” S. 5:5.

The investigator found Ms. Serrano at her workplace

after the verdict was rendered. S. 5:6-10. Defense counsel

interviewed Ms. Serrano the week before sentencing. S. 5:11-15.

Ms. Serrano told counsel that she “went to the police several

days after” the incident after learning about it in a

“newspaper.” S. 6:4. Ms. Serrano said that she initially told

the police she “didn’t see what happened” and “Julio didn’t say

anything about his brother” stabbing someone. S. 6:11-7:5.

After the police interrogated her for “hours on hours” and

threatened to “take her kid away,” Ms. Serrano falsely stated

that Julio told her that Petitioner stabbed someone that night.

S. 7:6-9:7.

After hearing from Ms. Serrano, counsel directed the

investigator to locate Mr. Cordova. S. 8:8-11. The

investigator reported to counsel that Mr. Cordova gave a similar

story about police pressure. S. 8:12-9:1. Counsel acknowledged

he had not yet spoken to Mr. Cordova at the time of sentencing.

S. 8:12-16.

Counsel argued that he would have called Ms. Serrano

and Mr. Cordova “to establish” the “extraordinary menacing

pressure put on [Ms. Serrano], pressure my client testified to,”

in order to impeach Detective Darino’s testimony that there was

“no pressure” and to prevent the prosecution from questioning

Julio about inculpatory statements he (allegedly) made to Ms.

Serrano. S. 9:2-14. Counsel further argued that “he couldn’t

discover this information sooner” and was entitled to know about

it before the “late morning of the first day of trial.”

S. 9:15; 10:1-14.

The state replied that Mr. Cordova testified before

the grand jury in the first case that he had seen “the defendant

was wearing the camouflage jacket, that there was an altercation

between him and the victim in this case . . . and that he had

seen the arm of the person coming over.” S. 11:10-17. At least

some of Ms. Serrano or Mr. Cordova’s sworn statements were also

audiotaped. S. 12:2-4. Given the witnesses’ prior inconsistent

statements, the state explained that it refused to call the

witnesses because they were “possibly going to commit perjury.”

S. 12:5-7.

The court denied Petitioner’s oral motion. First,

Justice Marrus found that the oral motion was “procedurally

defective” because it was based on hearsay without affidavits.

S. 14:21-15:5. On the merits, Justice Marrus noted that the

witnesses did not testify at trial so “there was no evidence

that they gave that resulted in any guilty verdict.” S. 15:5-9.

Moreover, “realistically they could [not] have been called as

defense witnesses” given their prior inconsistent statements,

making them “useless to both sides.” S. 15:10-17. Finally,

there was “no evidence offered to be rebutted by calling these

witnesses” because Julio denied telling Ms. Serrano that

Petitioner stabbed the victim. S. 15:22-16:4.

Justice Marrus then sentenced Petitioner to the

statutory maximum prison term of twenty-five years.

S. 35:18-20. He noted that Petitioner’s testimony “didn’t have

the ring of truth and was very inconsistent with his prior

accounts.” S. 32:9-13. Justice Marrus also noted Petitioner’s

“dreadful” criminal record, including convictions for possession

of a gun, robbery, and drug dealing. S. 33:18-34:10.

J. Post-Conviction Proceedings

On direct appeal, Petitioner argued that the trial

court’s failure to charge the lesser-included offense violated

due process and that his sentence was excessive, but he did not

assert any Miranda or Brady/Giglio claims. The Appellate

Division, Second Department and Court of Appeals affirmed

Petitioner’s conviction. See People v. Rivera, 100 A.D.3d 658

(N.Y. App. Term 2012), aff’d 23 N.Y.3d 112 (2014).

On June 11, 2014, Petitioner moved under N.Y. Criminal

Procedure Law Section 440.10 to vacate his conviction. ECF No.

10 at 1. In this proceeding, Petitioner raised Miranda and

Brady/Giglio claims and argued that he was actually innocent.

See id. at 4-26. On September 4, 2014 the Supreme Court, Kings

County denied his motion on procedural grounds. See Section

440.10 Sup. Ct. Order at 1-2, ECF No. 10 at 69-70. The

Appellate Division, Second Department summarily affirmed, see

Section 440.10 Second Department Order at 1, and the Court of

Appeals denied leave to appeal, see Section 440.10 Court of

Appeals Order at 1, ECF No. 10 at 81.

III. Legal Analysis

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) provides that a reviewing court may grant a writ of

habeas corpus only if the state’s “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; 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)(1)-(2).

A. Failure to Charge Lesser-Included Offense

As discussed above, Justice Marrus declined to submit

a second-degree manslaughter instruction to the jury because he

found there was no theory of the case under which the jury could

find recklessness (rather than intent). Tr. 648:2-23.

Accordingly, Justice Marrus submitted secoxjnd-degree murder

(intent to kill) and first-degree manslaughter (intent to cause

serious bodily harm) charges to the jury.

On direct appeal, Petitioner argued that the refusal

to charge the lesser-included offense of second-degree

manslaughter violated the Due Process Clause of the U.S.

Constitution, given the facts of this case. Petitioner’s Second

Department Direct Br. at 21-35, ECF No. 21; Petitioner’s Court

of Appeals Direct Br. at 16-31, ECF No. 10 at 82-117. He argued

that a jury could have found Petitioner’s actions to have been

merely reckless, given that the stabbing occurred in a “chaotic

barroom brawl.” Petitioner’s Court of Appeals Direct Br. at 16.

The state appellate courts rejected Petitioner’s argument on the

merits. See People v. Rivera, 100 A.D.3d 658, 660 (N.Y. App.

Term 2012), aff’d 23 N.Y.3d 112, 122-24 (2014). Petitioner now

brings this claim here.

To succeed under the AEDPA, Petitioner must show that

the trial court’s refusal to charge second-degree manslaughter

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). “[C]learly

established Federal law” includes “holdings, as opposed to the

dicta, of [the Supreme Court’s] decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S.

362, 412 (2000); see also Loliscio v. Goord, 263 F.3d 178, 191

(2d Cir. 2001) (the rule must be found in “clearly established

Supreme Court precedent”); Delvalle v. Armstrong, 306 F.3d 1197

(2d Cir. 2002) (Second Circuit precedent is not sufficient).

No Supreme Court precedent requires the submission of

lesser-included offenses to the jury in non-capital cases.

While the Supreme Court has required courts to submit lesser-

included offenses in capital cases, this rule has not been

extended further. See Beck v. Alabama, 447 U.S. 625, 637-38 &

n.14 (1980) (holding that courts must instruct the jury on

lesser-included offenses “in a capital case,” but stating that

“[w]e need not and do not decide whether the Due Process Clause

would require the giving of such instructions in a noncapital

case”). Because the trial court’s refusal to charge second-

degree manslaughter did not violate “clearly established Federal

law,” this claim does not survive the AEDPA’s strict standard of

review.

B. Petitioner’s Miranda Claim

Petitioner argues that his statement to law

enforcement should have been suppressed for three reasons:

first, he was not read his Miranda rights before making his oral

and written statements to detectives; second, he did not consent

to answer ADA Sipress’ questions after she read him his Miranda

rights following his conversations with detectives; and third,

the entire questioning was tainted because Detective Darino (and

others) pressured him to make false statements by threatening to

charge his brother Julio with murder. The first two claims fall

within Miranda’s ambit. See Miranda v. Arizona, 384 U.S. 436,

441-42 (1966) (holding that Miranda warnings are necessary to

“secure the privilege against self-incrimination”), but the

third claim implicates the more general due process inquiry into

whether Petitioner’s statements were “voluntary.” Dickerson v.

United States, 530 U.S. 428, 434 (2000) (holding that, despite

Miranda, the Court has “never abandoned” its “due process

jurisprudence,” and “continue[s] to exclude confessions that

were obtained involuntarily”); see Schneckloth v. Bustamonte,

412 U.S. 218, 226 (1973) (the due process inquiry into “whether

a defendant’s will was overborne” considers “the totality of the

surrounding circumstances — both the characteristics of the

accused and the details of the interrogation”).6

Although Petitioner raised each of these arguments

(including police coercion) in his post-conviction briefs, he

6 In his Section 440.10 brief before Justice Marrus, Petitioner also

argued that the state violated due process because his conviction was

“procured by duress, misrepresentation and fraud on the part of a person

acting for or on behalf of the prosecution.” See Petitioner’s Section 440.10

Sup. Ct. Br. at 10-14. This claim, which is based on Detective Darino’s

did not raise any on direct appeal. See Petitioner’s Section

440.10 Sup. Ct. Br. at 4-14. In Petitioner’s Section 440.10

proceeding, the State argued that Petitioner’s claim was

therefore procedurally barred under Sections 440.10(2)(c) and

440.10(3)(a). See State’s Section 440.10 Sup. Ct. Br. at 1-3.

Section 440.10(2)(c) provides that a post-conviction court “must

deny a motion to vacate a judgment” if the claimant could have

raised the argument on direct appeal but “unjustifiabl[y]

fail[ed]” to do so. N.Y. Crim. Proc. Law § 440.10(2)(c).

Section 440.10(3)(a) supplements Section 440.10(2)(c) by adding

that a post-conviction court “may” also deny such a motion if it

rests on a basis that could have been raised on direct appeal,

had the claimant acted with “due diligence” in developing the

record at trial. N.Y. Crim. Proc. Law § 440.10(3)(a).

In rejecting Petitioner’s claim as procedurally

barred, Justice Marrus (the Section 440.10 and trial-court

judge) found that “there were sufficient facts in the record to

provide for appellate review” of Petitioner’s Miranda claim “and

the defendant has offered no justification for his failure to

raise” the argument on direct appeal. Section 440.10 Sup. Ct.

Order at 1 (citing N.Y. Crim. Proc. Law § 440.10(2)(c)).

Adopting the state’s argument, Justice Marrus further concluded

allegedly coercive conduct, rises and falls with Petitioner’s “Miranda”

claim, and ultimately cannot succeed for the same reason.

that “the defendant had a chance to litigate any alleged

coercion of his pretrial statements at his [pre-trial

suppression] hearing, but never raised such a claim.” Id. (not

citing N.Y. Crim. Proc. Law § 440.10(3)(a)). The Appellate

Division summarily affirmed the post-conviction ruling, see

Section 440.10 Second Department Order at 1, and the New York

Court of Appeals denied Petitioner’s leave for appeal under

Section 440.90(1). Section 440.10 Court of Appeals Order at 1.

A federal habeas court may not review the judgment of

a state court that rests on a ground of procedural default that

is “independent of the federal question and adequate to support

the judgment.” See Coleman v. Thompson, 501 U.S. 722, 729

(1991). To be “independent” of federal law, the court’s

“reliance on state law must be clear from the face of the

opinion.” Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 809 (2d

Cir. 2009) (internal quotations omitted). Such a state-law

basis is “adequate” if it is premised on a state-law rule that

is “firmly established and regularly followed” by courts of the

state. Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).

Finally, where (as here) a state appellate court affirms the

denial of a claim without comment, federal habeas courts must

review the last “reasoned” state-court opinion to assess the

basis for the denial. Ylst v. Nunnemaker, 501 U.S. 797, 803

(1991) (“[W]here . . . the last reasoned opinion on the claim

explicitly imposes a procedural default, we will presume that a

later decision rejecting the claim did not silently disregard

that bar and consider the merits.”).

Applying this test, the Court finds that Petitioner’s

Miranda and due process claims are procedurally barred. As

Justice Marrus was last to opine on this claim, his decision

forms the basis of this Court’s review. That decision relied on

an independent state-law basis to dismiss Petitioner’s claim as

procedurally barred — namely, default under Sections

440.10(2)(c) and 440.10(3)(a) of the New York state procedural

code.7 This basis for decision was also an “adequate” one

because Sections 440.10(2)(c) and 440.10(3)(a) are “firmly

established and regularly followed” rules in New York state

courts. See, e.g., Williams v. Goord, 277 F. Supp. 2d 309, 318-

19 (E.D.N.Y. 2003) (“The Second Circuit and this Court have

previously held that the denial of a § 440.10 motion for failure

to raise a claim on direct appeal represents the application of

a ‘firmly established and regularly followed’ New York rule.”);

Campbell v. Lee, 11-cv-7737, 2016 WL 6901425, at *5 (S.D.N.Y.

7 Although Justice Marrus did not specifically cite N.Y. Crim. Proc. Law

§ 440.10(3)(a) in his opinion, “it is clear” that the court was relying on

that provision given the briefing before him. See Martinez v. Connelly, 09-

cv-648, 2011 WL 5252750, at *8 n.4 (S.D.N.Y. July 5, 2011) (state court

denied Section 440.20 motion (to set aside a sentence as excessive) where

trial court’s decision substantially tracked the procedural-bar language in

Section 440.20(2), even though the decision did not explicitly cite that

provision), report and recommendation adopted 2011 WL 5252749 (S.D.N.Y. Nov.

3, 2011).

Sept. 29, 2016) (“Even though CPL § 440.10(3)(a) is permissive,

it is a procedural rule that is firmly established and regularly

followed and can be the basis for a procedural bar.”), report

and recommendation adopted 2016 WL 6892766 (S.D.N.Y. Nov. 21,

2016); see also Murden v. Artuz, 497 F.3d 178, 193 (2d Cir.

2007) (“The statutory grant of discretion does not prevent

Section 440.10(3) from operating as a procedural bar.”).

Accordingly, these claims are procedurally barred.

To overcome default, Petitioner must either

“demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.” Galdamez v Keane, 394 F.3d 68, 73 (2d

Cir. 2005). The instant Petition does not satisfy this exacting

standard.

Petitioner argues that the Court should excuse his

default because he was unrepresented during his Section 440.10

proceeding and on this habeas petition. Petitioner’s Reply 1-4,

ECF No. 16; Petitioner’s Affidavit in Support of Motion to Amend

Traverse at 5, ECF No. 12-1 (arguing that the Section 440.10

court should not have found procedural default “based on lack of

due diligence”).

This argument falters because Petitioner’s Miranda

argument was defaulted on direct appeal, not in his Section

440.10 proceeding. Petitioner was represented at that stage (by

Warren Landau, Esq.) and therefore any default was not the

result of his being unrepresented. See Petition at 12.

Likewise, Petitioner’s default on his due process claim occurred

at the suppression hearing before his first trial, when

Petitioner was represented by Mr. Dranove (who also represented

Petitioner at his second trial). Id. Because Petitioner does

not argue that either counsel was constitutionally inadequate,

he offers no cause for these defaults. See Coleman, 501 U.S. at

753-54 (for purposes of assessing “cause,” “[s]o long as a

defendant is represented by counsel whose performance is not

constitutionally ineffective . . . we discern no inequity in

requiring him to bear the risk of attorney error that results in

a procedural default” on appeal); see also Murray v. Carrier,

477 U.S. 478, 492 (1986) (“[C]ause for a procedural default on

appeal ordinarily requires a showing of some external impediment

preventing counsel from constructing or raising the claim.”).8

C. Petitioner’s Brady/Giglio Claim

8 In any event, it is far from clear that Petitioner’s Miranda and due

process arguments would succeed on the merits. Even if Petitioner made

statements to police before he was read Miranda warnings, it is undisputed

that ADA Sipress read Petitioner his rights before Petitioner made materially

similar statements to her. And at the suppression hearing before

Petitioner’s first trial, Justice Collini specifically found (based on

Petitioner’s videotaped statements) that Petitioner “absolutely” “indicated

his acquiescence” to ADA Sipress’ questioning. See H1 46:2-9; 109:25-110:5.

Petitioner claims that the prosecution violated Brady

v. Maryland9 and Giglio v. United States10 by waiting until the

morning of jury selection in the second trial to disclose that

Ms. Serrano and Mr. Cordova had recanted their prior inculpatory

statements. Petitioner argues that, had the defense known of

the recantation earlier, the defense would have called Ms.

Serrano and Mr. Cordova as witnesses to buttress the defense’s

theory that investigators (specifically, Detective Darino)

“framed” Petitioner in a rush to judgment, as well as to impeach

Detective Darino. There is no indication that the witnesses

told the state that their statements were coerced when they

recanted.

Petitioner did not raise this claim on direct appeal,

but did raise it in his Section 440.10 briefs. See Petitioner’s

Section 440.10 Sup. Ct. Br. at 14-27. Like Petitioner’s Miranda

claim, Justice Marrus denied Petitioner’s Brady claim as

“procedurally barred” under Section 440.10(2)(c) because “there

were sufficient facts in the record to provide for appellate

review of [Petitioner’s claims] and the defendant has offered no

justification for his failure to raise them on his recently

9 373 U.S. 83 (1963).

10 405 U.S. 150, 151 (1972) (holding that exculpatory evidence under

Brady includes evidence that could be used to impeach a key government

witness, provided the evidence is “material” to the outcome of trial within

the meaning of Brady).

concluded judgment appeal.” Section 440.10 Sup. Ct. Order at

1-2. Justice Marrus further noted that Petitioner “already has

litigated this claim of delayed disclosure of Brady material in

a motion to set aside the verdict,” which he had “rejected . . .

as meritless.” Id.

Because Justice Marrus clearly relied on Section

440.10(2)(c) in dismissing this claim, Petitioner’s Brady claim

is procedurally barred for the same reasons as his Miranda

claim.11

Petitioner cannot bypass this default. Even assuming

the state’s untimely disclosure constitutes “cause” to overcome

default, Petitioner cannot demonstrate prejudice. To establish

a claim under Brady/Giglio, the evidence in question must be

(1) “favorable to the accused, either because it is exculpatory,

or because it is impeaching”; (2) “suppressed by the State”; and

(3) result in “prejudice.” Strickler v. Greene, 527 U.S. 263,

281-82 (1999).

11 Although Justice Marrus’ opinion may be read to rely, in the

alternative, on a substantive assessment of Petitioner’s Brady claim, that

fact does not strip the decision of its independent reliance on the state

procedural bar found in Section 440.10(2)(c). See Green v. Travis, 414 F.3d

288, 294 (2d Cir. 2005) (“[F]ederal habeas review is foreclosed when a state

court has expressly relied on a procedural default as an independent and

adequate state ground, even where the state court has also ruled in the

alternative on the merits of the federal claim.”) (quoting Glenn v. Bartlett,

98 F.3d 721, 724 (2d Cir. 1996)).

In assessing the prejudice emanating from an alleged

Brady/Giglio violation, the question is whether “in the absence

of the undisclosed evidence, the accused ‘received a fair trial,

understood as a trial resulting in a verdict worthy of

confidence.’” Boyette v. Lefevre, 246 F.3d 76, 92 (2d Cir.

2001) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995); see

also United States v. Bagley, 473 U.S. 667, 682 (1985) (a

claimant is denied of a fair trial where “there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different”). As the analysis of prejudice under Brady/Giglio

overlaps with the standard for excusing default in a habeas

petition, the Court will consider this factor under the

Brady/Giglio prejudice rubric set out in Boyette and Bagley.

See Banks v. Dretke, 540 U.S. 668, 681 (2004) (“[P]rejudice

within the compass of the ‘cause and prejudice’ requirement

exists when the suppressed evidence is ‘material’ for Brady

purposes.”).

Even assuming the state failed to disclose the

witnesses’ recantation “in time for its effective use at trial,”

United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001), this

evidence was not Brady material because the fact that these

witnesses recanted had no “independent exculpatory value.”

Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir. 2010). This is

because the recantations did not, in and of themselves, indicate

that Petitioner was innocent. They merely removed what might

have been inculpatory evidence from the state’s case. See,

e.g., Penick v. Filion, 144 F. Supp. 2d 145, 154 (E.D.N.Y. 2001)

(“Where, as here, the recantation is unsworn, and is repudiated

by sworn testimony, there is an even greater need for

skepticism.”).

Petitioner thus cannot show — under Brady or Giglio —

that there is a “reasonable probability that the suppressed

evidence would have produced a different verdict” if disclosed.

Strickler, 527 U.S. at 280.

D. Excessive Sentence

On direct appeal, Petitioner argued to the Second

Department that his sentence (twenty-five years, plus five years

of supervised release) is excessively long, and moved the Court

to modify the sentence pursuant to N.Y. Crim. Proc. Law § 470.15

(which allows an appellate court to modify a defendant’s

sentence if it finds the sentence was “illegal or unduly harsh

or severe”). Petitioner’s Second Department Direct Br. at 33-

35, ECF No. 21

To receive federal habeas relief, petitioners must

have “exhausted the remedies available in the courts of the

State.” 28 U.S.C. § 2254(b). To do so, a petitioner must

present his federal claim to the highest court of the state.

Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). A petitioner

may do so by either “raising the federal claim on direct appeal

to the state’s highest court or by collateral attack of the

conviction and subsequent appeal of the denial of that

application to the state’s highest court.” Harris v. Hollins,

No. 95-cv-4376, 1997 WL 5909, at *2 (S.D.N.Y. Jan. 7, 1997).

In doing so, the claim also must be “fairly presented”

to the state courts. Picard v. Connor, 404 U.S. 270, 275

(1971). A claim is “fairly presented” where the Petitioner

“placed before the state court essentially the same legal

doctrine he asserts in his federal petition.” Daye v. Att’y

Gen. of State of N.Y., 696 F.2d 186, 192 (2d Cir. 1982).

Accordingly, a petitioner’s state-court briefs must:

rel[y] on pertinent federal cases employing

constitutional analysis, (b) rel[y] on state cases

employing constitutional analysis in like fact

situations, (c) assert[] . . . the claim in terms so

particular as to call to mind a specific right protected

by the Constitution, [or] (d) alleg[e] . . . a pattern of

facts that is well within the mainstream of

constitutional litigation.”

Id.

Here, Petitioner presented his excessive-sentence

claim to the Second Department as a matter of state law only and

did not raise the claim to the Court of Appeals. In his Second

Department brief, Petitioner relied exclusively on state-law

precedent and fashioned his argument as a claim for relief under

Section 470.15 (to modify his sentence). Petitioner’s Second

Department Direct Br. at 33-35, ECF No. 21. Because Petitioner

did not invoke the Eighth Amendment or otherwise indicate to any

state court that he intended to present a federal question, this

claim was not fairly presented to the state courts. See

Andrango v. Chappius, No. 14-cv-7716, 2015 WL 4039839, at *15

(S.D.N.Y. July 1, 2015) (citing Edwards v. Marshall, 589 F.

Supp. 2d 276, 290 (S.D.N.Y. 2008) (“[A] petitioner’s reliance on

a state procedural law granting courts discretionary authority

to reduce sentences does not fairly present a federal

constitutional claim in state court that would be cognizable on

federal habeas review.”) (internal quotations omitted); see also

Paul v. Ercole, 07-cv-94262, 2010 WL 2899645, at *5 (S.D.N.Y.

June 10, 2010) (“[A] claim that a sentence should be reduced in

the interest of justice does not allege a violation of a

federally protected right.”).

Nevertheless, the claim is exhausted because there are

no remedies available to Petitioner if he returned to state

court. “For exhaustion purposes, a federal habeas court need

not require that a federal claim be presented to a state court

if it is clear that the state court would hold the claim

procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d

Cir. 1997) (internal quotations omitted). “In such a case, a

petitioner no longer has ‘remedies available in the courts of

the State’ within the meaning of 28 U.S.C. 2254(b).” Grey, 933

F.2d at 120. Accordingly, such claims are “deemed exhausted.”

Reyes, 118 F.3d at 139.

Here, Petitioner’s Eighth Amendment claim would be

procedurally barred if it were raised again in state court.

Petitioner has no right to take another direct appeal, Aparicio

v. Artuz, 269 F.3d 78 (2d Cir. 2001) (“Petitioner was entitled

to one (and only one) appeal to the Appellate Division and one

request for leave to appeal to the Court of Appeals”), and

Section 440.10(2)(c) prevents Petitioner from raising the claim

by way of post-conviction collateral attack. Reyes, 118 F.3d at

139-40 (deeming claim exhausted because it would be barred by

Section 440.10(2)(c)); Thomas v. Greiner, 111 F. Supp. 2d 271,

276-77 n.5 (S.D.N.Y. 2000) (finding that Section 440.10(2)(c)

barred the petitioner’s excessive-sentence claim because the

petitioner failed to raise the claim on direct appeal). For

these reasons, the Court deems Petitioner’s Eighth Amendment

claim exhausted, and denies it as procedurally barred. See

Grey, 933 F.2d at 139-40.12

12 This argument would likely fail on the merits, anyway, because

Petitioner was sentenced to a term within the state’s statutory range (albeit

the maximum term allowable). See White v. Keane, 969 F.2d 1381, 1383 (2d

Cir. 1992) (“No federal constitutional issue is presented where, as here, the

sentence is within the range prescribed by state law.”).

E. Actual Innocence

Lastly, Petitioner argues that the Court should grant

his petition because he is actually innocent. The Supreme Court

has “never expressly held that a petitioner may qualify for

habeas relief based solely on a showing of actual innocence.”

Rivas v. Fischeri, 687 F.3d 514, 540 (2d Cir. 2012). However,

“the Supreme Court has recognized that, in rare cases, an

assertion of innocence may allow a petitioner to have his

accompanying constitutional claims heard despite a procedural

bar.” Olivares v. Ercole, 975 F. Supp. 2d 345, 352 (S.D.N.Y.

2013); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)

(“[A] credible showing of actual innocence may allow a prisoner

to pursue his constitutional claims . . . on the merits

notwithstanding the existence of a procedural bar to relief.”).

This is because a sufficient showing of actual innocence

constitutes a fundamental “miscarriage-of-justice” worthy of

excusing procedural default. See House v. Bell, 547 U.S. 518,

536-37 (2006).

To meet this standard, petitioners “must establish

that, in light of new evidence, it is more likely than not that

no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Id. (citing Schlup v. Delo, 513 U.S. 298,

327 (1995) (internal quotations omitted). In making this

showing, petitioners must present “credible” and “reliable”

evidence that was not presented at trial. Schlup, 513 U.S. at

324.

Here, the only “new” evidence Petitioner presents is

his assertion that the NYPD pressured Ms. Serrano and Mr.

Cordova into implicating Petitioner. But for the reasons

explained in the analysis of Petitioner’s Brady/Giglio claim,

this Court cannot conclude that this testimony, if introduced at

trial, would have made it “more likely than not that no

reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Schlup, 513 U.S. at 327. Accordingly, this

is not one of those “rare,” “extraordinary” instances where a

claim of actual innocence excuses default. See Calderon v.

Thompson, 523 U.S. 538, 559 (1998).

IV. Conclusion

The Court deems all of Petitioner’s claims exhausted

and denies them as either meritless or procedurally barred.

Accordingly, Petitioner’s habeas petition is dismissed in its

entirety. Because Petitioner has not made a “substantial

showing of the denial of a constitutional right,” a certificate

of appealability will not issue. 28 U.S.C. § 2253. The Court

certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

would not be taken in good faith and in forma pauperis status is

therefore denied for purposes of an appeal. Coppedge v. United

States, 369 U.S. 438, 444-45 (1962). Petitioner, however, has a

right to seek a further certificate of appealability from the

Court of Appeals for the Second Circuit. See 28 U.S.C.

§ 2253(c)(1).

SO ORDERED.

_____s/Eric Komitee_______________

ERIC KOMITEE

United States District Judge

Dated: September 30, 2020

Brooklyn, New York