Turner v. Bell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

TERRENCE TURNER,

Petitioner, NOT FOR PUBLICATION

– against – MEMORANDUM & ORDER

EARL BELL, 18-CV-2539 (ERK)

Respondent.

KORMAN, J.:

On the morning of October 11, 2010, petitioner Terrence Turner assaulted and raped his

wife repeatedly for three hours. ECF No. 9-4 at 18–20.1 At trial, petitioner testified on his own

behalf, and defended himself on the ground that the sex was consensual and that his wife made

false accusations because she was upset with him. After trial, a jury convicted petitioner of two

counts of rape in the first degree in violation of N.Y. Penal Law § 130.35(1) and one count of

assault in the third degree in violation of N.Y. Penal Law § 120.00(1). Petitioner was sentenced to

25 years of imprisonment for the first rape count and 15 years of imprisonment on the second rape

count, running consecutively. ECF No. 13 at 225–26. Petitioner was also sentenced to one year

of imprisonment on the assault count, to run concurrently with the 25-year sentence. Id.

On direct appeal, petitioner raised several challenges to his conviction. Petitioner’s

counseled brief argued that he was deprived of his statutory speedy trial right because of the

prosecution’s delay. ECF No. 9 at 44. He also argued his constitutional right to present a defense

was violated because the court refused to allow cross-examination of the victim regarding her

1 All citations to the record are to the page number of the PDF, not the internal pagination of the

exhibits.

initial report and denied an adjournment to allow the defense to prepare to present additional

impeachment evidence. Id. at 55. Petitioner also argued that his sentence was excessive. Id. at

66. In a supplemental pro se brief, petitioner argued that he was deprived of his due process rights

because (1) the indictment was duplicitous, and (2) admission of evidence of uncharged crimes

unfairly prejudiced his defense. ECF No. 9-1 at 2.

The Appellate Division modified and affirmed. People v. Turner, 145 A.D.3d 745, 745–46

(2d Dep’t 2016). Petitioner’s challenge under N.Y. Crim. Proc. Law § 30.30(1)(a), the speedy trial

statute, was rejected because the total time chargeable to the prosecution was less than the six

months allowed. Id. at 746. Also rejected was the argument that the curtailment of cross-

examination of the victim kept “from the jury relevant and important facts bearing on the

trustworthiness of crucial testimony” in violation of petitioner’s Sixth Amendment rights. Id.

(quoting People v. Ashner, 190 A.D.2d 238, 247 (2d Dep’t 1993)). The Appellate Division held

that the trial court properly prevented petitioner from introducing extrinsic evidence of prior

conduct to impeach the victim’s credibility. Id. And it rejected as meritless all the challenges

raised by petitioner’s supplemental brief. Id. Finally, it held that petitioner’s sentence was

excessive and modified the judgment to make the sentences imposed on the convictions of rape in

the first degree run concurrently rather than consecutively. Id. The Court of Appeals denied

petitioner’s application for leave to appeal. People v. Turner, 28 N.Y.3d 1189 (2017). The petition

renews all the challenges raised in petitioner’s counseled and supplemental briefs on direct appeal.

See ECF No. 1.

DISCUSSION

Standard of Review

The Antiterrorism and Effective Death Penalty Act allows a federal court to grant habeas

relief to a state prisoner only if a state court’s adjudication “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “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); Williams v. Taylor, 529 U.S. 362, 409–10 (2000). A decision

“involves an unreasonable application” of federal law where it “correctly identifies the governing

legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams, 529

U.S. at 407–08. A petitioner must therefore demonstrate that the state court’s decision was “so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011). This is a “highly deferential standard,” requiring that state courts “be given the benefit of

the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation omitted). However, “[i]t

preserves authority to issue the writ in cases where there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.”

Harrington, 562 U.S. at 102.

Where a state court denies a claim on the merits without explaining its reasons, a petitioner

still bears the burden to show “there was no reasonable basis for the state court to deny relief.”

Harrington, 562 U.S. at 98. In those cases, “a habeas court must determine what arguments or

theories . . . could have supported[] the state court’s decision,” and then accord deference if “it is

possible [that] fairminded jurists could disagree that those arguments or theories are inconsistent

with the holding in a prior decision” of the Supreme Court. Id. at 102; see also Shinn v. Kayer,

141 S. Ct. 517, 524 (2020) (per curiam) (“[W]e must determine what arguments or theories . . .

could have supported the state court’s determination. . . . Then we must assess whether fairminded

jurists could disagree on the correctness of the state court’s decision if based on one of those

arguments or theories.”) (internal quotation marks omitted).

Speedy Trial

Petitioner argues that he “was deprived of his statutory right to a speedy trial by the

[prosecution’s] failure to exercise due diligence in obtaining his DNA.” ECF No. 1 at 6.

Petitioner’s “claim that the state court erred in its decision regarding his speedy trial rights under

New York state law is not cognizable on habeas review.” Singh v. Fischer, 2004 WL 2999106, at

*4 n.4 (E.D.N.Y. Dec. 28. 2004); see also Macaluso v. Keyser, 2020 WL 8880941, at *4 (E.D.N.Y.

Dec. 15, 2020). In his reply, petitioner argues that his petition raised a constitutional speedy trial

reviewable under Barker v. Wingo, 407 U.S. 514 (1972). However, petitioner styled his own

ground for relief as arising from deprivation of “his statutory right to a speedy trial,” ECF No. 1

at 6 (emphasis added), and he has never sought to amend his petition to reflect a constitutional

claim. Even if he had, the claim would be barred as unexhausted because neither petitioner’s

counseled brief nor his supplemental brief on direct appeal alleged a violation of his constitutional

right to a speedy trial. Raising a claim pursuant to § 30.30 is not sufficient to exhaust the separate

constitutional claim. Gibriano v. Att’y Gen., 965 F. Supp. 489, 491–92 (S.D.N.Y. 1997); see also

Rodriguez v. Superintendent, 549 F. Supp. 2d 226, 237–38 (N.D.N.Y. 2008).

In any event, this unexhausted claim may also be denied because it is without merit. See

28 U.S.C. § 2254(b)(2). Under Barker v. Wingo, petitioner must make an initial showing “that the

interval between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay.” Doggett v. United States, 505 U.S. 647, 651–52 (1992). Once

a threshold showing is made, four factors govern the merits analysis: “(1) the length of the delay;

(2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial;

and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly.”

United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012). Petitioner was arraigned in criminal court

on October 12, 2010. The jury in his case was not sworn until February 26, 2013. ECF No. 11 at

85; see N.Y. Crim. Proc. Law § 1.20(11) (“A jury trial commences with the selection of the jury”).

This 28-month delay qualifies as “presumptively prejudicial” and triggers the full Barker inquiry.

United States v. Moreno, 789 F.3d 72, 82 (2d Cir. 2015).

Petitioner’s claim founders on the second Barker factor: the reason for the delay. “[T]he

Sixth Amendment is rarely violated if the delay is attributable entirely to the defendant[] or if the

delay serves some legitimate purpose such as time to collect witnesses[ or] oppose pretrial

motions.” United States v. Cabral, 979 F.3d 150, 158 (2d Cir. 2020) (internal quotations omitted).

In rejecting petitioner’s statutory speedy trial claim, the Appellate Division held that the delay

chargeable to the prosecution was less than six months. Turner, 145 A.D. 3d at 746. Indeed, much

of the delay was attributable to petitioner’s own refusal to comply with a court order that he provide

a DNA sample, which forced the prosecution to take the time to obtain the evidence from a state

database. As the prosecution explained in July 2011, the office policy was to re-swab defendants

for DNA testing instead of using the state database because the process of “retrieving all of the

records, locating all of the witnesses from Albany, and having them come to Brooklyn to testify”

was generally less efficient and could take significant time to complete. ECF No. 5 at 7. Using

the state database to prove that petitioner was the source of the DNA recovered from the victim

“would require [the prosecution] to investigate the identities, whereabouts, and availability of all

the people who were involved in the DNA testing and profiling of [petitioner] for the DNA

databank.” Id. at 5. As it happened, one of those people had left state employment and was

residing outside New York, necessitating further delay to locate that person. Id. at 6. Much or all

of this delay could have been avoided had petitioner complied with the court order to supply a

DNA sample.

Finally, petitioner fails to identify any prejudice flowing from the claimed delay.2 The

Second Circuit has “generally required a showing of some significant trial-related disadvantage in

order to establish a speedy-trial violation.” Cain, 671 F.3d at 297. Petitioner’s briefing to the

Appellate Division did not articulate any theory of prejudice, probably because the state statutory

claim he actually exhausted does not require such a showing. See People v. Malloy, 137 A.D.3d

1304, 1304 (2d Dep’t 2016) (“When a defendant is accused of a felony, the indictment must be

dismissed unless the People are ready for trial within six months after the commencement of the

criminal action”). A constitutional speedy-trial claim requires more, and petitioner has not carried

his burden to show prejudice.

Evidence of Prior Acts

Petitioner claims his right to due process was violated by the trial court’s admission of

evidence of prior charged and uncharged crimes. See ECF No. 1 at 18–20; ECF No. 9-1 at 31.

Specifically, petitioner challenges the decision to admit evidence of three incidents that took place

prior to the 2010 crimes resulting in the convictions he challenges here. In 2003, the victim

reported petitioner to the police for possessing a gun and selling drugs out of her apartment. That

report led to petitioner’s conviction and incarceration on a gun charge in 2004. In April 2009,

petitioner ripped out the victim’s hair, pushed her, choked her, squeezed her nostrils and almost

cracked her back. ECF No. 10 at 3–4; ECF No. 12 at 216. After a pre-trial hearing under People

v. Molineux, 168 N.Y. 264 (1901), the trial court admitted the victim’s report and petitioner’s

subsequent incarceration as probative of motive because the victim planned to testify that the

2 The threshold showing of a period that is presumptively prejudicial — which simply triggers the

full Barker analysis — “should not be confused with a delay that is so long as to cause

‘presumptive prejudice’ (i.e. prejudice that need not be specifically shown).” Moreno, 789 F.3d at

78 n.3.

petitioner had called her a “rat” and a “snitch” while raping her, and the 2009 physical abuse as

probative of the forcible compulsion element of the first degree rape charge. ECF No. 10 at 62–

67; N.Y. Penal Law § 130.35(1). The trial court denied the prosecution’s motion to admit evidence

of several other prior incidents of abuse. ECF No. 10 at 62–67.

Both before the Appellate Division and again here, petitioner asserts that this evidence was

improperly introduced to prove his criminal propensity and that its probative value was outweighed

by prejudice. The Appellate Division rejected the claim as meritless without explaining its

reasoning. Turner, 145 A.D.3d at 746. Under these circumstances, it is necessary to consider the

theories or arguments that could have supported its decision and accord deference unless “there is

no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the

Supreme] Court’s precedents.” Harrington, 562 U.S. at 102.

While the evidence was surely prejudicial, the trial court admitted it under New York’s

rules as probative for purposes other than propensity, and the Appellate Division affirmed. Turner,

145 A.D.3d at 746. Habeas relief from that judgment is appropriate only if the ruling was so

erroneous that it trenched upon petitioner’s constitutional right to due process. Estelle v. McGuire,

502 U.S. 62, 68 (1991); Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013). To reach this standard,

introduction of evidence of uncharged criminal conduct must be “so extremely unfair that its

admission violates ‘fundamental conceptions of justice.’” Dowling v. United States, 493 U.S. 342,

352 (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)); see also Torres v. Keane, 2000

WL 35573160, at *1 (2d Cir. Oct. 12, 2000). “Such unfairness will only result where: ‘[T]he

erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was

sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would

have existed on the record without it. In short it must have been crucial, critical, [and] highly

significant.’” McKinnon v. Superintendent, 422 F. App’x 69, 73 (2d Cir. 2011) (quoting Collins v.

Scully, 755 F.2d 16, 19 (2d Cir. 1985)).

The Appellate Division could reasonably have concluded that the introduction of this

evidence was not so grossly unfair that it amounted to constitutional error. Though there is reason

to question whether petitioner’s past bad acts were probative in the manner described by the trial

court, testimony about them was not the type of crucial, critical, and highly significant evidence

the erroneous introduction of which will upset the fundamental fairness of the whole trial. The

critical evidence in this case was the victim’s testimony about the attack itself, not the recounting

of prior bad acts.

Testimony of the Victim

“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986). At the same time, “state and

federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence

from criminal trials.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotation

omitted). Petitioner claims his constitutional rights were violated by the trial court’s refusal to

allow “a) cross-examination of the [victim] regarding her initial report of one rape instead of ten

and b) to allow a short adjournment for a defense witness to testify and the introduction of certified

medical records contradicting the [victim’s] testimony.” ECF No. 1 at 12. The Appellate Division

reasonably rejected both arguments.

1. Cross-Examination

The Sixth Amendment secures to criminal defendants an opportunity for the effective

cross-examination of witnesses, but it does not guarantee “cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986). “[T]rial judges retain wide latitude . . . to impose reasonable limits on []

cross-examination based on concerns about, among other things, harassment, prejudice, confusion

of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.”

Id.

Petitioner argues that the trial court improperly prevented him from cross-examining the

victim about statements she made to the grand jury. The victim testified before the grand jury that

petitioner penetrated her against her will and responded “yes” when the prosecutor asked her

“whether this took place over a period of time.” ECF No. 9-4 at 57. Subsequently, the prosecutor

re-presented the case to the grand jury specifically to elicit testimony that petitioner had penetrated

her multiple times during the prolonged attack, which provided the basis for multiple charged rape

counts. Id. at 57–58. At trial, petitioner sought to cross-examine the victim about her initial grand

jury testimony, contending that it was inconsistent with her subsequent statements before the grand

jury and at trial because she initially described only one rape, rather than multiple rapes. ECF No.

10 at 37–38, 40–42. The trial court curtailed that cross-examination, id. at 77–78, and the

Appellate Division affirmed, holding that the trial court’s decision did not “keep[] from the jury

relevant and important facts bearing on the trustworthiness of crucial testimony.” Turner, 145

A.D.3d at 746.

The Appellate Division reasonably held that these restrictions did not deprive the jury of

any important facts bearing on the victim’s credibility, and therefore fell within the wide latitude

to control cross-examination afforded to trial judges under the Sixth Amendment. Id. The victim

testified that petitioner penetrated her against her will and that this occurred over a “period of time”

before it “finally stopped.” ECF No. 9-4 at 57. On re-presentation, the prosecutor elicited

testimony about the specific number of times petitioner penetrated victim. The second statement

merely elaborated on information the victim was not asked to specify in the first. The two

statements do not contradict each other and, given that she was not asked, the fact that the victim

did not specify the number of times she was penetrated was not a significant omission on her part.

The trial court properly prevented petitioner from attempting to impeach the victim with a prior

statement that was not inconsistent, which threatened “confusion of the issues” before the jury.

Van Arsdall, 475 U.S. at 679.

2. Extrinsic Evidence

Petitioner challenges the trial court’s refusal to admit extrinsic evidence to impeach the

victim. Petitioner sought to call an attorney witness to testify that, two years prior to the acts for

which petitioner was charged, the victim came to his office accompanied by petitioner to recant

abuse allegations she had made against him in 2006. ECF No. 12 at 150. Petitioner himself had

previously testified that the victim had recanted her allegations to the lawyer “[t]o stop the [police]

pursuing, trying to arrest me for something I didn’t do to her.” Id. at 203. The trial court initially

allowed petitioner to call the attorney to testify to the fact of the victim’s recantation, but not to

the content of the conversation in his office. ECF No. 13 at 24. However, defense counsel failed

to subpoena the witness, who was unable to appear in court on the appointed day. Id. at 11. The

trial court refused to allow an adjournment and stated that the attorney’s testimony was arguably

collateral because it “has to do with recanting something which is not directly at issue here.” Id.

at 25.

Petitioner also sought to admit medical records prepared by a social worker during the

victim’s hospitalization after the April 2009 attack showing “no visible injuries” and indicating

that the victim had answered that she had not been the victim of domestic violence. ECF No. 12

at 185, 187. Petitioner argued that these records contradicted the victim’s statements both that

petitioner attacked and injured her in April 2009, and that there was a history of abuse in the

relationship. Petitioner had denied the April 2009 attack in his testimony, but he had not cross-

examined the victim about injuries sustained during that incident or her answer to the domestic

violence question, despite repeatedly confronting her about other inconsistencies related to her

children in the records. ECF No. 12 at 14–17 (victim cross), 199 (petitioner direct), 219–20

(petitioner cross). The trial court denied admission, explaining that the records were extrinsic

evidence on a collateral issue and therefore could not be introduced under the New York rules of

evidence. ECF No. 13 at 7–9.

The Appellate Division affirmed both decisions, holding that the trial court “properly

curtailed the defendant’s introduction of extrinsic evidence and denied his request to call a witness

to contradict the complainant’s answers concerning collateral matters, both of which were solely

for the purpose of impeaching the complainant’s credibility.” Turner, 145 A.D.3d at 746. As

noted, it is “not the province of a federal habeas court to reexamine state-court determinations on

state-law questions,” including those related to the admissibility of evidence. Estelle, 502 U.S. at

67–68. Petitioner must show that the effect of the state court’s erroneous decision on the question

of admissibility under state law was so “extremely unfair” that it violated “fundamental

conceptions of justice.” Dowling, 493 U.S. at 352; Evans, 712 F.3d at 133.

The Appellate Division reasonably rejected petitioner’s challenge to the introduction of

extrinsic testimony that the victim recanted her 2006 allegations. The victim testified that she only

recanted because petitioner “told me that I need to fix what I said . . . and if I didn’t fix it I knew

he would hurt me so that’s why I went to the lawyer with him and fixed it, he would beat me, you

know.” ECF No. 13 at 32. Because the victim admitted that she recanted and explained her

reasons, it is not clear what the attorney’s testimony would have added.

The Appellate Division arguably erred by affirming the exclusion of the medical records

on the ground that they were related to “collateral matters . . . [and were] offered solely for the

purpose of impeaching the [victim’s] credibility.” Turner, 145 A.D.3d at 746. The trial court

admitted evidence of the April 2009 attack as part of the prosecution’s case-in-chief because it

went “to the issue of the forcible compulsion” element of the first-degree rape charge, and the jury

was later instructed that it was to consider the evidence only for “for that limited purpose on the

issue of the use of force.” ECF No. 10 at 64; ECF No. 13 at 121. Yet the trial court also explained

its decision to exclude petitioner’s extrinsic evidence by stating that “[i]t’s a collateral issue, her

recitation of what she told the social worker [in 2009] and it does go to her credibility and whether

or not she made inconsistent statements . . . but that doesn’t necessarily mean . . . you can introduce

this because it’s extrinsic evidence. If [it] related to the [charged] incident in question here that

might be a different story.” ECF No. 13 at 7. It is hard to square the trial court’s varying

declarations. If evidence of the April 2009 attack was admissible because it tended to establish

the forcible compulsion element of the first-degree rape charges then the issue was, by definition,

not collateral. It appears from the record that the prosecution proffered this evidence with the

intent to argue that petitioner accomplished sexual intercourse by the implied threat of further

abuse. Indeed, that offer of proof was consistent with the judge’s instruction to the jury that

forcible compulsion is accomplished either by the use of physical force or “by a threat which may

be expressed or implied which places a person in fear of immediate death or physical injury to

herself.” ECF No. 13 at 126. While that theory did not feature prominently in the closing — the

prosecution instead focused on the acts of abuse contemporaneous to the rape3 — the petitioner

3 In closing, the prosecution argued with respect to the first count of rape in the first degree that

“the way I’ve proven [forcible compulsion] beyond a reasonable doubt is the [petitioner]

demanded that [the victim] take off her nightgown, then he pulled her to the bed, the position he

wanted her on the bed, he made her bend over face forward and he came from behind her and he

repeatedly punched her in the back and then reached for the lubricant and inserted his penis inside

of her vagina. That is sexual intercourse by forcible compulsion.” ECF No. 13 at 110. On the

other count of rape in the first degree, the prosecutor argued that petitioner “finally agreed to end

the torture but told her that he needed to finish it off because he needed to ejaculate, [the victim]

had just been beat[en] and raped for three hours, he didn’t need to hit her again, it was enough,

was still entitled to attack the evidence against him according to the purpose for which it was

introduced.

Still, petitioner has failed to show that any of the claimed errors prejudiced him by causing

a “substantial and injurious effect or influence” on the jury’s verdict. Brecht v. Abrahamson, 507

U.S. 619, 623 (1993). Petitioner had ample opportunity to confront the victim with past

inconsistent statements and otherwise challenge her credibility on cross-examination. Indeed,

petitioner pressed the victim about inconsistencies in the information she reported on the very

medical records he later sought to introduce. Petitioner also testified to the victim’s alleged history

of false accusations against him at trial. While some of the excluded evidence was arguably not

collateral, none was so weighty that its absence from the trial rose to the level of prejudice

sufficient to justify habeas relief.

Duplicity

Duplicity occurs when the indictment “charge[s] more than one offense in a single count.”

United States v. Crisci, 273 F.3d 235, 238 (2d Cir. 2001). The Second Circuit has held that a

duplicitous indictment risks “impair[ing] a defendant’s rights to notice of the charge against him,

to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a

subsequent prosecution.” Id. Petitioner argues that the counts in the indictment were duplicitous

because the two rape counts against him included ten different acts of penetration testified to by

the victim. ECF No. 9-1 at 27 (brief on direct appeal); ECF No. 11 at 155 (victim trial testimony).

But that assertion is belied by the record — the judge repeatedly instructed the jury that the charged

counts related only to single, specific acts of penetration. ECF No. 13 at 135–36 (“The first and

that she was afraid that he would beat her again to make out the element of forcible compulsion

and I ask that you listen carefully to the judge on that charge.” Id. at 111.

second count [first and third degree rape] relate to the first incident of penetration that was testified

to by the complain[ant] . . . and the Counts 3 and 4 [first and third degree rape] relate to the last

incident of penetration for which she provided testimony”); id. at 152 (repeating instruction).

Because the counts contained in the indictment charged only single acts of penetration, they were

not duplicitous.

Petitioner has also not shown any prejudice flowing from the claimed duplicity. United

States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001) (holding that prejudice is an element of a

duplicitous indictment challenge under the Federal Rules of Criminal Procedure); Brecht, 507 U.S.

at 623 (establishing the harmless error standard in habeas proceedings). The policy considerations

guiding the duplicity prejudice analysis include: (1) avoiding uncertainty of general guilty verdict

by concealing finding of guilty as to one crime and not guilty as to other, (2) avoiding risk that

jurors may not have been unanimous as to any one of the crimes charged, (3) assuring the defendant

receives adequate notice of charged crimes, (4) providing the basis for appropriate sentencing, and

(5) providing adequate protection against double jeopardy in subsequent prosecution. Sturdivant,

244 F.3d at 75 (citing United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981)).

None of those rationales are implicated here. First and foremost, the record establishes that

the petitioner was well-informed of the charges against him because he challenged the nine counts

of rape originally charged as multiplicitous, leading the prosecution to drop seven of those charges,

and leaving the two counts petitioner now challenges as duplicitous. ECF No. 9-5 at 6–7. In

effect, petitioner argues that the remedy he sought and obtained for his earlier complaint now forms

the basis for habeas relief. There is little indication that the jury was likely to reach conflicting

verdicts about whether petitioner committed one act of penetration but not another, since the acts

took place as part of one continuing attack and were all supported by same testimony. “[W]hen a

jury returns a guilty verdict on [a count of] an indictment charging several acts in the conjunctive

. . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.”

Griffin v. United States, 502 U.S. 46, 56–57 (1991) (quoting Turner v. United States, 396 U.S. 398,

420 (1970)). To the extent petitioner claims to be prejudiced with respect to sentencing, that

argument is seriously undermined by the fact that the Appellate Division has already modified his

sentences on the rape counts to run concurrently. Turner, 145 A.D.3d at 745.

An impermissibly duplicitous indictment can form the basis for habeas relief only if the

error was so egregious that it deprived petitioner of his constitutional right to due process by

“fatally infect[ing] the trial” with an absence of “fundamental fairness essential to the very concept

of justice.” Lisenba v. California, 314 U.S. 219, 236 (1941); see also Dowling, 493 U.S. at 352–

53 (holding that the fundamental fairness standard is “very narrow[]” and is met only where an

error “violates fundamental conceptions of justice which lie at the base of our civil and political

institutions”). Because the counts contained in the indictment were not duplicitous, petitioner

cannot make that showing.

Sentence

Petitioner attempts to renew his claim that the sentence imposed was excessive. That claim

was presented to the Appellate Division as implicating only state law grounds, see N.Y. Crim. Proc.

Law § 470.15(3)(c). To the extent petitioner raises an unexhausted constitutional claim

challenging the length of his sentence as excessive, that claim is denied as meritless. The Eighth

Amendment prohibits “cruel and unusual punishments,” a protection that “encompasses a narrow

proportionality principle” prohibiting “only extreme sentences that are grossly disproportionate to

the crime.” U.S. Const. amend. VIII; Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,

J., concurring). Petitioner’s sentence fell within the range authorized by state law, which is usually

enough to end the constitutional inquiry. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per

curiam); but see Solem v. Helm, 463 U.S. 277, 290 (1983); Weems v. United States, 217 U.S. 349,

381–82 (1910). Nothing in petitioner’s briefing to the Appellate Division or before this court

suggests that his sentence for the serious crimes of rape and assault satisfies the “extraordinarily

high standard for challenging a legally imposed sentence” under the Eighth Amendment. Edwards

v. Capra, 2020 WL 7385694, at *3 (E.D.N.Y. Dec. 16, 2020).

CONCLUSION

The petition for relief pursuant to 28 U.S.C. § 2254 is denied. A certificate of appealability

is denied.

SO ORDERED.

Brooklyn, New York Edward R. Korman

April 21, 2021 United States District Judge