Ramos v. Lee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DANIEL RAMOS,

Petitioner,

MEMORANDUM AND ORDER

-against- 19-CV-1125(JS)

WILLIAM LEE,

Respondent.

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APPEARANCES

For Petitioner: Daniel Ramos, pro se

#15-A-3367

Great Haven Correctional Facility

P.O. Box 4000

Stormville, New York 12582

For Respondent: Cristin N. Connell, Esq.

Brian Witthuhn, Esq.

Nassau County District Attorney’s Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Pending before the Court is the pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 (hereafter,

the “Petition”) of Petitioner Daniel Ramos (“Petitioner”). (See

Petition, ECF No. 4-1.)1 Following a jury trial, Petitioner was

1 Petitioner’s February 25, 2019 petition included the full

names of two minor children involved in the underlying incident.

(ECF No. 1.) Thereafter, and in response to the Court’s March

1, 2019 Order, Petitioner filed an amended petition on March 14,

2019, supplanting the original petition, redacting the names of

the minor children and referring to them only by their initials.

(ECF No. 4.)

convicted of one count of New York Penal Law § 130.50(3),

Criminal Sexual Act in the First Degree, and one count of New

York Penal Law § 260.10(1), Endangering the Welfare of a Child.

Now seeking habeas relief, Petitioner raises eight claims: (1)

the trial court erred by deeming the complainant swearable; (2)

the trial court violated Petitioner’s Sixth Amendment rights to

present a defense and confront the witnesses against him; (3)

the trial court erred by failing to meaningfully respond to a

jury note; (4) the trial court’s bias against the defense

violated Petitioner’s Due Process rights to a fair trial and to

present a defense; (5) the trial court erred in admitting

improper bolstering testimony regarding alleged prior incidents

of abuse; (6) the jury’s verdict was against the weight of the

evidence; (7) the sentence imposed was unnecessarily harsh and

excessive; and, (8) because there was no probable cause for his

arrest, and his involuntary written statement was used against

him at trial, Petitioner’s Fourth Amendment rights were

violated. (-Se-e- Petition, ECF pp. 3-17.) For the following

reasons, the Petition is DENIED in its entirety.

BACKGROUND2

I. The Offense Conduct and Subsequent Investigation

On October 16, 2013, Crystal Ramirez walked into her

kitchen and saw her six-year-old daughter, M.R.,3 with her pants

and underwear around one ankle, and Petitioner standing directly

behind her. (See Tr. 621:3-11.) Crystal asked what was going

on and M.R. pointed to Petitioner and stated “he licked my

coochie.” (Id. at 621:25-622:6.) Crystal picked up her

daughter, started dressing her, and yelled at Petitioner to get

out. (See id. at 622:12-20.) Once Petitioner left her

apartment, Crystal locked the door and called 911. (See id. at

622:25-6.)

Police Officer Joseph Boccio (“Officer Boccio”) of the

Nassau County Police Department (“NCPD”) responded to the 911

call at Crystal’s apartment. (See id. at 694:25-695:5.) Upon

arriving there, Officer Boccio observed Petitioner approximately

twenty feet away, standing in the parking lot and leaning

2 The background is drawn from the transcript of Petitioner’s

combined Mapp/Dunaway/Huntley suppression hearing (“Hr’g Tr.”)

(see ECF No. 7-1), the transcript of the state court’s oral

ruling on Petitioner’s suppression motion (“Ruling Tr.”) (see

ECF No. 7-13, beginning at ECF p. 123), and the transcripts of

Petitioner’s state court criminal trial (“Tr.”) (see ECF Nos. 7-

2 (pp. 1-844), 7-3 (pp. 845-1644)).

3 On October 16, 2013, the complainant, M.R., was six years old,

and her brother, S.R., was ten years old. (See Tr. 611:4-9,

611:18-24.) Since both children were minors when the underlying

events occurred, the Court shall refer to them by their initials

only. See FED. R. CIV. P. 5.2(a)(3).

against a car, but first approached Crystal and M.R. to speak

with them regarding what happened. (See id. at 695:6-696:13.)

They both reported that Petitioner licked her M.R.’s “coochie.”

(See Hr’g Tr. 8:10-14; 20:14-18.)

Officer Boccio then approached Petitioner and asked

him what happened. (Tr. 697:20-23.) Petitioner stated, “[S]he

said I raped her daughter. Please arrest me.” (Id. at 698:1-

2.) When Officer Boccio asked for clarification, Petitioner

replied, “[I]t was stupid, I licked her once in the bedroom.”

(Id. at 698:7-10.) Thereafter, Officer Boccio placed Petitioner

under arrest. (See id. at 698:11-13.) He was transported to

the NCPD Special Victims Squad (“SVS”) in Bethpage, New York,

while M.R. and Crystal were taken by ambulance to Nassau County

University Medical Center (“NCUMC”). (See id. at 699:11-22;

624:1016.)

At NCUMC, Kathleen McAllister (“McAllister”), a sexual

assault nurse examiner, conducted an examination of M.R. and

collected evidence using a sexual offense examination collection

kit, commonly referred to as a rape kit. (See Tr. 822:2;

823:1025; 824:17-19.) During the examination: McAllister

collected M.R.’s pajama pants, underwear, and a vulva swab; and,

M.R. reported to McAllister that “Daniel licked my coochie.”

(See id. at 826:20-22; 830:19-23; 831:21-24; 834:21-25.)

Detective Maurice Baran (“Detective Baran”) was the lead special

victims detective assigned to investigate the incident (see id.

at 936:19-22), who: responded to NCUMNC; interviewed Crystal and

M.R.; and, took possession of the evidence collected by

McAllister. (See id. at 834:12-16; 835:1-4; 938:12-939:10.)

After Detective Baran left NCUMC, he went to the

Bethpage SVS where he interviewed Petitioner. (Tr. 1020:8-13.)

After Petitioner waived his Miranda rights, Petitioner made

admissions, including that he had “told her I was going to

tickle her and I pulled down her pants and underwear and tickled

her pussy with my mouth.” (Id. at 963:13-14; 952:11-19; 950:20-

951:7.) Detective Baran typed up Petitioner’s statement, which

Petitioner reviewed, corrected, and then signed. (See id. at

956:5-960:12.) In addition to his written statement,

Petitioner: wrote a letter of apology in Spanish to M.R. and

Crystal (see id. at 965:11-19); and consented to give a DNA

sample, taken by buccal swab, which was collected by Detective

Baran. (See id. at 967:3-16.)

II. The Suppression Hearing and Trial

On September 25, 2014, a suppression hearing was held

in New York Supreme Court, Nassau County, before the Honorable

Teresa K. Corrigan. Petitioner argued there was no probable

cause for his arrest, and sought suppression of his oral and

written statements, and the buccal swab taken from him while in

custody. (See generally Hr’g Tr.) In opposition, the

prosecution presented three witnesses to testify regarding the

circumstances surrounding Petitioner’s arrest, statements, and

buccal swab: Officer Boccio, Detective Baran, and Detective

Reinaldo Pacheco (“Pacheco”).

Officer Boccio testified: about responding to the 911

call of a woman seeking to report the sexual abuse of her six-

year-old daughter (see Hr’g Tr. 7:6-12); thereafter, speaking

with Crystal and her daughter, M.R.; and, then, speaking with

Petitioner outside of Crystal’s apartment (see id. at 7:13-8:9,

9:12-16). Officer Boccio further testified: about asking

Petitioner why he was there and what had occurred (see id. at

10:1-3); that Petitioner responded, “Arrest me. She’s saying I

raped her daughter,” (id. at 10:4-7); upon a request for

clarification, Petitioner stated, “It was a mistake. I licked

her once in the bedroom.” (Id. at 10:8-18.) Officer Boccio

also testified that: at the time Petitioner made his statements

to Officer Boccio, Petitioner was not under arrest or

handcuffed; he (Boccio) had his firearm holstered; and, after

speaking with Petitioner, he placed Petitioner under arrest.

(-Se-e- -id-.- at 10:23-11:16.)

Detectives Baran and Pacheco testified to the

circumstances of Petitioner’s statements taken at the NCPD SVS.

The testimony elicited from them included that: after observing

Petitioner spoke with a Spanish accent, Detective Baran asked

whether Petitioner would prefer his rights read to him in

Spanish (see Hr’g Tr. 101:7-16 (Baran)); Detective Pacheco, a

Spanish speaker, read Petitioner his Miranda rights in Spanish

from a Miranda card (see id. at 101:17-24 (Baran), 219:7-13

(Pacheco)); after Petitioner’s Miranda rights were read to him,

both Detectives Baran and Pacheco signed the card, and

Petitioner wrote “Si” on the card in three places and then

signed his name at the bottom; (see id. at 104:18-105:4 (Baran),

222:3-13 (Pacheco)); and, after Detective Pacheco left the

interview room, Detective Baran and Petitioner continued to

speak to each other in English without difficulty (see id. at

105:7-9 (Baran), 222:14-223:9 (Pacheco)).

Detective Baran further testified that: he asked

Petitioner what happened between him and M.R., and Petitioner

responded that he was just tickling her and playing with her

(see Hr’g Tr. 105:19-23); Petitioner agreed to give a written

statement, which was typed by Detective Baran (see id. at

105:24-106:21); after the statement was prepared, Petitioner

read the statement, made corrections, and wrote his initials

next to the corrections (see id. at 107:13-108:2, 108:17-22);

Petitioner also wrote an apology letter in Spanish to Crystal

(see id. at 113:24-114:3); and, Petitioner consented to a buccal

swab (see id. at 117:14-22). Detective Pacheco also testified

that he read to Petitioner in Spanish the statement prepared by

Detective Baran and that, thereafter, Petitioner signed it.

(-Se-e- -id-.- at Tr. 225:3-20.)

Subsequently, in a bench ruling, the court denied

Petitioner’s suppression motion in all respects. (See Ruling

Tr. 130:20-21.) Regarding probable cause, the hearing court

stated, “Based on the statement of the mother after her

observations of defendant and the child, the statement of the

child and the statement of the defendant at the scene, the

police had probable cause to arrest the defendant.” (See id. at

129:15-19.) Regarding Petitioner’s oral statement at the scene,

the court stated that it “was not subject to Miranda [sic], as

defendant was not custody, nor was he being interrogated.” (Id.

at 129:19-21.) Regarding Petitioner’s written statement, the

court ruled that “[s]uch statement was freely and voluntarily

and intelligently provided after a knowing, intelligent and

voluntary waiver of his Miranda [sic] rights.” (Id. at 130:7-

9.) The court also noted that of Petitioner’s ability to speak

and understand English, his “desire to speak in English after

receiving warnings in Spanish does not negate the validity of

the warnings or the statement.” (Id. at 130:4-6.)

Additionally, “[t]he defendant clearly speaks and understands a

good amount of English, but it was prudent to give Miranda [sic]

warnings in Spanish.” (Id. at 130:15-17.)

Petitioner’s jury trial commenced in early May 2015,

also before Honorable Teresa K. Corrigan. (Tr. at 1.) Prior to

trial, the court denied the prosecution’s Molineux application

seeking to introduce prior bad acts and uncharged crimes,

specifically that on at least one occasion prior to October 16,

2013, Petitioner had oral sexual contact with M.R.’s vagina

while alone with her in Crystal’s bedroom, and exposed his penis

and used it to make contact with M.R.’s buttocks. (See Tr.

8:12-9:3, 15:1-5.) However, the court also stated that if

defense counsel were to “open the door” to the incident, the

court would revisit its ruling. (Id. at 15:9-16:6.)

During the trial, the prosecution presented testimony

of numerous law enforcement witnesses involved in the

investigation, expert witnesses, and civilian eyewitnesses.

(See Tr. 225:18-1012:4). Crystal Ramirez testified that on

October 16, 2013, she resided in Roosevelt, New York, with her

two children, M.R. and S.R., who were six years old and eleven

years old, respectively. (See id. at 610:4-9, 610:23-611:1, 4-

9, 18-20.) Crystal further testified that she: knew Petitioner

through her children’s father, having met him approximately

thirteen to fourteen years earlier (see id. at 613:4-11); had

become closer with Petitioner in the year leading up to the

incident (see id. at Tr. 613:23-24); and, allowed Petitioner to

help her by driving her different places and babysitting her

children (see id. at 613:23-24, 615:5-7; 630:15-24).

As to October 16, 2013, Crystal testified that:

because she was upset after learning a close friend had passed

away, Petitioner came to her home with alcohol and the two

proceeded drinking (Tr. 615:14-20, 616:15-20, 617:1-8); her

children were still at school when Petitioner first arrived (see

id. at 616:18-20); when M.R. and S.R. arrived home from school

at approximately 2:45 p.m., Crystal and Petitioner were still

drinking on the outside porch (see id. at 618:2-10); and both

M.R. and S.R. went into the apartment while Crystal and

Petitioner remained on the porch (see id. at 618:17-20).

Crystal continued to explain that: at some point,

another acquaintance stopped by to smoke a cigarette with

Crystal on the porch (Tr. 618:21-619:7); at that time,

Petitioner went into the apartment for about ten minutes (see

id. at 619:8-20); and, after the acquaintance left, she went

into the apartment, walked past S.R. on the couch in the living

room, and went into the kitchen (see id. at 620:4-22.) She

further testified that when she walked into the kitchen, Crystal

saw M.R. with her pants and underwear around one ankle and

Petitioner standing behind her, looking “caught, ashamed,

embarrassed.” (Id. at 621:3-20.) M.R. told Crystal that

Petitioner licked her “coochie,” at which point Crystal told

Petitioner to get out and called the police.4 (See id. at 622:2-

4; 622:18-20; 623:3-6.)

McAllister testified regarding her interaction with

M.R. at the NCUMC, including: administering the rape kit; M.R.’s

physical examination; interviewing M.R.; and, the evidence

collection. (See Tr. 822:2; 823:1025; 824:17-19; 826:20-22;

830:19-23; 831:21-24; 834:21-25.) McAllister also testified

about giving Detective Baran the sex offense evidence collection

kit. (See id. at 834:8-16.)

The prosecution also presented DNA evidence through

the testimony of Christopher Chillseyzn, an expert in forensic

genetics and DNA analysis from the Nassau County Medical

Examiner’s Office. (See Tr. 846-882.) He testified that he

reviewed and analyzed the sexual offense evidence collection kit

taken from M.R. by McAllister. (See id. at 862:14-22).

Chillseyzn’s examination revealed the presence of both saliva

and male DNA on M.R.’s vulva swab and the presence of saliva in

two stains, Stains A-1 and A-2, on M.R.’s underwear. (See id.

at 869:19-870:3; 870:23-871:3; 872:2-9.) As to the Stains,

4 While Crystal testified that she called 911, the prosecution

did not enter the 911 call or radio run into evidence. (See Tr.

623:3-6.) During cross-examination, defense counsel sought to

enter Crystal’s 911 call to refresh her recollection regarding

the verbiage she used when she made the call. (See id. at

647:18-25; 648:11-649:2.) The court ruled that the tape could

be played for Crystal outside the presence of the jury to

refresh her recollection. (See id. at 650:22-651:12.)

Chillseyzn testified that: he compared the DNA profiles found in

them to the buccal swab taken from Petitioner (see id. at 876:3-

14); Stain A-1 contained DNA consistent with Petitioner and his

male patrilineal relatives (see id. at 876:15-20); while Stain

A-2 had two male DNA contributors, the major male contributor

matched Petitioner’s profile (see id. at 877:4-8); and, the

matching DNA profiles (a) from Stain A-1 could be expected to be

found in one in one thousand one-hundred seventy-one

individuals, and (b) from Stain A-2 could be expected to be

found in approximately one in one-hundred seventy-five million

individuals (see id. at 877:13-22).

M.R. and her brother S.R. also testified. (See

generally Tr. 764-816.) Prior to M.R.’s testimony, the trial

court conducted a swearability hearing to determine whether she

understood the oath and could be sworn in as a witness. (See Tr.

750-761.) During that hearing examination, M.R. stated: she was

seven years old and in second grade (see id. at 752:20-25); she

understood she was in court because of Petitioner (see id. at

750:22-24); that “[y]ou have to tell the truth” and if you do

not, then “you lie” (see id. at 751:7-13). M.R. demonstrated

her understanding of what constituted a lie by answering

hypothetical questions. (See id. at 17-24; 754:13-19.) M.R.

stated she understood that lying in court would be wrong and had

consequences, explaining that if she lies at home she gets

punished. (See id. at 751:25-19.) Over defense counsel’s

objection, the court found M.R. was swearable as she understood

the difference between the truth and a lie. (See id. at 757:2-

758:13.) Thereafter, M.R. testified, recounting what happened

on October 16, 2013 (see id. at Tr. 767-770), and, in

particular, testifying that Petitioner licked her “coochie” in

the kitchen (See id. at 768:4-8.) In cross-examination, defense

counsel questioned M.R. regarding prior incidents of alleged

sexual abuse by Petitioner, i.e., what Petitioner had allegedly

done to her, how many times it occurred, and whether she

disclosed this to anyone. (See id. at 780:19-783:19; 785:6-

786:2; 786:18-790:3; 794:20-795:6; 795:16-796:7; 797:8-798:14;

800:3-801:21; 803:10-804:21.) Relatedly, during Detective

Baran’s testimony, the trial court permitted Baran to testify

that, while at the NCUMC, M.R. reported to him that Petitioner

had sexually abused her before.5 (Tr. 940:6-15.)

M.R.’s brother, S.R., also testified, stating: that

while he was playing video games in the living room, Petitioner

came into the apartment and went into the kitchen with M.R. and

closed the door (Tr. 674:11-675:1); he then saw Crystal go into

the kitchen and start screaming; he could see inside the kitchen

and that M.R.’s pants were on the floor (see id. at 676:22-25);

5 Earlier, the court had ruled, over objection, that defense

counsel’s cross examination of M.R. opened the door to testimony

regarding prior incidents of abuse. (See Tr. 908-931.)

and, he then heard Petitioner first say that M.R. was lying, but

later heard Petitioner admit that he did it (see id. at 677:16-

24.)

At the close of the prosecution’s case, defense

counsel moved for dismissal pursuant to New York Criminal

Procedure Law § 290.10, which the court denied. (Tr. 1144:4-

1146:20.) Thereafter, defense counsel presented three character

witnesses, i.e., Petitioner’s son, David Ramos; Petitioner’s

daughter-in-law, Stephany Figueroa-Ramos; and, David Ramos’

former girlfriend, Christy Hernandes, who each testified

regarding Petitioner’s reputation for kindness and gentleness

towards children. (See id. at 1161-1166; 1166-1175;1176-1182.)

The defense also introduced the expert testimony of Dr. Karl

Reich, a DNA analysis expert, who testified that the amount of

male DNA found was extremely small and not consistent with it

being from saliva. (See id. at 2100:21-1201:7.) He further

testified that the vulva swab did not contain a male DNA

profile, which was also inconsistent with the presence of

saliva. (See id. at 1201:8-14.) On cross-examination, Dr.

Reich conceded that both Stains found on M.R.’s underwear

contained saliva and Petitioner’s DNA (see id. at 1254:7-

1255:1), but maintained that amount of DNA found in the

underwear was more consistent with Petitioner touching the

underwear with his fingers rather than licking M.R.’s vagina

(see id. at 1217:5-11; 1263:20-1264:8).

Petitioner testified in his own defense (see generally

Tr. 1273-1368), first providing some general background, e.g.:

he knew Crystal and her children, and would drive Crystal places

and lend her money that was never paid back (see id. at 1279:13-

16; 1280:7-17); and, he would take M.R. and S.R. to get food,

with Crystal’s permission, and would sometimes babysit them (see

id. at 1281:3-5; 1290:5-1291:1). Regarding October 16, 2013,

Petitioner testified: he went to Crystal’s apartment after she

called him twice asking him to come over (see id. at Tr. 1300:4-

8); he bought Crystal Long Island iced teas, a sandwich, and

cigarettes (see id. at 1300:9-15); he and Crystal sat on the

porch while she drank and smoked (see id. at 1300:25-1301:4); at

3:15 p.m., the children came home from school (see id. at

1301:6-18); and, he took M.R. inside to help her with her

homework, and when M.R. finished, he went back outside (see id.

at 1301:14-1302:11).

Petitioner continued his testimony about the afternoon

of October 16, stating: while outside with Crystal, he asked her

permission to go inside and use the bathroom (Tr. 1302:17-22);

when inside, he saw M.R. partially naked from the waist down and

holding her clothes (see id. at 1302:22-1303:7); he believed

M.R. was changing her clothes after school (see id. at 1302:23-

25); M.R. tried to follow him into the bathroom but he told her

to wait outside and put on her clothes (see id. at 1303:8-18.)

According to Petitioner, when he got out of the bathroom: he

brought M.R. into the kitchen where he took the clothes from her

and started to dress her (see id. at 1304:10-12, 1304:19-

1305:1); he stood M.R. up for her to pull up her panties and

pajama bottoms, which where around her knees (see id. at 1305:3-

15); and, Crystal came into the kitchen as M.R. bent down to

pull up her clothes (see id. at 1305:14-15). Petitioner stated

that Crystal questioned him, asking what was going on (see id.

at 1305:17-18) and then asked M.R. whether Petitioner “was

eating her coochie” and M.R. responded “yes.” (Tr. 1305:19-21.)

As to the subsequent investigation, Petitioner

testified: he never made any of the statements to which Officer

Boccio testified (Tr. 1311:11-25); he was taken to the police

precinct where he was interviewed by Detective Baran (see id. at

1312:4-10); he signed the Miranda rights card only because the

detectives told him to do so, and his Miranda rights were not

actually explained to him (see id. at 1312:11-1313:8).

Additionally, while Petitioner acknowledged that he made some of

the statements contained in the written statement, he denied

ever telling Detective Baran that he tickled M.R. with his

mouth. (See Tr. 1313:22-1314:22.) Moreover, Petitioner

testified that Detective Pacheco never translated the written

statement into Spanish. (See Tr. 1322:4-8.)

In rebuttal, the prosecution called Joshua Hanson, an

expert in child sexual abuse and sexual perpetration (see

generally Tr. 1375-1387), who testified about, inter alia, the

concept of grooming, with the perpetrator: first ingratiating

himself with the child and the family to establish likeable and

being safe (see id. at 1383:4-9); thereafter, gaining enough

trust to be alone with the child (see id. at 1383:10-11); and,

then sexualizing the relationship (see id. at 1383:11-12).

Thus, according to Hanson, one strategy a perpetrator uses is to

appear kind and gentle towards children. (See id. at 1383:13-

19).

Relevant to the instant Petition, throughout the trial

defense counsel made several applications that were denied by

the trial court. For example: During Crystal’s cross

examination testimony, defense counsel made an application

seeking therapy records. (See Tr. 636:10-637:1.) Outside the

presence of the jury, defense counsel argued that because the

prosecution asked Crystal whether M.R.’s behavior changed after

the date of the incident, the door was opened to this line of

inquiry; thus, defense counsel sought to establish that the

children were attending therapy at South Shore Child Guidance

Center prior to the incident. (See id. at 636:10-20.) Defense

counsel had prepared a subpoena seeking the therapy records (see

id. at 636:21-637:1) and, in support of his application and to

show it was not a fishing expedition, defense counsel (1) made

an offer of proof that he received information that Crystal

watched pornography in front of her children, and (2) argued

that (a) as a result, M.R. was unable to distinguish between

reality and what she saw in pornographic films, and (b) this was

the reason that the family was in therapy. (See id. at 637:14-

23.) The prosecution opposed this application as irrelevant,

but informed the court that there were two prior unrelated

incidents that the prosecutor speculated were the true basis for

therapy: (i) that Crystal was the victim of domestic violence by

the children’s father which resulted in an arrest for assault in

2012; and (ii) M.R.’s brother, S.R., was the victim of an

attempted criminal sexual act by his uncle, his father’s

brother. (See id. at 642:1-22.) The trial court agreed to sign

the subpoena and review the therapy records in camera to inspect

them for relevance prior to disclosing the records to counsel.

(See id. at 642:23-643:17.) Thereafter, defense counsel

continued his cross examination of Crystal; he did not question

Crystal about the abuse S.R. experienced by his uncle. The

trial court sustained an objection against defense counsel

questioning whether Crystal watched pornography in her house,

but allowed counsel to ask S.R. and M.R. if they had ever seen

pornographic movies; they each testified that they had not.

(Tr. 689:5-9; 795:9-11.)

Prior to M.R.’s testimony, the court received the

therapy records from South Shore Child Guidance Center; after,

in camera review, the court: disclosed to counsel one page from

those records as directly relevant to the case (see Tr. 737:5-

11); there was nothing in the therapy records demonstrating that

M.R. had any difficulty distinguishing between reality and

fantasy or understanding truth telling (see id. at 737:12-20);

and, while maintaining confidentiality, stated that the basis

for therapy was not pornography, as suggested by defense

counsel, but a history of domestic violence and some

disciplinary or behavioral issues (see id. at 737:21-738:5).

Thereafter, defense counsel made multiple applications

to recall Crystal as a witness to question her regarding S.R.’s

prior abuse by his uncle. (See, e.g., Tr. 895:1-897:19; 1081:5-

1086:16; 1292:22-1294:20; 1370:1-8.) Defense counsel informed

the court that his office represented S.R.’s uncle in the abuse

case and, based on his review of the file, reported that in

2007, when S.R. was three and before M.R. was born, Crystal

found the uncle attempting to force S.R. to perform oral sex.

(See id. at 1082:11-1083:11). As such, defense counsel argued

that the prior incident affected Crystal’s state of mind such

that she overreacted to what was a harmless situation. (See id.

at 1083:12-1084:19.) The trial court denied each motion,

explaining there were multiple grounds for its denials, i.e.,

the remoteness of the 2007 incident involving S.R., before M.R.

was born, compared to the incident with Petitioner and Crystal’s

testimony at trial (see id. at 1097:1-8); that Crystal did not

claim to have witnessed Petitioner touching or licking M.R., but

rather reacted to what M.R. told her (see id. at 1097:23-

1098:3); and, considering the case evidence, it was unnecessary

to recall Crystal to answer questions on a collateral issue (see

id. at 1099:17-1100:5).

At the close of all the evidence, defense counsel and

the prosecution delivered their summations to the jury, the

court instructed the jury on the law, and the jury deliberated.

(See Tr. 1084:7-1139:25.) During deliberations, the jury sent a

note to the court requesting “to the [sic] hear the 911 call

from Crystal or the transcript, if it was on the record. If

it’s on the record, can we see slash hear it.” (Id. at 1597:13-

16 (transcript of the court reading the jury note into the

record).) Defense counsel requested that the court clarify with

the jury whether it wanted to hear a readback of Crystal’s

testimony regarding the 911 call, but the court declined. (See

id. at 1599:3-15.) Instead, the court informed the jury that

neither the call nor transcript of it was part of the record

evidence.6 (See id. at 1600:20-25.) On May 29, 2015, the jury

convicted Petitioner of Count One, Criminal Sexual Act in the

First Degree, and of Count Two, Endangering the Welfare of a

Child. (See id. at 1637:20-1638:9.)

III. The Sentence

On July 24, 2015, Petitioner was sentenced by the

court. (See Sent’g Tr., ECF No. 7-5.) The prosecution

requested a sentence of twenty years’ incarceration, which was

less than the maximum sentence permissible under the law. (See

id. at 2:25-5:3.) Defense counsel and Petitioner both addressed

the court, and Petitioner maintained his innocence. (See id. at

5:7-15:6,17:2-7.) On Count One, the court sentenced Petitioner

to fifteen years’ incarceration with ten years’ post-release

supervision; on Count Two, the court imposed a sentence of one

year’s incarceration; the sentences were ordered to run

concurrently. (See id. at 18:24-19:11.)

IV. The Appeal

In August 2017 and through counsel, Petitioner

appealed his conviction and sentence to the Second Department

6 The Court notes that there appears to be a typographical error

in the transcript, which states “With regards to your request to

hear the 911 call from Crystal or the transcript, if it was on

the record, another 911 call or the transcript of that call is

part of the evidence in this case.” (Tr. 1600:20-23.)

Contextually, however, it is clear that the trial court informed

the jury that neither the call nor the transcript of the call

was part of the evidence in the case.

(see generally Appellant Br., ECF No. 7-6), arguing: (1) the

trial court erred in determining that M.R. was swearable (see

id. at 23-27); (2) his Sixth Amendment rights to present a

defense and confront the witnesses against him were violated by

his not being allowed to be recalled Crystal as a witness (see

id. at 28-34); (3) the court erred by failing to meaningfully

respond to a jury note (see id. at 35-36); (4) the trial court’s

bias against the defense throughout the trial violated his right

to a fair trial and his right to present a defense (see id. at

at 37-41); (5) the trial court erred by allowing Detective Baran

to testify regarding prior incidents, which constituted improper

bolstering (see id. at at 42-46); (6) the jury’s verdict was

against the weight of the evidence (see id. at at 47-55); (7)

the sentence imposed was unnecessarily harsh and excessive (see

id. at 56-61); and (8) his Fourth Amendment right against

unreasonable searches and seizures was violated because there

was no probable cause for his arrest, and his Fourteenth

Amendment right to Due Process was violated because his

involuntary written statement was used against him at trial (see

id. at 62-65).

The Second Department affirmed the judgment. See

People v. Ramos, 164 A.D.3d 1267, 1267, 83 N.Y.S. 3d 580, 580

(2d Dep’t 2018) (docketed as ECF No. 7-9). It found, inter

alia: as to swearability: the trial court “providently exercised

its discretion in determining that the then seven-year-old

complainant was competent to give sworn testimony,” id.; as to

Petitioner’s Sixth Amendment claim: the trial court similarly

exercised its discretion “in denying defense counsel’s motion to

recall the complainant’s mother to testify because defense

counsel sought to cross-examine her about a matter that was

collateral and would have caused delay,” id. (citations

omitted); as to the jury note: that argument was without merit,

see id.; as to alleged bias against the defense: “[t]he record

does not support the defendant’s contention that the Supreme

Court acted with bias against him in its evidentiary rulings,”

id.; as to Detective Baran’s testimony regarding prior

incidents: “because defense counsel assailed the testimony of

the complainant on cross-examination as a recent fabrication,

the Supreme Court correctly admitted the prior consistent

statement of the complainant on direct examination of a law

enforcement witness” id. (citations omitted); as to Petitioner’s

claim that his Fourth and Fourteenth Amendment rights were

violated: first, denial of Petitioner’s suppression motion was

proper since, at the scene of the crime, Petitioner “was not the

subject of custodial interrogation at that time[],” second,

Petitioner’s statement made at the police station was “made

voluntarily after the defendant knowingly, intelligently, and

voluntarily waived his Miranda rights,” id. (citations omitted),

and third, “the police had probable cause to arrest [Petitioner]

based on his statements and the accusations of the complainant

and her mother,” id. (citations omitted); and, as to the weight

of the evidence: the verdict was not against the weight, nor was

Petitioner’s sentence excessive, id.

Through counsel, Petitioner sought leave to appeal to

the New York State Court of Appeals, which request was denied on

December 10, 2018. See People v. Ramos, 32 N.Y.3d 1128, 117

N.E.3d 825, 93 N.Y.S. 3d 266 (2018) (docketed as ECF No. 7-12).

This Petition followed.

DISCUSSION

I. The Legal Standard

Congress enacted the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214

(1996), to restrict “the power of federal courts to grant writs

of habeas corpus to state prisoners.” Williams v. Taylor, 529

U.S. 362, 399 (2000). A state prisoner seeking habeas corpus

relief under Section 2254 must show that he is “in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Section 2254, as amended by

AEDPA, provides, in part, that:

An application for a writ of habeas corpus

on behalf of a person in custody pursuant to

the judgment of a State court shall not be

granted with respect to any claims that was

not adjudicated on the merits in State court

proceedings unless the adjudication of the

claim--(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established

[f]ederal law, as determined by the Supreme

Court of the United States.

28 U.S.C. § 2254. The AEDPA established a deferential standard

of relief, seeking to “avoid[ ] unnecessarily ‘disturbing the

State’s significant interest in repose for concluded litigation,

denying society the right to punish some admitted offenders, and

intruding on state sovereignty to a degree matched by few

exercises of federal judicial authority.’” Virginia v. LeBlanc,

137 S. Ct. 1726, 1729 (2017) (quoting Harrington v. Richter, 562

U.S. 86, 103 (2011)) (brackets omitted). Accordingly, a habeas

corpus petition is not a vehicle to relitigate every issue

previously determined in state court. Herrara v. Collins, 506

U.S. 390, 401 (1993). Ultimately, “the petitioner bears the

burden of proving by a preponderance of the evidence that his

constitutional rights have been violated.” Jones v. Vacco, 126

F. 3d 408, 415 (2d Cir. 1997); see also Hawkins v. Costello, 460

F. 3d 238, 246 (2d Cir. 2006).

Thus, a federal court may not grant a writ of habeas

corpus unless the state court’s adjudication of the claim

either:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision 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). The Supreme Court has construed the AEDPA

“to give independent meaning to ‘contrary [to] and

‘unreasonable.’” Jones v. Stinson, 229 F.3d 112, 119 (2d Cir.

2000). A state court’s decision is “contrary to” clearly

established federal law if “the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case different

than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 412-13. A

decision involves “an unreasonable application” of clearly

established federal law when a state court “identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. at 413. This standard does not

require that all reasonable jurists agree that the state court

was wrong; rather, the standard “falls somewhere between ‘merely

erroneous and unreasonable to all reasonable jurists.’” Jones,

229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109

(2d Cir. 2000)). The AEDPA “‘imposes a highly deferential

standard for evaluating state-court rulings and demands that

state-court decisions be given the benefit of the doubt.’”

Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy

v. Cross, 565 U.S. 65, 66 (2011)). Section 2254(d), as amended

by the AEDPA, “stops short of imposing a complete bar on

federal-court relitigation of claims already rejected in state

proceedings.” Harrington, 562 U.S. at 102.

Assuming that a petitioner’s claims are cognizable on

habeas review, a petitioner must exhaust state court remedies

before coming to federal court. Exhaustion of state court

remedies requires that a petitioner fairly present the claim in

state court, allowing the state court the “‘opportunity to pass

upon and correct alleged violations of its prisoners’ federal

rights.’” See Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir.

2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “A

petitioner has ‘fairly presented’ his claim only if he has

‘informed the state court of both the factual and the legal

premises of the claim he asserts in federal court.’” Jones v.

Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) (quoting Dorsey v.

Kelly, 112 F.3d 50, 52 (2d Cir. 1997)). “Specifically,

[petitioner] must have set forth in state court all of the

essential factual allegations asserted in his federal petition;

if material factual allegations were omitted, the state court

has not had a fair opportunity to rule on the claim.” Daye v.

Att’y Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)

(collecting cases).

In addition, a federal court will not review a habeas

petition if a petitioner’s claims were decided at the state

level on “independent and adequate” state procedural grounds.

Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). This

procedural bar applies even if the state court addressed the

merits in the alternative, but decided the claim on independent

procedural grounds. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d

Cir. 1990).

To obtain review of procedurally barred claims, a

state prisoner must show either (1) “cause for the default and

actual prejudice as a result” or (2) actual innocence. Coleman,

501 U.S. at 750.

II. Application

Here, Petitioner argues that: (1) the trial court

erred by deeming the complainant swearable; (2) his Sixth

Amendment rights to present a defense and confront the witnesses

against him were violated; (3) the trial court erred by failing

to meaningfully respond to a jury note; (4) the trial court’s

bias against the defense violated his Due Process rights to a

fair trial and to present a defense; (5) the trial erred in

admitting improper bolstering by allowing testimony regarding

alleged prior incidents of abuse; (6) the jury’s verdict was

against the weight of the evidence; (7) the sentence imposed was

unnecessarily harsh and excessive; and (8) his Fourth Amendment

rights were violated because there was no probable cause for his

arrest, and his involuntary written statement was used against

him at trial.7 (Petition, ECF pp. 3-17.)

A. Witness Swearability Claim

Petitioner claims that the trial court's swearing-in

of M.R. was in error, and, therefore, he is entitled to habeas

relief. However, as discussed supra, the Appellate Division

held that the trial court “providently exercised its discretion

in determining that [M.R.] was competent to give sworn

testimony,” stating that “[t]he examination of the child

revealed that she knew the difference between telling the truth

and telling a lie, promised to tell the truth, and indicated she

would be punished if she lied.” People v. Ramos, 164 A.D.3d

1267, 1267, 83 N.Y.S. 3d 580, 580 (2d Dep’t 2018) (citing N.Y.

CRIM. PROC. LAW § 60.20(2), which, at the time of Petitioner's

trial, provided in relevant part that “[a] child less than

twelve years old may not testify under oath unless the court is

satisfied that [she] understands the nature of an oath”).

7 The Court notes that Petitioner’s claims essentially renew his

claims raised on direct appeal. After his appeal was denied,

Petitioner sought leave to appeal all appellate claims before

the New York Court of Appeals. As such, the Court acknowledges,

and Respondent does not contest, that all of Petitioner’s claims

are properly exhausted.

As an initial matter, “[i]t is not the province of a

federal habeas court to reexamine state-court determination on

state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68

(1991); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

Whether the trial court properly admits sworn testimony from a

child complainant in accordance with the requirements of C.P.L.

§ 60.20(2) is a matter best left to the New York state courts.

See, e.g., Rodriguez v. Greiner, 274 F. Supp. 2d 264, 267

(E.D.N.Y. 2003) (holding that “[w]hether the properly admitted

unsworn testimony of the victim was sufficiently corroborated in

accordance with the requirements of New York C.P.L. 60.20(3) is

a matter left to the state courts”). Thus, this claim is not

cognizable on habeas review.

Even if the Court looks to the merits of Petitioner’s

claim, it is clear he is not entitled to relief. During the

swearability hearing, the trial court’s colloquy with M.R.

established that M.R. understood: the difference between the

truth and a lie, as demonstrated by her responses to the

hypothetical questions posed by the court (see Tr. 751:17-24;

754:13-19); and, that lying in court would be wrong and had

consequences (see id. at 751:25-19). Thus, M.R.’s responses to

questions posed to her during the swearability hearing satisfied

the trial court that M.R. was able to be sworn. (See id. at

757:2-758:13.)

Petitioner has not identified any federal

constitutional right which was abridged by M.R.’s having been

sworn to testify at his trial that would justify this Court’s

interference, on habeas review, with the trial court's

swearability ruling. Nor has Petitioner identified an error in

the trial court’s swearability ruling, especially considering a

trial court has broad discretion in admitting sworn child

testimony. Nothing in the record indicates that the trial court

abused its discretion in admitting M.R.’s testimony.

Accordingly, as Petitioner’s witness swearability

claim is without merit, it fails to warrant granting habeas

relief.

B. Sixth Amendment Claim

Petitioner claims he is entitled to habeas relief on

the grounds that his Sixth Amendment rights were infringed when

the trial court would not allow Crystal to be recalled as a

witness for additional cross examination, arguing his cross

examination was curtailed, which denied him the right to present

a defense and to confront the witnesses against him. (Petition,

ECF pp. 4-5.) On direct appeal, the Appellate Division rejected

this claim, stating “[t]he Supreme Court providently exercised

its discretion in denying defense counsel’s motion to recall the

complainant’s mother to testify because defense counsel sought

to cross-examine her about a matter that was collateral and

would have caused delay.” Ramos, 164 A.D.3d at 1267(citations

omitted). The Court finds that the Appellate Division’s

decision reasonably rejected both Petitioner’s arguments and was

not contrary to, nor an unreasonable application of, federal

law.

“[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). Further, a defendant in a state

criminal prosecution has a right, guaranteed by the Sixth and

Fourteenth Amendments to the Constitution, “to be confronted

with the witnesses against him.” U.S. Const. Amend. VI; see

also Pointer v. Texas, 380 U.S. 400, 401 (1965) (holding that

the Sixth Amendment Confrontation Clause is made applicable to

the states by the Fourteenth Amendment). However, “the

Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

Trial courts “retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such 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.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

Furthermore, the preclusion of the cross-examination “must not

have been harmless, that is, it must have had a substantial and

injurious effect or influence in determining the jury’s

verdict.” Alvarez v. Ercole, 763 F.3d 223, 230 (2d Cir. 2014).

Further, a criminal defendant “has a fundamental due process

right to present a defense.” United States v. Mi Sun Cho, 713

F.3d 716, 721 (2d Cir. 2013) (citations omitted). However, a

criminal defendant’s right to present a defense “is not

absolute, for a defendant must comply with established rules of

procedure and evidence designed to assure both fairness and

reliability.” Id., 713 F.3d at 721. As such, “a defendant does

not have an unfettered right to offer testimony [or other

evidence] that is inadmissible under the rules of evidence.”

Id. “[W]ell established rules of evidence permit trial judges

to exclude evidence if its probative value is outweighed by

certain other factors such as unfair prejudice, confusion of the

issues, or potential to mislead the jury.” Holmes v. S.

Carolina, 547 U.S. 319, 326 (2006).

Here, Petitioner argues that he was denied his right

of presenting his theory of the case to the jury, and was

precluded from eliciting testimony from Crystal that S.R. was

sexually abused by an uncle years prior. He maintains such

evidence would support his theory that Crystal was more likely

to jump to a false conclusion about what she saw when she walked

into the kitchen, when what was occurring was––as he alleges––

Petitioner was merely trying to dress M.R. Additionally,

Petitioner argues that he was precluded from questioning Crystal

about watching pornography in the home with her children. Given

the remoteness of time between the incident involving S.R. and

that involving M.R., the trial court precluded this evidence.

Moreover, since Crystal did not claim to have witnessed

Petitioner touching or licking M.R., but rather testified that

she reacted to what M.R. told her., and considering the evidence

in the case, the court determined that it was unnecessary to

recall Crystal to answer questions on a collateral issue.

Petitioner has failed to demonstrate that the trial

court abused its discretion in denying his application to recall

Crystal for additional cross examination or that precluding

additional cross-examination had a substantial and injurious

effect in determining the jury’s verdict. Defense counsel had

an opportunity to cross-examine Crystal following her direct

testimony. While defense counsel attempted to question Crystal

regarding watching pornography, the court sustained an objection

and she did not answer the question. However, M.R. and S.R.

both testified that they had not watched pornography at home.

Second, defense counsel’s application to recall Crystal to

question her regarding the 2007 abuse of S.R., before M.R. was

even born and involving a different perpetrator, addressed an

incident that was not only remote in time, but bore little

relevance to Petitioner’s case. Indeed, given the wealth of

evidence from the trial, e.g., testimony from M.R., S.R., and

Crystal; DNA evidence; and Petitioner’s own admissions, whether

or not Crystal may have been affected by S.R.’s abuse was only

marginally relevant and collateral. As such, the Appellate

Division’s decision regarding the trial court’s evidentiary

rulings was not contrary to, or an unreasonable application of,

federal law.

Additionally, Petitioner is unable to demonstrate that

he was denied his right to present a defense. First, Petitioner

testified in his own defense and claimed that his actions were

innocent and that he was only trying to dress M.R. when Crystal

walked in. (See Tr. 1304:1-1305:18.) Second, during his

summation, defense counsel argued that Crystal walked into the

kitchen, observed Petitioner and M.R., and jumped to an

incorrect conclusion. (See id. at 1399:16-23.) Any probative

value of introducing cross-examination testimony from Crystal

that her state of mind may have been altered due to S.R.’s abuse

was outweighed by other issues, such as causing delay,

remoteness in time, introducing a collateral issue, and

confusion of the issues. See Holmes, 547 U.S. at 326. Thus, it

was not unreasonable for the Appellate Division to conclude that

the trial court acted within its discretion in making its

evidentiary rulings; nor was it contrary to clearly established

federal law to rule to exclude this evidence.

Accordingly, Petitioner’s Sixth Amendment claim fails

to compel granting habeas relief.

C. Jury Note Claim

Petitioner claims that he is entitled to habeas relief

because the trial court failed to meaningfully respond to a jury

note, specifically the second jury note requesting “to hear the

911 call from Crystal (Mother) of the transcript, if it was on

record. If it’s on the record, can we see/hear it.” (Petition,

ECF p. 6.) The Appellate Division held this claim was without

merit because “[i]t is undisputed that the court informed the

jury that no 911 call or transcript of that call was part of the

evidence in the case.” Ramos, 164 A.D.3d at 1267. This Court

finds Petitioner’s jury note claim does not warrant habeas

relief for the following reasons.

Criminal Procedure Law § 310.30 establishes the

procedure by which a trial court must respond to jury notes,

i.e., the trial court must give “such requested information”

that it “deems proper.” C.P.L. § 310.30. Even if a state court

errs in denying a defendant's claim of a violation of N.Y. Crim.

Proc. Law § 310.30, “[v]iolations or errors of state law or

procedure generally do not constitute grounds for habeas

review,” and “[a] claim premised on a violation of New York

Criminal Procedure Law Section 310.30 does not allege a

violation of a federally protected right.” Cornado v. Bellnier,

No. 10-CV-5265, 2012 WL 6644637, at *5 (S.D.N.Y. Sept. 20, 2012)

(citations omitted), report & recommendation adopted by 2012 WL

6681692 (S.D.N.Y. Dec. 21, 2012). Hence, Petitioner's jury note

claim does not provide a basis for federal habeas relief.

In any event, even if the Court were to reach the

merits of Petitioner’s claim, it would be found to be meritless.

A review of the record demonstrates that the trial court

followed the procedure required by C.P.L. § 310.30. While the

911 call was played for Crystal outside the presence of the jury

to refresh her recollection, neither the 911 call nor the

transcript of it was ever entered into evidence. Under New York

law, a trial court is not required to provide a jury with

materials not introduced as evidence during trial. See People

v. Salaman, 231 A.D.2d 464, 464 (2d Dep’t 1996) (finding that

the trial court correctly informed the jury that it was not

entitled to a Grand Jury transcript as it was not in evidence);

People v. Thatcher, 85 A.D.3d 1065, 1066 (2d Dep’t 2011)

(finding that, in response to a jury note requesting a police

report that was not in evidence, the trial court did not err by

denying defendant’s request to inform the jury there was

testimony regarding the report). As such, Petitioner’s claim is

without merit.

Accordingly, Petitioner’s jury note claim fails to

support habeas relief.

D. Bias Against Defense Claim

Petitioner asserts that the trial court’s bias against

the defense, as evidenced by the court’s evidentiary rulings,

violated his Due Process rights to a fair trial. Petitioner

raised this claim on direct appeal and the Appellate Division

denied it, stating that “[t]he record does not support the

defendant’s contention that the Supreme Court acted with bias

against him in its evidentiary rulings.” Ramos, at 1267

(citations omitted).

For Petitioner to prevail on his claim of judicial

bias, he must demonstrate that he did not receive a trial “by an

unbiased and impartial judge without a direct personal interest

in the outcome of the hearing.” Ungar v. Sarafite, 376 U.S.

575, 584 (1964). “Mere allegations of judicial bias or

prejudice do not state a due process violation.” Brown v. Doe,

2 F.3d 1236, 1248 (2d Cir. 1993), cert. denied, 510 U.S. 1125

(1994); see also LoCascio v. United States, 473 F.3d 493, 495

(2d Cir. 2007)(“judicial opinions alone almost never constitute

a valid basis for a bias or partiality motion” (quotations

omitted)).

Petitioner claims that the trial court’s bias against

him is evidenced by: (1) the court yelling at defense counsel;

(2) the court making a sarcastic remark; (3) the court’s ruling

regarding the therapy records requested by defense counsel; (4)

the court’s refusal to sign a subpoena requested by defense

counsel; (5) the court overruling defense counsel’s summation

objections and sustaining the prosecution’s summation

objections; (6) the court’s refusal to recall Crystal as a

witness; and (7) denying defense counsel’s multiple motions for

a mistrial. For the reasons that follow, the trial court’s

decision, as affirmed by the Appellate Division, is neither

contrary to, or an unreasonable application of, United States

Supreme Court precedent, nor based upon an unreasonable

determination of the facts in light of the evidence before it.

Initially, as discussed supra, the Court has already

determined that, as the Appellate Division held, the trial court

acted within its discretion by refusing to allow Crystal to be

recalled to the witness stand. Additionally, “yelling” at

defense counsel, or making an alleged sarcastic remark, is not

indicative of a Due Process violation. See, e.g., Brown, 2 F.3d

at 1248 (“Mere allegations of judicial bias or prejudice do not

state a due process violation.” (citation omitted)). Further,

Petitioner’s claim that the trial court refused to sign a

subpoena on behalf of defense counsel is belied by the record.

The trial court agreed to subpoena and review the therapy

records from South Shore Guidance Center in camera, which it did

and, thereafter, disclosed one page from the records to counsel.

(See Tr. 642:23-643:17; 737:5-11.) Petitioner’s remaining

examples of judicial bias are each instances of evidentiary

rulings. From a review of the record, the Court does not find

that any of the trial court’s evidentiary rulings displayed any

“deep-seated favoritism or antagonism that would make fair

judgment impossible.” Liteky v. United States, 510 U.S. 540,

555 (1994). Rather, as the Appellate Division held, “[t]he

record does not support [Petitioner]’s contention that the

[trial c]ourt acted with bias against him in its evidentiary

rulings.” Ramos, 164 A.D.3d at 1268 (citations omitted).

Accordingly, Petitioner’s judicial bias claim fails to

support Petitioner’s request for habeas relief.

E. Improper Bolstering Claim

Petitioner seeks habeas relief on the grounds that the

trial court erred when it allowed Detective Baran to testify

that the complainant, M.R., told him that there were other

incidents where Petitioner made or attempted sexual contact with

her. (Petition, at ECF p. 9.) Petitioner argues that such

testimony constituted improper bolstering. Petitioner raised

this claim on direct appeal, and, the Appellate Division found

that “[c]ontrary to [Petitioner]’s contention, because defense

counsel assailed the testimony of the complainant on cross-

examination as a recent fabrication, the Supreme Court correctly

admitted the prior consistent statement of the complainant on

direct examination of a law enforcement witness.” Ramos, 164

A.D.3d at 1267.

“Under Supreme Court jurisprudence, a state court's

evidentiary rulings, even if erroneous under state law, do not

present constitutional issues cognizable under federal habeas

review.” McKinnon v. Superintendent, Great Meadow Corr.

Facility, 422 F. App'x 69, 72-73 (2d Cir. 2011) (citing Hawkins

v. Costello, 460 F.3d 238, 244 (2d Cir.2006)); see also Estelle,

502 U.S. at 67-68 (“[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law

questions”). Such claims do not arise to constitutional

magnitude unless the evidentiary error was “so pervasive as to

have denied [defendant] a fundamentally fair trial.” Collins v.

Scully, 755 F.2d 16, 18 (2d Cir. 1985). Indeed, “the concept of

bolstering really has no place as an issue in criminal

jurisprudence based in the United States Constitution” and is a

state law evidentiary issue. See Castaldi v. Poole, No. 07-CV-

1420, 2013 WL 789986, at *7 (E.D.N.Y. Mar. 1, 2013)(quotations

and citations omitted); see also Lebron v. Sanders, No. 02-CV-

6327, 2008 WL 793590, at *20 (S.D.N.Y. Mar. 25, 2008) (holding

that a violation of New York's “bolstering” rule does not rise

to a constitutional violation); Smith v. Walsh, No. 00-CV-5672,

2003 WL 22670885, at *6 (E.D.N.Y. Oct. 20, 2003) (holding that a

bolstering claim is not a cognizable basis for federal habeas

relief). As such, Petitioner’s claim does not raise a federal

question as is not cognizable on habeas review.

Regardless, the Court does not find that Petitioner’s

bolstering claim has any merit. Prior to trial, the trial court

denied the prosecution’s Molineux application to question M.R.

regarding any prior incidents of abuse by Petitioner, with the

caveat that the prosecution could renew the application if

defense counsel opened the door to that line of questioning.

(See Tr. 14:22-16:6.) During M.R.’s direct testimony, the

prosecution did not ask any questions regarding any alleged

prior incidents; however, on cross-examination, defense counsel

questioned M.R. extensively about allegations of prior incidents

of abuse by Petitioner, including to whom she reported them.

(See id. at 780:19-783:19, 785:6-786:2, 786:18-790:3, 794:20-

795:6; 795:16-796:7, 797:8-798:14, 800:3-801:21, 803:10-804:21.)

Following M.R.’s testimony, and prior to Detective

Baran taking the witness stand, the prosecution made an

application to question the detective about prior incidents of

sexual abuse by Petitioner reported to him (Baran) by M.R. (See

Tr. 908:14-909:20.) Finding that defense counsel opened the

door during M.R.’s cross examination, the trial court granted

the application, thereby allowing the prosecution to put forth

Detective Baran to rebut defense counsel’s recent fabrication

and credibility arguments. (See id. at 915:19-916:5.) Under

New York state law, the trial court’s ruling was not erroneous.

See People v. McDaniel, 81 N.Y.2d 10, 18, 611 N.E.2d 265 (1993)

(finding that if, during cross-examination, a witness’ testimony

is assailed as a recent fabrication, the witness may be

rehabilitated using prior consistent statements); People v.

Walsh, 289 A.D. 2d 517, 518, 735 N.Y.S. 2d 586 (2d Dep’t 2001);

People v. Wilens, 198 A.D. 2d 463, 463, 603 N.Y.S. 2d 585 (2d

Dep’t 1993). Even where evidence is erroneously admitted in

violation of state law, there is no due process violation unless

the evidence, when “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, highly significant.” Young v. McGinnis,

411 F. Supp. 2d 278, 304 (E.D.N.Y. 2006) (quoting Collins v.

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

omitted). Here, because Petitioner cannot demonstrate that the

state court's evidentiary ruling was erroneous, or that any

alleged error violated his right to a fundamentally fair trial,

his improper bolster claim does not provide grounds for granting

habeas relief.

F. Against the Weight of the Evidence Claim

Petitioner argues that he is entitled to habeas relief

on the grounds that the jury’s verdict is against the weight of

the evidence. However, Petitioner’s claim is not cognizable

here as it does not raise a federal question. See McKinnon, 422

F. App’x at 75. Since it is based solely on state law, it is

unreviewable in a federal habeas corpus proceeding. See 28

U.S.C. § 2254(a); Estelle, 502 U.S. at 67–68, Butler v.

Cunningham, 313 F. App’x 400, 401 (2d Cir. 2009); Smith v. Lee,

No. 11-CV-0530, 2014 WL 1343066, at *10 (E.D.N.Y. Mar. 31, 2014)

(“It is well settled that a ‘weight of the evidence’ claim is

distinct from an ‘insufficiency of the evidence’ claim and is a

state claim based on N.Y.C.P.L. § 470.15(5) that is not

reviewable in a federal habeas proceeding.” (citing McKinnon,

422 F. App’x at 75)).

To the extent Petitioner’s claim can be construed as

raising a federal claim that the evidence was insufficient to

support the conviction, that argument is without merit. A

Petitioner arguing a sufficiency of the evidence claim “bears a

very heavy burden.” United States v. Aguilar, 585 F.3d 652, 656

(2d Cir. 2009). A criminal conviction will not be disturbed if

“after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original); see also Policano v. Herbert, 507 F.3d 111, 115-16

(2d Cir. 2007) (stating that “[i]n a challenge to a state

criminal conviction brought under 28 U.S.C. § 2254 . . . the

applicant is entitled to habeas corpus relief if it is found

that upon the record evidence adduced at the trial no rational

trier of fact could have found proof of guilt beyond a

reasonable doubt” (quoting Jackson, 443 U.S. at 324)). When

considering a claim of legally insufficient evidence, the facts

are viewed in the light most favorable to the verdict. See

Garbutt v. Conway, 668 F.3d 79, 80-81 (2d Cir. 2012) (per

curiam). Moreover, “[i]n considering a petition for writ of

habeas corpus based on insufficient evidence to support a

criminal conviction in the state courts, a federal court must

look to state law to determine the elements of the crime.”

Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993).

As noted, Petitioner was convicted of one count of

Criminal Sexual Act in the First Degree and one count of

Endangering the Welfare of a Child. Pursuant to the New York

State Penal Law, “[a] person is guilty of criminal sexual act in

the first degree when he or she engages in oral sexual conduct

or anal sexual conduct with another person who is less than

eleven years old.” N.Y. Penal Law § 130.50(3). Further, “[a]

person is guilty of endangering the welfare of a child when he

or she knowingly acts in a manner likely to be injurious to the

physical, mental or moral welfare of a child less than seventeen

years old or directs or authorizes such child to engage in an

occupation involving a substantial risk of danger to his or her

life or health.” N.Y. Penal Law § 260.10(1).

At trial, the evidence demonstrated that: Crystal

walked in on Petitioner in the kitchen with her six-year-old

daughter, M.R., finding M.R. with her underwear and pants around

her ankles and Petitioner bent over M.R.; M.R. told her mother

that Petitioner licked her “coochie”; and, after Crystal called

911 and the police arrived, Petitioner made two statements, one

admitting to licking M.R. while in the kitchen. The state court

record further establishes that after his arrest, Petitioner

made more inculpatory statements to Detective Baran, the

voluntariness of which was litigated at both the pre-trial

suppression hearing and the trial. While Petitioner contends

that M.R.’s testimony was “contradictory and confusing,” it was

corroborated by Crystal, S.R., and even Petitioner’s own

statements to police.

Moreover, DNA evidence was presented at trial, with

both the prosecution and defense presenting DNA experts.

Despite differing views, the DNA experts agreed on certain

aspects of the evidence, e.g., that the vulva swab contained

saliva and that M.R.’s underwear contained saliva and

Petitioner’s DNA. Further, the defense DNA expert did not

contest that Petitioner deposited DNA on M.R.’s underwear, where

saliva was also present.

Having considered each of the crimes for which

Petitioner was convicted, the Court concludes that the Appellate

Division’s upholding of the convictions is neither contrary to

nor an unreasonable application of clearly established federal

law and its decision was not based on an unreasonable

determination of the facts. Accordingly, Petitioner’s

insufficient evidence claim is without merit.

G. Harsh and Excessive Sentence Claim

Petitioner contends that his sentence of fifteen years

of imprisonment followed by ten years of post-release

supervision is harsh and excessive, thereby entitling him to

habeas relief. (See Petition at ECF pp. 12-13.) However, it is

well settled that an excessive sentence claim, such as

Petitioner’s, does not present a required federal constitutional

issue when the received sentence “is within the range prescribed

by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir.

1992); see also Taylor v. Connelly, 18 F. Supp. 3d 242, 268

(E.D.N.Y. 2014). Under New York state law, the maximum sentence

permitted for a violation of Criminal Sexual Act in the First

Degree, a Class “B” Felony, is a term of imprisonment of twenty-

five years. See N.Y. Penal Law §§ 130.50(3); 70.00(2)(b).

Additionally, under New York state law, the maximum sentence

permitted for a violation of Endangering the Welfare of a Child,

a Class “A” Misdemeanor, is term of imprisonment of one year.

See N.Y. Penal Law §§ 260.10(1); 70.15(1). Thus, Petitioner’s

sentence of fifteen years of imprisonment for Criminal Sexual

Act in the First Degree, and sentence of one year of

imprisonment for Endangering the Welfare of a Child both fall

within what is permitted by applicable statute and, hence, do

not present a federal constitutional issue. Therefore,

Petitioner’s harsh and excessive sentence claim is untenable on

habeas review.

H. Fourth Amendment Claim

Petitioner claims that he is entitled to habeas relief

on the grounds that his Fourth Amendment rights were violated

because: (1) there was no probable cause for his arrest; and (2)

his written statements to law enforcement were involuntary.

(See Petition, at ECF pp. 14-16.) However, on direct appeal,

the Appellate Division denied Petitioner’s claim that there was

no probable cause for his arrest, holding “[w]e agree with the

hearing court’s determination that the police had probable cause

to arrest the defendant based on his statement and the

accusations of [M.R.] and her mother.” Ramos, 164 A.D.3d at

1267 (citations omitted). With respect to Petitioner’s claim

that his written statements were involuntary, the Appellate

Division ruled “[t]he statement was made voluntarily after the

defendant knowingly, intelligently, and voluntarily waived his

Miranda rights.” Id. (citations omitted.)

Petitioner’s claims arise under the exclusionary rule

grounded in the Fourth Amendment, and, as such, are not

cognizable on habeas review where, as here, the state court has

“provided an opportunity for full and fair litigation” of this

constitutional claim. See Stone v. Powell, 428 U.S. 465, 494-95

(1976). To prevail on this claim, Petitioner would need to

demonstrate either that he was not given a full and fair

opportunity to litigate the claim because the state failed to

provide “corrective procedures” by which the claim could be

adjudicated or that he was unable to avail himself of the

state's procedures “because of an unconscionable breakdown in

the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d

Cir. 1992). Petitioner is unable to make either showing.

During the suppression hearing prior to his trial,

Petitioner (1) argued there was no probable cause for his

arrest, and (2) sought suppression of (a) his statements and (b)

the buccal swab taken from him. Based upon the evidence

presented at that hearing, i.e., that in response to Crystal’s

911 call, Officer Boccio went to her apartment, where he first

spoke with Crystal and M.R., who reported that Petitioner licked

M.R.’s vagina, and, then spoke with Petitioner, who admitted to

licking M.R., the trial court found there was sufficient

probable cause for Petitioner’s arrest. (Hr’g Dec. Tr. 129:15-

19 (“Based on the statement of the mother after her observations

of [Petitioner] and the child, the statement of the child and

the statement of the [Petitioner] at the scene, the police had

probable cause to arrest the defendant.”); id. at Hr’g Dec. Tr.

129:19-21 (ruling Petitioner’s oral statement at the scene “was

not subject to Miranda, as [Petitioner] was not custody, nor was

he being interrogated”).)

As to Petitioner’s contention that his post-arrest

written statement was involuntary because it was given in

English although he is Spanish speaking, the evidence

contradicts that position. Both Detectives Baran and Pacheco

testified that Petitioner was read his Miranda rights in both

English and Spanish before his written statement was taken. The

evidence further established that after Detective Baran typed

Petitioner’s statement, (1) Petitioner read it and made

corrections to it, and (2) Detective Pacheco translated the

statement into Spanish before Petitioner signed it. Thus, based

upon the facts and circumstances of the case, the trial court

ruled Petitioner’s written statement “was freely and voluntarily

and intelligently provided after a knowing, intelligent and

voluntary waiver of his Miranda rights.” (Hr’g Dec. Tr. 130:7-

9; see also id. at 130:15-17 (“The defendant clearly speaks and

understands a good amount of English, but it was prudent to give

Miranda warnings in Spanish.”); see also id. at 130:13-14

(ruling same evidence supported finding Petitioner’s buccal swab

was given knowingly, intelligently, and voluntarily).)

Hence, the record evidence demonstrates that

Petitioner was afforded a full and fair opportunity in state

court to litigate his Fourth Amendment claims. Accordingly, no

basis lies upon Petitioner’s Fourth Amendment claims to grant

the requested habeas relief.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Petitioner’s

petition for a writ of habeas corpus (ECF No. 4) is DENIED in

its entirety.

Further, because the Petitioner has not made a

substantial showing that he was denied a constitutional right,

the Court declines to issue a certificate of appealability. See

28 U.S.C. § 2253(c)(2). The Court also certifies that any

appeal of this Order would not be taken in good faith, and thus

his in forma pauperis status is denied for the purposes of any

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45

(1962).

IT IS FURTHER ORDERED that the Clerk of the Court

close this case and mail a copy of this Order to the pro se

litigant.

SO ORDERED.

_/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: July _30_, 2021

Central Islip, New York