Rucano v. LaManna

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANTHONY RUCANO,

Petitioner, MEMORANDUM & ORDER

18-CV-4586 (KAM)

-against-

J. LaMANNA, SUPERINTENDENT OF GREEN

HAVEN CORRECTIONAL FACILITY,

Respondent.

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MATSUMOTO, United States District Judge:

On August 10, 2018, Petitioner Anthony Rucano

(“Petitioner”), proceeding pro se, brought the above-captioned

petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254 (“Section 2254”) challenging the constitutionality of his

2010 state court conviction of rape, assault, criminal sexual

acts, and criminal possession of a weapon. (ECF No. 1, Petition

for Writ of Habeas Corpus (“Pet.”).) In January 2011, Rucano

was sentenced to concurrent terms of imprisonment, the longest

of which was twelve years. (ECF No. 09-12, Sentencing

Transcript, 11-18.) On December 31, 2018, petitioner mailed an

amended memorandum to support his Section 2254 petition. (ECF

No. 33, Amended and Supplemental Memorandum of Law in Support of

Petition for Writ of Habeas Corpus (“Am. Pet.”).) Both the

original petition and supplemental memorandum essentially assert

that petitioner was deprived of a fair trial in violation of his

Sixth and Fourteenth Amendment rights because of prosecutorial

misconduct, various erroneous evidentiary rulings at trial, and

effective assistance of trial and appellate counsel. (See

generally Pet.; Am. Pet.) For the reasons discussed below, the

petition is denied in its entirety.

BACKGROUND

I. Factual Background

Petitioner met the victim, Duane Katherine Ramos, on

an Internet dating site in March 2009. (ECF No. 43, Amended

Opposition (“Am. Opp.”) ¶ 7; See generally ECF No. 9-6, State

Court Trial Transcript (“Trial Tr.”)1 at 142.) The petitioner

and the victim were engaged soon after in May 2009. (Trial Tr.

at 144.) Ramos claimed multiple instances of rape and assault

over several months in 2009. (See generally ECF No. 9-6, Trial

Tr.) Petitioner did not deny the abusive and violent nature of

the relationship, but claimed instead that Ramos was the

emotional and physical abuser and denied that he raped Ramos.

(Am. Opp. ¶¶ 26-36.) The two went to a couple’s counseling

session together with a social worker named Anna Lorusso-

1 The State Court Trial Transcript is filed across multiple docket entries, from ECF

No. 09-6 to ECF No. 09-10, with a continuous pagination of 705 pages. For simplicity

and clarity purposes, citation to the transcript will be the actual page number of the

transcript, instead of the discrete ECF pagination across different filings.

Moramarco. (Am. Opp. ¶ 34; ECF No. 9-8, Trial Tr. 408.) On

September 29, 2009, Ramos reported Petitioner’s abusive

relationship to the police. (ECF No. 9-7, Trial Tr. 199-203.)

The police took Ramos to the hospital for gynecological and

general physical examinations. (ECF No. 9-7, Trial Tr. 200-

203.) Examinations revealed bruises, scratches, bite marks and

lesions, Petitioner’s semen on swabs of Ramos’s vagina, panty

liner and underwear, but no injury was found in Ramos’s genital

area. (ECF No. 9-6, Trial Tr. 50-53.) Petitioner was arrested

at his home at 5 p.m. (ECF No. 9-8, Trial Tr. 410-11.)

II. Trial, Verdict, and Sentence

On September 21, 2010, petitioner was convicted after

a thirteen-day jury trial, by the Supreme Court of New York,

Richmond County, of Rape in the First Degree, Criminal Sexual

Act in the First Degree, Attempted Rape in the First Degree,

Assault in the Second Degree, Assault in the Third Degree, and

two counts of CriminalPossession of a Weapon in the Third

Degree. (ECF No. 9-10, Trial Tr. 696-701.)

Petitioner was sentenced on January 21, 2011 to

concurrent terms of: (1) twelve years’ imprisonment each for

first-degree rape and first-degree criminal sexual act, with

each sentence to be followed by five years of post-release

supervision; (2) eight years’ imprisonment for attempted first-

degree rape, to be followed by five years of post-release

supervision; (3) five years’ imprisonment for second-degree

assault, to be followed by three years of post-release

supervision; (4) one to three years’ imprisonment for third-

degree criminal possession of a weapon; and (5) one year’s

imprisonment for third-degree assault. (ECF No. 09-12,

Sentencing Transcript, 16-18.)

III. Direct Appeal

In June 2013, through his appellate counsel,

petitioner appealed his judgment of conviction to the New York

Supreme Court, Appellate Division, Second Department (the

，

“Appellate Division”) alleging that the People “failed to prove

appellant’s guilt beyond a reasonable doubt” and that the

appellant was denied due process and effective assistance of

trial counsel. (ECF No. 9-13, Brief for Defendant-Appellant,

June 2013.) On July 1, 2015, the Appellate Division affirmed

the judgment and ruled that defendant’s challenge to the legal

sufficiency of the evidence and his contention that he was

deprived of a fair trial because of the prosecutor’s summation

remarks were unpreserved for appellate review. (ECF No. 9-36,

People v. Rucano, 130 A.D.3d 656 (2d Dept. 2015) (citing CPL

470.05[2]) at 22-23.) The Appellate Division also determined

that there was “no merit to the defendant’s contention that he

was deprived of the constitutional right to effective assistance

of counsel.” Id. On April 4, 2016, the New York Court of

Appeals denied petitioner leave to appeal. (See ECF No. 9-47,

People v. Rucano, 27 N.Y.3d 1005 (2016).)

IV. 440.10 Motion

On July 15, 2014, petitioner filed a pro se motion to

vacate his conviction and sentence pursuant to C.P.L § 440.10

arguing that there was prosecutorial misconduct and alleged

ineffective assistance of counsel. (ECF No. 9-18.) Petitioner

also requested assignment of qualified counsel to assist him in

adjudicating his 440.10 motion. (Id. at 1-2.) On December 15,

2014, the Honorable Stephen Rooney of the Supreme Court of the

State of New York, Richmond County, ruled that because

defendant’s direct appeal was pending before the Appellate

Division, the motion to vacate the judgment was denied. (ECF

No. 9-27, Decision and Order.) Defendant’s motion for the

assignment of counsel was also denied as defendant could not

claim a state or federal constitutional right to effective

assistance of counsel pursuant to C.P.L § 440.10. (Id.) On

April 30, 2015, the Appellate Division denied petitioner’s

motion for leave to appeal. (ECF No. 9-32, Decision and Order.)

Petitioner then sought a writ from the Supreme Court of the

United States, which was denied on October 19, 2015. (ECF No.

9-44, Rucano v. New York, 136 S. Ct. 366 (2015).)

V. Writ of Error Coram Nobis

On September 1, 2016, petitioner filed a pro se

application for a writ of error coram nobis, alleging

ineffective assistance of counsel with respect to his June 2013

direct appeal. (ECF No. 9-48, Notice of Motion for Writ of

Error Coram Nobis.) On April 12, 2017, the Appellate Division

denied the application because the petitioner had failed to

establish that he was denied effective assistance of counsel.

(ECF No. 9-55, People v. Rucano, 149 A.D.3d 876 (2d Dept.

2017).) On October 19, 2017, the Court of Appeals denied leave.

(ECF No. 9-60, People v. Rucano, 30 N.Y.3d 983 (2017).)

Petitioner then sought a writ of certiorari from the Supreme

Court of the United States, which was denied on April 16, 2018.

(ECF No. 9-63, Rucano v. New York, 138 S. Ct. 1563 (2018).)

VI. The Instant Habeas Petition

On August 10, 2018, petitioner filed the petition for

habeas relief, alleging ineffective assistance of counsel, due

process violations, and prosecutorial misconduct, based on,

inter alia, assertions of prosecutor’s use of non-verbal cues

and leading questions, trial court’s denial of expert witness,

Brady violations, and court’s misapplication of evidentiary

rule. (See generally Pet.)

On December 31, 2018, petitioner filed an amended

memorandum in support of his habeas petition, renewing claims of

ineffective trial and appellate assistance and prosecutorial

misconduct, which were raised in his previous pro se

submissions, including his July 2014 and September 2016 motions.

(See generally Am. Pet.; Am. Opp. 20-33.) On April 15, 2019,

Respondent filed a supplemental memorandum of law in opposition

to the amended petition. (Am. Opp.)

LEGAL STANDARD

Under 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

an application for a writ of habeas corpus by a person in

custody pursuant to a state court judgment may only be brought

on the grounds that his or her custody is “in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). A habeas petitioner is required to show that

the state court decision, having been adjudicated on the merits,

is either “contrary to, or involved an unreasonable application

of, clearly established Federal law” or 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);

see also Johnson v. Williams, 568 U.S. 289 (2013).

For the purposes of federal habeas review, “clearly

established law” is defined as “the holdings, as opposed to the

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

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

362, 412 (2000). A state court decision is “contrary to,” or an

“unreasonable application of,” clearly established law if the

decision: (1) is contrary to Supreme Court precedent on a

question of law; (2) arrives at a conclusion different than that

reached by the Supreme Court on “materially indistinguishable”

facts; or (3) identifies the correct governing legal rule but

unreasonably applies it to the facts of the petitioner’s

case. Id. at 412-13. Factual determinations made by the state

court are presumed to be correct, and the petitioner bears the

burden of rebutting the presumption of correctness by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

State procedural default or failure to exhaust state

court remedies will operate as a bar to review unless the

petitioner can (1) establish cause for his default and actual

prejudice resulting from the alleged violation of federal law,

or (2) demonstrate that the failure to consider the petitioner's

claims would result in a fundamental miscarriage of justice.

See Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012);

Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011).

A petitioner may fulfill the cause for default

requirement in two related ways. First, the petitioner can

demonstrate that “some objective factor, external to

Petitioner’s defense, interfered with his ability to comply with

the state’s procedural rule.” Gutierrez, 702 F.3d at 111

(citing McClesky v. Zant, 499 U.S. 467, 493 (1991)).

Alternatively, the petitioner can establish cause by

demonstrating futility — specifically, that “prior state case

law has consistently rejected a particular constitutional

claim.” Id. (citing DiSimone v. Phillips, 461 F.3d 181, 191 (2d

Cir. 2006)). To establish prejudice, the petitioner must

demonstrate that the alleged error resulted in “actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” Torres v. Senkowski, 316 F.3d

147, 152 (2d Cir. 2003) (internal quotation marks and citation

omitted).

Even if the petitioner is unable to establish cause

and prejudice, the court may excuse the procedural default if

petitioner can show that a fundamental miscarriage of justice

would result, i.e., “that he is actually innocent of the crime

for which he has been convicted.” Dunham v. Travis, 313 F.3d

724, 730 (2d Cir. 2002) (citations omitted). “‘[A]ctual

innocence’ means factual innocence, not mere legal

insufficiency.” Id. (quoting Bousley v. United States, 523 U.S.

614, 623 (1998)) (alteration in original, internal quotation

marks omitted).

In reviewing the instant petition, the court is

mindful that “[a] document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(internal quotation marks and citations omitted); Williams v.

Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (noting that courts

should review pro se habeas petitions with a lenient eye).

Consequently, the court is obliged to interpret petitioner’s

pleadings as raising the strongest arguments they suggest.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Martin v.

United States, 834 F. Supp. 2d 115, 119 (E.D.N.Y. 2011) (citing

Williams, 722 F.2d at 1050).

DISCUSSION

On August 10, 2018, pro se petitioner Rucano currently

incarcerated at Green Haven Correctional Facility, filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. (Pet.) Petitioner amended his petition on December 31,

2018, possibly responding to the prosecution’s comments in its

Opposition Brief that the petition “does not conform to

conventional styles of argumentation,” that his “discrete claims

of error are not clearly delineated by his petition.” (Opp. 20-

21.) However, the court agrees with Respondent’s observation

that even the new petition has intertwined arguments which are

not neatly organized, and portions of the petition appear to be

addressed to other courts and reproduced from previous filings.

Construing the petition liberally, petitioner raises two main

claims – the state trial court’s denial of his due process

rights and a fair trial, and ineffective assistance from trial

and appellate counsels. (See generally Am. Pet.) As discussed

below, because the court finds petitioner’s myriad of arguments

within the two main claims (the due process violation and

ineffective assistance of counsel) to be procedurally barred and

without merit, the court denies the petition in its entirety.

I. Petitioner Was Not Denied Due Process or a Fair Trial.

Petitioner first claims that his state court trial and

conviction were riddled with prosecutorial misconduct and

incorrect evidentiary rulings, which deprived him of due process

and a fair trial. (Am. Pet. 77-113.) Specifically, petitioner

asserts ten grounds of errors and improprieties, independent of

his ineffective assistance of counsel claims. Many of these

claims are procedurally barred because they were rejected by the

state trial court on “a state law ground that is independent of

the federal question and adequate to support” petitioner’s

conviction and sentence. Beard v. Kindler, 558 U.S. 53 (2009)

(quoting Coleman, 501 U.S. at 729).

It is well-settled that a § 440.10 motion “cannot be

used as a vehicle for an additional appeal or as a substitute

for a direct appeal.” Woods v. Heath, No. 12-CV-02175 NGG, 2013

WL 6092804, at *9 (E.D.N.Y. Nov. 19, 2013) (quoting People v.

Donovan, 107 A.D.3d 433 (N.Y. App. Div. 2d Dep’t 1985)). Here,

the petitioner asserts the same claims that were raised and

rejected in his § 440.10 motion. As the trial court properly

noted in denying the C.P.L § 440 motion, petitioner’s arguments

“are either conclusory allegations that are not supported by any

documentary evidence or affidavit, or they are based upon

matters that are within the record.” (ECF No. 9-27 at 1.) The

Honorable Stephen Rooney ruled that the “defendant is not

entitled to the relief he seeks based upon conclusory

allegations.” (Id.) The trial court also denied the § 440

motion because “the court must deny a motion when the judgment

is, at the time of the motion appealable or pending on appeal,

and sufficient facts appear on the record with respect to the

ground or issue raised upon the motion to permit adequate review

thereof upon such an appeal.” (Id. at 1-2.) The claims had

been pending on direct appeal when the trial court ruled on the

440 motion.

Petitioner has failed to demonstrate cause and

prejudice to warrant review of his procedurally barred claims.

As to cause, nothing in the petition or record suggests the

presence of an objective factor that interfered with

petitioner’s ability to properly raise his claims on direct

appeal, see Gutierrez, 702 F.3d at 111, and petitioner does not

establish futility, much less contend that New York case law had

“consistently rejected” his constitutional claims. See

DiSimone, 461 F.3d at 191. Nor has petitioner shown that his

lapse was attributable to errors by his appellate counsel. See

Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). “A habeas

petitioner may bypass the independent and adequate state ground

bar by demonstrating a constitutional violation that resulted in

a fundamental miscarriage of justice, i.e., that he is actually

innocent of the crime for which he has been convicted.” Dunham,

313 F.3d at 730 (citing Schlup v. Delo, 513 U.S. 298, 321

(1995)). In order to meet the “actual innocence” requirement,

the petitioner must “support his allegations of constitutional

error with new reliable evidence.” Blount v. Napoli, No. 09-CV-

4526 KAM, 2012 WL 4755364, at *14 (E.D.N.Y. Oct. 5, 2012)

(quoting Schlup, 513 U.S. 298 at 327)). The court detects no

additional evidence in the petition that was not before the

trial judge when the jury found petitioner guilty of the

charges, or before the Appellate Term when it affirmed

petitioner’s conviction.

Petitioner has failed to demonstrate cause and

prejudice to warrant review of his procedurally barred claims.

Accordingly, petitioner’s claim that he was denied his due

process rights and a fair trial is denied because the claims are

procedurally barred. For the avoidance of doubt, however, the

court also considers, infra, the merits of petitioner’s claims.

1. Prosecution’s Use of Non-Verbal Cues

Petitioner alleges that during the grand jury

questioning of the complainant, the prosecutor employed

pervasive non-verbal cues to instruct the complainant to read

from her diary, effectively circumventing recording in the

transcript and concealing the existence of the diary from the

jury. (Am. Pet. 84-85.) That the prosecutor “continuously

pursued a course of conduct designed to conceal [the Ramos

diary’s] existence” is mere subjective conjecture and habeas

relief cannot be granted on such speculation. (See Am. Pet.

85;) Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts

should not grant “habeas relief on the basis of little more than

speculation with slight support”); Osinoiki v. Riley, 1990 WL

152540, at *2-3 (E.D.N.Y. Sept. 28, 1990) (conclusory statements

based on speculation “are inadequate to satisfy petitioner's

burden”) (citing Machibroda v. United States, 368 U.S. 487, 495

(1962)); see also Toland v. Walsh, No. 04–CV0773 (GLS), 2008 WL

65583, at *14-15 (N.D.N.Y. Jan. 4, 2008) (denying habeas relief

where possibility that missing witness would give favorable

testimony was “based upon nothing other than mere conjecture”

and stating that “federal habeas relief cannot be granted upon

claims that are rooted in speculation”). Accordingly,

petitioner's claim as to the speculated use of non-verbal cues

does not provide a basis for habeas relief.

2. Prosecution’s Use of Leading Questions

Petitioner alleged that “the grand jury record is

replete with Assistant District Attorney Katchen asking leading

questions and statements designed to guide the complainant’s

testimony . . ., [going] as far as testifying for the

complainant to meet the statutory requirements of [various

indictment charges].” (Am. Pet. 16-17.) Petitioner even

compared the complainant’s grant jury testimony to the trial

charge conference where some of his felony charges were dropped,

averring that it was “because of the fact that, unlike at the

grand jury, at trial the complainant did not . . . have the help

of Katchen to provide leading questions and statements designed

to meet statutory requirements of the charges he was looking to

invent.” (Am. Pet. 18.)

Although it is the job of the prosecutor to elicit

testimony from witnesses in front of a grand jury, it has been

well-established that “leading questions tend to mute one of the

chief functions of the grand jury, the evaluation of the

strength of the evidence and the credibility of witnesses.”

United States v. Brito, 907 F.2d 392, 395 (2d Cir. 1990).

Reversal is “virtually automatic” if it is established that the

government knowingly permitted the introduction of false

testimony. United States v. Wallach, 935 F.2d 445, 456 (2d

Cir.1991). Petitioner, however, mischaracterizes the nature of

the questions asked by the prosecutor. Petitioner assumes that

prosecutor’s question, “by ‘oral sex,’ you mean his penis was in

your mouth?”, is evidence of the prosecutor testifying on behalf

of the complainant to satisfy the statutory requirement of

criminal sexual charges. (Am. Pet. 17.) The court disagrees.

This question is nothing more than the prosecutor’s attempt to

clarify the meaning of the word “oral sex,” and therefore cannot

be construed as leading. Petitioner also claimed that the

prosecutor’s question, “did he pull your legs apart?”, was used

to establish “forcible compulsion.” (Id.) But when reviewed in

context, this question was a natural follow-up to the witness’s

preceding testimony - “[h]e forced himself on top of me . . .

[h]e took his penis and put it in my vagina.” (Id.)

Moreover, in any event, claims of deficiencies in

state grand jury proceedings are not cognizable in a habeas

corpus proceeding. United States v. Mechanik, 475 U.S. 66, 106

S.Ct. 938, 89 L.Ed.2d 50 (1986)(held that claims of deficiencies

in a state grand jury proceeding cannot support a collateral

attack under 28 U.S.C. § 2254); Lopez v. Riley, 865 F.2d 30, 32

(2d Cir. 1989); Davis v. Nassau, 524 F. Supp. 2d 182, 192

(E.D.N.Y. Nov. 29, 2007) (“[A]lleged defects in a grand jury

proceeding cannot provide grounds for habeas relief.”). Thus,

petitioner's claim as to the alleged use of leading questions

during the grand jury proceeding does not provide a basis for

habeas relief, and is denied.

3. Reasonably Calculated Notice of Petitioner’s Right to

Testify Before Grand Jury

Petitioner argues that he was served with notice under

C.P.L. § 190.50 only after the grand jury was convened and his

right to be provided with reasonably calculated notice so that

he could testify at the grand jury was denied. (Am. Pet. 94.)

First, petitioner’s right to appear before the grand

jury is not cognizable on federal habeas review because the

right is not a matter of federal constitutional law. 28 U.S.C.

§ 2254(a) (permitting federal habeas corpus review only where

the petitioner has alleged that he is in state custody in

violation of “the Constitution or a federal law or treaty”);

Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting

habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the

United States.”). Instead, the right to appear in front of a

grand jury is a statutorily created right in the state of New

York. N.Y. Crim. Proc. Law § 190.50(5)(a) (“When a criminal

charge against a person is being or is about to be or has been

submitted to a grand jury, such person has a right to appear

before such grand jury as a witness in his own behalf if, prior

to the filing of any indictment or any direction to file a

prosecutor's information in the matter, he serves upon the

district attorney of the county a written notice making such

request and stating an address to which communications may be

sent.”). As the New York Court of Appeals has explained, a

“defendant's right to appear as a witness before the Grand Jury,

in contrast to his Sixth Amendment constitutional right to

submit evidence on his own behalf at trial, is derived

exclusively from statute.” People v. Smith, 87 N.Y.2d 715, 724

(N.Y.1996) (citing N.Y. Crim. Proc. Law § 190.50(5)).

Even if federal habeas review of petitioner’s right to

testify before a grand jury were proper, the record indicates,

and petitioner also conceded, that the notice was filed on

September 30, 2009 and contained a date of October 5, 2009, to

which petitioner’s arraignment attorney served reciprocal grand

jury notice on the record on October 1, 2009. (Aff. Cor. ¶ 38.)

Petitioner speculates, however, that the dates on the notice

were physically altered, but presents no facts in support. (Am.

Pet. 13.) As noted, federal habeas relief cannot be granted

upon claims that are rooted in speculation. See Wood v.

Bartholomew, 516 U.S. 1, 8 (1995) (federal courts should not

grant “habeas relief on the basis of little more than

speculation with slight support.”) As such, petitioner’s claim

regarding notice is meritless and is denied.

4. Court’s Refusal to Enlist a Forensic Document Expert

Petitioner argues that the trial court abused its

discretion by denying his request to enlist a forensic document

expert to analyze the victim’s diary. (Am. Pet. 30-32.)

Petitioner insists that an examination of the diary would reveal

that the diary entries were subsequently modified by the

claimant to add allegations of crimes against petitioner. (Pet.

26.)

Under New York Law, the “decision to appoint experts

to assist a defendant is left to the sound discretion of

the trial court, see N.Y. County Law § 722-c(McKinney 1972); 18

U.S.C. § 3006A(e), upon a defense showing of necessity and

inability to afford the expense of such services.” Johnson v.

Harris, 682 F.2d 49, 50 (2d Cir.1982) (citing United States v.

Oliver, 626 F .2d 254, 260 (2d Cir.1980)). There is no federal

constitutional requirement that a defendant be appointed an

expert at the public’s expense. See id. (citing to the state

and federal statutory authority for appointment of defense

experts). Contrary to petitioner’s contention that he was

entitled to the appointment of an expert, the Second Circuit

clearly has held that such a decision is committed to the sound

discretion of the trial court. See Johnson, 682 F.2d at 50.

Absent an abuse of discretion, a defendant cannot obtain

relief. See id. (denying habeas relief based on claim

that trial court erroneously failed to authorize funds for

defendant to retain a forensic expert).

Petitioner suggested that the “water solubility test”

could have “definitely proven that the added lines accusing

[petitioner] of rape on several entries were all written at the

same time,” (Am. Pet. 125), but he offered no evidence or any

factual basis to support his assertion. Petitioner’s claim is

thus meritless, and is denied.

5. Brady Violation

Petitioner also argues that the prosecutor withheld

the copy of the complainant’s diary until the first day of

trial, which constitutes a Brady violation. (Am. Pet. 100-101.)

This argument was already raised in petitioner’s 440 motion.

In a criminal matter, the prosecution has the

obligation to disclose exculpatory evidence to the defendant.

Brady v. Maryland, 373 U.S. 83 (1967); Giglio v. United States,

405 U.S. 150, 154 (1972). A Brady violation consists of three

factors: (1) “[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory or impeaching;”

(2) “that evidence must have been suppressed by the State,

either willfully or inadvertently;” and (3) “prejudice must have

ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material and prejudice results if “there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

Nondisclosure merits relief only if it “undermines confidence in

the outcome of the trial.” Kyles v. Whitly, 514 U.S. 419, 434

(1995) (citation and internal quotation marks omitted).

Petitioner’s claim is meritless because Petitioner has

provided no basis that the diary, which purportedly constitutes

“colorable impeaching evidence,” (Am. Pet. 103-04), contained

evidence that would have led to a different result at trial.

Petitioner’s theory, that modifications were made to the diary

entries were done all at the same time, is based on pure

speculation, and thus the claim fails. See Wood v. Bartholomew,

516 U.S. 1, 8 (1995) (federal courts should not grant “habeas

relief on the basis of little more than speculation with slight

support.”) Plaintiff’s Brady claim is denied.

6. Absence of Trial Counsel During Voir Dire

Petitioner claims that he was prejudiced by his trial

counsel’s absence during the first part of voir dire. (Am. Pet.

222.) Petitioner bases this claim on counsel’s alleged absence

during the clerk’s recount of juror’s names. (Am. Pet. at 222-

223.) Petitioner alleges that “it is clear that the court

clerk, by calling out [petitioner’s counsel] and stating, ‘the

lineup so far is,’ could only be recounting the details of

jurors’ names to [the counsel], as he was not present to hear it

when first announced in the courtroom.” (Am. Pet. 223.)

Respondent notes that the record does not support the absence of

trial counsel during voir dire.

Petitioner’s allegation is entirely speculative; the

clerk might have simply been repeating the jurors’ seating

arrangement for confirmation. See Wood v. Bartholomew, 516 U.S.

1, 8 (1995) (federal courts should not grant “habeas relief on

the basis of little more than speculation with slight support.”)

Additionally, where the proceeding involved no

substantive issues affecting substantial rights of the parties,

the defense counsel’s alleged absence during the early phase of

voir dire is not a proper ground to disturb the judgment of

convictions. See Lovacco v. Kelly, No. 99 CV 3094 (GBD), 2005

WL 2482518, at *5 (S.D.N.Y. Oct. 7, 2005) (even if it is assumed

that the judge was not physically within the courtroom itself,

his absence was not so egregious as to constitute a structural

error); People v. Carr, 25 N.Y.3d 105, 113 (2015) (holding that

when the discussion involved important issues for trial that

might have affected a “substantial right” of a party, defense

counsel’s presence was required.) Plaintiff’s claim regarding

his trial counsel’s absence during part of the voir dire is

denied.

7. Trial Court’s Discharge of An Unsworn Alternate Juror

Petitioner further contends that his right to a fair

and impartial trial was violated when the trial court abused its

discretion by discharging a juror improperly. (Am. Pet. 225.)

Specifically, petitioner questioned the trial court for not

inquiring into the circumstances of the discharge of an unsworn

juror after it was suspected that the unsworn juror had spoken

with a court officer about the case. (Am. Pet. 225.)

Respondent explains that the alternate juror was discharged

after defense counsel reported that the alternate juror may have

overheard defense counsel’s conversation regarding the trial

with a court officer during a lunch break. (Opp. at 8.)

Petitioner’s claim is without merit. When the trial

“court merely replaced one impartial juror with another

impartial juror,” petitioner’s right to a fair trial surely

remained intact. Rosario v. Bennett, No. 01 CIV. 7142(RMB)(AJ,

2002 WL 31852827, at *26 (S.D.N.Y. Dec. 20, 2002) (quoting

Ocasio v. David, 99 Civ. 10760, 2001 WL 930847 at *1 (S.D.N.Y.

Aug.16, 2001)(holding that a habeas review court should give

broad deference to trial court’s plainly reasonable decision to

discharge an unsworn juror whose ability to deliberate was in

doubt). Here, even though petitioner averred that the court

failed to make the “requisite inquiry” as to the “cause or

ground” for the challenge, the court merely replaced an unsworn

impartial juror with another, based on the reasonable concern

that the alternate juror might have overheard defense counsel’s

conversation about the case and could introduce bias to the jury

pool. (Am. Pet. 225.) The court’s decision “will be upheld

unless the defendant shows bias and prejudice.” Ocasio v.

David, No. 99 CIV. 10760 (JSM), 2001 WL 930847, at *1 (S.D.N.Y.

Aug. 16, 2001) (citation omitted). Petitioner has not shown

bias or prejudice. Thus, this claim is also meritless and

denied.

8. Complainant’s Improper Use of The Diary

Petitioner alleged that the complainant was improperly

allowed to read from her diary to refresh her recollection of

the details of their abusive relationship, “without it being

marked for identification or entered into evidence.” (Pet. 58-

60.) In apparent contradiction of his claim that the diary

should have been admitted into evidence, petitioner also claimed

that the diary constitutes inadmissible “hearsay that violated

the rules of past recollection recorded.” (Id. 60.) Respondent

notes that Petitioner first raised this claim in his coram nobis

petition and that because the diary was used to refresh

recollection, it was not admitted.

“Due process requires the state courts in conducting

criminal trials to proceed consistently with that fundamental

fairness which is essential to the very concept of justice.”

Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.1998) (internal

quotation marks omitted). “Erroneous evidentiary rulings rarely

rise to the level of harm to this fundamental constitutional

right to present a meaningful defense.” Washington v. Schriver,

255 F.3d 45, 56 (2d Cir.2001) (internal quotation marks

omitted). A ruling to exclude evidence is only “an error of

constitutional dimension,” Rosario v. Kuhlman, 839 F.2d 918, 924

(2d Cir.1988), if “the omitted evidence, evaluated in the

context of the entire record, creates a reasonable doubt that

did not otherwise exist.” Jones v. Stinson, 229 F.3d 112, 120

(2d Cir.2000) (internal citations and alterations omitted). A

trial court's exclusion of evidence that was cumulative or

irrelevant cannot violate a petitioner's right to a fair trial

because admission of the evidence would not have affected the

outcome. Petitioner fails to explain or argue how the diary

would have created reasonable doubt.

The trial court's exclusion of the diary was not

error, let alone error of a constitutional dimension, because

the diary was merely used to refresh the complainant’s

recollection. The diary provided cumulative background

evidence, and the trial court acted well within its discretion

in excluding the diary. See Blissett v. Lefevre, 924 F.2d 434,

439 (2d Cir.1991). Thus, the claim fails and is denied.

9. Improper Testimony from Witness Stefania Mach

Petitioner contends that the testimony from his

downstairs neighbor, Stefania Mach, was improperly admitted,

because it is prejudicial and speculative. (Pet. 38; Am. Pet.

59-60, 65-66.) Mach testified on direct examination that on one

night in late September 2009, at about 9 or 10 p.m., she heard

petitioner and claimant having sex, and claimant screaming

something like “leave me alone, I no want, give me a break,” and

heard either the petitioner or claimant running. (Trial Tr.

354-56.)

Erroneous evidentiary rulings by a state trial court

generally do not rise to the level of constitutional violations

upon which a federal court may issue a writ of habeas corpus.

See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y.1987)

(citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir.1977)).

Erroneously admitted evidence must be “crucial, critical, [and]

highly significant.” Collins v. Scully, 755 F.2d 16, 19 (2d

Cir.1985). In this regard, petitioner bears a “heavy burden.”

Roberts v. Scully, 875 F.Supp. 182, 189 (S.D.N.Y.1993), aff'd,

71 F.3d 406 (2d Cir.1995) (unpublished table decision). The Due

Process Clause of the Fourteenth Amendment is violated where

“the evidence in question ‘was sufficiently material to provide

the basis for conviction or to remove reasonable doubt that

would have existed on the record without it.”’ Johnson v. Ross,

955 F.2d 178, 181 (2d Cir.1992) (quoting Collins, 755 F.2d at

19).

Here, the trial court allowed Mach’s testimony as to

whether she heard the Petitioner and the complainant having

sexual intercourse and complainant protesting. (Trial Tr. 354-

56.) The trial court did not allow Mach to testify further as

to the conversation she overhead between the complainant and the

Petitioner, of whose footsteps she heard because that would have

led to speculation by the jury. (Id.) The Court also

admonished the jury that Ms. Mach was not present and struck

testimony. (Id.) Petitioner has not shown an abuse of the

trial court’s discretion because the trial record makes clear

that Petitioner forcibly raped complainant. Petitioner’s claim

fails and is denied.

II. Petitioner Was Not Denied Effective Assistance of Counsel

Petitioner appears to allege that both his trial

counsel and appellate counsel were ineffective in allowing the

alleged errors referenced above to occur. (Am. Pet. 10-12.)

Petitioner contends that “appellate counsel was made aware of

numerous claims of ineffective assistance of counsel that . . .

would have shown trial counsel failed to perform an

investigation of the facts and law.” (Id. at 12.)

Petitioner already raised these claims in his direct

appeal, his C.P.L. § 440.10 application, and coram nobis

petition. The Court considers claims of ineffective assistance

of counsel upon de novo review. “In order to prevail,

[petitioner] must first satisfy the prongs of Strickland on de

novo review on the merits.” Rosario v. Ercole, 601 F.3d 118,

126 (2d Cir. 2010.) A court reviewing a claim for ineffective

assistance of counsel on a writ of habeas corpus evaluates the

two-part Strickland test. To prevail on an ineffective

assistance of counsel claim, a petitioner must demonstrate: (1)

that his counsel’s performance was so deficient that it was

objectively unreasonable under professional standards prevailing

at the time; and (2) that his counsel’s deficient performance

was prejudicial to the petitioner’s case. Strickland v.

Washington, 466 U.S. 668, 687.

Petitioner may prove the first prong by showing that

counsel’s representation “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. A reviewing

court, however, must be “highly deferential” and avoid “second

guess[ing]” counsel’s decisions so long as they are within the

“wide range of reasonable professional assistance.” Id. at 689.

Petitioner can demonstrate prejudice by establishing “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694. As explained above, Petitioner has failed to show

that counsel’s alleged errors, including but not limited to, the

failure to object to the admissibility of certain evidence and

the purported and unsupported absence of defense counsel during

the first part of voir dire, was prejudicial. (See supra at

Section I. Petitioner Was Not Denied Due Process or a Fair

Trial.) Thus, the claim that trial counsel was ineffective is

denied.

Appellate counsel also was not ineffective. Appellate

counsel is not required to raise every colorable claim urged by

the client, but is entitled to focus on key issues while

“winnowing out weaker arguments.” See e.g., Jones v. Barnes,

463 U.S. 745, 751–53 (1983). Reviewing courts should not second

guess the reasonable professional judgments of appellate counsel

as to the most promising appellate issues. Id. at 754. A

habeas petitioner may establish constitutionally inadequate

performance of appellate counsel only by showing that appellate

counsel “omitted significant and obvious issues while pursuing

issues that were clearly and significantly weaker.” Mayo, 13

F.3d at 533.

Respondent argues that appellate counsel “wrote a 53-

page brief arguing that trial counsel’s performance was

deficient for failing to object to, or to request a mistrial in

response to, three elements of the trial” related to the

admissibility of certain testimony and evidence. (Am. Opp. at

36.) Although appellate counsel may not have addressed all of

Petitioner’s arguments, in applying deference to counsel’s

strategy, as required by Strickland, the conduct of petitioner’s

counsel was objectively reasonable, and the ineffective

assistance of appellate counsel claim fails on the merits. See

e.g., Jones v. Barnes, 463 U.S. 745, 751–53 (1983) (Appellate

counsel is not required to raise every colorable claim urged by

the client, but is entitled to focus on key issues while

“winnowing out weaker arguments.”) Therefore, Petitioner’s

ineffective assistance of counsel claim is denied.

CONCLUSION

For the forgoing reasons, the petition for a writ of

habeas corpus is DENIED in its entirety. A certificate of

appealability shall not issue because petitioner has not made a

substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed

to enter judgment in favor of Respondent, close this case, and

send a copy of this Memorandum and Order and the judgment to the

petitioner at his last known address and note service on the

docket.

SO ORDERED.

Dated: October 4, 2021

Brooklyn, New York

/s/

Hon. Kiyo A. Matsumoto

United States District Judge