Huger v. Bell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KEVIN HUGER,

Petitioner, MEMORANDUM & ORDER

- against – 20-cv-1196 (KAM)

E. BELL,

Respondent.

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MATSUMOTO, United States District Judge:

Pro se Petitioner Kevin Huger (“Petitioner”) is

incarcerated pursuant to a judgment of the Supreme Court, Kings

County, convicting him of kidnapping in the second degree (N.Y.

Penal Law § 135.20) and menacing in the third degree (N.Y. Penal

Law § 120.15). (See ECF No. 1, Petition for Writ of Habeas Corpus

(“Pet.”), at 1.) Petitioner filed this action on February 28,

2020, seeking habeas relief pursuant to 28 U.S.C. § 2254. (See

id.) For the reasons set forth below, Mr. Huger’s petition is

respectfully DENIED.

BACKGROUND

I. Facts

On March 11, 2010, at approximately 4:30 p.m.,

Petitioner went to Jalesa Rivers’s home in Brooklyn to retrieve

his belongings. (Trial Tr. at 69–71.)1 Rivers had ended their

year-and-a-half-long relationship the day before. (Id. at 61,

64.)

When Petitioner arrived, he and Rivers went upstairs to

speak privately. (Id. at 70-72.) Petitioner asked Rivers if she

and a man named Carl Ramah, a childhood friend of Rivers, were

dating. (Id. at 72, 276.) At some point during the conversation,

Ramah stopped by Rivers’s house. (Id. at 72–73.)

At trial, the jury was presented with two versions of

events that took place during Ramah’s visit. According to Rivers’s

trial testimony, Ramah initially remained downstairs while

Petitioner and Rivers continued to talk upstairs. (Id. at 72–73.)

Rivers testified that she and Petitioner then began to argue

because Petitioner accused her of cheating on him with Ramah. (Id.

at 73.) Rivers further testified that Ramah and Rivers’s mother,

upon hearing their argument, came upstairs to see what was going

on, at which point Petitioner threatened to kill Ramah, accusing

1 Numbers in parentheses preceded by “Trial Tr.” refers to pages of the Trial

Transcript. (ECF Nos. 8-1, 9, 10, 11, and 12, Trial Transcript.) Numbers in

parentheses preceded by “S.H. Tr.” refers to pages of the transcript of the

Sandoval hearing, dated June 26, 2012. (ECF No. 8, Sandoval Hearing

Transcript.)

Ramah of “l[ying] and disrespect[ing]” him. (Id. at 74.) Rivers

testified that Petitioner eventually left, and Ramah also left

about an hour thereafter. (Id. at 75–76.) Ramah, on the other

hand, testified that he was at Rivers’s house for less than five

minutes and that he did not hear any argument between Rivers and

Petitioner. (Id. at 324‒27.)

About two hours after leaving Rivers’s house, Petitioner

called Rivers and asked her to come outside to talk, and Rivers

agreed. (Id. at 77.) Approximately ten minutes later, Petitioner

arrived outside of Rivers’s house with his friend, Kevin Williams,

in Williams’s blue SUV with tinted windows. (Id. at 65–66; 77–

78; 125.) Petitioner was sitting in the front passenger seat and

Williams was driving. (Id. at 78–79.) Rivers got into the back

of the vehicle, and Williams drove away. (Id.)

As they were driving around, Petitioner told Rivers that

she had “one chance to explain [her]self.” (Id. at 79.) Rivers

told Petitioner that she had not lied to him nor cheated on him

with Ramah, but Petitioner did not believe Rivers. (Id.) Williams

then stopped the car and Petitioner stepped out to get in the back

with Rivers. (Id.) Petitioner grabbed Rivers by the neck, choked

her, and told her that he was going to kill her. (Id. at 79–80.)

At that point, Williams handed Petitioner a sock, from which

Petitioner pulled out a silver gun. (Id. at 80–81.) Petitioner,

while holding the gun, threatened to kill Rivers and dump her body

in Prospect Park. (Id. at 81.)

While Rivers was still riding in the SUV with Petitioner

and Williams, Ramah called her to ask if he could pick up his

jacket that he had left at her house. (Id. at 82.) Rivers told

Ramah that he could get it later and hung up the phone. (Id.)

Petitioner then instructed Rivers to call Ramah back and tell him

to come pick up his jacket, and Rivers complied.2 (Id. at 150‒

51.) Williams drove them back to Rivers’s house, where the three

waited outside for Ramah to arrive. (Id. at 84.)

When Ramah approached the house, Petitioner walked up to

him, grabbed him by the shirt, and told him, “we’re going to go

for a ride.” (Id. at 283–84.) Ramah resisted, and Petitioner

pulled out the silver gun from his pocket, put the gun against

Ramah’s head, and began to drag Ramah across the street towards

the SUV, at which point Rivers ran into her house to call 911.

(Id. at 284–86.) Once he had dragged Ramah to the SUV, Petitioner

opened a rear passenger door. (Id. at 286‒87.) Ramah continued

to struggle to break free, and Petitioner struck him on the back

of the head with the gun, knocking him unconscious. (Id.)

2 Rivers testified on direct that she called Ramah back, per Petitioner’s

instruction. (Id. at 83.) However, on cross, upon being shown the written

statement she made at the police precinct later that day, Rivers testified that

it was in fact Petitioner who called Ramah back and told him to come pick up

his jacket at Rivers’s house. (Id. at 148‒50.) Ramah testified, both on direct

and cross, that it was Rivers who called him back. (Id. at 281‒82; 327‒28.)

When Ramah came to, he was in the back of the SUV next

to Petitioner. (Id. at 287‒88.) Petitioner told Ramah that he

“messed up” and “need[ed] to pay for what [he] did.” (Id. at 289.)

Petitioner continued to threaten Ramah, telling him he was “not

going home tonight” and that his body would be dumped in Prospect

Park. (Id. at 290.) Petitioner also hit Ramah four or five times

in the face, neck, and chest. (Id. at 290–92.) After about twenty

minutes, Petitioner told Ramah that he would let Ramah go, and

Williams drove them back to Rivers’s house. (Id. at 291–92.)

Williams parked the SUV at the intersection of Lott Avenue and

Rockaway Avenue, approximately one block from Rivers’s house. (Id.

at 292–93.) Petitioner then called Rivers to tell her to meet

them where they were parked.3 (Id.)

Meanwhile, at approximately 8:00 p.m., Sergeant

Florencio Arquer and Police Officers Martinez and Shook reported

to Rivers’s house in response to 911 calls. (Id. at 200–01, 363–

64.) As Rivers was speaking with Sergeant Arquer, Petitioner

called Rivers and asked her to meet him at the intersection of

Rockaway Avenue and Livonia Avenue by the train station. (Id. at

3 Rivers testified on direct and cross that it was Petitioner who called to tell

her where to pick up Ramah. (Id. at 95‒98; 172.) Ramah testified on direct

that he called Rivers and told her to meet them at Lott and Rockaway. (Id. at

292‒93.) On cross, Ramah initially testified that while he was riding in the

SUV with Petitioner and Williams, Petitioner did not call Rivers. However,

upon his memory being refreshed with the transcript of his grand jury testimony,

Ramah testified that it was Petitioner who called Rivers to tell her where to

meet them. (Id. at 341‒42.)

95–96; 202–04.) Rivers passed this information on to Sergeant

Arquer. (Id.) Sergeant Arquer and other officers, along with

Rivers, canvassed for about half an hour the vicinity of Rockaway

and Livonia and Rivers’s house in unmarked cars, looking for the

SUV. (Id. at 204–08, 399–401.) After the search proved

unsuccessful, Sergeant Arquer decided to have Rivers call

Petitioner and meet with him, while Officers Martinez and Montas

trailed her on foot. (Id. at 205–09.) Sergeant Arquer instructed

Rivers to not enter the vehicle, no matter what happens, and

dropped her off. (Id. at 98; 209‒11.) After retrieving Ramah’s

jacket from her house, Rivers walked towards the corner of Lott

and Rockaway Avenues, where the SUV was parked. (Id. at 98‒99;

211.)

At first, Rivers stood outside the SUV, talking to

Petitioner, who was still sitting in the back with Ramah, through

an open window. (Id. at 102; 211–12; 343.) Petitioner told Rivers

to get in the car, so she got into the front passenger seat and

Williams drove off. (Id. at 102‒03; 174–75.) Officer Montas

informed Sergeant Arquer of what had happened, and Sergeant Arquer

immediately drove towards the intersection of Rockaway and Lott

Avenues. (Id. at 212‒13.) Sergeant Arquer saw the SUV stopped at

a red light and effectuated a car stop. (Id. at 213–14.) After

Williams pulled over, all four occupants of the SUV were taken out

of the car and detained. (Id. at 175–77, 213–18, 295–96.) Officer

Gonzalez searched the SUV and found the gun, which was loaded with

five rounds, under the front passenger seat. (Id. at 403–05.)

Rivers, Ramah, Williams, and Petitioner were arrested and taken to

the 73rd Precinct. (Id. at 296–97.)

II. The Trial

Petitioner was charged, on an acting in concert theory,

under Kings County Indictment Number 2177/2010, with kidnapping in

the second degree (N.Y. Penal Law § 135.20), unlawful imprisonment

in the second degree (N.Y. Penal Law § 135.05), criminal possession

of a weapon in the second degree (N.Y. Penal Law § 265.03(3)), two

counts of menacing in the second degree (N.Y. Penal Law §

120.14(1)), two counts of menacing in the third degree (N.Y. Penal

Law § 120.15), criminal possession of a weapon in the fourth degree

(N.Y. Penal Law § 265.01(1)), criminal possession of a weapon in

the third degree (N.Y. Penal Law § 265.02(1)), and unlawful

possession of marijuana (N.Y. Penal Law § 221.05). (See ECF No.

13-1, Respondent’s Habeas Exhibit D, at 5‒6.)4

A. Petitioner’s N.Y. Crim. Proc. Law § 30.30 Motion

On September 6, 2011, Petitioner filed a motion to

dismiss the indictment under New York Crim. Proc. Law § 30.30 (“§

30.30 motion”), asserting that the State should be charged with:

(1) the 61 days from his arraignment on March 13, 2010 to when the

4 For ease of reference, the page numbers used in citations to Respondent’s

Exhibits follow ECF pagination.

State filed their statement for readiness for trial on May 13,

2010; and (2) the 171 days from March 8, 2011, the date the State

moved to obtain a buccal swab sample from Petitioner, to August

26, 2011 when the test result comparing Petitioner’s DNA to the

DNA from the firearm found at the time of Petitioner’s arrest

became available. (See ECF No. 13-3, Respondent’s Habeas Exhibit

F (“Resp’t Exhibit F”), at 66‒68.) In his motion, Petitioner

argued that the State had inexcusably waited for more than nine

months after declaring it was ready for trial to obtain his DNA

sample. (Id.)

The State opposed the § 30.30 motion by arguing that

there was no delay in filing the motion for the buccal swab sample

because the State had been waiting on test results from the Office

of the Chief Medical Examiner (“OCME”) that would determine whether

there was sufficient DNA on the firearm to be compared against

Petitioner’s DNA. (Id. at 84.) According to the State, it “did

not receive the results from OCME until March 2011.” (Id.)

The trial court denied Petitioner’s motion to dismiss

the indictment, having found that only the 61 days from March 13

to May 13, 2010 were “includable time.” (Id. at 104.) As to the

171 days Petitioner argued should also be charged to the State,

the court, relying on the representations made by the People in

their opposition papers, held that “there was nothing to suggest

that the People delayed requesting DNA testing; rather, it appears

that the People had to wait until a DNA profile was generated by

OCME . . . .” (Id. at 103.)

B. Sandoval Hearing

Before trial, Petitioner requested a Sandoval hearing,

seeking an order barring the prosecution from cross-examining

Petitioner about his prior convictions should he testify at trial.

(S.H. Tr. at 8.) Specifically, Petitioner sought to prevent the

prosecution from referring to his six prior convictions in New

York, including a 2009 conviction for possession of marijuana, a

1996 conviction for attempted criminal possession of a weapon in

the third degree, a conviction for criminal possession of a

controlled substance in the seventh degree, a 1988 conviction for

attempted first-degree robbery, a 1988 conviction for attempted

second-degree robbery, and a conviction for second-degree robbery.

(Id. at 8–15.) Additionally, Petitioner sought to prevent the

prosecution from introducing his three prior convictions in

Virginia for grand larceny, obtaining money by false pretenses,

and possession of a controlled substance. (Id.)

At the Sandoval hearing, held on July 26, 2012, defense

counsel argued that Petitioner’s prior convictions lack probative

value and that a ruling by the trial court permitting the

prosecution to cross-examine Petitioner on his prior convictions

would be “highly prejudicial” and “tantamount to telling him [that

he] can’t testify in this particular case.” (Id. at 16–17.) The

court ruled that the prosecution may cross-examine Petitioner on

his Virginia convictions for grand larceny and obtaining money by

false pretenses because those are “crimes which go to credibility.”

(Id. at 17–18.) However, the court prohibited the prosecution

from inquiring about the underlying facts of those convictions.

(Id.) As for Petitioner’s 1996 conviction for attempted criminal

possession of a weapon in the third degree, the court permitted

the prosecution to introduce both the conviction and its underlying

facts, reasoning that “illegal possession of a handgun . . .

clearly is an instance of placing one’s own interest above that of

society.” (Id. at 18.) Next, the court permitted the prosecution

to inquire about Petitioner’s 1988 convictions for attempted

robbery in the first and second degrees because “robbery and

attempted robbery are most salient crimes on the issue of

credibility on the issue of placing one’s own interest above that

of society.” (Id. at 19.) However, the court only allowed the

prosecution to inquire into the underlying facts of the first-

degree attempted robbery conviction. (Id. at 19‒20.) Finally,

the court permitted inquiry into the conviction for second-degree

robbery and its underlying facts. (Id. at 20.) The court

precluded the prosecution from asking about Petitioner’s

convictions for possession of controlled substances. (Id. at 17–

19.)

C. Jury Instructions and Verdict

Instructing the jury regarding the elements of

kidnapping in the second degree, the trial court charged that the

jury could find Petitioner guilty if it found, inter alia, that

the prosecution had established beyond a reasonable doubt that

“[Petitioner] restrained Carl Ramah with intent to prevent Carl

Ramah’s liberation either by secreting or holding him in a place

where he was not likely to be found or by using or threatening to

use deadly physical force.” (Trial Tr. at 658.) At the end of

the jury charge, the court asked counsel whether they had any

exceptions or additional requests to the charge. (Id. at 671.)

Defense counsel answered that he had neither exceptions nor

additional requests. (Id.)

The jury found Petitioner guilty of kidnapping in the

second degree and the count of menacing in the third degree

pertaining to Ramah. (Id. at 697.) The jury found Petitioner not

guilty of criminal possession of a weapon in the second degree and

the count of menacing in the third degree pertaining to Rivers.

(Id.) Upon hearing the verdict, the court instructed the jury

that “kidnapping in the second degree requires the use or

threatened use of deadly physical force” and given the

prosecution’s argument that the use or threatened use of deadly

physical force was “done by the way of the handgun, the revolver,”

“in order for [Petitioner] to be guilty of kidnapping in the second

degree, he would also have to be guilty of criminal possession of

a weapon in the second degree because that’s the only means of

using or threatening to use deadly physical force . . . .” (Id.

at 699‒700.) The court then subsequently clarified for the jury

that because it had found Petitioner not guilty of the weapon

possession charge, it could now only find Petitioner guilty of

kidnapping in the second degree if it found that Petitioner had

restrained Ramah “with intent to prevent his liberation by

secreting him in a place where he was not likely to be found.”

(Id. at 705-06.) Notably, defense counsel did not make any

objections to these instructions. (Id. at 703.) Thereafter, the

jury again found Petitioner guilty of kidnapping in the second

degree. (Id. at 710.)

III. State Post-Conviction Proceedings

A. Direct Appeal

Petitioner appealed his judgment of conviction to the

Appellate Division, Second Department, arguing that: (1) the State

failed to prove kidnapping in the second degree beyond a reasonable

doubt because the evidence was not legally sufficient to establish

that Petitioner restrained Ramah with intent to prevent his

liberation by secreting or holding him in a place where he was not

likely to be found; (2) his trial counsel was ineffective in

failing to object to the court’s instruction that the jury could

still find Petitioner guilty of kidnapping in the second degree if

it found that Petitioner restrained Ramah with intent to prevent

his liberation by secreting or holding him in a place where he was

unlikely to be found; and (3) he was deprived of his due process

right to a fair trial by the trial court’s Sandoval ruling, which

allowed the prosecution to introduce certain of Petitioner’s prior

convictions, as well as the underlying facts of some of them,

should Petitioner choose to testify. (See ECF No. 13, Respondent’s

Habeas Exhibit C (“Resp’t Exhibit C”), at 28‒54.)

On February 16, 2016, the Appellate Division affirmed

Petitioner’s conviction. People v. Huger, 26 N.Y.S.3d 131 (2d

Dep’t 2016). The Appellate Division held that (1) Petitioner’s

first argument was not preserved and, in any event, the evidence

was legally sufficient to establish his guilt of kidnapping in the

second degree beyond a reasonable doubt; (2) Petitioner’s trial

counsel was not ineffective for the alleged failure to object to

the court’s instruction because “[t]he instruction given was not

improper” and “[a] defendant is not denied effective assistance of

counsel merely because counsel does not make a motion or argument

that has little or no chance of success”; and (3) the trial court’s

Sandoval ruling was proper because the court weighed the probative

value against the prejudicial effect for each of Petitioner’s prior

convictions, and Petitioner failed to demonstrate that exclusion

was warranted because the prejudicial effect so outweighed the

probative value. Id. at 132‒33. On May 11, 2016, the New York

Court of Appeals denied Petitioner’s leave to appeal. People v.

Huger, 60 N.E.3d 1206 (N.Y. 2016).

B. Petitioner’s N.Y. Crim. Proc. Law § 440.10 Motion

On September 2, 2015, Petitioner filed a motion under

New York Crim. Proc. Law § 440.10(1)(b) and (h) to vacate his

judgment of conviction and dismiss the underlying indictment (Ҥ

440.10 motion”). (Resp’t Exhibit F at 1‒28.) Petitioner asserted

that new information showed that the State had misrepresented

material facts which the trial court had relied on in denying his

§ 30.30 motion. (Id. at 9‒13.) Specifically, documents obtained

by Petitioner’s appellate counsel from the OCME and the Kings

County District Attorney’s Office pursuant to Freedom of

Information Law requests demonstrated that, in contrast to the

State’s representation that it was not until March 2011 that it

received test results from the OCME that the firearm contained a

DNA sample suitable for comparison against Petitioner’s DNA, in

fact, the OCME had sent the test results to the State on May 12,

2010. (Id.) Therefore, Petitioner argued, the trial court should

have charged additional 128 days—from April 20, 2011, when the

buccal swab sample was taken from Petitioner, to August 26, 2011,

when the DNA comparison result became available—to the State. (Id.

at 26‒27.) And because the total delay attributable to the State

would have been 189 days, 128 days plus the 61 days the court found

chargeable to the State, Petitioner argued, the court should have

granted his § 30.30 motion. (Id. at 27.)

In response, the State, though conceding that the

representation it had made to the court was incorrect, argued that

the court’s decision would have been the same. (See ECF No. 13-

4, Respondent’s Habeas Exhibit G, at 10‒11.) Specifically, the

State contended that the 37 days between July 20 to August 26,

2011 were excludable pursuant to New York Crim. Proc. Law §

30.30(4)(b), (d), and (f) because Petitioner’s counsel and

Williams’ counsel did not appear in court on July 20, 2011 due to

their engagement in other matters. (Id.) The State argued that

it therefore was chargeable with at most 152 days, the 61 days

from March 13 to May 13, 2010 and the 91 days from April 20 to

July 20, 2011, below the statutory limitation period of 183 days.

(Id.)

By its Decision and Order, dated May 30, 2017, the trial

court granted Petitioner’s § 440.10 motion. (See ECF No. 13-9,

Respondent’s Habeas Exhibit L, at 5‒7.) Thereafter, the State

filed a motion to reargue, which was granted, and upon reargument,

the court denied the § 440.10 motion, holding that the 37 days

from July 20 to August 26 were excludable under New York Crim.

Proc. Law § 30.30(4)(f) because time is excluded from the speedy

trial calculation if defense counsel is not present, “almost

without regard to the status of the People’s state of (post)

readiness.” (See ECF No. 13-9, Respondent’s Habeas Exhibit O, at

1‒2.)

Petitioner then sought leave to appeal the denial of his

§ 440.10 motion to the Appellate Division, which was granted. (Id.

at ¶ 42.) On December 26, 2018, the Appellate Division affirmed

the trial court’s decision, holding that the exclusion provided by

New York Crim. Proc. Law § 30.30(4)(f) “is applicable

notwithstanding the People’s own lack of readiness.” People v.

Huger, 91 N.Y.S.3d 161, 163 (2d Dep’t 2018). Petitioner sought

leave to appeal from the Appellate Division’s decision, which was

denied on March 21, 2019. People v. Huger, 123 N.E.3d 865 (N.Y.

2019). Defendant then submitted a letter requesting

reconsideration of his application for leave to appeal, which was

once again denied on May 31, 2019. People v. Huger, 126 N.E.3d

155 (N.Y. 2019).

IV. The Instant Petition

On February 25, 2020, Petitioner filed the instant

application seeking a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. (See generally Pet.) Petitioner raises the same claims

from his direct appeal and § 440.10 motion. (Id.) On April 22,

2020, Respondent submitted his memorandum of law in opposition and

the exhibits attached thereto. (See ECF Nos. 7‒13-15.)

STANDARD OF REVIEW

A writ of habeas corpus filed by an individual in state

custody is governed by, inter alia, the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Section 2254 of AEDPA

provides that a district court shall issue a writ of habeas corpus

for a petitioner in state custody “only on the ground 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 2244 provides

that a one-year statute of limitations applies to “an application

for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.” 28 U.S.C. § 2244(d)(1); see generally

28 U.S.C. § 2244(d).

A district court shall not grant a writ of habeas corpus

unless “the applicant has exhausted the remedies available in the

courts of the State,” “there is an absence of available State

corrective process,” or “circumstances exist that render [such

State corrective] process ineffective to protect the rights of the

applicant.” 28 U.S.C. § 2254(b)(1)(A), (B). Even if a petitioner

has not exhausted all state remedies, a district court may deny

his application for a writ of habeas corpus on the merits. 28

U.S.C. § 2254(b)(2).

A district court may grant a writ of habeas corpus for

claims that were adjudicated on the merits in state court and the

adjudication produced a decision that was “contrary to, or involved

an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). “A state court ‘adjudicate[s]’ a state

prisoner’s federal claim on the merits when it (1) disposes of the

claim ‘on the merits,’ and (2) reduces its disposition to

judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)

(alteration in original) (citing 28 U.S.C. § 2254(d)(1)); see also

Reznikov v. David, Nos. 05-cv-1006, 05-cv-1008(RRM), 2009 WL

424742, at *3 (E.D.N.Y. Feb. 20, 2009) (“Under AEDPA, a proper

merits adjudication requires only that (a) a federal claim be

raised, and (b) that it be disposed of on substantive, rather than

procedural grounds.”). “When a state court [adjudicates a federal

claim on the merits], a federal habeas court must defer in the

manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court’s

decision on the federal claim—even if the state court does not

explicitly refer to either the federal claim or to relevant federal

case law.” Sellan, 261 F.3d at 312.

Clearly established federal law refers to the holdings

of the Supreme Court’s decisions at the time of the relevant state

court decision. Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005)

(citation omitted). The “contrary to” and “unreasonable

application” clauses of § 2254(d)(1) are analyzed independently.

Stultz v. Artus, No. 04-cv-3170(RRM), 2013 WL 937830, at *5

(E.D.N.Y. Mar. 8, 2013). A state court’s decision is contrary to

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 differently than [the Supreme Court]

has on a set of materially indistinguishable facts.” Williams v.

Taylor, 529 U.S. 362, 413 (2000) (O’Connor, J., concurring and

writing for the majority in this part). An unreasonable

application of law occurs when “the 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. A district court “may overturn a state

court’s application of federal law only if it is so erroneous that

there is no possibility fairminded jurists could disagree that the

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

Nevada v. Jackson, 569 U.S. 505, 508‒09 (2013) (per curiam)

(citation and internal quotation marks omitted). If a district

court determines a state court’s application of law was

unreasonable, “it must next consider whether such error was

harmless.” Stultz, 2013 WL 937830, at *5 (citation and internal

quotation marks omitted).

Apart from a state court’s decision contrary to or

unreasonable application of federal law, a district court may grant

a writ of habeas corpus when the state court decision “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)(2). State court determinations of facts are presumed

correct, however, and the petitioner bears the burden of “rebutting

the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1).

In the instant action, Petitioner is proceeding pro se.

A pro se petitioner’s pleadings are held to “less stringent

standards than formal pleadings drafted by lawyers,” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation

marks omitted), and are construed “to raise the strongest arguments

that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d

471, 474 (2d Cir. 2006). “Nonetheless, a pro se [litigant] is not

exempt from compliance with relevant rules of procedural and

substantive law.” Rivera v. United States, No. 06-cv-5140(SJF),

2006 WL 3337511, at *1 (E.D.N.Y. Oct. 4, 2006) (citing Faretta v.

California, 422 U.S. 806, 834 n.36 (1975)). The instant petition

is evaluated accordingly.

DISCUSSION

I. Sufficiency of the Evidence

First, Petitioner argues that the evidence at trial was

not legally sufficient to establish his guilt of kidnapping in the

second degree beyond a reasonable doubt because the prosecution

failed to prove that Petitioner intended to prevent Ramah’s

liberation by secreting or holding him in a place where he was not

likely to be found.

As an initial matter, the Court finds that this claim is

not reviewable because it is procedurally barred. Federal courts

lack authority to review a state court decision that rests on

“independent and adequate” state law grounds. Lee v. Kemna, 534

U.S. 362, 375 (2002). This rule applies equally regardless of

whether the state law ground is substantive or procedural. Id.

(citing Coleman v. Thompson, 501 U.S. 722, 729 (1991). On direct

appeal, the Appellate Division affirmed Petitioner’s conviction

and held that “[t]he defendant’s contention that the evidence was

legally insufficient to support his conviction of kidnapping in

the second degree is unpreserved for appellate review.” Huger, 26

N.Y.S.3d at 132.

Thus, the state law ground on which the Appellate

Division denied Petitioner’s claim was a violation of New York’s

preservation rule, which requires a contemporaneous objection to

any alleged legal error by defense counsel at a criminal trial.

N.Y. Crim. Proc. Law § 470.05(2). New York’s preservation rule

suffices as an independent state law ground, Richardson v. Greene,

497 F.3d 212, 217 (2d Cir. 2007), but the remaining issue is

whether it is “adequate” to prevent federal collateral review.

Id. at 218. A state preservation rule is “only adequate to support

the judgment and foreclose review of a federal claim if it is

‘firmly established and regularly followed’ in the state,” but

“even firmly established and regularly followed state rules will

not foreclose review of a federal claim if the application of the

rule in a particular case is ‘exorbitant.’” Garvey v. Duncan, 485

F.3d 709, 713‒14 (2d Cir. 2007) (citation omitted).

The Second Circuit has found New York’s contemporaneous

objection rule to be firmly established and regularly followed by

New York courts. Garcia v. Lewis, 188 F.3d 71, 78‒79 (1999). See

also Yara v. Ercole, 558 F. Supp. 2d 329, 336 (E.D.N.Y. 2008);

Dozier v. McGinnis, 558 F. Supp. 2d 340, 349 (E.D.N.Y. 2008).

Therefore, whether the Petitioner’s legal sufficiency claim is

procedurally barred by § 470.05(2) turns on whether it would be

exorbitant to apply the rule in the instant case. The Court looks

to the guideposts provided by the United States Supreme Court in

Lee, 534 U.S. at 381-85, to help federal courts determine whether

the application of a firmly established and regularly followed

state preservation rule would be exorbitant:

(1) whether the alleged procedural violation

was actually relied on in the trial court, and

whether perfect compliance with the state rule

would have changed the trial court’s decision;

(2) whether state caselaw indicated that

compliance with the rule was demanded in the

specific circumstances presented; and

(3) whether petitioner had “substantially

complied” with the rule given “the realities

of trial,” and, therefore, whether demanding

perfect compliance with the rule would serve

a legitimate governmental interest.

Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee,

534 U.S. at 381-85).

Turning to the first Lee factor, the trial court could

not have relied on Petitioner's violation of the contemporaneous

objection rule because such a violation, by definition, cannot

occur until a party attempts to raise an unpreserved argument on

appeal. The question remains, however, whether perfect compliance

with the rule might have changed the trial court’s decision. The

Court finds that the trial court likely would not have changed its

decision even if Petitioner had timely objected and argued that

the verdict did not possess sufficient evidence to support

kidnapping in the second degree beyond a reasonable doubt because

the prosecution failed to prove that he intended to prevent Ramah’s

liberation by secreting or holding him in a place where he was not

likely to be found. Nevertheless, unlike in Lee, where even

perfect adherence to the relevant procedural rule would not have

convinced the trial judge to grant a continuance because the judge

had stated that personal obligations and another scheduled trial

prevented him from doing so, 534 U.S. at 381, because it is

conceivable that perfect compliance with the preservation rule

might have affected the ultimate outcome here, the first Lee factor

does not give Petitioner support for finding that applying the

rule would be exorbitant.

Under the second Lee factor, the Court considers New

York law and finds that the contemporaneous objection rule is

firmly established and regularly followed in the particular

circumstances of Petitioner’s case, i.e., where defense counsel

timely moved for a trial order of dismissal for a different offense

but not the offense at issue on appeal. It is well-established

that New York courts will not review unpreserved claims of legal

insufficiency. People v. Gray, 652 N.E.2d 919, 921 (N.Y. 1995).

See also People v. Oguntunji, 988 N.Y.S.2d 901, 901 (2d Dep’t 2014)

(“The defendant’s challenge to the legal sufficiency of the

evidence supporting his conviction for robbery in the third degree

is unpreserved for appellate review, as the defendant never moved

for a trial order of dismissal of that count . . . .”). Thus, the

second Lee factor likewise provides no support for finding that

applying the contemporaneous objection rule would be exorbitant.

The final and “most important” consideration noted by

the Supreme Court in Lee asks whether Petitioner “substantially

complied” with § 470.05(2) given the realities of trial. 534 U.S.

at 382. Where, as here, a defendant makes no objection to the

legal sufficiency of the evidence supporting a charge during trial

but makes a sufficiency challenge later on appeal, that defendant

cannot be said to have substantially complied with § 470.05(2).

Accordingly, the factors from Lee provide no support for finding

the Appellate Division's application of the contemporaneous

objection rule exorbitant. The Court holds that New York’s

preservation rule constituted an adequate ground of decision

independent of Petitioner's federal claim and Petitioner’s

sufficiency of the evidence claim is therefore procedurally

barred.

Even if the claim was not procedurally barred, it would

still be denied because there was sufficient evidence to support

Petitioner’s guilt of kidnapping in the second degree. Habeas

relief is warranted on a sufficiency of the evidence claim only

if, viewing the evidence in the light most favorable to the State,

“no rational trier of fact could find proof of guilt beyond a

reasonable doubt based on the evidence adduced at trial.”

Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citing

Jackson v. Virginia, 443 U.S. 307, 324 (1979)). Under this

“rigorous standard,” “all possible inferences that may be drawn

from the evidence must be construed in the prosecution’s favor.”

Smith v. Lee, No. 12-cv-6215(PGG), 2015 WL 5011422, at *12

(S.D.N.Y. Aug. 21, 2015) (citations omitted). To evaluate this

claim, “[a] federal court must look to state law to determine the

elements of the crime.” Quartararo v. Hanslmaier, 186 F.3d 91, 97

(2d Cir. 1999).

Under New York law, a person commits kidnapping in the

second degree when he or she “restrain[s] a person with intent to

prevent his liberation by . . . secreting or holding him in a place

where he is not likely to be found.” N.Y. Pen. Law §§ 135.20,

135.00(2). Here, construing the evidence in the light most

favorable to the prosecution, and drawing all reasonable

inferences therefrom, a rational jury could have concluded that

Petitioner restrained Ramah with the intent to prevent his

liberation by “secreting or holding him in a place where he [was]

not likely to be found,” in violation of New York Penal Law §

135.20. Specifically, a rational jury could have credited the

trial testimonies of Rivers and Ramah that Petitioner, acting in

concert with Williams, forced Ramah, against his will, into a place

where he was not likely to be found, the back seat of an SUV with

tinted windows that was moving through the streets of Brooklyn.

See People v. Barnette, 55 N.Y.S.3d 364, 364 (2d Dep’t 2017)

(finding the evidence was legally sufficient to support a second-

degree kidnapping conviction where defendant “restrained the

complainant with intent to prevent her liberation by secreting her

in a place where she was unlikely to be found, i.e., a car with

tinted windows traveling through Brooklyn”); People v. Cole, 33

N.Y.S.3d 466, 466 (2d Dep’t 2016) (same). Therefore, the Court

finds that a rational jury could have found proof of guilt beyond

a reasonable doubt based on the evidence adduced at trial.

III. Ineffective Assistance of Counsel

Next, the Court turns to Petitioner’s argument that his

trial counsel was ineffective for failing to object to the trial

court’s instruction that the jury could convict Petitioner of

kidnapping in the second degree if it found, beyond a reasonable

doubt, that Petitioner restrained Ramah “with intent to prevent

his liberation by secreting him in a place where he was not likely

to be found.” (Trial Tr. at 705-06.)

Under the Sixth Amendment, a criminal defendant is

afforded “the right . . . to have the assistance of counsel for

his defense.” U.S. Const. amend. VI. This right does not

guarantee a defendant “perfect counsel,” but rather, “effective

assistance of counsel.” Constant v. Martuscello, 119 F. Supp. 3d

87, 142 (E.D.N.Y. 2015) (internal quotation marks omitted)

(quoting Burt v. Titlow, 571 U.S. 12, 24 (2013); McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)).

To establish a claim of ineffective assistance of

counsel, a petitioner must satisfy the two-prong test set forth by

the United States Supreme Court in Strickland v. Washington, 466

U.S. 668, 687‒96 (1984). A petitioner must show that: (1)

counsel’s performance was deficient, meaning that it “fell below

an objective standard of reasonableness,” and (2) “there is a

reasonable probability that, but for counsel’s unprofessional

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

Id. at 688, 694. A court assessing an ineffective assistance claim

is not required “to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Id. at 697.

“Reasonableness” under the first prong is measured by

the “prevailing professional norms.” Id. at 688. Generally,

“there is a strong presumption that counsel’s actions ‘might be

considered sound trial strategy.’” Stultz, 2013 WL 937830, at *7

(quoting Strickland, 466 U.S. at 688-89). And “the fact that

counsel is prepared and familiar with the relevant facts and legal

principles is usually sufficient to defeat a claim that trial

counsel was ineffective.” Brown v. Phillips, No. 03-cv-0361(DGT),

2006 WL 656973, at *8 (E.D.N.Y. Mar. 12, 2006) (internal quotation

marks omitted) (quoting Farrington v. Senkowski, 19 F. Supp. 2d

176, 179 (S.D.N.Y. 1998)). Under the second prong, prejudice, a

“reasonable probability” is one “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. “A court

hearing an ineffectiveness claim must consider the totality of the

evidence before the judge or jury,” id. at 695, and the petitioner

must “affirmatively prove prejudice arising from counsel’s

allegedly deficient representation,” Carrion v. Smith, 549 F.3d

583, 588 (2d Cir. 2008) (citations and internal quotation marks

omitted).

“[T]he standard for judging counsel’s representation is

a most deferential one.” Harrington v. Richter, 562 U.S. 86, 105

(2011). Due to the heightened deference under AEDPA, “[a] federal

court reviewing a state court’s determination regarding

ineffective assistance of counsel has been characterized as

‘doubly’ deferential by the Supreme Court.” Constant, 119 F. Supp.

3d at 143 (quoting Harrington, 562 U.S. at 105). Thus, “[w]hen §

2254(d) applies, the question is not whether counsel’s actions

were reasonable” but rather “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential

standard.” Harrington, 562 U.S. at 105.

Here, Petitioner argues that his trial counsel was

ineffective for failing to object to the instructions the trial

court gave the jury on kidnapping in the second degree after the

jury had acquitted him of the weapon possession charge, because

those instructions “chang[ed] the theory in the indictment.” (Pet.

at 6-7.) Generally, a defendant’s counsel’s failure to object to

a jury instruction is unreasonably deficient performance “only

when the trial court’s instruction contained ‘clear and previously

identified errors.’” Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir.

2001) (quoting Bloomer v. United States, 162 F.3d 187, 193 (2d

Cir. 1998)). “[W]hen a trial court’s instruction is legally

correct as given,” counsel’s failure to object “does not constitute

deficient performance.” Id. (quoting United States v. Brooks, 82

F.3d 50, 54 (2d Cir. 1996)). Based on the record, the Court finds

that the indictment5 and the bill of particulars did not limit the

State’s theory on kidnapping in the second degree to Petitioner’s

use or threatened use of deadly physical force. (See ECF No. 7,

Respondent’s Memorandum of Law, at 12.) See also People v.

Vasquez, 73 N.Y.S.3d 449, 450 (2d Dep’t 2018) (“Where the

prosecution is limited by the indictment or bill of particulars to

a certain theory or theories, the court must hold the prosecution

to such narrower theory or theories”) (citing People v. Grega, 531

N.E.2d 279, 282 (N.Y. 1988)). Therefore, the trial court properly

instructed the jury on the alternative of finding intent to

restrain by secreting or holding Ramah in a place where he was not

likely to be found, and because the instructions were proper, the

trial counsel’s performance was not deficient for failing to object

and Petitioner was not prejudiced by such lack of objection.

Accordingly, Petitioner’s ineffective assistance of counsel claim

is denied.

IV. Petitioner’s Sandoval Claim

Petitioner argues that he was deprived of his due process

right to a fair trial by the trial court’s Sandoval ruling, which

allowed the prosecution to introduce certain of Petitioner’s prior

convictions, as well as the underlying facts of some of them,

5 Notably, Petitioner conceded in his opening brief on direct appeal before the

Appellate Division that the indictment did not specify any particular theory as

to kidnapping in the second degree. (Resp’t Exhibit C at 36 (“As charged in

the indictment, the second-degree kidnapping count alleged only that

[Petitioner] ‘abducted Carl Ramah’ (Indictment).”).)

should Petitioner choose to testify. Petitioner alleges that he

did not testify as a result of the Sandoval ruling.

“Federal review of a state court conviction is limited

to errors of constitutional magnitude which denied a criminal

defendant the right to a fundamentally fair trial.” Jenkins v.

Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citations omitted).

Generally, “erroneous evidentiary rulings of a state trial court

do not rise to the level of a constitutional deprivation upon which

a writ of habeas corpus may be issued,” id. (citations omitted),

and a Sandoval decision is considered an evidentiary ruling. Ayala

v. Ercole, No. 06-cv-1747(JFB), 2007 WL 1135560, at *14 (E.D.N.Y.

Apr. 17, 2007). Thus, erroneous Sandoval rulings do not usually

provide grounds for granting a habeas petition, unless the ruling

denied the defendant a fair trial or violated “‘fundamental

conceptions of justice.’” Gouvatsos v. Ercole, No. 08-cv-

2049(SJF), 2010 WL 5173569, at *13 (E.D.N.Y. Dec. 13, 2010)

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

also Ayala, 2007 WL 1135560, at *14. Therefore, regardless of

whether the trial judge erred in allowing the admission of the

Petitioner’s prior convictions, Petitioner’s Sandoval claim is

only cognizable under federal habeas review if such admission

denied Petitioner a fair trial.

The United States Supreme Court established that “to

raise and preserve for review the claim of improper impeachment

with a prior conviction, a defendant must testify.” Luce v. United

States, 469 U.S. 38, 43 (1984). In Luce, the Supreme Court

explained that when a defendant does not testify, “[a]ny possible

harm flowing from a district court’s in limine ruling is wholly

speculative.” Id. at 41. Although Luce involved review of an in

limine ruling by a federal trial court pursuant to Rule 609 of the

Federal Rules of Evidence, “the Luce rationale is equally

applicable” a federal court’s collateral review of a state trial

court’s Sandoval ruling. Carroll v. Hoke, 695 F. Supp. 1435, 1440

(E.D.N.Y. 1988). This is because “both procedures involve a pre-

trial hearing on the admissibility of a defendant’s prior

convictions for impeachment purposes, and both procedures involve

a weighing of the prejudicial impact of the convictions against

the interest in impeachment of testimony.” Nieves-Delgado v. New

York, No. 00-cv-1397(LTS), 2003 WL 21310815, at *2 (S.D.N.Y. June

9, 2003). Thus, the Second Circuit has “created a bright line

rule . . . barring habeas relief for allegedly erroneous Sandoval

rulings where a defendant elects not [to] testify.” Shannon v.

Senkowski, No. 00-cv-2865(NRB), 2000 WL 1683448, at *6 (S.D.N.Y.

Nov. 9, 2000)).

Here, Petitioner’s decision not to testify is fatal,

because without his testimony, the impact of the trial court’s

Sandoval ruling is purely speculative. See Luce, 469 U.S. at 41.

Accordingly, the trial court’s Sandoval ruling did not deprive

Petitioner of a fundamentally fair trial, and his claim on this

point is not cognizable on federal habeas review.

V. Speedy Trial Claim

Finally, Petitioner argues that the state court

improperly denied his § 30.30 motion. The AEDPA permits federal

habeas review of state court adjudications only where a “violation

of the Constitution or law or treaties of the United States” has

occurred. 28 U.S.C. § 2254(a). A federal habeas court may not

grant habeas relief based on state courts’ errors of state law,

because “it is not the province of a federal habeas court to

reexamine state court determinations on state-law questions.”

Estelle v. McGuire, 502 U.S. 62, 63 (1991). Therefore,

Petitioner’s claim that his § 30.30 motion should have been granted

is not cognizable on habeas review because it is based on an issue

of pure state law.

CONCLUSION

For the foregoing reasons, the instant petition for a

writ of habeas corpus is denied and dismissed. The Clerk of Court

is respectfully requested to serve a copy of this Memorandum and

Order on pro se Petitioner, note service on the docket, and close

the case.

The Court certifies pursuant to 28 U.S.C. 1915(a)(3)

that any appeal from this order would not be taken in good faith,

and therefore in forma pauperis status is denied for purposes of

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

(1962).

SO ORDERED.

Dated: January 5, 2022

Brooklyn, New York

________/s/___________________

KIYO A. MATSUMOTO

United States District Judge