Johnson v. Warden of Downstate Correctional Facility

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

CHAD JOHNSON,

Petitioner, MEMORANDUM & ORDER

16-CV-2825(EK)

-against-

WARDEN OF DOWNSTATE CORRECTIONAL

FACILITY,

Respondent.

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ERIC KOMITEE, United States District Judge:

Chad Johnson, proceeding pro se, petitions the Court

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Johnson challenges his 2011 conviction in Suffolk County Supreme

Court for the second-degree murder of Jennifer Papain. Johnson

has always admitted that he hired Papain for a sexual encounter,

and he confessed to law enforcement that when Papain told him

that his time was up, he “snapped” and choked her. He also

showed detectives where he buried her body. However, at trial

(and during his efforts to overturn his conviction and

sentence), he maintained that Papain died of a drug overdose and

that key parts of his confession were coerced. After the jury

convicted, the court sentenced Johnson to twenty-five years to

life.

Johnson raises six arguments in his amended petition.

First, he contends that that he received constitutionally

ineffective representation due to a litany of failures on the

part of his trial counsel. Second, he contends that he was

denied a fair trial because of the prosecutor’s misconduct

during summation. Third, he contends that the state courts’

rejection of his Brady and Giglio claims relating to a lawsuit

involving Detective Sergeant Doyle, who supervised the

investigation into Papain’s disappearance, was contrary to

clearly established federal law. Fourth, he contends that newly

discovered evidence of past misconduct by law enforcement

officers is so compelling that it would be fundamentally unfair

not to grant him a new trial. Fifth, he contends that the

evidence of his guilt was legally insufficient and that the

verdict was against the weight of the evidence. Sixth, he

contends that the testimony of a state medical examiner exceeded

the proper bounds of expert testimony. See Am. Pet. (“Pet.”),

ECF No. 20. For the reasons that follow, Johnson’s application

is denied.

Background

A. The Death of Jennifer Papain and the Ensuing

Investigation

The testimony at trial established the following

facts. On March 24, 2010, Jorge Gonzalez dropped off Jennifer

Papain at the Bay Shore Inn in Bay Shore, New York. St. Ct. R.

vol. 3, at 65:17-66:10, ECF No. 8-2.1 Papain said she was going

to get some “pills,” but two hours later, she still had not

returned. Id. at 209:19-210:14. Gonzalez then notified

Papain’s father, who eventually contacted the Suffolk Police

Department. Id. at 147:24–148–3, 214:18–216–3. Papain’s father

later testified that he understood Gonzalez to be his daughter’s

pimp. Id. at 127:3–8.

Suffolk County police soon learned that just prior to

Papain’s disappearance, she had received a call from Johnson.

Id. at 270:4-17. On April 6, detectives located Johnson and

interviewed him in a police car outside his house. Id. at

268:12–18, 271:6–272:18. According to Detective Sergeant

Pulaski’s trial testimony, Johnson told the detectives that he

had contacted Papain to arrange a sexual encounter and that they

had agreed to meet at the Bay Shore Inn. Id. at 273:8-16. He

said that he had driven her to Kings Laundromat, where he

received oral sex from Papain for the agreed-upon price of $80.

Id. at 273:17–24. He then claimed to have dropped her off back

at the Bay Shore Inn. Id. at 273:24–274:1.

Three days later, on April 9, two different detectives

(Soto and Comiskey) interviewed Johnson outside his home again.

Id. at 562:22–564:10. Johnson’s account differed from the one

1 Page numbers in citations to record documents refer to ECF pagination.

he had given days prior. According to Soto’s trial testimony,

Johnson said that he had driven Papain from the Bay Shore Inn to

a friend’s house, where he parked and received oral sex from

her. Id. at 565:17–566–4. He claimed that after he ejaculated,

he dropped her off “at the corner.” Id. at 566:4-6, 569:17–

570:6. Soto wrote a statement summarizing this account, which

Johnson signed under oath. Id. at 570:14–579–8.

On May 24, Detective Sergeant Robert Doyle, who was

supervising the investigation, ordered that Johnson be arrested

for patronizing a prostitute. Id. at 592:11-594:2. At police

headquarters, Soto and Comiskey again questioned Johnson. Id.

at 597:5–8. Johnson maintained that his April 9 statement was

accurate, even after the detectives confronted him with the

inconsistency about where he dropped off Papain. St. Ct. R.

vol. 4, at 56:22–57–16, ECF No. 8-3. He also claimed that his

brother, Dartanion, could provide an alibi concerning his

whereabouts. Id. at 59:7-16.

The detectives located Dartanion and arrested him on

an outstanding warrant. Id. at 318:16–319:25. Once Dartanion

arrived at police headquarters, Soto resumed questioning

Johnson. Soto told Johnson that Dartanion had been brought to

the precinct, was “very upset,” and wanted Johnson to tell the

police what had happened. Id. at 68:23-69:3. Johnson then

agreed to “tell [Soto] what happened” if he were allowed to have

a cigarette and see his brother. Id. at 69:6-19.

After Johnson was allowed briefly to talk with

Dartanion, Soto took Johnson outside to smoke a cigarette. Id.

at 70:11–71:11. In Soto’s retelling at trial, Johnson told him

that at some point during his sexual encounter with Papain, she

had told him that his time had elapsed. Id. at 72:4–6. Johnson

had not yet completed the sex act in question, however, and

demanded Papain return half of his money. Id. at 72:6–9. When

Papain refused, Johnson “got mad,” “just snapped,” reached over,

and choked her in the front seat of the car. Id. at 71:23–25,

72:12–13.

Johnson then agreed to lead Soto and Comiskey to

Papain’s body. Id. at 72:20-73:23. Along the way, just before

entering the woods, he pointed out a red plastic bucket in which

he had previously placed three plastic bags, which were still

there. Id. at 74:3-13. He said he had used the bags to store

leaves that he poured over Papain’s body. Id. at 74:13-18.

After the group headed deeper into the woods, Johnson indicated

that Papain’s body was buried somewhere near a fallen tree. Id.

at 74:19–75:14.

Soto then drove Johnson back to headquarters. Id. at

76:7–8. On the way back, Johnson said that he had been “honest”

with the police, and proclaimed that “the only thing” he had not

told them was “that I killed her.” Id. at 77:20-22.

Back at police headquarters, Soto and Comiskey resumed

questioning Johnson. St. Ct. R. vol. 4, at 78:2–15. Johnson

again described how he choked Papain, detailing that he used

both hands to “press[] her head against the window . . . until

she went limp.” Id. at 79:19–80:6. After killing Papain, he

dragged her body out of his car into the woods. Id. at 81:21-

25. Johnson went home to retrieve a shovel, then returned to

the body and dug a hole. Id. at 83:3–5. He removed Papain’s

clothes, including (he said) her flip-flops, and put them into a

plastic bag. Id. at 83:5–15. He put Papain’s body in the hole,

covered it with dirt, and poured over the site a few garbage

bags’ worth of leaves (the same bags later found in the red

bucket Johnson identified). Id. at 83:15-21. A few days later,

he disposed of Papain’s clothes by dousing them in gasoline and

burning them in a garbage can. Id. at 84:21-85:7.

Soto wrote a second statement memorializing this

account, which Johnson also signed. Id. at 86:3–12, 101:24–

102:7 (“I jumped over to her side of the car and grabbed her by

the neck. I started choking her with two hands as I forced her

head against the front passenger side window. I kept choking

her until she went limp . . . . I checked her pulse and

realized she was dead.”). Soto and Comiskey then showed Johnson

a missing persons flier of Papain. Id. at 121:5–9. Johnson

told the detectives “[y]eah, that’s her,” and “[t]hat’s the girl

I killed.” Id. at 121:9–11. At Soto’s prompting, Johnson wrote

“[t]hat’s the girl I killed” on the flier before signing and

dating it. Id. at 121:12–18.

Police later located Papain’s body about 150 feet from

where Johnson said he had buried her. St. Ct. R. vol. 3, at

367:14–368–8. The Suffolk County Crime Lab later found a pair

of green flip-flops, among other items, in the car Johnson drove

on March 24. St. Ct. R. vol. 5, at 17:14–18:21, ECF No. 8-4.

B. The Trial

Johnson was indicted for the second-degree murder of

Jennifer Papain; patronizing a prostitute in the third degree;

aggravated unlicensed operation of a motor vehicle in the second

degree; and unlawful possession of marijuana. St. Ct. R. vol.

3, at 6–9.

At trial, the State’s medical expert, Dr. Hajar Sims-

Childs, testified that the “cause of death was asphyxia caused

by another person.” St. Ct. R. vol. 5, at 264:15-16. She

reached this conclusion indirectly — by eliminating other

possible causes, as the decomposition of the body made it

impossible to detect bruises or abrasions to the neck area,

which would normally be evidence of death by asphyxia. Id. at

267:17–268:3. She testified that Papain’s body showed signs of

recent defensive wounds. Id. at 259:14-17. And she took issue

with the defense’s overdose theory, testifying that while the

toxicological analysis found various drugs, including

hydrocodone and methadone, in Papain’s body, those drugs were

not present at “the level that would cause death.” Id. at

279:16-280:11; 282:18-20; 284:5–11.

The State also played for the jury a recorded

telephone conversation between Johnson and his then-girlfriend,

Paulette Johnson, who had become Johnson’s wife by the time of

trial. St. Ct. R. vol. 6, at 118:18–119:8, ECF No. 8-5. In

that conversation, Paulette said to Johnson, “You committed a

murder but you’re not a murderer. You get what I mean when I

say that? You committed a murder but it was by mistake. You

understand? Intent to kill is a murderer. You understand what

I’m saying? You’re not a murderer. You just committed a

murder.” Id. at 116:9–19. During the conversation, Johnson

told Paulette that he wanted to plead guilty. Id. at 122:6–16.

Finally, the State introduced evidence that the pair

of green flip-flops recovered from the car Johnson drove

contained DNA that was consistent with Papain’s and that could

not have belonged to Johnson or Paulette. Id. at 135:3-14,

137:10–15. Forensic evidence also showed that an empty plastic

container recovered from the trunk of the car had held gasoline.

Id. at 68:14, 71:13-14.

Defense counsel conceded that Johnson had hired Papain

for sex, but argued that she had died of an accidental drug

overdose. St. Ct. R. vol. 3, at 112:6–113:8, 116:14–17.

Johnson’s counsel argued that Johnson had “panicked” and buried

her body. Id. at 112:24–113:4. He argued that detectives had

“forced” and “coerce[d]” Johnson into confessing by threatening

to arrest Dartanion. Id. at 114:2–115–8. In an effort to cast

further doubt upon the reliability of Johnson’s confession,

counsel also argued that detectives had physically assaulted

Johnson while he was in their custody. St. Ct. R. vol. 6, at

426:19–430:9.

Paulette also testified for the defense. She said

that the green flip-flops belonged to her. St. Ct. R. vol. 5,

at 518:16–18. The defense introduced photographs purporting to

show Paulette wearing the flip-flips during a 2009 trip. Id. at

518:19–521:3. Paulette also testified that she kept a gasoline

container in the trunk because Johnson frequently neglected to

fill the gas tank of the car. Id. at 529:23–530:17.

Finally, the defense called Dr. Charles Wetli, a

former medical examiner. He concluded that there was no

evidence to support the conclusion that Papain died from manual

strangulation. St. Ct. R. vol. 6, at 147:2-5. Nor could he

opine with any reasonable degree of medical certainty whether

Papain’s death was caused by asphyxiation at all. Id. at

149:21-150:2. He also expressed doubt as to whether the wounds

identified by Dr. Sims-Childs were defensive wounds. Id. at

153:3–155:14. Moreover, he testified that the combination of

hydrocodone and methadone “could have” been factors in Papain’s

death. Id. at 191:6–13. Nevertheless, he admitted, it was

impossible to “make any determination” with respect to the

presence of those drugs because of the decomposing chest cavity

fluids. Id. at 191:14-21.

Following trial, the jury found Johnson guilty of

second-degree murder, patronizing a prostitute, and aggravated

unlicensed operation of a vehicle. St. Ct. R. vol. 6, at 600–

01.2

Procedural History

Johnson appealed his conviction to the Appellate

Division, Second Department. He argued (1) that Dr. Sims-

Childs’s testimony that Papain died of asphyxia at the hands of

another should have been precluded as improper testimony on an

ultimate issue of fact; (2) that the evidence was insufficient

to support the conviction and the verdict was against the weight

of the evidence; (3) that the prosecutor committed misconduct

during summation; and (4) that his sentence was harsh and

excessive. St. Ct. R. vol. 1, at 1–54 (appellant’s brief on

2 The State moved to dismiss the possession of marijuana count. St. R.

vol. 6, at 623–24.

direct appeal), ECF No. 8. Johnson did not argue, in his direct

appeal, that trial counsel was constitutionally ineffective,

despite being represented by a different lawyer on appeal. See

St. Ct. R. vol. 1, at 3.

The Second Department affirmed the conviction in

December 2014. People v. Johnson, 999 N.Y.S.2d 517 (App. Div.

2014). The New York Court of Appeals denied Johnson’s

application for leave to appeal on March 25, 2015, rendering the

conviction final. People v. Johnson, 30 N.E.3d 171 (N.Y. 2015)

(unpublished table decision); see St. Ct. R. vol. 1, at 12.

In March 2016, Johnson filed a pro se motion pursuant

to New York Civil Procedure Law § 440.20 to set aside his

sentence in the Supreme Court of New York, Suffolk County. St.

Ct. R. vol. 1, at 127–32. The court denied this motion. People

v. Johnson, No. 014552010, 2016 WL 10673791 (May 10, 2016).

Johnson did not seek leave to appeal. In October 2016, Johnson

filed a motion in the Appellate Division for a writ of error

coram nobis, claiming that his appellate counsel was

ineffective. In May 2017, the court denied this motion, People

v. Johnson, 52 N.Y.S.3d 233 (App. Div. 2017), and Johnson did

not appeal it.

In May 2016, Johnson petitioned this Court for a writ

of habeas corpus on a number of grounds, including that his

trial counsel was ineffective. Pet. for Writ of Habeas Corpus,

ECF No. 1.3 (Johnson does not argue ineffective assistance of

appellate counsel here.) This claim was unexhausted at the

time, and the district judge then assigned ordered the case held

in abeyance so that Johnson could press it in state court.

Order dated Aug. 1, 2018. Johnson did so via a new Section

440.10 motion to vacate his conviction. Notice of Mot. 1, ECF

No. 25-1. In April 2019, the Supreme Court denied this motion.

Supreme Ct. Decision, ECF No. 25-4. Johnson appealed to the

Appellate Division, which denied his appeal in December 2019.

Decision & Order on Mtn., ECF No. 25-7. In May 2020, the

Appellate Division also denied Johnson’s motion for leave to

reargue the appeal. Decision & Order on Mot., ECF No. 25-10.

On March 4, 2020, this case was transferred to me.

Dkt. Entry Dated Mar. 4, 2020. In May 2021, Johnson filed an

amended habeas petition (the instant petition). Pet., ECF No.

3 It is somewhat unclear whether Johnson’s federal petition is

timely. See 28 U.S.C. § 2244(d). Johnson’s conviction became final on March

26, 2015, when the Court of Appeals denied his application for leave to

appeal. See id. § 2244(d)(1)(A). Thus, for his federal petition, filed May

31, 2016, to be timely, Johnson must have “properly filed” an application for

post-conviction relief in State court by March 26, 2016. See id.

§ 2244(d)(2).

Under Rule 3(d) of the Rules Governing Section 2254 Cases in the

United States District Courts, “[a] paper filed by an inmate confined in an

institution is timely if deposited in the institution's internal mailing

system on or before the last day for filing.” The notarized statement

required by Rule 3(d) is illegible as to whether the date of mailing is March

21, 2016, or March 31, 2016. But in any event, Respondent has forfeited any

defense as to the statute of limitations. Resp’t’s Aff. & Mem. of Law in

Opp’n to Am. Pet. of Habeas Corpus 19 (“The petition is timely . . . .”), ECF

No. 25; see also Wood v. Milyard, 566 U.S. 463, 470–73 (2012) (“[D]istrict

courts[] have the authority — though not the obligation — to raise a

forfeited timeliness defense on their own initiative.”). Given the state’s

concession, I proceed to consider the petition here.

20. As of that time, however, Johnson still had not exhausted

his claim that his trial counsel was deficient for failing to

investigate and uncover evidence that Detective Doyle had

coerced confessions from defendants in prior unrelated cases, as

Johnson did not make that argument to any state court, including

to the Supreme Court in his 2018 motion under Section 440.10.

See Pet. 9. Therefore, Johnson sought to withdraw this claim.

See Mot. to Withdraw Unexhausted Claim, ECF No. 26. I granted

that request. See Tr. of Proceedings on Oct. 14, 2021, at 5:2–

7, ECF No. 31.

Analysis

A. Ineffective Assistance of Counsel

Johnson argues here that he was deprived of his right

to effective assistance of counsel because his trial counsel,

William Ferris: (1) “denied” him the right to testify on his own

behalf; (2) did not arrange for independent DNA testing on the

green flip-flops; (3) did not engage a Spanish interpreter

during the cross-examination of Jorge Gonzalez; and (4) failed

to investigate Johnson’s psychological history.

As noted above, Johnson has exhausted the remaining

components of his ineffective-assistance claim: he “fairly

present[ed]” them to the New York Supreme Court, “alerting that

court to the federal nature of the claim,” and thus giving the

state “the opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Baldwin v. Reese,

541 U.S. 27, 29 (2004) (internal quotation marks and citations

omitted). Therefore, I now turn to the merits of the

insufficiency claim.

The state Supreme Court rejected Johnson’s ineffective

assistance claim on the grounds that it could have been raised

on direct appeal or in one of his prior motions for

postconviction relief, and thus was procedurally barred under

state law. See Supreme Ct. Decision 3. Respondent, however,

explicitly “does not rely on” the finding of procedural default.

Resp’t’s Aff. & Mem. of Law in Opp’n to Am. Pet. of Habeas

Corpus 46 & n.2, ECF No. 25. Accordingly, that defense is

waived. See Trest v. Cain, 522 U.S. 87, 89 (1997)

(“[P]rocedural default is normally a defense that the State is

obligated to raise and preserve if it is not to lose the right

to assert the defense thereafter.”); see also Moore v. New York,

357 F. App’x 398, 399 (2d Cir. 2009) (procedural default did not

“preclude . . . review of the case . . . because, although the

state court determined that Moore had failed timely to raise his

ineffective assistance claim [under section 440.10], respondent

does not argue procedural bar in opposition to federal habeas

relief”).

Because the state courts did not review the merits of

the ineffective assistance claim, I review them de novo. See

Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003).

Nevertheless, even absent AEDPA deference, the Strickland

“standard for judging counsel’s representation is a most

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

(2011). To demonstrate ineffective assistance, a party first

must show that counsel’s performance “fell below an objective

standard of reasonableness” in light of “prevailing professional

norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984).

To satisfy this performance prong, a petitioner must show that

counsel’s performance was “outside the wide range of

professionally competent assistance.” Id. Even if a petitioner

makes this showing, he must also satisfy the prejudice prong;

that is, he must show “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. In other

words, prejudice requires that “counsel’s errors were so serious

as to deprive the defendant of a fair trial.” Id. at 687. A

court may reject an ineffective assistance claim for failure to

satisfy either prong, without reaching the other. Id. at 697.

Johnson has satisfied neither prong for any of his

ineffective assistance claims. I discuss each claim in turn.

1. Johnson’s Ability to Testify

Johnson argues that his attorney was deficient for

failing to inform him that it was his decision to testify or

not, and indeed affirmatively “prevented” him from testifying.

He says that had he testified, he would have explained the

inconsistencies in his statements to police, contradicted the

accounts of Detective Soto and the State’s forensics expert, and

further corroborated his claim that he was assaulted by

detectives. Pet. 6, 38-46.

A “defendant’s right to testify in his own defense is

personal and may not be waived by his attorney over the

defendant’s opposition, regardless of tactical considerations.”

United States v. Noorzai, 953 F. Supp. 2d 499, 507 (S.D.N.Y.

2013) (citing Brown v. Artuz, 124 F.3d 73, 77–78 (2d Cir.

1997)). Defense counsel defaults on that obligation “either by

failing to inform the defendant of the right to testify or by

overriding the defendant’s desire to testify.” Brown, 124 F.3d

at 79. Nevertheless, “the burden of proving such a claim in a

collateral attack rests with the defendant.” Botero v. United

States, Nos. 96-CR-0145, 00-CV-1922, 2005 WL 1606911, at *2 (D.

Conn. July 6, 2005); see also Brown, 124 F.3d at 74 (“[T]he two-

part test established in Strickland v. Washington . . . should

be used to assess a defendant’s claim that defense counsel

rendered ineffective assistance by preventing him from

testifying.”). Johnson fails to meet this burden.

Johnson cites the following colloquy:

MR. FERRIS: Well, the upshot of this is that he wants

to testify.

[ASSISTANT DISTRICT ATTORNEY] PETTIGREW: That’s an

upshot?

MR. FERRIS: That’s what he did. This, is in my

opinion, is to push him on the stand.

LAW CLERK: The jury to get out [sic] so he can get on

the stand?

MR. FERRIS: Well —

THE COURT: Who do you want to call next is the

question. The fact that he is wants to testify is —

MR. FERRIS: Yeah, but the issue is that if he was

going to testify, I was going to put Wetli on after

his testimony. And that was the issue last night.

Because if he was going to testify, I would have my

client testify first before Dr. Wetli. I called Dr.

Wetli to come in and I spoke to Mr. Pettigrew. My

client is not testifying.

THE COURT: That was before.

MR. FERRIS: I understand that. So this has changed

the circumstances.

THE COURT: Okay. So, then, you got to call somebody.

. . .

THE COURT: [I]f you’re going to use Wetli, I will try

and call and get permission that we can finish him

today.

MR. FERRIS: Let me just have a minute. I don’t think

that’s going to happen.

THE COURT: Well, then, can you start off at least with

him. We got to do something.

MR. FERRIS: Let me just – can you excuse the jury for

a minute just so I can talk to Chad [Johnson] in here.

I know what I want to do. I just want him to know

what I want to do next. And I’m not sure he is going

to be in agreement. I just need to let him know what

I want to do next.

St. Ct. R. vol. 6, at 126:3-127:25.

This discussion does not show Johnson being prevented

from testifying or misinformed as to his rights. On the

contrary, it concludes with his counsel indicating that he

intends to “talk to” Petitioner. And the repeated references to

what counsel “want[s]” to do (rather than “will do” or “intends

to do”) reflects an acknowledgment the decision rests with the

client, as does counsel’s statement that he is not sure his

client will “be in agreement.”

Moreover, the state has submitted an affirmation from

Mr. Ferris, in which he avers that he “made it clear to Mr.

Johnson during all stages of the proceedings that the decision

as to whether he testified in his own defense was his alone.”

Ferris Aff. at 57 ¶ 9, ECF No. 25-2. On this record, Johnson

has not carried his burden to demonstrate that he was

misinformed about his rights or otherwise “prevented” from

testifying. See Chang v. United States, 250 F.3d 79, 86 (2d

Cir. 2001) (upholding ruling that the performance prong was not

established where the only evidence that defendant was prevented

from testifying came from “his own blanket statements”);

Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991)

(defendant’s “barebones assertion” that counsel forbade him to

testify was “too facile a tactic to be allowed to succeed”;

instead, some “substantiation is necessary, such as an affidavit

from the lawyer who allegedly forbade his client to testify”).

2. DNA Tests

Johnson next argues that his counsel was obligated to

arrange for independent forensic testing of the green flip-flops

found in Johnson’s car. Pet. 6-8. Johnson contends that the

flip-flops belonged to his wife, not Jennifer Papain. If an

independent DNA test showed no trace of Papain’s DNA, Johnson

argues, it would have provided critical exculpatory evidence —

not only undermining the State’s forensic examiner, but also

showing the falsity of Detective Soto’s testimony that Johnson

admitted to removing all of the victim’s clothes (including the

flip-flops) and burning them. Johnson argues that this evidence

would have given credence to his defense that his confession had

been coerced.

There is no indication that defense counsel’s decision

not to seek additional DNA testing was anything but strategic,

let alone constitutionally infirm. See Dunham v. Travis, 313

F.3d 724, 732 (2d Cir. 2002) (“Decisions . . . [that] are

strategic in nature . . . generally will not support an

ineffective assistance claim.” (alterations accepted and

quotations omitted)); Hai Guang Zheng v. Warden, Sing Sing

Correctional Facility, No. 16-CV-1166, 2019 WL 4469085, at *8

(E.D.N.Y. September 18, 2019) (“[C]ounsel made the strategic,

prudent decision not to conduct DNA testing” where DNA test

result “would not foreclose Petitioner’s guilt.”). See Baran v.

United States, 160 F. Supp. 3d 591, 596 (S.D.N.Y. 2016) (a court

reviewing a claim for ineffective assistance of counsel is not

permitted to “use hindsight to second guess [counsel’s] strategy

choices”). Here, the question of whether the flip-flops

belonged to the decedent or the Petitioner’s girlfriend was not

the central issue in the case. Moreover, counsel could

rationally have seen some strategic downside in soliciting

another DNA test: if the second test confirmed the State’s

result, counsel may have been ethically prohibited from

eliciting testimony on the subject from Paulette and from making

related arguments in summation. See N.Y. Rule of Pro. Conduct

3.3(a)(3) (“A lawyer shall not knowingly . . . offer or use

evidence that the lawyer knows to be false.”) (codified as

amended as an appendix to N.Y. Jud. Law).

Moreover, even if trial counsel’s decision not to

introduce the available DNA evidence fell below an objective

standard of reasonableness, Johnson has not shown that this

failure prejudiced him, given the totality of the evidence

introduced at trial — including not only (a) the forensic

testimony regarding the decedent’s cause of death and (b)

Petitioner’s multiple oral and written confessions, but also the

undisputed fact that Petitioner led the police to the body. See

St. Ct. R. vol. 504:22–510:23.

3. Spanish Interpreter

Johnson next claims that his counsel was ineffective

for failing to employ a Spanish interpreter during the testimony

of Jorge Gonzalez. Pet. 8. Before the Supreme Court, he argued

that this resulted in Gonzalez being unable to “fully

understand[] [counsel’s] questions.” Affirmation 22, ECF No.

25-1. But Johnson’s claim is belied by the record, which shows

that Gonzalez was able to testify coherently without an

interpreter. While Gonzalez stated that he was “not really

good” at English, St. Ct. R. vol. 3, at 221:3-5, once the court

slowed the questions down, the transcript reveals him proceeding

without difficulty. Nor does Petitioner indicate how,

specifically, the alleged language barrier prejudiced his case.

Gonzalez testified as a state witness, not a defense witness,

and his testimony largely concerned the background — most

importantly, how and why Papain went to the motel in question.

These facts were not central to the state’s proof, if they were

disputed at all. See United States v. Maniego, 710 F.2d 24, 26

(2d Cir. 1983) (ineffective-assistance claim based on counsel’s

decision not to obtain an interpreter failed, where subject

testimony not integral to the verdict).

4. Psychological Examination

Johnson claims that his counsel was ineffective for

failing to investigate his “psychological history.” Pet. 8.

Before the Supreme Court, he argued that a psychological

examination “could have determined [Johnson] was susceptible to

suggestion and manipulation and incapable of making reasonable

and rational judgments.” Supreme Ct. Mot. 14–16. He argues now

that such an investigation could have supported his coercion

defense or a finding he was incompetent to stand trial.

Johnson’s claim does not meet the Strickland standard.

In his affirmation, Ferris stated that based on his numerous

conversations with Johnson before his trial, he did not feel

that having Johnson examined by a psychologist would have aided

in his defense. See Ferris Aff. 57 ¶ 8. Ferris’s explanation

is more than sufficient to rebut a claim of ineffective

assistance. United States v. Marmorato, 107 F. App’x 244, 246

(2d Cir. 2004); see also Greiner v. Wells, 417 F.3d 305, 319 (2d

Cir. 2005) (“A lawyer’s decision not to pursue a defense does

not constitute deficient performance if, as is typically the

case, the lawyer has a reasonable justification for the

decision.”). Nothing in the record contradicts this

determination. There is no basis to conclude that counsel acted

unreasonably in not pursuing a mental health evaluation.

B. Alleged Prosecutorial Misconduct in the Summation

Johnson asserts that the assistant district attorney

committed misconduct by stating during summation: “He wanted to

plead guilty . . . . Give him what he wants. Tell him how

Jennifer Papain wasn’t trash. She wasn’t garbage.” Pet. 11;

see St. Ct. R. vol. 6, at 510:8–11.4 On direct appeal, he

contended that these remarks violated his due process rights

under the Fourteenth Amendment. St. Ct. R. vol. 1, at 47–51.

He argued that the reference to the possible guilty plea

improperly referred to Johnson’s “consciousness of guilt.” Id.

at 50. Moreover, he argued that by characterizing Johnson as

treating Papain like “garbage” or “trash,” he improperly

“inflamed the passions of the jury.” Id. at 48.

I need not reach the question of whether this was

improper, however, because this claim is procedurally barred in

light of Johnson’s counsel’s failure to object.5 A federal court

may not, on habeas review, reconsider the judgment of a state

court that rests on a ground of procedural default that is

“independent of the federal question and adequate to support the

judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). To be

4 The reference to Johnson’s earlier desire to plead guilty appears to

have referred to his recorded conversation with Paulette. See St. Ct. R.

vol. 6, at 122:9–16.

5 Johnson does not assert before this Court that defense counsel was

deficient for failing to object to these portions of the summation.

“independent” of federal law, the court’s “reliance on state law

must be clear from the face of the opinion.” Fama v. Comm’r of

Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2009). To be

“adequate,” the state-law rule must be “firmly established and

regularly followed” by courts of the state. Garcia v. Lewis,

188 F.3d 71, 77 (2d Cir. 1999).

Here, because the Second Department was last to opine

on this claim, see Johnson, 999 N.Y.S.2d at 517, that decision

forms the basis of this Court’s review. The Appellate Division

dismissed Johnson’s claim as unpreserved under N.Y. Criminal

Procedure Law § 470.05(2), which requires that a party seeking

to preserve such an objection must “register[]” a “protest”

during trial. 999 N.Y.S.2d at 518. That ground “is both

independent of any federal question and adequate under firmly

established and regularly followed state law,” and this Court

therefore “need not reach or decide” this claim. Garvey v.

Duncan, 485 F.3d 709, 720 (2d Cir. 2007).

Still, in a habeas corpus proceeding, a federal court

may reach the merits of a procedurally barred claim if the

petitioner establishes that the absence of review will result in

a “fundamental miscarriage of justice.” Coleman, 501 U.S. at

748; see also Murray v. Carrier, 477 U.S. 478, 496 (1986).

Here, the prosecution’s summation did not, even as alleged, work

such a fundamental miscarriage of justice.

C. Brady and Giglio Claims

Johnson next argues that the state violated its

obligations under Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio v. United States, 405 U.S. 150 (1972), and thus his Due

Process rights, by withholding documents regarding the alleged

misconduct in an unrelated case of Detective Doyle, who

supervised the investigation into Papain’s death. Pet. 13-15.

The Supreme Court rejected this claim as “meritless.” Supreme

Ct. Decision 2.

Because the state court ruled on the merits of this

claim, deference is due to its decision under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).6 Under AEDPA,

a reviewing court may grant a writ of habeas corpus only if the

state court’s “adjudication of the claim” either “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States”; or “resulted in a

decision that was based on an unreasonable determination of the

6 A state court’s conclusion that an argument is “meritless” suffices,

even if unexplained, as state court review “on the merits” for purposes of

AEDPA deference. See Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. 2007)

(“[A]n unexplained ruling on the merits is also entitled to AEDPA

deference.”).

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

A state court’s decision is “contrary to” Supreme

Court precedent “if the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s]

cases,” or “if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to” the Supreme

Court’s result.  Bell v. Cone, 543 U.S. 447, 452-53 (2005)

(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state

court’s decision “involved an unreasonable application of”

Supreme Court precedent if there is “no possibility fair-minded

jurists could disagree that the state court’s decision conflicts

with [Supreme Court] precedents.” Harrington v. Richter, 562

U.S. 86, 102 (2011). And a state court decision is based on an

“unreasonable determination of the facts” if it “correctly

identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.” Williams, 529

U.S. at 407–08. Even an incorrect determination by the state

court must be upheld if reasonable. Id. at 410.

Brady imposes on prosecutors “a constitutional duty to

timely disclose material, exculpatory evidence to criminal

defendants.” United States v. Tang Yuk, 885 F.3d 57, 86 (2d

Cir. 2018). “The Court extended that production duty in

Giglio . . . to cover evidence that could be used to impeach a

government witness.” Id. To prove a Brady violation, a

petitioner must show that: “(1) the Government, either willfully

or inadvertently, suppressed evidence; (2) the evidence at issue

is favorable to the defendant; and (3) the failure to disclose

this evidence resulted in prejudice.” United States v. Coppa,

267 F.3d 132, 140 (2d Cir. 2001). “The Government’s duty of

disclosure, and the timing thereof, is assessed retrospectively,

by reference to the likely effect that the suppression of

particular evidence had on the outcome of the trial.” United

States v. Douglas, 415 F. Supp. 2d 329, 336 (S.D.N.Y. 2006),

aff’d, 525 F.3d 225 (2d Cir. 2008).

In 2009, before Papain’s death, a plaintiff named

Martin Tankleff commenced a civil lawsuit in this District

against Suffolk County and a number of law enforcement officers,

including Detective Sergeant Doyle. Tankleff v. County of

Suffolk, No. 09-CV-1207, 2015 WL 13264439, at *1 (E.D.N.Y. May

5, 2015). Tankleff alleged that Doyle, in concert with other

detectives, collectively obtained a falsified confession from

him. See Tankleff v. County of Suffolk, No. 09-CV-1207, 2010 WL

5341929, at *2 (E.D.N.Y. Dec. 21, 2010). In 2018, Tankleff

settled the case for a $10 million payment from the County, with

no admission of wrongdoing. See Stipulation of Settlement and

Discontinuance, Tankleff v. County of Suffolk, No. 09-cv-1207

(E.D.N.Y. Nov. 19, 2018), ECF No. 220.

Though Doyle supervised the instant investigation and

directed the arrest of Johnson and his brother, his direct

efforts during the investigation were limited. In terms of his

direct interaction with Johnson, Doyle interviewed Johnson for

the “prisoner activity log” after Johnson’s arrest. St. Ct. R.

vol. 2, at 369:11–13, ECF No. 8-1. According to Detective Soto,

the prisoner activity log reported a prisoner’s “location” and

“condition,” as well as “[i]f they’re moved” and “where they are

moved.” St. Ct. R. vol. 2, at 532:19–533:2. Its purpose was

“basically to keep an eye on the prisoner while he’s in our

custody.” St. Ct. R. vol. 2, at 531:19-532:4. Doyle did not

testify in Johnson’s trial.

Before the Supreme Court, Johnson argued that the

state was obligated to bring the Tankleff case to the defense’s

attention because it would have bolstered the claim that his

confession was “coerced [and] fabricated,” and therefore

unreliable evidence. He also argued that Tankleff would have

constituted impeachment evidence. The State responds that the

ADA prosecuting Johnson was unaware of the lawsuit; that the

existence of the case was not exculpatory or required to be

disclosed as impeachment material; and that, in any event,

Johnson cannot show prejudice from any failure to disclose.

The state is correct that the information was not

material. The Tankleff case is not exculpatory, as it has no

direct bearing on Petitioner’s guilt or innocence. See United

States v. Stofsky, 527 F.2d 237, 247 (2d Cir. 1975) (evidence is

not exculpatory where it “would not have affected one way or the

other” any “key factual issue in dispute”); see also United

States v. Triumph Cap. Grp., 544 F.3d 149, 151 (“Evidence is

material if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.”) (2d Cir. 2008). And the

state was not required to disclose it as impeachment evidence,

given that Doyle did not testify. See United States v. Rivas,

377 F.3d 195, 199 (2d Cir. 2004) (“Impeachment evidence is

evidence having the potential to alter the jury’s assessment of

the credibility of a significant prosecution witness.”). Given

these conclusions, I need not reach the question of whether the

information was in the state’s “possession” for Brady and Giglio

purposes. See United States v. Hill, 279 F. App’x 90, 94 (2d

Cir. 2008) (where evidence is not exculpatory, the government

does not violate Brady even if it was in possession of that

evidence).

Accordingly, the state court’s conclusion that there

was no Brady or Giglio violation was not contrary to, nor

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).

D. Newly Discovered Evidence

Johnson claims that there exists newly discovered

evidence relating to (1) the Tankleff / Doyle lawsuit, and (2)

the 2015 assault and conspiracy prosecution of Suffolk County

Police Chief James Burke. Pet. 17-21. Johnson argues that this

evidence shows Suffolk County detectives’ “willi[ng]ness to

engage in misconduct in order to conceal their corruption” and

therefore supports his claim at trial that his confession was

“coerced and fabricated.” Pet. 21. Johnson exhausted this

claim in his 2019 motion to the Supreme Court. See Supreme Ct.

Mot. 25–27. That court rejected the claim on the merits,

reasoning that “the evidence . . . would not have been

admissible at [Johnson’s] trial.” Supreme Ct. Decision 2.

Generally, petitioners are not entitled to habeas

corpus relief on the independent ground that there is “newly

discovered evidence” of their innocence. Ortega v. Duncan, 333

F.3d 102, 108 (2d Cir. 2003); see also Herrera v. Collins, 506

U.S. 390, 400 (1993). For newly discovered evidence to warrant

habeas relief, the petitioner must show that the evidence is “so

compelling that it would be a violation of the fundamental

fairness embodied in the Due Process Clause” for the conviction

to stand. White v. Keane, 51 F. Supp. 2d 495, 502 (S.D.N.Y.

1999); see also Herrera, 506 U.S. at 400 (“Claims of actual

innocence based on newly discovered evidence have never been

held to state a ground for federal habeas relief absent an

independent constitutional violation occurring in the underlying

state criminal proceeding.”). A court must then “decide whether

the jury probably would have altered its verdict if it had had

the opportunity to appraise the impact of the newly-discovered

evidence not only upon the factual elements of the government’s

case but also upon the credibility of the government’s witness.”

United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975). If

so, courts will vacate the conviction and “order [the

petitioner’s] release unless the state promptly affords him a

new trial.” Ortega, 333 F.3d at 109.

The Tankleff and Burke matters are not evidence — let

alone compelling evidence — of Johnson’s innocence. As

discussed, the lawsuit against Doyle would not have been

relevant to Johnson’s defense at trial. And the allegations

against Burke are even further removed from Johnson’s case than

those against Doyle, given that there is no evidence that Burke

was directly involved in the investigation of Johnson’s case or

the taking of his confession. See Indictment, United States v.

Burke, No. 15-CR-0627 (E.D.N.Y. Dec. 8, 2015), ECF No. 1. In

any event, Johnson does not articulate any basis on which the

lawsuit against Doyle or the prosecution of Burke would have

been admissible, contrary to the trial court’s finding. Thus,

the state court’s rejection of this claim was not unreasonable

under AEDPA.

E. Legal Insufficiency and Weight of the Evidence

Johnson next contends that the evidence presented at

trial was legally insufficient to prove he was guilty of second-

degree murder and that the verdict was against the weight of the

evidence. Pet. 23–27.

Johnson’s claim that the verdict was against the

weight of the evidence is “not reviewable in [a] federal habeas

proceeding.” See Blake v. Martuscello, No. 10-CV-2570, 2013 WL

3456958, at *9 (E.D.N.Y. July 8, 2013) (collecting cases).

Thus, all that remains is his attack on the sufficiency of the

evidence supporting his conviction.

Although Johnson does not affirmatively assert a

deprivation of any particular constitutional right, I construe

his sufficiency-of-the-evidence claim as arising under the Due

Process Clause of the Fourteenth Amendment, as he did on direct

appeal. See St. Ct. R. vol. 1, at 40. The state court denied

this claim on the merits, holding that “viewing the evidence in

the light most favorable to the prosecution . . . it was legally

sufficient to establish the defendant’s guilt of murder in the

second degree beyond a reasonable doubt.” Johnson, 999 N.Y.S.2d

at 1055.

The Due Process Clause prohibits conviction “except

upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which [the defendant] is charged.” In

re Winship, 397 U.S. 358, 364 (1970). Consequently, a state

prisoner “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.” Jackson v. Virginia, 443 U.S. 307, 324

(1979) (footnote omitted). A due process challenge to the

sufficiency of the evidence “is a mixed question of law and

fact, and therefore analyzed under § 2254(d)(1), not

§ 2254(d)(2).” Torres v. Greene, 290 F. Supp. 2d 396, 400 n.3

(S.D.N.Y. 2003). Reviewing courts “defer to the jury’s

assessment of witness credibility and the jury’s resolution of

conflicting testimony.” United States v. Bala, 236 F.3d 87, 93–

94 (2d Cir. 2000).

When reviewing a conviction for sufficiency of the

evidence, “federal courts must look to state law for ‘the

substantive elements of the criminal offense.’” Coleman v.

Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at

324 n.16). Moreover, because the Appellate Division denied this

claim on the merits, see 999 N.Y.S.2d at 517, the deferential

standards of AEDPA apply. See 28 U.S.C. § 2254(d).

At trial, the prosecution presented ample evidence to

support the convictions. It is uncontested that Jennifer Papain

died in Johnson’s vehicle after he paid her for a sexual act.

He then concealed her naked body in a remote location in the

woods, burned her clothes, and disposed of her cell phone.

Moreover, the defense theory of the case — that Jennifer died of

a drug overdose — was not supported by strong forensic evidence.

Although Dr. Wetli testified for the defense that “the

combination of both hydrocodone and methadone [in Papain’s body]

could have been a factor” in her death,” St. Ct. R. vol. 6, at

191:4–5, the State’s medical examiner testified that the amount

of drugs in Jennifer’s system would not have been fatal.

Further evidence from the Chief Toxicologist for Suffolk County

supported the examiner’s determination. And in the face of

conflicting expert testimony, a habeas court is generally

obligated to defer to the jury’s finding. See United States ex

rel. Bornholdt v. Ternullo, 402 F. Supp 374, 378 (S.D.N.Y. 1975)

(where a “‘battle of the experts’ was fairly posed to the

jury[,] [it] thereupon became a question of fact for them to

resolve”). Moreover, Johnson provided a written statement,

signed under oath, confessing to her murder, in addition to

confessing (or at least significantly incriminating himself) on

multiple occasions. Moreover, on a recorded line, Johnson’s

then-girlfriend acknowledged his having killed the decedent —

information the jury could have concluded she learned from

Johnson. St. Ct. R. vol. 6, at 116:9–18. In light of the

substantial evidence of Johnson’s guilt, the state court’s

determination that the evidence was legally sufficient to

support the verdict was, at the very least, reasonable,

especially under the deferential standards of AEDPA.

F. Medical Examiner Testimony

Finally, Johnson claims that the testimony of Dr.

Sims-Childs exceeded the proper bounds of expert testimony when

she stated that Jennifer’s cause of death was “asphyxiation

caused by another.” Johnson contends that the examiner made

this statement despite inconclusive physical evidence.

This claim is procedurally defaulted, given that

Johnson’s counsel did not object to the testimony. The

Appellate Division determined that Johnson’s complaint relating

to the medical examiner’s testimony was unpreserved for

appellate review under N.Y. Crim. Proc. Law § 470.05(2). See

Johnson, 123 A.D.3d at 1055. As discussed above, this ground

constitutes an adequate and independent state ground for the

decision, which bars habeas review. Moreover, Johnson has not

stated a satisfactory basis on which his counsel should have

objected to this testimony at trial, or demonstrated prejudice

or a miscarriage of justice as a result. Accordingly, this

claim fails.

Conclusion

For the foregoing reasons, the petition is denied. A

certificate of appealability shall not issue because Johnson has

not made a substantial showing that he was denied any

constitutional rights. See 28 U.S.C. § 2253(c)(2). The Court

certifies that any appeal of this order would not be taken in

good faith, and thus in forma pauperis status is denied for the

purposes of any appeal. See Coppedge v. United States, 369 U.S.

438, 444–45 (1962).

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: March 17, 2022

Brooklyn, New York