Opinion

Leach v. Superintendent

Court: District Court, E.D. New York
Filed: Jun 22, 2023
Cited by: 0 cases
Authority: More cited than 26.7%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AVONE LEACH, :

Petitioner, : MEMORANDUM DECISION

- v - : 18-CV-3427 (DC)

JAIFA COLLADO, Superintendent, :

Respondent. :

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APPEARANCES: AVONE LEACH

Petitioner Pro Se

DIN 13-A-5173

ERIC GONZALEZ, Esq.

District Attorney, Kings County

By: Jean M. Joyce, Esq.

Assistant District Attorney

350 Jay Street

Brooklyn, NY 11201

Attorney for Respondent

CHIN, Circuit Judge:

In 2013, following a jury trial, petitioner Avone Leach was convicted in the

Supreme Court of the State of New York, Kings County (Dwyer, J.) of strangulation in

the second degree, criminal possession of a weapon in the third degree, and assault in

the third degree. Dkt. 9-3 at 5. On November 8, 2013, Leach was sentenced as a second

one-half to five years on the weapon possession count, and a one-year prison term on

the assault count to run concurrently to the strangulation count. Id. at 22.1 On March

30, 2016, the Appellate Division, Second Department, affirmed the convictions. People v.

Leach, 30 N.Y.S.3d 117 (2d Dep't 2016) ("Leach I"). On August 16, 2016, leave to appeal to

the New York Court of Appeals was denied. People v. Leach, 63 N.E.3d 80 (N.Y. 2016)

(Garcia, J.) ("Leach II").

On September 11, 2018, proceeding pro se, Leach filed the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). See Dkt. 6.2 The

Kings County District Attorney's Office filed its opposition to the Petition on November

19, 2018. See Dkt. 9. The matter has been fully submitted and undecided since then.

The case was reassigned to the undersigned on May 12, 2023. Dkt. Sheet at 4.

For the reasons set forth below, Leach's petition is DENIED.

STATEMENT OF THE CASE

A. The Facts

The evidence at trial established the following:

In April 2011, Danielle Laws ("Danielle") was in a relationship with Leach

and had resided with him at 18 Macon Street in Brooklyn for eight months. Dkt. 9-1 at

1 Leach was conditionally released to parole on March 1, 2022. His post-release

supervision maximum expiration date is November 11, 2026. See Incarcerated Lookup,

425-27, 430. Leach's mother, her boyfriend Lee Kelly, and Leach's uncle also resided in

the house. Id. at 459.

On April 24, 2011, Danielle, Leach, and Kelly were in the house when

Danielle and Leach got into a heated argument. Id. at 427, 429. While Danielle was in

the shower, Leach began to beat her with his fists. Id. at 430. The altercation went out

into the living room, and Danielle asked Kelly for help. Id. at 429. Leach got on top of

Danielle and strangled and released her over ten times, while calling her names and

telling her she would die and leave the house in a body bag. Id. at 443. He also kicked

and stomped on her and hit her in the head with a gun. Id. at 513. The strangling

deprived her of oxygen. Id. at 438. She feared for her life, blacked out, and lost

consciousness. Id. at 443-44.

After regaining consciousness, Danielle tried to call 911, but Leach ripped

the phone out of the wall. Id. at 440. Around 3:00 p.m., Danielle was able to call her

brother Darald Laws ("Darald"), who had known Leach for over five years and had

introduced Danielle to Leach. Id. at 441, 473. On the phone, Danielle was crying and

upset, and Darald rushed over to get her. Id. at 474. When he arrived, he knocked on

the door, and Leach opened the door and let Danielle out from behind him. Id. at 474-

75. Darald observed that Danielle's nose was bloody, her face and cheeks were swollen,

and her neck was bruised. Id. at 476-77. Darald intended to go home, but he drove

Danielle to the 79th Precinct because Danielle wanted to file a report. Id. at 476. In the

Around 4:00 p.m., Danielle spoke to Detective James Richardson and

Officer Richard Danese at the precinct. Id. at 300-01, 511-12. Officer Danese observed

that Danielle was "frantic," "shaking," "very sweaty," "stuttering," and "scared." Id. at

300. Detective Richardson testified that Danielle appeared as if she had been in a car

accident and that "[s]he had sort of ashen skin," "glassy eyes," and "a couple of small

abrasions, cuts, and scratches to her eye and her lip." Id. at 512. Danielle told the

officers that she was fighting with her boyfriend who she lived with, and he beat her

while she was in the shower, grabbed her, threw her on the ground, kicked, punched,

choked, and strangled her repeatedly, and hit her in the head with a gun. Id. at 300-01,

513. She told the officers that Leach had two guns in the house. Id. at 531. She also told

the officers that she had called her brother Darald, and he picked her up from the

house. Id. at 514. She recounted that when she and Darald were driving toward the

precinct, Leach followed them for a little bit and then turned back. Id.

An ambulance arrived at the precinct and took Danielle to Woodhull

Hospital. Id. at 331, 431. Darald followed the ambulance, and the officers drove to 18

Macon Street to find Leach. Id. at 477, 515. When the officers arrived, Detective

Richardson got out of the vehicle and Leach ran inside the house and refused to open

the door. Id. at 517, 518. After calling for a supervisor to respond, Detective Richardson

ran to the side of the house and saw Leach come out of the back door and run back into

the house. Id. The sergeant arrived at the scene around 5:30 p.m. and persuaded Leach

Detective Richardson searched Leach and found a small bag of marijuana

in his pocket. Id. at 519. At that point, Detective Richardson heard Officer Danese say

that someone else was inside the house. Id. at 519-20. Officer Danese observed the

individual -- Kelly -- moving his hands from the couch to his pocket and waistband and

instructed him to show his hands, but he did not comply. Id. at 305-06. Officer Danese

entered the house and arrested Kelly. Id. at 306.

While sitting in the police car, Leach told Detective Richardson that he

slapped Danielle around but did not hurt or injure her. Id. at 520. Detective Richardson

drove Leach and Kelly to the precinct, and Officer Danese stayed at the house to secure

it until the officers could obtain and execute a search warrant. Id. at 307, 521.

At Woodhull Hospital, Danielle was treated by Angelique Quinones, a

registered nurse and expert in emergency medical care. Id. at 564, 569-72. Danielle

reported that she had been pistol-whipped by her boyfriend, that she had lost

consciousness and woke up feeling dizzy and nauseous, and that she had a headache,

blurry vision, and sensitivity to light. Id. at 577. The medical assessment also recorded

that Danielle had swelling around her eye, ringing in her ear, and temporary paralysis

of her facial nerve. Id. at 578-79. Quinones testified that these symptoms were all

consistent with head trauma, strangulation, and deprivation of oxygen to the brain. Id.

at 577, 579. Danielle also had rib and neck pain and was given several tests and a neck

brace. Id. at 576, 583.

Detective Richardson secured the revolver and the ammunition, vouchered it at the

79th Precinct, and sent it to the lab. Id. at 527. On April 25, 2011, Officer Paul Brown of

the Evidence Collection Team photographed, swabbed, and dusted the revolver, and

sent the gun and ammunition to the lab for analysis. Id. at 482, 487-89. A criminalist

determined that Leach's DNA was on the revolver, and a forensics investigator

determined that the revolver and ammunition were "operable." Id. at 505, 677.

Between April 25, 2011 and May 8, 2011, while at Rikers Island, Leach

made 84 phone calls to various people. Dkt. 9-3 at 17. The phone calls were recorded.

Id. In one phone call, Leach said, "I smacked my bitch and she went to the precinct and

told on me." Id. In another phone call, he stated, "I slapped her three times." Id. at 18.

On April 27, 2011 -- four days after being admitted to Woodhull Hospital

-- Danielle was discharged to a domestic violence shelter. Dkt. 9-1 at 584-85. On May 4,

2011, at a hospital visit, she reported that she was experiencing, among other things,

headaches, ringing in her ears, blurry vision, light headedness, chest pain, nausea, and

vomiting. Id. at 595. In June of 2011, she fainted on the street because of symptoms

related to head trauma and strangulation. Id. at 588-89. At trial, she continued to have

ringing in her ears, vertigo, nightmares, and memory problems. Id. at 429, 439.

B. Procedural History

1. State Court Proceedings

a. The Trial Court

breathing or blood circulation, criminal possession of a weapon in the third degree, and

unlawful possession of marijuana. Dkt. 9-3 at 7-8.

Trial commenced on September 3, 2013. Dkt. 9-1 at 60. The government's

witnesses included Danielle, Darald, Officer Danese, Detective Richardson, Officer

Brown, Detective James Morales, Tara Santore of the Office of the Chief Medical

Examiner, who tested the revolver for DNA samples, Nurse Quinones, and Amy Lowe,

the New York City Department of Corrections custodian of inmate records and

recording. Dkt. 9-1 at 298, 423, 472, 480, 496, 508, 564, 628 648.

During its direct examination of Danielle, the prosecution asked, "And

what were you feeling as he was strangling you?" Id. at 443. The following exchange

ensued among Danielle, defense counsel, and the court.

[DANIELLE]: I seen my life flash. I mean, I seen the room go from

seeing the whole room to one corner turning black and then everything

just gone. And I don't know, I felt like he was just playing with my

life. I felt like he could see death in my face, because it's -- every time I

thought that was my last breath, he would just let go and he just

continued to do it and, you know, I don't know what made him stop,

maybe he seen death in my eyes, but --

[DEFENSE COUNSEL]: Move to strike.

THE COURT: I will grant that motion.

Id. In its summation, the prosecution referred to this testimony stating:

The way she described it, page 172, line 15: "I seen my life flash. I mean, I

seen the room go from seeing the whole room to one corner turning black

and then everything just gone. And I don't know, I felt like he was just

I submit to you, members of the jury, that was exactly what he was doing.

He was playing with Danielle's life. And that is intent to obstruct her

breathing.

Id. at 746. The prosecution made additional remarks during summation that are at

issue: The prosecution stated, "As the judge told you, that's a relatively new law,

Strangulation. That's the most intimate form of domestic violence. That is the batterer

showing the victim that he has ultimate power and control over her . . . ." Id. at 745.

The prosecution also stated, "Two and a half years later, [Danielle] remains homeless,

unable to work because of her injuries and dependent on her brother. That's how well

the system is working for Danielle." Id. at 755. When describing Detective Richardson's

interaction with Danielle at the precinct, the prosecution stated that Detective

Richardson did not simply write up a report and send Danielle on her way, but relied

on his training as a former interrogator in the United States Marine Corps to question

her, find out what happened, and assess her injuries. Id. at 747-48. Lastly, the

prosecutor stated that Danielle had no reason to and did not exaggerate her testimony.

Id. at 733, 753.

On September 10, 2013, before the jury entered the courtroom, the

following exchange took place among the court, the prosecutor, and defense counsel

regarding the admission of two sets of medical records into evidence.

[PROSECUTOR]: Judge, before the jury comes in, I want to confirm

before I call a witness I will be moving into evidence the two sets of

medical records.

[DEFENSE COUNSEL]: There are, in my opinion, some very serious

redactions that need to be done.

THE COURT: And obviously, it will be subject to that. I won't mention

that to the jury yet.

Id. at 561-62. After this exchange, the jury entered, and the court told the prosecution

that it could call its next witness. Id. at 562-63. The prosecutor responded, "Yes, your

Honor, before I call my next witness, I am asking that this be marked People's 7 for

identification." Id. at 563. The court asked the prosecutor to describe the exhibit for the

record, and she stated that it was a packet of "130 pages or so" of medical records from

Woodhull Hospital. Id. The court responded, "It is People's 7. Is there any objection?"

Id. Defense counsel answered, "Judge, I have no objection to these records going in

subject to any appropriate Court approved redactions." Id. The court responded, "Very

well. Then it is People's 7 in evidence, subject to potential reductions," and the

Woodhull medical records were moved into evidence. Id. About 100 pages of medical

records from Montefiore Medical Center were also moved into evidence, and the court

noted that they were also in evidence "subject to potential redaction." Id. at 563-64. The

record does not indicate that any redactions were ever made to the medical records.

On September 12, 2013, right after excusing the jury to begin its

deliberations, the court asked, "May I assume if they send a note for the exhibits, we

could send the exhibits in." Id. at 784. Defense counsel responded, "Yes." Id. During

its deliberations, the jury sent out a note requesting all photos of Danielle and both sets

The jury found Leach guilty of strangulation in the second degree,

criminal possession of a weapon in the third degree, and assault in the third degree.

Dkt. 9 at 2. On November 8, 2013, Leach was sentenced as a second violent felony

offender to seven years' imprisonment followed by five years of post-release

supervision on the strangulation count, a consecutive two and one-half to five years'

imprisonment on the weapon possession count, and one year imprisonment on the

assault count to run concurrently with the strangulation count. Id.

b. The Direct Appeal

Represented by counsel, Leach appealed to the Appellate Division, Second

Department, on August 11, 2015. Dkt. 9-2. Leach's appellate counsel argued that (1)

Danielle's hearsay statements to officers were not excited utterances; (2) Leach's

constitutional right to confrontation was violated when the jury had access to an

unredacted version of the medical records that included Danielle's allegations of prior

abuse; (3) Nurse Quinones was not qualified to give opinion testimony on whether

strangulation caused Danielle's injuries; (4) the prosecutor engaged in multiple

procedural errors in summation; (5) there was insufficient evidence to support a guilty

verdict on the strangulation count, and alternatively, the verdict was against the weight

of the evidence; and (6) trial counsel failed to provide Leach with meaningful

representation. Id. at 3-4.

On March 30, 2016, the Second Department affirmed Leach's convictions.

time lapse between the incident and the statements, her condition when she arrived at

the precinct, and her coherent responses to questions asked. Id. The court concluded,

however, that the error was harmless in light of the overwhelming evidence of Leach's

guilt. Id. As to the confrontation issue, the court held that the contention was

unpreserved for appellate review but that, in any event, there was no deprivation of the

defendant's right to confrontation because Danielle testified at trial, and moreover, the

unredacted portions of the medical records were relevant to diagnosis and treatment.

Id. at 119-20. The court held that Quinones was properly qualified as an expert in

emergency medical care, and her testimony did not go beyond her training, education,

knowledge, or experience. Id.

Regarding the procedural errors in the prosecutor's summation, the court

held that the issue was unpreserved for appellate review, but that, in any event, some of

the challenged statements were permissible and others that were impermissible "were

not so flagrant or pervasive so as to deprive the defendant of a fair trial." Id. at 120.

Similarly, as to the sufficiency-of-the-evidence contention for the strangulation court,

the court held that it was unpreserved for appellate review but that, in any event, the

verdict was sufficient and not against the weight of the evidence. Id. Finally, the court

held that Leach was not deprived of the effective assistance of counsel. Id. at 121.

Leach sought leave to appeal to the Court of Appeals, raising all six

claims, and the court denied leave. Leach II, 63 N.E.3d 80.

2. Proceedings Below

On September 11, 2018, proceeding pro se, Leach filed the Petition raising

the same six claims that he raised on appeal to the Second Department: (1) his

confrontation rights were violated when the jury had access to unredacted portions of

Danielle's medical records that included allegations of prior abuse; (2) the prosecutor

committed several errors during summation; (3) there was insufficient evidence to find

him guilty of strangulation; (4) he received ineffective assistance of trial counsel;

(5) Danielle's statements to the officers at the precinct were improperly admitted as

excited utterances; and (6) Quinones was improperly admitted as an expert in

emergency medicine and was not qualified to testify about whether strangulation

caused Danielle's injuries. Dkt. 6 at 5-10.

The District Attorney's Office filed an affidavit and a memorandum of law

in opposition to the Petition on November 19, 2018. Dkt. 9. On November 28, 2018,

Leach submitted a letter to the Court requesting that his Petition be granted. Dkt. 10.

On December 17, 2018, Leach submitted a letter to the Court replying to the

Respondent's opposition, which the Court accepted. Dkt. 11; Docket Sheet at 4. On

October 25, 2019, Leach wrote to the Court requesting an update on the status of the

case. Dkt. 12. On October 29, 2019, the Court informed Leach that his petition was

pending before the Court. Docket Sheet at 4. The case was reassigned to the

undersigned on May 12, 2023.

DISCUSSION

A. Federal Review of State Convictions

A federal court may not grant a habeas petition on a claim that was

adjudicated on the merits in state court unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. ' 2254(d); see Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee,

857 F.3d 466, 477 (2d Cir. 2017). Hence, when a claim is adjudicated on the merits,

the state court's decision must be accorded "substantial deference." Fischer v. Smith,

780 F.3d 556, 560 (2d Cir. 2015). "A federal court may reverse a state court ruling

only where it was 'so lacking in justification that there was . . . [no] possibility for

fairminded disagreement.'" Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (per

curiam) (quoting Harrington, 562 U.S. at 103); see also Wetzel v. Lambert, 565 U.S. 520,

524 (2012) (per curiam).

"The Confrontation Clause of the Sixth Amendment, which applies to

the states through the Fourteenth Amendment, guarantees the defendant in a

criminal prosecution the right to confront the witnesses against him." Henry v.

Speckard, 22 F.3d 1209, 1214 (2d Cir. 1994) (internal citation omitted). The essential

of a witness who did not appear at trial unless he was unavailable to testify, and the

defendant had a prior opportunity for cross-examination." Crawford v. Washington,

541 U.S. 36, 53-54 (2004). Furthermore, "when the declarant appears for cross-

examination at trial, the Confrontation Clause places no constraints at all on the use

of his prior testimonial statements." Id. at 59 n.9. A statement is testimonial and

triggers the protections of the Confrontation Clause if it was "made with the primary

purpose of creating a record for use at a later criminal trial." United States v. James,

712 F.3d 79, 96 (2d Cir. 2013).

By their nature, certain statements are not testimonial because they are

"made for a purpose other than use in a prosecution." Michigan v. Bryant, 562 U.S.

344, 362 n.9 (2011). Such statements include statements made for the purpose of

medical diagnosis or treatment and excited utterances. See Fed. R. Evid. 803(2), (4).

"[S]tatements made for the purposes of medical diagnosis or treatment, including

medical history, and a description of symptoms and pain, are admissible under the

exception to the hearsay rule set forth in Rule 803(4)," Turner v. White, 443 F. Supp.

2d 288, 297 (E.D.N.Y. 2005), and out-of-court statements related to a startling event

and made "while the declarant was under the stress of excitement" are admissible as

excited utterances, Fed. R. Evid. 803(2); see also People v. Johnson, 804 N.E.2d 402, 405

(N.Y. 2003) ("An out-of-court statement is properly admissible under the excited

utterance exception when made under the stress of excitement caused by an external

Fourteenth Amendment only if the evidence in question was sufficiently material to

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

existed on the record without it." Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)

(internal quotation marks and citation omitted).

To grant relief for a claim of prosecutorial misconduct, the reviewing

court has to find that "the prosecutor's comments constituted more than mere trial

error, and were instead so egregious as to violate the defendant's due process

rights." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). The petitioner must

show "that he suffered actual prejudice because the prosecutor's comments during

summation had a substantial and injurious effect or influence in determining the

jury's verdict." Id. (citation omitted). Furthermore, "[i]t is well-settled that both the

prosecution and defense are entitled to broad latitude in the inferences they may

suggest to the jury during closing arguments, provided they do not misstate the

evidence, refer to facts not in evidence, or express counsel's personal belief as to guilt

or innocence." United States v. Smith, 778 F.2d 925, 929 (2d Cir. 1985) (internal

quotation marks and citation omitted). "While the prosecution may not vouch for

the credibility of its witnesses, the government is allowed to respond to an argument

that impugns its integrity or the integrity of its case . . . ." United States v. Carr, 424

F.3d 213, 227 (2d Cir. 2005) (internal quotation marks and citation omitted).

Defendants in a criminal trial may be convicted only upon proof

insufficient to sustain a defendant's conviction, the reviewing court applies the

standard set forth in Jackson to determine "whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." Id. at 318-19. In

doing so, the court defers to the jury's assessments on both "the weight of the

evidence [and] the credibility of witnesses." Maldonado v. Scully, 86 F.3d 32, 35 (2d

Cir. 1996). Furthermore, the court "must look to state law to determine the elements

of the crime." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). A "petitioner

bears a very heavy burden in convincing a federal habeas court to grant a petition on

the grounds of insufficient evidence." Id. (internal quotation marks and citation

omitted). Indeed, a federal court may overturn a state court decision rejecting a

sufficiency of the evidence challenge only if the state court decision was "objectively

unreasonable." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (internal quotation marks

and citation omitted).

Additionally, in general, to prevail on a claim of ineffective assistance

under federal law, a petitioner must (1) show that counsel's performance was so

deficient as to fall below "an objective standard of reasonableness"; and (2) establish

prejudice by demonstrating a "reasonable probability" that, "but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In the context of a habeas

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so." Harrington, 562 U.S. at 105 (citations omitted).

Therefore, "[t]he operative question" when a federal court reviews "a state court's

Strickland ruling is thus not whether [the] federal court believes the state court's

determination was incorrect, but rather whether that determination was objectively

unreasonable -- a substantially higher threshold." Waiters, 857 F.3d at 478 (quoting

Schriro v. Landrigan, 550 U.S. 465, 473 (2007)) (cleaned up). The standard to establish

an ineffective assistance of counsel claim under New York law is lower than under

federal law. See People v. Honghirun, 78 N.E.3d 804, 807 (N.Y. 2017). In New York, a

defendant must show only "that counsel failed to provide meaningful

representation." People v. Alvarez, 125 N.E.3d 117, 120 (N.Y. 2019) (citing People v.

Stultz, 810 N.E.2d 883 (N.Y. 2004); People v. Baldi, 429 N.E.2d 400 (N.Y. 1981)). Unlike

the federal standard, see Strickland, 466 U.S. at 694, under the state standard, the

defendant is not required to demonstrate that he was prejudiced by the ineffective

assistance, see Alvarez, 125 N.E.3d at 120.

Finally, a state law error is not sufficient for habeas corpus relief unless

it rises to a level that implicates a federal constitutional right. Wainwright v. Goode,

464 U.S. 78, 86 (1983) (per curiam). Such error does not rise to the level of a

constitutional violation unless the petitioner can demonstrate that the error had a

"substantial and injurious effect or influence" on the jury's verdict. Headley v.

testimony are addressed primarily to the sound discretion of the trial court." People

v. Cronin, 458 N.E.2d 351, 352 (N.Y. 1983). "The Federal Rules of Evidence permit

opinion testimony by experts when the witness is 'qualified as an expert by

knowledge, skill, experience, training, or education . . . .'" McCullock v. H.B. Fuller

Co., 61 F.3d 1038, 1042 (2d Cir. 1995) (quoting Fed. R. Evid. 702).

B. Analysis

Leach asserts six claims in the Petition: (1) his confrontation rights were

violated when the jury had access to unredacted portions the medical records; (2) the

prosecutor committed several errors during summation; (3) there was insufficient

evidence to find him guilty of strangulation; (4) he received ineffective assistance of trial

counsel; (5) Danielle's statements to the officers at the precinct were improperly

admitted as excited utterances; and (6) Quinones was improperly admitted as an expert

in emergency medicine and was not qualified to give certain opinion testimony. Dkt. 6

at 5-10. First, I address the claims that are procedurally barred, and then I address the

merits of the claims in turn.

1. The Procedural Bars

If a state court's decision regarding a claim "rests on a state law ground

that is independent of the federal question and adequate to support the judgment,”

the claim is procedurally barred, whether the state-law ground is substantive or

procedural. Coleman v. Thompson, 501 U.S. 722, 729 (1991); accord Bierenbaum v.

review only those errors of law that are presented contemporaneously such that the

trial court is "reasonably prompted" to correct them -- "is a firmly established and

regularly followed New York procedural rule." Downs v. Lape, 657 F.3d 97, 103, 104

(2d Cir. 2011) (citations omitted). Hence, the Circuit has affirmed the denial of

habeas relief based on the Appellate Division's ruling that a claim is unpreserved for

appellate review pursuant to the contemporaneous objection rule. See, e.g., Garcia v.

Lewis, 188 F.3d 71, 81-82 (2d Cir. 1999).

If a claim is procedurally barred pursuant to an independent and

adequate state rule, a federal habeas court may not review it on the merits, unless

the petitioner demonstrates (1) "cause for the default and actual prejudice as a result

of the alleged violation of federal law," or (2) "that failure to consider the claims will

result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The

Appellate Division, citing the contemporaneous objection rule, concluded that three

of Leach's claims were unpreserved for appellate review -- the Confrontation Clause

claim, the prosecutorial misconduct claim, and the sufficiency of the evidence claim.

Leach I, 30 N.Y.S.3d at 119-20 (citing N.Y. Crim. Proc. Law § 470.05(2) (McKinney)).

The Appellate Division's determination bars this Court from reviewing the merits of

the claim. See Cone v. Bell, 556 U.S. 449, 465 (2009). Furthermore, Leach has not

demonstrated cause for the default or shown that failure to consider the claims will

result in a fundamental miscarriage of justice, for, as discussed below, I agree with

2. The Merits

The state court rejected all six of Leach's claims on the merits, and thus

those decisions are entitled to "substantial deference." Fischer, 780 F.3d at 560. As

discussed below, I cannot agree that the rulings were "so lacking in justification that

there was . . . [no] possibility for fairminded disagreement." Vega, 669 F.3d at 126

(internal quotation marks and citation omitted). Leach has also not shown that the state

court's determination on the merits was contrary to or involved an unreasonable

application of clearly established federal law. 28 U.S.C. § 2254(d)(1). Thus, I conclude

that all six claims fail.

a. The Confrontation Clause Claim

For his first claim, Leach argues that his rights under the Confrontation

Clause were violated because during deliberations the jury received unredacted

medical records, which contained statements regarding uncharged instances of

Leach's violence toward Danielle. Dkt. 6 at 5. In his brief to the Appellate Division,

Leach alleged that "the medical records contained, at a minimum, three highly

prejudicial references to 'history of abuse' that went to appellant's propensity to

commit strangulation." Dkt. 9-2 at 36. Leach described the statements as follows:

First, [complainant] report[ed] one past hospitalization during which

time she lied and blamed a facial laceration on her nephew . . . ."

(People's Ex. 7) Second, [complainant] report[ed] that [appellant] was

physically abusive throughout the relationship but never to the extent

of the current incident. (Id.) Third, under 'Social History,' complainant

Id. (internal quotation marks omitted). Danielle, however, testified at trial and was

cross-examined by defense counsel, and the Supreme Court has held that where a

declarant is present for cross-examination, the Confrontation Clause does not

restrain the use of prior testimonial statements. See Crawford, 541 U.S. 59 n.9. What

is more, the statements in the medical records were not testimonial because they

were made for the purpose of medical diagnosis or treatment. See People v. Ortega,

942 N.E.2d 210, 214 (N.Y. 2010). Therefore, the Confrontation Clause claim fails on

the merits.

b. The Prosecutorial Misconduct Claim

For his second claim, Leach contends that the prosecutor committed

several errors during summation: (1) repeatedly quoting stricken testimony, Dkt. 6 at 6;

(2) personally vouching for Danielle's credibility and using Officer Richardson's

training to make him an "honesty expert" and bolster Danielle's testimony, id.; and (3)

making inflammatory arguments regarding "the system" and "domestic violence," id.;