Nunez v. Noeth

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Marvin Siciliano Nuñez,

Petitioner, MEMORANDUM & ORDER

- against - No. 20-cv-3034 (KAM)

Kevin McCarthy,1

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Marvin Siciliano Nuñez, proceeding pro se, petitions for a

writ of habeas corpus, claiming his state custody for burglary,

committing a criminal sexual act, attempted rape, and criminal

obstruction of breathing violates his federal constitutional

rights. He challenges the grand jury proceedings leading to his

indictment, the State’s failure to disclose evidence, an

evidentiary ruling, the sufficiency and weight of the evidence,

the validity of his confession, and his sentence. For the

reasons below, the Court respectfully denies the Petition.

1 The proper respondent in a federal habeas action is he warden or

superintendent of the facility where the petitioner is held. Green v. Lee,

964 F. Supp. 2d 237, 253 (E.D.N.Y. 2013). The original respondent in this

action was Joseph Noeth, the Superintendent of Attica Correctional Facility

when the action was filed. The Court deems the Petition amended to change

the respondent to the Superintendent of Elmira Correctional Facility, where

Siciliano Nuñez is currently held. See Pellis v. Wright, No. 19-cv-149

(EAW), 2022 WL 3587755, at *4 n.4 (W.D.N.Y. Aug. 22, 2022). The Court

retains subject-matter jurisdiction because Siciliano Nuñez was convicted and

sentenced in the Eastern District of New York. See 28 U.S.C. § 2241(d).

BACKGROUND

I. Factual Background

Early in the morning on August 5, 2016, emergency medical

personnel found Marvin Siciliano Nuñez passed out, apparently

from alcohol, outside a convenience store and transported him to

Southampton Hospital. (ECF No. 10-20, June 12, 2017, Trial Tr.

19:24–20:20.) After he was treated for intoxication, found to

be “alert and oriented,” and discharged around 7:00 that

morning, he entered a house a few blocks away through an

unlocked back door and began stealing jewelry and other items

inside. (Id. 20:10–20, 37:5–11; ECF No. 10-3, Resp. to Disc.

Demand, at 15–16; ECF No. 10-19, June 9, 2017, Trial Tr. 108:13–

111:17.)

When Siciliano Nuñez found the homeowners’ teenage daughter

sleeping in a downstairs bedroom, he threatened her with a large

wooden object,2 threw her to her knees, tore off her shirt, and

repeatedly shoved his penis in her mouth. (ECF No. 10-16,

June 6, 2017, Trial Tr. 69:12–85:13.) He then threw her onto

the bed, choked her, and tore off her underwear while he tried

to vaginally penetrate her. (Id. 85:14–91:25.) The victim

escaped the house and ran naked into the street screaming for

2 Siciliano Nuñez stated in his written confession that the object was a

skateboard, (Resp. to Disc. Demand, at 15–16), but the victim and three

eyewitnesses testified it was a bat, (ECF No. 10-16, June 6, 2017, Trial Tr.

70:16–21; ECF No. 10-22, June 5, 2017, Trial Tr. 79:3–9, 132:19–21, 149:3–

11).

help. (Id. 92:1–94:2.) Siciliano Nuñez chased her outside but

fled after seeing bystanders rush to help the victim. (Id.

93:20–94:9; ECF No. 10-22, June 5, 2017, Trial Tr. 74:7–82:5,

130:15–134:19, 149:3–153:24.)

Responding officers apprehended Siciliano Nuñez nearby and

brought him to a show-up, where the victim identified him. (ECF

No. 10-18, June 8, 2017, Trial Tr. 45:13–16, 13:14–14:10.) The

officers then brought him to the police station. (Id. 53:5–8.)

He sat unrestrained in an interview room while an officer read

him his Miranda rights and another officer translated the first

officer’s words into in Spanish. (Id. 129:1–130:9, 162:23–

167:17, 169:6–10.) With the translating officer’s help,

Siciliano Nuñez initialed a form waiving his rights, answered

the officers’ questions, and signed a written confession (after

it was translated for him) around 1:30 in the afternoon. (Id.

162:23–175:14; see Resp. to Disc. Demand at 15–16.) A grand

jury sitting in Suffolk County later indicted Siciliano Nuñez

for burglary, committing a criminal sexual act, attempted rape,

obstruction of breathing, and resisting arrest. (Resp. to Disc.

Demand at 6–10.)

II. Trial

Siciliano Nuñez stood trial before a jury in the Suffolk

County Supreme Court. Before trial, Siciliano Nuñez moved to

suppress his confession, arguing he was intoxicated at the time.

(ECF No. 10-15, Mar. 29, 2017, Hr’g Tr. 4:20–24.) The trial

court denied the motion after one of the arresting officers

testified that Siciliano Nuñez did not appear or act intoxicated

and did not smell of alcohol. (ECF No. 10-12, Appellant’s Br. &

App’x, at A10; see ECF No. 10-14, Apr. 11, 2017, Hr’g Tr. 26:21–

23, 27:9–11.) On the second day of trial, however, the defense

moved again to suppress Siciliano Nuñez’s confession and also

moved for a mistrial on the ground that the State waited until

after the suppression hearing to disclose a suicide prevention

screening form completed by the arresting officer the day of the

arrest indicating that Siciliano Nuñez was impaired by alcohol.

(June 6, 2017, Trial Tr. 170:17–174:25.)

The court vacated its prior voluntariness finding and held

a second hearing, where the defense cross-examined the arresting

officer using the form. (ECF No. 10-17, June 7, 2017, Trial Tr.

66:6–10; June 8, 2017, Trial Tr. 69:1–80:5.) The arresting

officer testified that he indicated on the form that Siciliano

Nuñez was intoxicated due to Siciliano Nuñez’s hospitalization

for intoxication earlier in the morning, not because he actually

thought Siciliano Nuñez was intoxicated while interacting with

him. (June 8, 2017, Trial Tr. 35:21–36:11.) The court again

found Siciliano Nuñez’s confession voluntary. (June 9, 2017,

Trial Tr. 19:4–15.) It declined to declare a mistrial but

sanctioned the State by instructing the jury about the State’s

initial failure to disclose the arresting officer’s form. (Id.

42:15–24.) The court gave the instruction before the officer

testified and again after summations. (Id. 79:7–82:17; ECF

No. 10-21, June 13, 2017, Trial Tr. 137:11–140:10.)

During the two-week trial, the jury heard testimony from

the victim, her mother, three bystanders who saw Siciliano Nuñez

chase the victim into the street, the officers who arrested and

interviewed Siciliano Nuñez, the nurse who treated the victim

after the attack, and the nurse who treated Siciliano Nuñez

earlier in the morning for intoxication. (See generally ECF

Nos. 10-16 through 10-22.) Before summations, the defense moved

to dismiss the indictment in its entirety, arguing the evidence

was insufficient to support a conviction. (June 12, 2017, Trial

Tr. 177:14–18.) The defense made specific arguments as to the

charge for resisting arrest and the classification of the

burglary charges as sexually motivated felonies but as to the

other charges argued only that the State had “not presented a

legally sufficient case.” (Id. 156:14–164:5.) The trial court

dismissed the charge for resisting arrest but otherwise denied

the motion to dismiss the entire indictment. (Id. 181:1–182:4;

ECF No 10-21, June 13, 2017, Trial Tr. 5:17–19.)

The jury returned a verdict finding Siciliano Nuñez guilty

of burglary, a criminal sexual act, attempted rape, and

obstruction of breathing; however, it declined to find the

burglary charges “sexually motivated.” (ECF No. 10-13, June 14,

2017, Verdict Tr. 10:23–16:4.) The trial court imposed an

aggregate prison sentence of twenty-one years, running the

sentences concurrently rather than consecutively. (ECF

No. 10-8, Aug. 2, 2017, Sent’g Hr’g Tr. 26:2–27:5.) It declined

to impose the twenty-five year maximum sentence available for

burglary or a criminal sexual act. (See id. 14:23–15:6); N.Y.

Penal Law § 70.00(2)(b); N.Y. Penal Law § 140.30; N.Y. Penal Law

§ 130.50.

III. Appeal

The Appellate Division affirmed the conviction and

sentence. People v. Siciliano Nuñez, 100 N.Y.S.3d 309 (2d Dep’t

2019). It both rejected as unpreserved Siciliano Nuñez’s

arguments that the grand jury proceedings were defective, that

the trial court allowed the State to elicit inadmissible hearsay

during the direct examination of the victim’s mother, and that

there was insufficient evidence to convict him; however, it also

addressed and rejected those claims on the merits. Id. at 311–

13. Regarding the State’s late disclosure of the suicide

prevention screening form, the Appellate Division determined

that the trial court acted appropriately in holding a new

suppression hearing instead of declaring a mistrial and that

there was no reasonable possibility earlier disclosure might

have led to the jury to reach a different verdict. Id. at 312.

The Appellate Division also concluded that the evidence

presented at the suppression hearing failed to establish that

Siciliano Nuñez was so intoxicated at the time of his interview

as to render his waiver of rights involuntary. Id. Finally,

the Appellate Division determined that the trial court’s

sentence was not excessive. Id. at 313.

The New York State Court of Appeals denied leave to appeal

on July 17, 2019. People v. Siciliano Nuñez, 130 N.E.3d 1305

(N.Y. 2019). Siciliano Nuñez timely filed the instant Petition

on July 4, 2020. (See ECF No. 1, Pet. Under 28 U.S.C. § 2254

for Writ of Habeas Corpus by Person in State Custody.) At that

time, he had not collaterally challenged his conviction in state

court or sought review in the Supreme Court of the United

States. (Id. at 2–3.)3

LEGAL STANDARD

A petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 is the vehicle by which a state prisoner obtains federal

judicial review of his or her state custody. Cook v. N.Y. State

Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003). The court may

issue the writ only if it finds that the petitioner is in

custody in violation of federal law. 28 U.S.C. § 2254(a). Any

claim for which the petitioner seeks habeas relief must have

3 Because the Petition has inserts without page numbers that disrupt the

document’s internal pagination, the Court cites the Petition according to the

page numbers assigned by the Court’s electronic case filing system.

been fairly presented for review and exhausted in state court.

28 U.S.C. § 2254(b).

Respect for judicial federalism requires that a federal

habeas court refrain from resurrecting a claim the petitioner

“procedurally defaulted” in state court. Davila v. Davis,

582 U.S. 521, 527–28 (2017). Procedural default occurs when the

state court clearly and expressly relied on a state procedural

rule to dispose of the petitioner’s claim, regardless of whether

the state court also addressed the merits of the claim. Garner

v. Lee, 908 F.3d 845, 859 (2d Cir. 2018). The petitioner may

raise a procedurally defaulted claim in a federal habeas

proceeding only by showing either (1) good cause for the default

and resulting prejudice or (2) that he or she is actually

innocent. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Gomez v.

United States, 87 F.4th 100, 107 (2d Cir. 2023).

If the state court adjudicated the petitioner’s claim on

the merits, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) requires the habeas court to give the state court’s

decision great deference. McCray v. Capra, 45 F.4th 634, 640

(2d Cir. 2022). The state court need not explain its reasoning

for its decision to be considered “on the merits.” Johnson v.

Williams, 568 U.S. 289, 298 (2013). If the petitioner presented

the claim to the state court and the state court denied relief,

the habeas court may presume the state court adjudicated the

claim on the merits absent any contrary indication or state law

principle. Id.

Under AEDPA, a state court decision on the merits must

stand unless it was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or

(2) “based on an unreasonable determination of the facts in

light of the evidence presented” in the state court. 28 U.S.C.

§ 2254(d). “Clearly established” federal law means a holding,

as opposed to dicta, of a Supreme Court decision that existed at

the time of the relevant state court decision. McCray, 45 F.4th

at 640. The habeas court may not use Second Circuit precedents

to “refine or sharpen a general principle of Supreme Court

jurisprudence into a specific legal rule” that the Supreme Court

“has not announced.” Jackson v. Conway, 763 F.3d 115, 134

(2d Cir. 2014) (quoting Marshall v. Rodgers, 569 U.S. 58, 64

(2013)).

A state court decision is “contrary to” clearly established

federal law if it contradicts a Supreme Court decision on a

legal question or decides a case differently from how the

Supreme Court decided a case with materially identical facts.

McCray, 45 F.4th at 640. A state court decision “involves an

unreasonable application of” clearly established federal law if

the state court identifies the correct legal rule from the

applicable Supreme Court decision but unreasonably applies it to

the facts of the petitioner’s case. See id.

When a habeas petitioner proceeds pro se, the court holds

the petition to less rigorous standards than it holds filings by

counseled parties. Licausi v. Griffin, 460 F. Supp. 3d 242, 260

(E.D.N.Y. 2020). The court must liberally construe the petition

to raise the strongest arguments it suggests. Id. Still, pro

se petitioners are not exempt from the applicable procedural and

substantive rules. Banner v. Royce, 525 F. Supp. 3d 417, 418

(E.D.N.Y. 2021).4

DISCUSSION

In resolving Siciliano Nuñez’s Petition, the Court reviews

the Appellate Division’s decision, which was the last reasoned

state court decision to address all asserted grounds for federal

habeas relief after the New York State Court of Appeals denied

leave to appeal without comment. See Royster v. Ercole,

No. 06-cv-12942 (SAS) (JCF), 2008 WL 542505, at *6 (S.D.N.Y.

Feb. 29, 2008) (explaining that when the New York State Court of

Appeals denies leave to appeal without comment, the federal

habeas court “look[s] through” that decision to “the decision of

4 Relevant here, a habeas petitioner may not raise a claim for the first time

in a reply brief. Morrison v. Brown, No. 11-cv-3366 (KAM), 2019 WL 267190,

at *15 (E.D.N.Y. Jan. 18, 2019). The Court has considered all of Siciliano

Nuñez’s filings to the extent they address claims raised in the Petition;

however, to the extent Siciliano Nuñez’s reply brief, (ECF No. 14, Mem. of

Law), seeks to raise any new claims, the Court declines to consider them.

the Appellate Division”), R&R adopted, ECF No. 17 (S.D.N.Y.

Apr. 22, 2008).

I. Grand Jury Proceedings

Siciliano Nuñez first challenges the validity of the grand

jury proceedings that led to his indictment, arguing that the

proceedings were defective because the State failed to inform

the grand jury that he might have been too drunk to have formed

the requisite intent to commit a crime. (ECF No. 1, Pet. Under

28 U.S.C. § 2254 for Writ of Habeas Corpus by Person in State

Custody (“Pet.”), at 5.) Siciliano Nuñez raised this claim in

his appeal, and the Appellate Division rejected it as

unpreserved and also rejected it on the merits. People v.

Siciliano Nuñez, 100 N.Y.S.3d 309, 311 (2d Dep’t 2019).

The record lacks enough information for the Court to

determine whether Siciliano Nuñez procedurally defaulted this

claim. In finding the grand jury challenge unpreserved, the

Appellate Division cited New York’s state law requirement that

an objection be contemporaneous and specific to preserve a claim

of error for appeal. Id. (citing N.Y. Crim. Proc. Law

§ 470.05(2)). Before trial, Siciliano Nuñez had moved to

dismiss the indictment on the ground that the State presented

insufficient evidence to the grand jury. (ECF No. 10-2,

Sept. 21, 2016, Order.) The record contains a copy of the order

but not the motion, so the Court cannot tell whether the motion

was specific enough regarding the intoxication issue to preserve

this claim of error for appeal. Thus, the Court also cannot

determine whether the Appellate Division properly rejected the

claim as unpreserved.

Regardless, Siciliano Nuñez cannot prevail on this ground.

A federal habeas petitioner generally may not obtain relief

based on a flaw in a state grand jury proceeding. Lopez v.

Riley, 865 F.2d 30, 32 (2d Cir. 1989); Occhione v. Capra,

113 F. Supp. 3d 611, 631 (E.D.N.Y. 2015). This is because the

Fifth Amendment right to indictment by grand jury in federal

prosecutions does not apply to state prosecutions. See Hurtado

v. California, 110 U.S. 516, 538 (1884); United States v. Lee,

833 F.3d 56, 69 (2d Cir. 2016). Accordingly, Siciliano Nuñez’s

grand jury claim does not concern a federal right and cannot

support federal habeas relief.

II. Siciliano Nuñez’s Confession

Siciliano Nuñez raises two related claims regarding his

written confession and the State’s late disclosure of the

arresting officer’s suicide prevention screening form. First,

he claims the trial court erred by holding a second suppression

hearing instead of declaring a mistrial when it learned the

State failed to disclose the form in time for the first

suppression hearing. (Pet. at 6.) Second, he claims the trial

court erred by denying his motion to suppress, arguing that the

form contradicted the arresting officer’s testimony that

Siciliano Nuñez was not drunk at the time of his confession.

(Id. at 11.)

A. Mistrial Ruling

The trial court concluded that the State committed a

Rosario violation and a Brady violation by tardily disclosing

the suicide prevention screening form; however, it determined

that the proper remedy was to hold a second suppression hearing

rather than declare a mistrial. (ECF No. 10-19, June 9, 2017,

Trial Tr. 42:4–18.) Rosario requires the State to disclose any

written statement by a person that the State intends to call as

a witness at trial. People v. Rosario, 173 N.E.2d 881, 884

(N.Y. 1961). Brady requires the prosecution team to disclose

any material exculpatory evidence. Brady v. Maryland, 373 U.S.

83, 87 (1963). The Appellate Division rejected Siciliano

Nuñez’s Rosario and Brady claims on the merits. Siciliano

Nuñez, 100 N.Y.S.3d at 312.

To the extent Siciliano Nuñez seeks to continue advancing

his Rosario claim at this stage, he cannot prevail because

federal habeas relief is available only for violations of

federal law and Rosario claims arise under state law. See

Enoksen v. Squires, 532 F. Supp. 3d 75, 93 n.14 (E.D.N.Y. 2021).

To the extent he presses a Brady claim, however, the Court

reviews the Appellate Division’s decision with AEDPA deference.

The Appellate Division did not contradict or unreasonably

apply Brady in determining that the trial court properly denied

Siciliano Nuñez’s application for a mistrial. To prevail on a

Brady claim, the defendant must show a reasonable probability

that the result of the proceeding would have been different had

the evidence been disclosed. Smith v. Cain, 565 U.S. 73, 75

(2012). Siciliano Nuñez cannot make this showing with respect

to the suppression hearing. No Supreme Court precedent holds

that Brady applies to pre-trial suppression hearings; the

circuits are divided on that issue. United States v. White,

489 F. Supp. 3d 274, 279–80 (S.D.N.Y. 2020) (explaining that the

Fifth and Ninth Circuits apply Brady to the suppression context,

the D.C. and Sixth Circuits have “expressed doubts,” and the

Second Circuit has yet to weigh in). Regardless, the trial

court’s decision to vacate its prior voluntariness finding and

hold a second suppression hearing, where the defense extensively

cross-examined the arresting officer using the suicide

prevention screening form, eliminated any defect in the first

suppression hearing caused by the late disclosure.

Siciliano Nuñez also cannot show a reasonable probability

that the result of his trial would have been different but for

the late disclosure. Although Brady requires the disclosure of

exculpatory evidence, it does not require that the disclosure be

made before trial. Floyd v. Rosen, No. 21-cv-1668 (KMK),

2022 WL 1451405, at *13 n.6 (S.D.N.Y. May 9, 2022). To the

contrary, when the issue is late disclosure rather than non-

disclosure, a new trial is required only if the defendant was

deprived of a meaningful opportunity to use the evidence. Mosby

v. O’Meara, No. 12-cv-1543 (FJS), 2015 WL 4871803, at *7

(N.D.N.Y. Aug. 13, 2015). Here, the Appellate Division reasoned

that the form “was provided during trial in sufficient time for

defense counsel to utilize it to cross-examine the subject

witness as to any inconsistency between his testimony and his

entries on the form.” Siciliano Nuñez, 100 N.Y.S.3d at 312

(citations omitted). Thus, the Appellate Division concluded,

there was “no reasonable possibility that earlier disclosure

might have led to a different outcome at trial.” Id. (citations

omitted). That was a reasonable application of Brady. See

Ocasio v. Artuz, No. 98-cv-7925 (JG), 2002 WL 1159892, at *13

(E.D.N.Y. May 24, 2002) (finding no Brady violation where State

disclosed officer’s notes, which contained exculpatory material,

just before officer testified at trial). Accordingly, Siciliano

Nuñez may not obtain habeas relief on his Brady claim.

B. Suppression Ruling

Siciliano Nuñez next claims that the trial court erred by

failing to suppress his written confession, arguing that he was

too intoxicated to have waived his Miranda rights before signing

it. (Pet. at 11.) The Appellate Court rejected this claim,

agreeing with the trial court that Siciliano Nuñez “knowingly,

intelligently, and voluntarily waived his . . . rights.”

Siciliano Nuñez, 100 N.Y.S.3d at 312 (citations omitted). Under

Miranda v. Arizona, 384 U.S. 436 (1966), a law enforcement

officer must advise a suspect of his or her privilege against

self-incrimination and right to counsel before initiating a

custodial interrogation. The ordinary remedy for a Miranda

violation is suppression of the statements made during the

interrogation. See Vega v. Tekoh, 597 U.S. 134, 151 (2022). A

suspect’s waiver of his or her Miranda rights is effective only

if it is knowing and voluntary under a totality of the

circumstances. Berghuis v. Thompkins, 560 U.S. 370, 382–83

(2010).

The Appellate Division did not contradict or unreasonably

apply Miranda in finding Siciliano Nuñez’s waiver knowing and

voluntary. The validity of a Miranda waiver depends on the

totality of the circumstances, and a defendant’s intoxication is

only one circumstance the court must consider. Arevalo v.

Artus, 104 F. Supp. 3d 257, 268 (E.D.N.Y. 2015). An intoxicated

defendant may waive his or her Miranda rights so long as he or

she appreciated the nature of the waiver. Id. Here, the

Appellate Division affirmed the trial court’s explicit finding

that Siciliano Nuñez’s waiver was knowing and voluntary under

the totality of the circumstances despite his asserted

intoxication. Siciliano Nuñez, 100 N.Y.S.3d at 312; (see

June 9, 2017, Trial Tr. 14:10–19:15).

The Appellate Division’s ruling also was not based on an

unreasonable determination of the facts in light of the evidence

presented to the trial court. The trial court made factual

findings regarding the circumstances of Siciliano Nuñez’s

Miranda waiver and confession, which this Court must presume are

correct. See 28 U.S.C. § 2254(e)(1); Sorto v. Herbert,

364 F. Supp. 2d 240, 242 (E.D.N.Y. 2004). As the trial court

found, Siciliano Nuñez was unrestrained in the interview room

and appeared calm with no signs of impairment or intoxication.

(June 9, 2017, Trial Tr. 8:3–8.) He was given a Miranda waiver

form printed in both English and Spanish, which was also read to

him out loud in Spanish. (Id. 8:9–9:5.) After each right was

read to him, he verbally waived it and then initialed the

corresponding written right on the waiver form. (Id. 9:6–11:6.)

He never requested that the officers stop questioning him and

never requested the presence of an attorney. (Id. 13:16–18.)

After answering verbal questions, which were translated into

Spanish, he reviewed a two-page written statement that was also

translated to him, declined an opportunity to make changes, and

signed each page. (Id. 13:19–25.)

The trial court found that the only pieces of evidence

suggesting Siciliano Nuñez might have been intoxicated at the

police station were the booking from and suicide prevention

screening form completed by the arresting officer. (Id. 16:10–

17:3.) The trial court found these forms were explained and

rebutted by the arresting officer’s testimony that he was only

acknowledging the fact Siciliano Nuñez had been admitted to and

discharged from the hospital earlier that morning and was not

stating his own opinions about Siciliano Nuñez’s present state.

(Id. 18:1–22.) The trial court found the forms further rebutted

by testimony from the interviewing officer and translating

officer, which the trial court credited, that Siciliano Nuñez

did not smell of alcohol or appear intoxicated. (Id. 17:4–8.)

Finally, the trial court found the forms rebutted by video

footage of Siciliano Nuñez from the day of his confession

descending the stairs at the police station and showing no sign

of any inability to sit, stand, or walk. (Id. 17:9–25.)

The totality of the circumstances reflected in this factual

record shows that Siciliano Nuñez was provided his Miranda

rights in his native language, understood them, and waived them

verbally and in writing. The hearing court was shown some

evidence Siciliano Nuñez may have been intoxicated at the time,

but it found that evidence outweighed by other evidence that he

was not. AEDPA requires the Court to defer to the state courts’

findings absent clear and convincing evidence to the contrary,

28 U.S.C. § 2254(e)(1), and Siciliano Nuñez has not presented

such evidence. Given this record, the Appellate Division’s

determination that Siciliano Nuñez knowingly and voluntarily

waived his Miranda rights was reasonable. See Arevalo,

104 F. Supp. 3d at 269 (denying habeas relief on claim of

invalid Miranda waiver due to intoxication where petitioner was

read his rights translated into Spanish and signed a waiver

form, and evidence did not show petitioner was too intoxicated

to understand waiver); Oakes v. Conway, No. 10-cv-318 (MAT),

2011 WL 3236201, at *6 (W.D.N.Y. July 28, 2011) (same, where

petitioner “appeared to be coherent, responsive to questions,

and showed no signs of slurred speech” and “never indicated to

the police that he was having difficulty understanding the

conversation or functioning because of intoxication”); Bruno v.

Cunningham, No. 03-cv-937 (MBM), 2004 WL 2290503, at *9–10

(S.D.N.Y. Oct. 8, 2004) (same, where petitioner seemed

“confused” before answering some questions but did not slur his

speech or smell of alcohol). Accordingly, Siciliano Nuñez

cannot obtain habeas relief based on his Miranda claim.

III. Victim’s Mother’s Testimony

Siciliano Nuñez next challenges the admission of hearsay

testimony during the victim’s mother’s direct examination.

(Pet. at 8.) At trial, the victim’s mother testified about her

phone call with the victim and a neighbor after the attack.

(ECF No. 10-16, June 6, 2017, Trial Tr. 23:12–28:16.) On

appeal, Siciliano Nuñez argued this testimony should have been

excluded as inadmissible hearsay. (ECF No. 10-12, Appellant’s

Br. & App’x, at 25 (citing June 6, 2017, Trial Tr. pp. 25–28).)

Because the portion of the Petition concerning the victim’s

mother’s testimony quotes his appellate brief nearly verbatim,

the Court presumes Siciliano Nuñez challenges the same testimony

here.

This claim is procedurally defaulted. On direct appeal,

the Appellate Division found the claim unpreserved for appellate

review based on New York’s state law contemporaneous and

specific objection rule. Siciliano Nuñez, 100 N.Y.S.3d at 312

(citing N.Y. Crim. Proc. Law § 470.05(2)). Because Siciliano

Nuñez’s trial attorney never objected to the testimony at issue,

(see June 6, 2017, Trial Tr. 23:12–28:16), the Appellate

Division properly applied the contemporaneous and specific

objection rule in rejecting this claim, see Minigan v. Donnelly,

No. 01-cv-26 (RJA) (VEB), 2007 WL 542137, at *9 (W.D.N.Y.

Feb. 16, 2007) (finding claim procedurally defaulted under N.Y.

Crim. Proc. Law § 470.05(2) where petitioner failed to object to

alleged hearsay testimony at trial), R&R adopted, 2007 WL 981762

(W.D.N.Y. Mar. 30, 2007). Further, the Appellate Division’s

ruling operates as a procedural bar to federal habeas relief

even though the Appellate Division went on to address and reject

the claim on the merits. See Carey v. Connell, No. 10-cv-3873

(DLC), 2012 WL 37084, at *4 n.1 (S.D.N.Y. Jan. 6, 2012)

(explaining that a state court’s rejection of a claim on both

procedural and substantive grounds invokes a procedural bar if

phrased in the conjunctive rather than in the disjunctive).

Because Siciliano Nuñez has not argued that there was good cause

for or prejudice resulting from the procedural default, nor has

he established that he is actually innocent, his hearsay claim

cannot support habeas relief.

IV. Sufficiency of the Evidence

Siciliano Nuñez next claims that the State failed to prove

all charges beyond a reasonable doubt and that his “convictions

were against the weight of the evidence.” (Pet. at 9–10.)

Specifically, he argues there was insufficient evidence

presented at trial to establish that he possessed a weapon while

he committed his crimes. (Id.) The Court construes this claim

as a legal sufficiency challenge because a weight of the

evidence claim is based on state law and not cognizable in a

federal habeas action. See Medina v. Gonyea, 111 F. Supp. 3d

225, 232–33 (E.D.N.Y. 2015).

The Appellate Division rejected this claim as unpreserved

and also rejected it on the merits. Siciliano Nuñez,

100 N.Y.S.3d at 313. In rejecting the claim as unpreserved, the

Appellate Division relied on New York’s contemporaneous and

specific objection rule as well as state court precedent holding

that motions to dismiss charges at the close of evidence must be

directed at specific evidentiary deficiencies and that “general

motions” fail to preserve legal sufficiency challenges for

appeal. Id. (citing N.Y. Crim. Proc. Law § 470.05(2); People v.

Hawkins, 900 N.E.2d 946, 950–51 (N.Y. 2008)).

Siciliano Nuñez’s legal sufficiency claim is procedurally

defaulted. At trial, Siciliano Nuñez moved to dismiss all the

charges against him but specifically attacked only the charge

for resisting arrest and the classification of the burglary

charges as sexually motivated felonies. (See ECF No. 10-20,

June 12, 2017, Trial Tr. 156:14–164:5.) Siciliano Nuñez made

only a general motion to dismiss the other charges. (Id. 164:2–

5 (“And to the remaining counts obviously we argue that the

People have not presented a legally sufficient case.”).) The

trial court dismissed the resisting arrest charge before

submitting the case to the jury. (ECF No. 10-21, June 13, 2017,

Trial Tr. 5:17–19.) After deliberating, the jury convicted

Siciliano Nuñez of both burglary and committing a criminal

sexual act but acquitted him of committing burglary as a

“sexually motivated felony.” (See ECF No. 10-13, June 14, 2017,

Verdict Tr. 11:6–12:2.) Thus, the only charges covered by

Siciliano Nuñez’s legal sufficiency claim by the time of his

appeal were charges to which he only generally objected in his

motion to dismiss at the close of evidence at trial.

The Appellate Division properly applied state court

precedent in finding that Siciliano Nuñez’s one-sentence,

perfunctory motion to dismiss failed to preserve a legal

sufficiency challenge for appeal. As other courts in this

circuit have found, legal sufficiency claims are procedurally

defaulted where the Appellate Division finds them unpreserved

based on the state court precedent that the Appellate Division

relied on here. See, e.g., Hill v. Lee, No. 11-cv-640 (ER),

2013 WL 3227641, at *5 (S.D.N.Y. June 25, 2013) (citing Hawkins,

900 N.E.2d at 950). As with Siciliano Nuñez’s hearsay claim,

the Appellate Division’s decision to discuss the merits does not

remove the procedural default. See Carey, 2012 WL 37084, at *4

n.1. Because Siciliano Nuñez has not argued that there was good

cause for or prejudice resulting from the procedural default,

nor has he established that he is actually innocent, his legal

sufficiency claim cannot support habeas relief.

Siciliano Nuñez also raises another legal sufficiency

argument as a separate ground for relief, asserting that the

nurse who examined the victim testified there was no physical

evidence the victim had been assaulted or that her breathing or

circulation was obstructed. (See Pet. at 12; ECF No. 15,

Translation, at 2.) He explains that although his attorney did

not make this argument in his appeal, he raises it now because

he believes it is an important point. (Pet. at 13; Translation

at 2.) This physical evidence argument is not a separate ground

for habeas relief but rather elaboration on the same legal

sufficiency claim that Siciliano Nuñez procedurally defaulted in

the Appellate Division. See Edwards v. Sup’t, Southport C.F.,

991 F. Supp. 2d 348, 372 n.12 (E.D.N.Y. 2013). Thus, it also

cannot support habeas relief.

V. Sentence

Siciliano Nuñez’s final claim is that the trial court

imposed an excessive prison sentence. (Pet. at 12.) The

Appellate Division rejected this claim on the merits. Siciliano

Nuñez, 100 N.Y.S.3d at 313. The Eighth Amendment’s prohibition

against “cruel and unusual” punishments in federal prosecutions,

see U.S. Const. amend. VIII, is an essential component of due

process and thus applies in state prosecutions through the

Fourteenth Amendment’s Due Process Clause, see U.S. Const.

amend. XIV, § 1; Robinson v. California, 370 U.S. 660, 667

(1962). The Supreme Court has held that a prison sentence can

be cruel and unusual if it is “grossly disproportionate” to the

crime. Ewing v. California, 538 U.S. 11, 30–31 (2003)

(plurality opinion).

The Appellate Division did not contradict or unreasonably

apply clearly established federal law in rejecting Siciliano

Nuñez’s excessive sentence claim. A state court’s prison

sentence that falls within the statutory range set by state law

is generally not grossly disproportionate. See White v. Keane,

969 F.2d 1381, 1383 (2d Cir. 1992); Constant v. Martuscello,

119 F. Supp. 3d 87, 139 (E.D.N.Y. 2015). Here, Siciliano

Nuñez’s convictions included burglary in the first degree and

committing a criminal sexual act in the first degree. (June 14,

2017, Verdict Tr. 10:23–16:4.) New York state law deemed each

of these crimes a class B felony at the time of Siciliano

Nuñez’s sentencing. See N.Y. Penal Law §§ 140.30, 130.50. The

statutorily authorized range for a class B felony was twenty-

five years. See N.Y. Penal Law § 70.00(2)(b). Siciliano

Nuñez’s twenty-one-year aggregate prison sentence thus cannot

support federal habeas relief.

CONCLUSION

The Court respectfully denies Siciliano Nuñez’s Petition in

its entirety and dismisses this action with prejudice.

The Clerk of Court is respectfully requested to amend the

caption to reflect that Kevin McCarthy (the Superintendent of

Elmira Correctional Facility) is the respondent, enter judgment

in favor of McCarthy, serve a copy of this Memorandum and Order

and the Judgment on Siciliano Nuñez, note service on the docket,

and close this case.

Because Siciliano Nuñez has not made a substantial showing

of the denial of a constitutional right, a certificate of

appealability shall not issue. See 28 U.S.C. § 2253(c);

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Rules Governing

Section 2254 Cases in the United States District Courts,

Rule 11(a).

In accordance with 28 U.S.C. § 1915(a) (3), the Court

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

good faith and thus denies in forma pauperis status should

Siciliano Nufiez appeal. See Coppedge v. United States, 369 U.S.

438, 444-45 (1962).

SO ORDERED.

Dated: February 21, 2024 Lf? YA apn

Brooklyn, New York ww oe Se) Ltr

xivoha. MATSUMOTO

United States District Judge

Eastern District of New York

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