Gonzales v. Graham

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

JOSUE GONZALES,

No. 9:17-cv-01321-JKS

Petitioner,

MEMORANDUM DECISION

vs.

HAROLD D. GRAHAM,

Respondent.

Josue Gonzales, a New York state prisoner proceeding pro se, filed a Petition for a Writ

of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Gonzales is in the custody of

the New York State Department of Corrections and Community Supervision (“DOCCS”) and

incarcerated at Auburn Correctional Facility. Respondent has answered the Petition, and

Gonzales has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On March 22, 2012, Gonzales was charged with second-degree murder and second-

degree criminal possession of a weapon in connection with the August 2011 shooting of Angel

Olmo in a gas station parking lot. At Gonzales’s arraignment, the People noticed its intent to use

identification testimony from four witnesses who had identified Gonzales from a photo array.

The defense subsequently moved to suppress the identification evidence, and a Wade1

suppression hearing was held. At the hearing, the four witnesses were called and five photo

1 United States v. Wade, 388 U.S. 218 (1967). The term “Wade hearing” is a

shorthand reference to a pretrial proceeding to determine the admissibility of identification

evidence. Id. at 242.

arrays were marked and admitted as evidence. The defense called no witnesses. After hearing

oral argument, the court issued a written decision denying the suppression motion.

The defense also moved prior to trial for the court to review the grand jury minutes to

determine if lesser-included crimes should have been charged, if exculpatory evidence had been

withheld from the grand jury, and whether a defense of justification should have been charged.

In response, the court issued a written order concluding that the prosecutor improperly

impeached a recalcitrant witness with his prior written statement, but that this “misconduct” was

not “intentional or malicious” but was “borne of frustration stemming from the obstreperous and

uncooperative behavior of the witness.” Finding that the misconduct was isolated to that

witness, and that there was legally sufficient evidence to support the indictment even without the

testimony of the recalcitrant witness, the court denied Gonzales’s motion to dismiss the

indictment. After the defense orally reargued its dismissal motion, the court again denied the

motion to dismiss the indictment.

Gonzales then proceeded to a jury trial. During the prosecutor’s opening statement, he

said that the “evidence will come in one little piece at time. . . . You’ll hear what the witnesses

saw and heard, see photographs, maps, diagrams, physical evidence, scientific evidence. . . .

And undoubtedly, there will be some questions in your mind that go unanswered.” The People

then presented the testimony of eyewitnesses who testified that they had seen Gonzales and

Olmo in an altercation at a bar on the evening of the shooting. A witness who had also been at

the bar that evening, Travis Stachurski, testified that he drove to a gas station after the bar

closed, where he saw Gonzales shoot Olmo.

2

After the People rested its case, the defense moved for a trial order of dismissal on the

ground that the People failed to present proof that Gonzales had a weapon or that he was close

enough to the victim to have fired the fatal shots. The court denied the motion. The defense

rested without presenting proof, and renewed the dismissal motion, which the court again denied.

During summation, the prosecution presented certain exhibits, including an autopsy

photograph of Olmo. The prosecutor also argued that the People’s witnesses were not less

reliable because of their criminal histories or reluctance to testify, and referred to a

demonstrative showing a jigsaw puzzle of a gun.

Following deliberations, the jury found Gonzales guilty of second-degree murder and

second-degree criminal possession of a weapon. After being polled at Gonzales’s request, the

jury was excused, and Gonzales asked to reserve any motions until sentencing. Prior to

sentencing, Gonzales moved to set aside the verdict, arguing that the prosecutor had committed

misconduct during opening and summation and that the trial evidence was legally insufficient.

The court denied the motion and subsequently sentenced Gonzales to an indeterminate term of

25 years to life imprisonment and a determinate term of 15 years’ imprisonment, with five years

of post-release supervision on each conviction, to be served concurrently.

Through counsel, Gonzales appealed his conviction, arguing that: 1) the trial court erred

by allowing the prosecution to introduce a prior consistent statement of the People’s primary

witness; 2) the prosecutor committed misconduct in the grand jury proceedings by acting as a

witness, usurping the role of the grand jury, and improperly bolstering an eyewitness

identification; 3) defense counsel was ineffective for failing to call an expert on identification

testimony and for failing to request a missing witness instruction; 4) the verdict was against the

3

weight of the evidence; 5) the prosecutor committed misconduct at trial by diluting the burden of

proof, bolstering the credibility of the People’s witnesses, and displaying prejudicial photographs

to the jury; 6) the photo array identification procedure was unduly suggestive and deprived

Gonzales of a fair trial; and 7) his sentence of 25 years to life imprisonment was harsh and

excessive. Gonzales also argued in a pro se supplemental brief that: 1) he was denied of his

right to be present at all material stages of the trial; 2) his absence from a proceeding during

which a jury inquiry was received and answered violated his right to be present; 3) the trial

court’s failure to solicit unequivocal answers from potential jurors warrants reversal of his

conviction; and 4) a reconstruction hearing is required to permit determination of the merit of

certain of his claims. The Appellate Division of the New York Supreme Court unanimously

affirmed the judgment against Gonzales in a reasoned opinion issued on December 23, 2016.

People v. Gonzales, 43 N.Y.S.3d 616, 619 (N.Y. App. Div. 2016). The New York Court of

Appeals denied leave without comment on June 8, 2017. People v. Gonzales, 86 N.E.3d 256,

256 (N.Y. 2017).

Gonzales then timely filed the instant undated pro se Petition for a Writ of Habeas

Corpus to this Court, which was received and docketed on December 6, 2017. Docket No. 1

(“Petition”); see 28 U.S.C. § 2244(d)(1)(A). Briefing is now complete, and the Petition is before

the undersigned judge for adjudication.

II. GROUNDS RAISED

In his pro se Petition before this Court, Gonzales raises the arguments he unsuccessfully

raised to the New York state courts on direct appeal through his counseled and pro se briefs.

Specifically, Gonzales argues that: 1) the trial court erred by allowing the prosecution to

4

introduce a prior consistent statement of the People’s primary witness; 2) the prosecutor

committed misconduct in the grand jury proceedings by acting as a witness, usurping the role of

the grand jury, and improperly bolstering an eyewitness identification; 3) defense counsel was

ineffective for failing to call an expert on identification testimony and for failing to request a

missing witness instruction; 4) the verdict was against the weight of the evidence; 5) the

prosecutor committed misconduct at trial by diluting the burden of proof, bolstering the

credibility of the People’s witnesses, and displaying prejudicial photographs to the jury; 6) the

photo array identification procedure was unduly suggestive and deprived Gonzales of a fair trial;

7) his sentence of 25 years to life imprisonment was harsh and excessive; 8) he was denied of his

right to be present at all material stages of the trial; 9) his absence from a proceeding during

which a jury inquiry was received and answered violated his right to be present; 10) the trial

court’s failure to solicit unequivocal answers from potential jurors warrants reversal of his

conviction; and 11) a reconstruction hearing is required to permit determination of the merit of

certain of his claims.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that

contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that

5

are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives

at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The term unreasonable is a

common term in the legal world. The Supreme Court has cautioned, however, that the range of

reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly

established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating

whether a rule application was unreasonable requires considering the rule’s specificity. The

more general the rule, the more leeway courts have in reaching outcomes in case-by-case

determinations.”).

To the extent that the Petition raises issues of the proper application of state law, they are

beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.

Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was

correctly applied). It is a fundamental precept of dual federalism that the states possess primary

authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and

application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state

court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536

U.S. 584 (2002).

In applying these standards on habeas review, this Court reviews the “last reasoned

decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson,

229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision of the state court

addressing the ground or grounds raised on the merits and no independent state grounds exist for

not addressing those grounds, this Court must decide the issues de novo on the record before it.

6

See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d

200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo

standard to a federal claim not reached by the state court). In so doing, the Court presumes that

the state court decided the claim on the merits and the decision rested on federal grounds. See

Coleman v. Thompson, 501 U.S. 722, 740 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see

also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman

interplay); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This

Court gives the presumed decision of the state court the same AEDPA deference that it would

give a reasoned decision of the state court. Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011)

(rejecting the argument that a summary disposition was not entitled to § 2254(d) deference);

Jimenez, 458 F.3d at 145-46. Under the AEDPA, the state court’s findings of fact are presumed

to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28

U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

IV. DISCUSSION

A. Evidentiary Error (Ground 1)

Gonzales first argues that the trial court erred by allowing the People to introduce on

redirect examination Stachurski’s prior consistent statement. The record reflects that, on cross-

examination, the defense elicited testimony from Stachurski regarding his invocation of the right

to remain silent before his grand jury testimony, and also asked Stachurski about how he had to

be cautioned in front of the grand jury about the rules regarding contempt before he answered the

prosecutor’s questions. The defense likewise elicited testimony that Stachurski learned

Gonzales’s name from one of the detectives on August 23, 2011, and asked Stachurski if he

7

recalled telling the grand jury, “I don’t know. I can’t remember” and “I was drunk” when asked

if he saw Olmo “get shot by a person who was later identified as Josue Gonzales.”

Prior to redirect examination and outside the presence of the jury, the prosecutor asked

the court for permission to pursue during redirect examination questioning about Stachurski’s

prior recalcitrance as a witness and his prior identification of Gonzales. The prosecutor argues,

“by asking Mr. Stachurski questions about not knowing Mr. Gonzales’ name, about the police

telling him Mr. Gonzales’ name . . . [the defense] has suggested to the jury in such a way . . . that

opens the door . . . for me to ask him on redirect that he did give a description to the police . . .

that he did identify the person, and . . . the person he identified was Josue Gonzales.” Over

defense objection, the court ruled that the prosecutor could elicit testimony regarding Stachurki’s

identification of Gonzales prior to being given Gonzales’s name by police:

My understanding is that Mr. Stachurski testified before the grand jury with

respect to the issue of the identification of the shooter, that basically, “I don’t know”

and/or “I don’t remember.” It’s been brought out on cross-examination by [defense

counsel] that during the grand jury presentation that there was a perceived threat, if you

will, of the potential prosecution of that witness, Mr. Stachurski, for Criminal Contempt.

The trial testimony of Mr. Stachurski, as I understand it now, is that, in fact, the

defendant, Mr. Gonzales, was the shooter and he identifies Mr. Gonzales as the shooter.

Prior to the grand jury testimony, which was, again, “I don’t know,” “I don’t remember”

— prior to the grand jury testimony my understanding is there was a statement that [the

prosecutor] now seeks to introduce that . . . allegedly made by this witness to the police

implicating Mr. Gonzales as the shooter which was given, obviously, prior to grand jury

testimony. That original statement was given prior to the threat of prosecution regarding

Criminal Contempt. The prior consistent statement he, Mr. Gonzales, was the shooter,

predates the event which was brought up on cross-examination, the contempt prosecution

as the alleged cause of the motive to slant the trial testimony. . . . For those reasons and

the reasons previously discussed on the record I will allow that course of redirect

examination.

On direct appeal, counsel argued that the trial court’s evidentiary ruling was erroneous.

The Appellate Division disagreed:

8

Contrary to [Gonzales’s] contention, the court did not err in allowing the

prosecutor to introduce, on redirect examination, the prior consistent statement of a

prosecution witness. Even assuming, arguendo, that the court erred in allowing the prior

consistent statement under the rationale that the trial testimony of the witness was

“assailed-either directly or inferentially-as a recent fabrication” by defense counsel on

cross-examination (People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611

N.E.2d 265), we conclude that the court properly determined, as a second rationale, that

defense counsel had opened the door to that testimony on cross-examination (see People

v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324). It is well

established that “[w]here . . . the opposing party ‘opens the door’ on cross-examination to

matters not touched upon during the direct examination, a party has the right on redirect

‘to explain, clarify and fully elicit [the] question only partially examined’ on

cross-examination” (id.). “[A] trial court should decide ‘door-opening’ issues in its

discretion, by considering whether, and to what extent, the evidence or argument said to

open the door is incomplete and misleading, and what if any otherwise inadmissible

evidence is reasonably necessary to correct the misleading impression” (People v.

Massie, 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102). In our view, once

defense counsel elicited selected portions of the prior statement of the witness on

cross-examination, the prosecutor was free to elicit the balance of the statement in order

to give the evidence before the jury its full and accurate context. Contrary to

[Gonzales’s] further contention on this point, the court “allow[ed] [only] so much

additional evidence to be introduced on redirect as [was] necessary to ‘meet what ha[d]

been brought out in the meantime upon the cross-examination’” (Melendez, 55 N.Y.2d at

452, 449 N.Y.S.2d 946, 434 N.E.2d 1324).

Gonzales, 43 N.Y.S.3d at 617-18.

Gonzales fares no better on federal habeas review. The Supreme Court has

acknowledged its “traditional reluctance to impose constitutional restraints on ordinary

evidentiary rulings by state trial courts.” Crane v. Kentucky, 476 U.S. 683, 689 (1986). The

Supreme Court has further made clear that federal habeas power does not allow granting relief

on the basis of a belief that the state trial court incorrectly interpreted the state evidence code in

ruling on the admissibility of evidence. Estelle, 502 U.S. at 72 (citing Cupp v. Naughten, 414

U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). A petitioner seeking habeas relief from an allegedly

erroneous evidentiary ruling bears the burden of establishing that the evidentiary error deprived

9

the petitioner of due process because it was so pervasive that it denied the petitioner a

fundamentally fair trial. See Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985).

Here, Gonzales’s evidentiary error claim is based on a New York state law which

prohibits corroborating trial testimony with pretrial statements of that witness. People v.

McDaniel, 81 N.Y.2d 10, 16 (N.Y. 1993). Such testimony is admissible, however, if, upon

cross-examination, the witness’s testimony is challenged as having been recently fabricated. Id.

at 18; see also People v. Ramos, 83 N.Y.S.3d 580, 582 (N.Y. App. Div. 2018), leave denied, 32

N.Y.3d 1128 (N.Y. 2018) (finding that, where counsel challenged the testimony of a witness as a

recent fabrication, the trial court “correctly admitted the prior consistent statement of the

complainant on direct examination of a law enforcement witness”). Gonzales argues, as he did

on direct appeal, that counsel did not “directly or inferentially” raise a claim of recent fabrication

such that the exception rule would apply. But as this argument involves only the application of

state law and does not present any constitutional issues, it does not provide a basis for habeas

review. See Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (noting that there is no

“Supreme Court case that clearly establishes that the admission of evidence that improperly

bolsters a prosecution witness’s testimony constitutes a violation of the Fourteenth

Amendment.”); see also Bryson v. Sheahan, No. 11-CV-0749, 2013 WL 5502835, at *24

(E.D.N.Y. Oct. 1, 2013) (“Courts in this circuit have repeatedly held that ‘the concept of

bolstering really had no place as an issue in criminal jurisprudence based on the United State

Constitution,’ and is a state law evidentiary issue.”) (quoting Castadi v. Poole, No. 07-CV-1420,

2013 WL 789986, at *7 (E.D.N.Y. Mar. 1, 2013)).

10

Moreover, the rule upon which the Appellate Division relied in finding the questioning

proper—that the opening up of a part of a transaction in cross-examination opens up an inquiry

into the transaction “in [its] entirety,”—is a likewise a long-recognized evidentiary rule in

federal jurisprudence as well. See Carver v. United States, 164 U.S. 694, 696-97 (1897); Gilmer

v. Higley, 110 U.S. 47, 50 (1884). The instant case is comparable to United States v. Maultasch,

596 F.2d 19 (2d Cir. 1979), where the Second Circuit Court of Appeals stated:

Maultasch also argues that the district court erred in permitting Truen to testify on

re-direct to Helman’s prior consistent statements. The trial court proceeded, however, on

the basis that Maultasch’s counsel opened the door on cross-examination by asking Truen

whether he and Helman had had discussions “concerning the Galaxy arrangements”

before and after a meeting with appellants. We believe that Judge Frankel correctly

admitted this evidence as to “precisely what those discussions were,” the subject of the

re-direct testimony.

Id. at 25. Having brought out on cross-examination a part of what Stachurcki had previously

said, Gonzales cannot now complain that the prosecutor brought out the rest of the prior

statement on re-direct examination. In any event, Gonzales has not shown how this testimony

could have served to have denied him a fair trial. Gonzales is therefore not entitled to federal

habeas relief on this ground.

B. Prosecutorial Misconduct - Grand Jury (Ground 2)

Gonzales next contends that the prosecutor committed misconduct during the grand jury

proceedings by acting as a witness , usurping the role of the grand jury, and improperly

bolstering the eyewitness identification made by Stachurski. According to Gonzales, the alleged

misconduct tainted the grand jury proceedings, at which Stachurski testified that he did not see

who shot Olmo. Gonzales avers that the remaining evidence was insufficient to support the

indictment, which should have been dismissed.

11

However, Gonzales’ subsequent conviction on the charges in the indictment forecloses

any potential relief with respect to such claim. For federal constitutional purposes, a jury

conviction transforms any defect in the grand jury’s charging decision into harmless error

because the trial conviction establishes probable cause to indict and also proof of guilt beyond a

reasonable doubt. See, e.g., United States v. Mechanik, 475 U.S. 66, 67 (1986) (“[T]he petit

jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable

cause to charge the defendants with the offenses for which they were convicted. Therefore, the

convictions must stand despite the [grand jury] rule violation.”). In Lopez v. Riley, the Second

Circuit relied on Mechanik in holding that “[i]f federal grand jury rights are not cognizable on

direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand

jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.” Lopez

v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); see also Davis v. Mantello, 42 F. App’x 488, 490-91 (2d

Cir. 2002) (“[C]laims of deficiencies in state grand jury proceedings are not cognizable in a

habeas corpus proceeding in federal court.” (citing cases)). Accordingly, Gonzales’s defective

grand jury claim also fails on federal habeas review.

C. Ineffective Assistance of Counsel (Ground 3)

Gonzales additionally avers that defense counsel was ineffective for failing to present

expert witness testimony on faulty identifications and for failing to request a missing witness

instruction. According to Gonzales, counsel should have retained and called an expert to testify

on identification issues because “the case depended entirely on Stachurski’s identification,”

which he contends was “particularly weak.” Gonzales likewise faults counsel for not requesting

a missing witness instruction after the People rested its case without calling Joshua Kirkland,

12

who observed the shooting and testified at the pre-trial Wade hearing. The Appellate Division

rejected these claims on direct appeal as follows:

Contrary to the contention of [Gonzales], he received effective assistance of

counsel (see generally People v. Baldi, 54 N.Y.2d 137, 141, 444 N.Y.S.2d 893, 429

N.E.2d 400). Defense counsel’s failure to obtain an expert on identification evidence

does not constitute ineffective assistance of counsel inasmuch as “‘[Gonzales] has not

demonstrated that such testimony was available, that it would have assisted the jury in its

determination or that he was prejudiced by its absence’” (People v. Jurgensen, 288

A.D.2d 937, 938, 732 N.Y.S.2d 815, lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764

N.E.2d 403). Furthermore, “[d]efense counsel’s failure to request a missing witness

charge did not constitute ineffective assistance of counsel [inasmuch as t]here was no

indication that the witness would have provided noncumulative testimony favorable to

the People” (People v. Smith, 118 A.D.3d 1492, 1493, 988 N.Y.S.2d 819, lv. denied 25

N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173). Lastly, [Gonzales] failed to demonstrate

the absence of strategic or other legitimate explanations for counsel's alleged error in

failing to request an “expanded” single eyewitness jury instruction (see generally People

v. Stanley, 108 A.D.3d 1129, 1130, 970 N.Y.S.2d 136, lv. denied 22 N.Y.3d 959, 977

N.Y.S.2d 190, 999 N.E.2d 555).

Gonzales, 43 N.Y.S.3d at 618.

To demonstrate ineffective assistance of counsel under Strickland v. Washington, a

defendant must show both that his counsel’s performance was deficient and that the deficient

performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one

in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a

reasonable probability that the outcome might have been different as a result of a legal error, the

defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376,

1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at

393-95. Thus, Gonzales must show that his counsel’s representation was not within the range of

competence demanded of attorneys in criminal cases, and that there is a reasonable probability

that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,

13

474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the

petitioner fails to make a sufficient showing under either of the Strickland prongs. See

Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not

address both prongs if the defendant fails on one).

New York’s test for ineffective assistance of counsel under the state constitution differs

slightly from the federal Strickland standard. “The first prong of the New York test is the same

as the federal test; a defendant must show that his attorney’s performance fell below an objective

standard of reasonableness.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citing People

v. Turner, 840 N.E.2d 123 (N.Y. 2005)). The difference is in the second prong. Under the New

York test, the court need not find that counsel’s inadequate efforts resulted in a reasonable

probability that, but for counsel’s error, the outcome would have been different. “Instead, the

‘question is whether the attorney’s conduct constituted egregious and prejudicial error such that

the defendant did not receive a fair trial.’” Id. at 123 (quoting People v. Benevento, 697 N.E.2d

584, 588 (N.Y. 1998)). “Thus, under New York law the focus of the inquiry is ultimately

whether the error affected the ‘fairness of the process as a whole.’” Id. (quoting Benevento, 697

N.E.2d at 588). “The efficacy of the attorney’s efforts is assessed by looking at the totality of

the circumstances and the law at the time of the case and asking whether there was ‘meaningful

representation.’” Id. (quoting People v. Baldi, 429 N.E.2d 400, 405 (N.Y. 1981)).

The New York Court of Appeals views the New York constitutional standard as being

somewhat more favorable to defendants than the federal Strickland standard. Turner, 840

N.E.2d at 126. “To meet the New York standard, a defendant need not demonstrate that the

outcome of the case would have been different but for counsel’s errors; a defendant need only

14

demonstrate that he was deprived of a fair trial overall.” Rosario, 601 F.3d at 124 (citing People

v. Caban, 833 N.E.2d 213, 222 (N.Y. 2005)). The Second Circuit has recognized that the New

York “meaningful representation” standard is not contrary to the federal Strickland standard. Id.

at 124, 126. The Second Circuit has likewise instructed that federal courts should, like the New

York courts, view the New York standard as being more favorable or generous to defendants

than the federal standard. Id. at 125.

Gonzales’s ineffective assistance claim must fail, however, even under the more

favorable New York standard. With respect to his claim that counsel should have retained an

expert witness who could have opined on identification issues, it is unlikely that, but for the

omission of expert testimony regarding the eyewitness identifications, the outcome of

Gonzales’s case would have been different. Three eyewitnesses, two of whom were familiar

with Gonzales, placed him at the bar in question of the night of the murder. Two of those

witnesses saw Gonzales confront Olmo immediately before hearing gunfire and then seeing

Gonzales running away. Given the fact that at least two of the witnesses were familiar with

Gonzales and identified him shortly after the shooting, it is not clear that the trial court would

have even permitted expert testimony regarding the inaccuracy of eyewitness identifications,

much less than such proffered testimony would have affected the verdict.

Similarly, the Court cannot find unreasonable the Appellate Division’s determination that

Gonzales failed to show that Kirkland’s testimony would have been both noncumulative and

favorable to the People such that Kirkland would qualify as a “missing witness” under New York

law. Because Gonzales fails to prove that a missing witness instruction was warranted, he

necessarily fails to show that counsel was ineffective for failing to request such instruction.

15

Gonzales is therefore not entitled to relief on either argument advanced in support of his

ineffective assistance claim.

D. Verdict Against the Weight of the Evidence (Ground 4)

Gonzales next argues, as he did in his counseled appellate brief, that the verdict was

against the weight of the evidence presented at trial. As an initial matter, claims that challenge

verdicts as against the weight of the evidence are not cognizable on federal habeas review. See

McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69, 75 (2d Cir. 2011).

“Unlike a sufficiency of the evidence claim, which is based upon federal due process principles,

a weight of the evidence claim is an error of state law, for which habeas review is not available.”

Garrett v. Perlman, 438 F. Supp. 2d 467, 470 (S.D.N.Y. 2006) (citation and internal quotation

marks omitted). “A weight of the evidence argument is a pure state law claim grounded in

[Criminal Procedural Law (“CPL”)] § 470.15(5) which empowers New York state intermediate

appellate court[s] to make weight of the evidence determinations.” Id. (citation and internal

quotation marks omitted). The Court therefore denies Gonzales’s weight of the evidence claim

on that basis.

Moreover, even if Gonzales had properly raised before this Court a sufficiency of the

evidence claim, he would not be entitled to relief.2 As articulated by the Supreme Court in

2 At least some federal courts in this Circuit have concluded that presenting a

weight of the evidence claim without more also raises a federal sufficiency of the evidence claim

for purposes of habeas exhaustion. See, e.g., Williams v. LaValley, No. 9:12-cv-01141, 2014 WL

1572890, at *3 (N.D.N.Y. Apr. 17, 2014); Martin v. Brown, No. 08-CV-0316, 2010 WL

1740432, at *7-8 (E.D.N.Y. Apr. 29, 2010). Indeed, the Second Circuit has suggested in dicta

that a petitioner who raises a state law weight of the evidence claim on direct appeal has both

raised and exhausted a constitutional sufficiency of the evidence claim for federal habeas

purposes. See Liberta v. Kelly, 839 F.2d 77, 80 n.1 (2d Cir. 1988); see also Wilson v. Heath, 938

F. Supp. 2d 278, 290 (N.D.N.Y. 2013) (noting that “the Second Circuit [in Liberta] has

16

Jackson, the constitutional standard for sufficiency of the evidence is 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.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33

(2010) (reaffirming this standard). This Court must therefore determine whether the New York

court unreasonably applied Jackson. In making this determination, this Court may not usurp the

role of the finder of fact by considering how it would have resolved any conflicts in the

evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19.

Rather, when “faced with a record of historical facts that supports conflicting inferences,” this

Court “must presume–even if it does not affirmatively appear in the record–that the trier of fact

resolved any such conflicts in favor of the prosecution, and defer to that resolution.” Id. at 326.

It is a fundamental precept of dual federalism that the States possess primary authority

for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).

Consequently, although the sufficiency of the evidence review by this Court is grounded in the

Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set

forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system

is “that a state court’s interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw, 546 U.S. at 76;

suggested that a petitioner who raises a state law weight of the evidence claim on direct appeal

has exhausted a constitutional sufficiency of the evidence claim for federal habeas purposes”).

In an abundance of caution, this Court will assume that the Second Circuit will ultimately clearly

hold that, for exhaustion purposes, the presentation of a weight of the evidence claim is

sufficient to exhaust a federal sufficiency of the evidence claim and address the merits of the

claim.

17

see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter

of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts

as defining state law . . . .”). “Federal courts hold no supervisory authority over state judicial

proceedings and may intervene only to correct wrongs of constitutional dimension.” Sanchez-

Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221

(1982)) (internal quotation marks omitted).

In support of his claim, Gonzales attacks the value of the evidence against him by

alleging that the identification testimony of the eyewitnesses was unreliable and incredible due

to the primary witness’s intoxication and the “chaotic environment” circumstances of the

shooting, . But this Court is precluded from either re-weighing the evidence or assessing the

credibility of witnesses. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing

habeas claim because “assessments of the weight of the evidence or the credibility of witnesses

are for the jury and not grounds for reversal on appeal” and deferring to the jury’s assessments of

the particular weight to be accorded to the evidence and the credibility of witnesses). Under

Jackson, this Court’s role is simply to determine whether there is any evidence, if accepted as

credible by the trier of fact, sufficient to sustain conviction. See Schlup v. Delo, 513 U.S. 298,

330 (1995).

Here, two witnesses placed Gonzales at the bar on the night in question, one of whom

saw Gonzales arguing with Olmo. Two witnesses placed Gonzales in a location where he could

have shot Olmo at the time of the shooting, and one of the witnesses testified that he saw

Gonzales shoot Olmo with a gun. The location of the victim’s body in relation to the spent

shells supported the testimony of the two witnesses to the shooting. All of this evidence was

18

before the jury, who, after having an opportunity to review a video record that captured part of

the area at the time the shooting occurred, apparently chose to credit the People’s witnesses.

Although it might have been possible to draw a different inference from the evidence

presented at trial based on the inconsistencies and motivations identified by Gonzales, this Court

is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326.

Gonzales bears the burden of establishing by clear and convincing evidence that these factual

findings were erroneous. 28 U.S.C. § 2254(e)(1). He has failed to carry such burden. The

record does not compel the conclusion that no rational trier of fact could have found proof that

Gonzales was guilty of second-degree murder and second-degree criminal possession of a

weapon, especially considering the double deference owed under Jackson and the AEDPA.

Gonzales therefore cannot prevail on an insufficiency of the evidence claim either.

E. Prosecutorial Misconduct (Ground 5)

In Ground 5, Gonzales claims that the prosecution committed misconduct by bolstering

the credibility of its witnesses, diluting the burden of proof, eliciting damaging hearsay

statements and displaying prejudicial photographs to the jury. Federal habeas review of

prosecutorial misconduct claims is limited to the narrow issue of whether the alleged misconduct

violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A habeas petition

will be granted for prosecutorial misconduct only when the misconduct “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,

477 U.S. 168, 171 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). To

constitute a due process violation, the prosecutorial misconduct must be “of sufficient

significance to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 485

19

U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667 (1985)). Under this

standard, a petitioner must show there is a reasonable probability the error complained of

affected the outcome of the trial—i.e., that absent the alleged impropriety, the verdict probably

would have been different.

Gonzales fails to satisfy this heavy standard with respect to any of his contentions. As an

initial matter, his arguments with respect to many of the instances of alleged misconduct are

procedurally barred from federal habeas review. Specifically, Gonzales did not object to the

prosecutor’s use of a jigsaw puzzle, the prosecutor’s display of the victim’s autopsy, or the

prosecutor’s reference in redirect examination to Stachurski’s fear of being labeled a “snitch.”

As to those contentions, the Appellate Division found that Gonzales “failed to preserve his

contention for [appellate] review.” Gonzales, 43 N.Y.S.3d at 618. “[A]n adequate and

independent finding of procedural default will bar federal habeas review of the federal claim.”

Harris, 489 U.S. at 262. In finding the majority of Gonzales’s claim unpreserved for appellate

review, the Appellate Division relied upon CPL §§ 330.30(1) and 470.05(2), New York’s

contemporaneous objection rule, which “provides that, with a few exceptions . . . New York

appellate courts will review only those errors of law that are presented at a time and in a manner

that reasonably prompted a judge to correct them during criminal proceedings,” Downs v. Lape,

657 F.3d 97, 103 (2d Cir. 2011).

New York’s contemporaneous objection rule has long been considered an “adequate and

independent ground” that bars federal habeas review. See Whitley v. Ercole, 642 F.3d 278, 292

(2d Cir. 2011); see also Downs, 657 F.3d at 102-04. As the record supports the Appellate

Division’s conclusion that Gonzales failed to raise the majority of his challenges before the trial

20

court, the Appellate Division properly applied CPL § 470.05(2), and Gonzales’s claim is largely

subject to dismissal on that basis.

In any event, Gonzales fails to show that the Appellate Division was unreasonable in

concluding that, in the alternative, Gonzales was not entitled to relief on the merits of any

portion of his claim. Gonzales complains that the prosecutor referred to the analogy of a

partially-completed jigsaw puzzle. But an independent review of the record reflects that the

prosecutor’s reference to the jigsaw puzzle was a fair response to defense counsel’s use of a

jigsaw puzzle metaphor to argue that there were significant gaps in the People’s evidence.3 See

Knight v. Walsh, 524 F. Supp. 2d 255, 287 (W.D.N.Y. 2007).

3 The Sixth Circuit Court of Appeals recently expressed concern over such analogy

in the direct appeal of a federal conviction:

The use of this metaphor for the beyond-a-reasonable-doubt standard was also

improper. One can easily imagine trying to put together a 1000-piece jigsaw puzzle

based on the picture on the box that the puzzle came in. Whether half of the puzzle

pieces are missing or only ten of them are missing, one could still piece together enough

of the puzzle to be able to recognize that it resembled the picture on the box.

Accordingly, jurors could understand the metaphor to describe a far less demanding

standard of proof than true proof beyond a reasonable doubt.

United States v. Bradley, 917 F.3d 493, 508 (6th Cir. 2019).

The Sixth Circuit nonetheless concluded that “the use of this metaphor was not flagrant

misconduct requiring reversal under the plain-error standard.” Id. As discussed above, the

“narrow” standard of review employed for due process claims in § 2254 cases is substantially

more deferential to the lower court decision than the plain error standard employed on federal

direct appeal. This is particularly true here given that, as aforementioned, it appears to have

been defense counsel that introduced the concept of the puzzle analogy to the jury. In any event,

there is simply no United States Supreme Court authority indicating that a prosecutor’s use of

the jigsaw puzzle analogy rises to the level of a federal constitutional violation. In the absence

of any clearly established federal law on this issue, AEDPA relief is foreclosed. See Carey, 549

U.S. at 77.

21

Gonzales also contends that he was deprived of due process by the prosecutor’s use of

Olmo’s autopsy, which the prosecutor displayed while commenting on how little the jury knew

about the victim’s life, because it impermissibly appealed to the jury’s sympathies. Similarly,

Gonzales challenges on the same ground certain comments made by the prosecutor, who urged

the jury not to acquit Gonzales simply because the eyewitnesses were reluctant to speak to the

police, and to not their let prejudices about the witnesses or the victim affect their deliberations.

But the photo and comments at issue are less egregious than the types of statements that the

Supreme Court has found to be insufficient to establish a due process violation based on

prosecutorial misconduct. See Darden, 477 U.S. at 180 n. 10-12 (prosecutor did not deprive

defendant of right to fair trial where prosecutor urged jury to impose death penalty by arguing

that “as far as I am concerned, . . . [the defendant is] an animal,” and “I wish [the decedent] had a

shotgun in his hand . . . and blown [the defendant’s] face off. I wish that I could see him sitting

here with no face, blown away by a shotgun”).

Finally, Gonzales argues that the prosecutor impermissibly vouched for Stachurski’s

credibility. It is well-established that “[a]ttorney statements vouching for the credibility of

witnesses are generally improper because they imply the existence of” evidence not before the

jury. United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (quoting United States v. Rivera,

22 F.3d 430, 438 (2d Cir. 1994)). Prosecutorial “vouching,” in particular, is improper because it

“carries with it the imprimatur of the Government and may induce the jury to trust the

Government’s judgment rather than its own view of the evidence.” United States v. Newton, 369

F.3d 659, 681 (2d Cir. 2004) (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)). Here,

however, a fair reading of the record supports that the prosecutor was merely arguing that the

22

witnesses (who did not know each other) would not have corroborating accounts unless their

testimony was truthful. The prosecutor’s comments did not suggest that he was relying on any

extra-judicial evidence, and therefore did not constitute vouching. See United States v.Young,

470 U.S. 1, 18-19 (1985) (prosecutor’s statement evincing “belief . . . [that] contained no

suggestion that he was relying on information outside the evidence presented at trial” does not

implicate due process). In sum, Gonzales cannot prevail on any argument advanced in support

of his prosecutorial misconduct claim either.

F. Unduly Suggestive Photo Array (Ground 6)

Gonzales further avers that the photographic array identification procedure used in his

case was unduly suggestive and deprived him of a fair trial. The admission at trial of

identification testimony derived from an impermissibly suggestive photo array may violate a

criminal defendant’s right to due process. See United States v. Thai, 29 F.3d 785, 807-08 (2d

Cir. 1994). “In general, a pretrial photographic identification procedure used by law

enforcement officials violates due process if the procedure ‘is so impermissibly suggestive as to

give rise to a very substantial likelihood of irreparable misrepresentation.’” Jarrett v. Headley,

802 F.2d 34, 40-41 (2d Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

“Case law has developed no requirement, however, that photos in an array present only

individuals who match petitioner’s appearance in every detail.” Velazquez v. Poole, 614 F.

Supp. 2d 284, 300-01 (E.D.N.Y. 2007); Jarrett, 802 F.2d at 41 (“It is not required . . . that all of

the photographs in the array be uniform with respect to a given characteristic.”). Rather,

“[d]ifferences among the physical characteristics of individuals in a photo array are

constitutionally permissible, provided that they are not significant enough to suggest that the

23

defendant was the culprit.” Velazquez, 614 F. Supp. 2d at 301; see United States v. Bautista, 23

F.3d 726, 731 (2d Cir. 1994).

The Appellate Division’s conclusion on direct appeal that the photo array did not create a

substantial risk that Gonzales was unfairly singled out for identification was neither

unreasonable nor contrary to federal law. Gonzales argues, as he did on direct appeal, that the

photo array was unduly suggestive because there were only two other Hispanic men in the array,

one of which had “visible neck tattoos and [wa]s clearly heavier than the other individuals,” and

“[t]he background of [Gonzales]’s photograph [wa]s also considerably lighter than the other

photographs.” But a review of the photo array supports that the differences among the physical

characteristics of the six young men shown in the array was not significant enough to suggest to

an identifying witness that Gonzales was likely to be the culprit. See See Velazquez, 614 F.

Supp. 2d at 301 (finding photo array not unduly suggestive where the array showed men of

similar age, complexion, facial hair, eye color and hair color and style); United States v. Valdez,

No. S1 92 Cr. 76, 1993 WL 14650, at *3 (S.D.N.Y. Jan. 14, 1993) (photo array not unduly

suggestive where four of the five men pictured had skin color and facial hair comparable to the

defendant). Gonzales is therefore not entitled to relief on this ground.

G. Harsh and Excessive Sentence (Ground 7)

Gonzales further avers that his sentence of 25 years to life imprisonment is harsh and

excessive. It is well-settled, however, that an excessive sentence claim may not be raised as

grounds for federal habeas corpus relief if the sentence is within the range prescribed by state

law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Bellavia v. Fogg, 613 F.2d 369, 373

(2d Cir. 1979) (setting mandatory sentences is solely the province of state legislature);

24

Hernandez v. Conway, 485 F. Supp. 2d 266, 284 (W.D.N.Y. 2007) (excessive sentence claim

does not present a federal question cognizable on habeas review where the sentence was within

the range prescribed by state law). Here, under New York Penal Law §§ 70.00(2)(a), 3(a)(i), and

125.25(1), the court was required to sentence Gonzales to a sentence of 15 years to life

imprisonment up to 25 years to life. Gonzales has never disputed, and does not dispute here, that

his sentence of 25 years to life imprisonment is within the applicable range .

And to the extent that Gonzales’s claim could be construed to assert an Eighth

Amendment claim of cruel and unusual punishment, he cannot prevail on that claim either.

While the Supreme Court has stated that “[a] gross disproportionality principle is applicable to

sentences for terms of years,” it has further cautioned that it would be the “exceedingly rare” and

“extreme” case which would involve a sentence which is “contrary to” or an “unreasonable

application of” this principle. Lockyer v. Andrade, 538 U.S. 63, 72, 73 (2003) (quoting

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and

concurring in judgment)); 28 U.S.C. § 2254(d)(1). “‘[A] reviewing court rarely will be required

to engage in extended analysis to determine that a sentence is not constitutionally

disproportionate’ because ‘the decision of a sentencing [court] is entitled to substantial

deference.’” Edwards v. Marshall, 589 F. Supp. 2d 276, 290 (S.D.N.Y. 2008) (quoting United

States v. Persico, 853 F.2d 134, 138 (2d Cir. 1988)). Here, the sentence imposed by the trial

court and subsequently affirmed by the Appellate Division “does not remotely approach the

realm of grossly disproportionate punishments.” Edwards, 589 F. Supp. 2d at 291 n.11; see

Lockyer, 538 U.S. at 67-68, 77 (finding that, under California’s Three Strikes law, a sentence of

two consecutive terms of 25 years to life imprisonment for two counts of petty theft did not

25

warrant relief under the AEDPA); Rummel v. Estelle, 445 U.S. 263, 285 (1980) (mandatory life

sentence imposed under Texas statute upon defendant’s third felony conviction, which was for

obtaining $120.75 by false pretenses, did not constitute cruel and unusual punishment).

Gonzales is therefore not entitled to relief on his sentencing claim in any event.

H. Denial of Right to be Present at Trial (Grounds 8, 9, 11)

Gonzales additionally argues, as he did in his pro se supplemental brief on direct appeal,

that he was deprived of his right to be present at all material stages of his trial. A criminal

defendant’s right to be present at trial is rooted in the Confrontation Clause of the Sixth

Amendment, which guarantees a defendant the right to be present at trial to confront the

witnesses and evidence against him. United States v. Tureseo, 566 F.3d 77, 83 (2d Cir. 2009)

(citing United States v. Gagnon, 470 U.S. 522, 526 (1985)); see also Grayton v. Ercole, 691 F.3d

165, 170 (2d Cir. 2012). “[T]his right to be present has been extended to other critical stages of

trial beyond those related to the defendant’s rights to confronting witnesses and evidence.”

Tureseo, 566 F.3d at 83. A defendant “has a due process right to be present in his own person

whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to

defend against the charge.” Id. (internal quotation marks and citation omitted); see also Faretta

v. California, 422 U.S. 806, 819 n.15 (1975) (stating that a criminal defendant “has a right to be

present at all stages of the trial where his absence might frustrate the fairness of the

proceedings”); United States v. Rivera, 22 F.3d 430, 438 (2d Cir. 1994) (“Due Process requires

that a defendant be present at all stages of the trial to the extent that a fair and just hearing would

be thwarted by his absence.”) (internal quotation marks and citation omitted)).

26

Here, however, as the Appellate Division reasonably determined, Gonzales fails to show

that he was absent from a material stage of his trial. In his supplemental brief on direct appeal,

Gonzales refers to bench and sidebar conferences held between the judge, the prosecutor, and

defense counsel to discuss legal issues. Gonzales does not argue, and he fails to demonstrate,

that these conferences either required Gonzales’s presence or that his absence from them

frustrated the fairness of his trial, and an independent review of the trial transcript provides no

such support either. Notably lacking from the instant Petition is any claim of prejudice as a

result of Gonzales’s exclusion from sidebar and bench conferences; nor is there any reason to

conclude that Gonzales’s presence at such conferences would have had any “reasonably

substantial” relation to his opportunity to defend against the charges. See Wilson v. Bennett, 188

F. Supp. 2d 347, 356 (S.D.N.Y. 2001). Consequently, Gonzales’s absence at the bench and

sidebar conferences did not substantially affect his ability to defend his case, and he is not

entitled to relief on this claim. See Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996)

(concluding that petitioner’s presence at sidebar was not required because it would not have had

a substantial effect on her ability to defend).

Gonzales also argued on direct appeal that the Appellate Division should remit the matter

for a reconstruction hearing to adjudicate the merits of this due process claim. Gonzales’s

inclusion of that argument in the instant Petition, construed liberally, Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam), may indicate that Gonzales believes he is entitled to an

evidentiary hearing in this Court on his claim that he was deprived of his right to be present at all

material stages of his trial. But the AEDPA requires that a petitioner must allege a colorable

claim for relief to obtain an evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465, 474-75

27

(2007). As there is no support in the record or the instant Petition for Gonzales’s claim that he

was excluded from a material stage of his trial, Gonzales fails to show that it is a colorable claim

warranting development in an evidentiary hearing.

I. Failure to Solicit Equivocal Answers from Potential Jurors (Ground 10)

Finally, Gonzales claims that the trial court erred during jury selection when it

questioned jurors in a blanket fashion and did not obtain individual, unequivocal answers to its

questions. The Appellate Division denied this claim on procedural grounds, finding that

Gonzales failed to preserve such contention for appellate review. As more thoroughly discussed

supra, the Appellate Division’s reliance on New York’s contemporaneous objection rule renders

the claim procedurally barred from federal habeas review here.

In any event, Gonzales’s claim is based on CPL § 270.15, which governs the procedures

in New York regarding examination of prospective jurors. To the extent Gonzales again

contends that the trial court’s actions violated § 270.15, such claim presents only a state law

issue not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68 (“We have stated

many time that ‘federal habeas corpus relief does not lie for errors of state law.”); see also Afrika

v. Conway, No. 06-CV-0280, 2011 WL 582618, at *9 (W.D.N.Y. Feb. 9, 2011) (holding

violation of CPL § 270.20 not cognizable on federal habeas review). Moreover, Gonzales does

not point to, and this Court is not aware of any, clearly-established Supreme Court authority

disapproving of the trial court’s procedures in questioning the jurors collectively, particularly

given that Gonzales has provided no evidence that the jury who convicted him was anything

other than fair and impartial. Lacking such clearly-established Supreme Court authority, it

cannot be concluded that the appellate court’s ruling contravened or unreasonably applied

28

federal law. Carey, 549 U.S. at 77 (noting that, where the Supreme Court has not adequately

addressed a claim, a federal court cannot find a state court ruling unreasonable). Gonzales is

therefore not entitled to relief on this claim in any event.

V. CONCLUSION

Gonzales is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ

of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of

Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a

certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the

Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1.

The Clerk of the Court is to enter judgment accordingly.

Dated: December 17, 2020.

/s/ James K. Singleton, Jr.

JAMES K. SINGLETON, JR.

Senior United States District Judge

29