Carmel v. Graham

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_________________________________________

KEITH EDWARD CARMEL,

Petitioner,

DECISION AND ORDER

-vs-

6:17-CV-6050 CJS

H. GRAHAM,

Respondent.

_________________________________________

INTRODUCTION

Petitioner Keith Carmel (“Carmel” or “Petitioner”) brings this pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions in New

York State Supreme Court, Monroe County, for Burglary in the Second Degree, Criminal

Possession of a Forged Instrument in the Second Degree and Criminal Possession of

Stolen Property in the Fourth Degree, for which he was sentenced, as a persistent violent

felony offender, to prison for terms of 16 years to life , 3 years and 6 months to 7 years,

and 2 to 4 years, respectively. The Petition asserts ten claims but the primary issue

presented is whether there was legally sufficient evidence to convict Petitioner of burglary.

For the reasons explained below, the petition for a writ of habeas corpus is denied.

BACKGROUND

The following is a summary of the relevant facts. On the night of July 15, 2010, or

the early morning hours of the next day, a home in the Town of Brighton, New York, was

burglarized. As the residents of the home slept, an intruder entered the house through an

unlocked door and stole a variety of items including a purse, several backpacks and a

bicycle. The intruder evidently took the items outside behind some trees where he rifled

through the purse and backpacks, removing items such as cash and a credit card. Two

of the backpacks, along with the purse and most of its contents, were left behind on the

lawn, but one of the backpacks, the bicycle and a credit card were taken from the property.

No one witnessed the burglary, and the intruder left behind no fingerprint or DNA evidence

that was discovered.

Shortly after the break-in, at approximately 12:50 a.m. on July 16, 2010, the stolen

credit card was used to make a purchase at the Wegmans supermarket on East Avenue

in the City of Rochester, slightly more than one mile from the burglarized residence. Video

cameras at the entrance to the Wegmans store showed a white male arriving at the store

minutes before the purchase, with a bicycle and a backpack. Other surveillance cameras

inside the store captured the same individual using the stolen credit card to purchase

Mastercard gift cards and other miscellaneous items in the amount of $219.01.

Attempting to identify the individual shown in the Wegmans surveillance video, the

Brighton Police Department issued a Crime Information Bulletin to local law enforcement

agencies. Charles Bour (“Bour”), the Bureau Chief of the New York State Parole Division

office in Rochester, saw the video accompanying the bulletin and immediately recognized

the individual shown as one of his parolees, the petitioner, Keith Carmel. In a supporting

deposition, Bour indicated that Petitioner was a parolee assigned to the Rochester office,

and that he had known Petitioner “as a parolee for about 15 years.” In that regard,

Petitioner was under parole supervision at that time and had a lengthy criminal history

including several prior convictions for burglary.

On July 26, 2010, the Brighton Police Department filed a felony complaint in

Brighton Town Court, charging Petitioner with Burglary in the Second Degree and Grand

Larceny in the Fourth Degree. Brighton Town Court declined to issue an arrest warrant

at that time, requesting additional information before doing so. Brighton Police

Department continued its investigation and eventually provided additional information to

the court which, on August 28, 2010, issued a warrant for Petitioner’s arrest. On August

28, 2010, the Monroe County District Attorney was informed that the arrest warrant had

been issued, and on August 30, 2010, the District Attorney received from Brighton Town

Court faxed copies of the felony complaint and supporting depositions.

On August 31, 2010, Petitioner was arrested.

On February 10, 2011, a Monroe County Grand Jury returned a three-count

indictment charging Petitioner with Burglary in the Second Degree in violation of New

York Penal Law (“PL”) § 140.25(2), Criminal Possession of a Forged Instrument in the

Second Degree in violation of PL § 170.25, and Criminal Possession of Stolen Property

in the Fourth Degree in violation of PL § 165.45(2), all relating to the break-in discussed

earlier.

On February 28, 2011, Petitioner was arraigned on the Indictment, at which time

the People announced their readiness for trial. At that time, Petitioner acknowledged that

he was back in state prison after pleading guilty to a parole violation. In particular, he

stated that following his arrest in August 2010 he had been charged with a parole violation

relating to the burglary, but that he had pleaded guilty to a lesser violation in exchange

for a fifteen-month sentence.

On February 24, 2012, just prior to the start of the trial, Petitioner moved to dismiss

the burglary count of the Indictment as untimely under New York Criminal Procedure Law

§ 30.30, arguing that the People had not announced their readiness for trial until more

than six months after July 26, 2010, the date that the felony complaint was first submitted

to Brighton Town Court. However, the trial court denied the application, pursuant to CPL

§ 30.30 (4)(g), finding that the District Attorney had no notice of the matters in Brighton

Town Court prior to August 30, 2010, and that the People had announced their readiness

for trial within six months after that date.

On February 29, 2012, the jury trial began. The Prosecution’s case consisted of

testimony from Wegmans’ employees concerning the video and electronic evidence

relating to the use of the credit card shortly after the burglary, testimony from the police

officers who investigated the break-in, testimony from Parole Officer Bour concerning his

acquaintance with Petitioner and his recognition of Petitioner on the Wegmans

surveillance video, and testimony from the homeowner victims concerning the

circumstances of the break-in and the property that was taken.

At the close of the Prosecution’s case defense counsel made a motion for a trial

order of dismissal as to all counts of the indictment, which the trial court denied.

The Defense did not put on a case. Instead, defense counsel attempted to show,

through his cross-examination of the prosecution witnesses, that Wegmans’ camera

system and computer system were unreliable; that the video evidence relied upon by the

prosecution was selective in that it did not show, for example, from which direction the

individual shown had come before arriving at the store; that there was no direct evidence

as to who had actually entered the victims’ home and removed the property; that the

burglarized residence was in a heavily populated area, and that it was possible that

Petitioner might have merely found the stolen property after it was discarded by the actual

burglar; and that it was not possible for the victims to positively identify the bicycle and

backpack shown in the surveillance video (which were never recovered) as belonging to

them.1 Although, there was no dispute that the credit card used at the Wegmans was the

same one that had been stolen from the victims.

Defense counsel did not cross-examine Bour concerning his identification of

Petitioner as the person shown in the Wegmans surveillance video. In that regard, during

the charging conference, defense counsel noted that he had intentionally avoided cross-

examining Bour, who had been identified to the jury only as an “employee of New York

State,” evidently in order to avoid opening the door to testimony about how Bour knew

Petitioner.2

In his summation, defense counsel emphasized the concept of reasonable doubt

and argued that, in addition to there being no direct evidence that Petitioner entered the

victims’ home, the evidence did not show that Petitioner had been in recent and exclusive

possession of the property taken during the burglary.3 Counsel also urged the jury to

disregard the testimony from the Wegmans employees, arguing that, since there was a

discrepancy in the time-stamp on one of the video recordings (apparently related to the

change to daylight savings time) the jury should view all of the computer and electronic

evidence from Wegmans with skepticism.

1 The homeowners, husband and wife, both testified concerning the Wegmans video. The husband

testified that he recognized the bicycle and backpack as belonging to his family, and that in particular, he

recognized the brand of his bicycle (Bianchi), as well as tape and writing on his son’s backpack. ECF No.

12-3 at p. 684–686, 691–694, 699. On cross-examination, the husband acknowledged that while the

bicycle had the same brand and appearance as his, he could not definitively say that the bicycle in the

video was his. Id. at 694. The wife testified that the bicycle and backpack shown in the Wegmans video

appeared to be those belonging to her husband and son, respectively. Id. at pp. 711–712. On cross-

examination, she agreed that she could not positively identify the items without closer inspection. Id. at

pp. 714–715.

2 See, ECF No. 12-3 at p. 50; id. at p. 739 (“In and out was fine with me. Notice I didn’t ask him any

questions at all. Get him out of here.”).

3 Counsel argued, for example, that the burglary had occurred possibly hours before, and more than a

mile away, from the Wegmans store.

On March 6, 2012, the jury returned a verdict of guilty on all three counts in the

Indictment.

On July 11, 2012, the trial court sentenced Petitioner as a persistent violent felony

offender, for the burglary conviction to a term of 16 years to life imprisonment, and for the

remaining two convictions, to concurrent terms of 3 years and 6 months to 7 years and 2

to 4 years imprisonment, respectively.

On July 11, 2012, Petitioner filed a Notice of Appeal. Petitioner’s counseled brief

raised three issues on appeal: 1) the evidence at trial was legally insufficient to sustain

the burglary conviction; 2) the conviction on the burglary count was against the weight of

the evidence; and 3) trial counsel was ineffective for failing to challenge the identification

made by Bour. Opposing the appeal, the People stated, in part, that the jury had been

properly instructed, and that it was logical and proper for the jury to infer that the person

seen in possession of the credit card, bicycle and backpack shortly after the burglary was

the burglar himself:

[T]he evidence was legally sufficient to convict defendant of burglary in the

second degree. [At trial, the evidence suggested that the burglar had

carried the stolen property out onto the victims’ lawn where he sorted it, and

then consolidated the choicest property into one backpack, leaving behind

the rest, before leaving on the stolen bicycle and heading to the nearest

open 24-hour store to use the credit card before its theft was discovered by

its owner.] And indeed, defendant ended up with the choicest property: an

expensive bike and a working credit card. The jury was entitled to draw the

reasonable inference that only the burglar would have possessed this type

of property so soon after the break-in.

After all, in this case the jury was charged with the statutory presumption of

recent and exclusive possession (CJI2d[NY] - Inference of Participation in

Theft Arising from Recent, Exclusive Possession of Stolen Property). The

court told the jurors, "Under our law, if the People prove beyond a

reasonable doubt that the defendant was in exclusive possession of

property recently stolen during a burglary and that there is no innocent

explanation for that possession, then you may, but are not required to, infer

that the possession was guilty possession" (TM 544). Importantly, the jury

instruction went on, "If you draw that inference, you must then decide

whether or not the defendant's guilty possession was the result of his

participation in the crime during which the property was stolen" (TM 544).

Recent, exclusive possession of the fruits of a crime is sufficient evidence

to convict a defendant of that underlying crime. Under the presumption,

"evidence of unexplained or falsely explained possession of recently stolen

property is sufficient to establish a prima facie case and to enable a jury to

find guilt beyond a reasonable doubt" (People v Baskerville, 60 NY2d 374,

382 [1983]). Such has been the law as recognized in this state for over a

century (see People v Galbo, 218 NY 283, 290–291 [1916] ["Is the guilty

possessor the thief, or is he a receiver of stolen goods? Judges have said

that, if nothing more is shown, we may take him to be the thief'];

Knickerbocker v People, 43 NY 177 [1870]).

Resp’t’s Br., SR 119-120.

On or about August 7, 2012, Petitioner filed a pro se applications to vacate his

convictions pursuant to CPL § 440.10.4 The application raised the following arguments:

denial of statutory and Sixth Amendment right to speedy trial; insufficient evidence before

the grand jury to indict; insufficient evidence of possession of stolen property; insufficient

evidence of burglary; insufficient evidence that Petitioner used the stolen credit card;

ineffective assistance of trial counsel for failure to cross-examine Bour; failure to give

710.30 notice that Bour would make identification; failure to introduce Crime Information

Bulletin at trial; evidence from Wegmans employees was hearsay; prosecutor “withheld”

witnesses by failing to have witnesses listed on the witness list testify at trial; Brady

violation for failure to provide defense counsel with “search warrant;” and “defective

accusatory instrument.”

4 ECF No. 12-2 at p. 30.

On January 23, 2013, the trial court denied the 440 application on procedural

grounds pursuant to CPL § 440.10(2)(b), finding that the matters raised in the application

could be raised in Petitioner’s then-pending appeal. Petitioner did not appeal that ruling.

On April 30, 2014, Petitioner filed another pro se application pursuant to CPL §

440.10. Petitioner alleged that it was a violation of state law and of his federal

constitutional rights that he was indicted on Count 2 and 3 of the Indictment without having

previously been charged with those crimes in an accusatory instrument.

On July 11, 2014, the trial court denied the second 440 application, again pursuant

to CPL § 440.10(2)(b), finding that the matters raised in the application could be raised in

Petitioner’s still-pending appeal. Petitioner did not appeal that ruling.

On April 29, 2016, the New York Supreme Court, Appellate Division Fourth

Department (“Fourth Department”) unanimously denied Petitioner’s appeal on the merits.

The Fourth Department held that there was legally sufficient evidence to support the

burglary conviction, based on Petitioner’s recent and exclusive possession of the property

taken during the burglary, that the burglary conviction was not against the weight of the

evidence, and that defense counsel’s decision not to cross-examine Bour was a matter

of trial strategy as opposed to ineffective assistance of counsel.

Petitioner requested leave to appeal to the New York Court of Appeals on the issue

of the legal sufficiency of the evidence supporting the burglary conviction, as well as the

claim of ineffective assistance of counsel, but on September 13, 2016, the Court of

Appeals denied the application.

On January 23, 2017, Petitioner filed the subject habeas petition, proceeding pro

se. The Petition purports to set forth ten separate grounds for relief: 1) there was legally

insufficient evidence to support his conviction for Burglary (insufficient evidence that he

was the burglar and insufficient evidence of forcible entry into the home); 2) there was

legally insufficient evidence to support his conviction for Possession of a Forged

Instrument and Possession of Stolen Property, and those charges were not included in

the felony complaint filed in Brighton Town Court; 3) the charges for Possession of a

Forged Instrument and Possession of Stolen Property were not included in the felony

complaint, and there was no evidence as to those crimes introduced in the Grand Jury;

4) “speedy trial” violation based on CPL § 30.30, or on the fact that he was taken into

custody on July 28, 2010, and his trial did not begin until March 2012; 5) the testimony

from Bour should have been kept out since Bour did not actually witness Petitioner at

Wegmans and since the Prosecutor did not give notice of his intent to use an in-court

identification; 6) Petitioner did not receive a “felony complaint hearing” following his

arraignment on the felony complaint on September 7, 2010, but, instead, on September

13, 2010, he was held for action of the Grand Jury; 7) ineffective assistance of trial

counsel based on three events: counsel’s failure to cross-examine Bour, counsel’s failure

to object to the testimony of a Wegman’s employee who testified concerning electronic

records but was not present at the store when the credit card was used and counsel’s

failure to file a pre-trial motion objecting to the fact that the charges for Criminal

Possession of a Forged Instrument and Criminal Possession of Stolen Property were not

included in the Felony Complaint; 8) ineffective assistance of appellate counsel based on

the following events: counsel’s admission in the appellate brief that Petitioner had

possessed stolen property and had been seen in possession of stolen property, counsel’s

failure to argue on appeal that the charges for Criminal Possession of a Forged Instrument

and Criminal Possession of Stolen Property were not included in the Felony Complaint,

counsel’s failure to argue on appeal that there was no evidence that Petitioner had used

a stolen credit card or been in possession of stolen property, counsel’s failure to argue

on appeal that Petitioner had been denied a felony hearing, counsel’s failure to argue on

appeal that Petitioner did not have the opportunity to appear in the Grand Jury and

counsel’s failure to argue on appeal that the “whole case against Petitioner was based on

hearsay”; 9) “uncharged crimes,” relating to the fact that the Indictment did not accuse

Petitioner of possessing a stolen bicycle or backpack, and that there was no evidence at

trial that he possessed stolen property; and 10) “missing witness,” relating to the fact that

there was no testimony at trial from three persons who were included on the prosecution’s

witness list, namely, the Wegmans cashier who processed the transaction involving the

stolen credit card, the police investigator who executed a search warrant or the police

investigator who sent out the Crime Information Bulletin.

The Petition alleges that Petitioner exhausted claim number 1, but admits that he

did not exhaust claims number 2, 3, 4, 5, 6, 7, 8, 9 or 10.5 Petitioner maintains that to the

extent he failed to exhaust these claims, it was due to ineffective assistance of counsel.

The Petition also states that “most” of the unexhausted grounds were included in the 440

motions that Petitioner improperly filed while his direct appeal was pending.

On May 23, 2017, Respondent filed his Answer and Opposition to the Petition.

(ECF Nos. 11 & 12). As discussed further below, Respondent maintains that Petitioner’s

claims are all meritless, in addition to being procedurally barred and/or non-cognizable in

a § 2254 habeas petition:

Petitioner’s first claim is partially unexhausted and entirely lacking in merit.

His second claim is unexhausted, procedurally barred, and meritless.

Claims three, four, six, and ten are not cognizable on federal habeas

review. A portion of claim five also is not cognizable; the remaining

5 Petitioner actually did exhaust the part of Claim 7 alleging ineffective assistance counsel based on

counsel’s failure to cross-examine Bour.

allegations in claim five are unexhausted and meritless. Claim nine is

meritless. Petitioner’s ineffective trial counsel [seventh] claim is without

merit and his ineffective appellate counsel [eighth] claim is unexhausted

and plainly meritless.

ECF No. 11 at p. 6.

On July 5, 2017, Petitioner filed a Reply (ECF No. 15) that reasserts the points in

the Petition and generally maintains that there was no evidence submitted to support any

of his convictions.

The Court has considered the parties’ submissions and the entire record. Pursuant

to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254 in the United

States District Courts and upon review of the answer, transcript and record, the Court

determines that an evidentiary hearing is not required. After considering the parties'

submissions and the entire record, the petition is denied for the reasons set forth below.

DISCUSSION

Petitioner’s Pro Se Status

Since Petitioner is proceeding pro se, the Court has construed his submissions

liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d

787, 790 (2d Cir.1994).

Section 2254 Principles

Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the

general legal principles applicable to such a claim are well settled.

As amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the

statutory provision authorizing federal courts to provide habeas corpus relief

to prisoners in state custody—is “part of the basic structure of federal

habeas jurisdiction, designed to confirm that state courts are the principal

forum for asserting constitutional challenges to state convictions.”

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624

(2011). A number of requirements and doctrines . . . ensure the centrality

of the state courts in this arena. First, the exhaustion requirement ensures

that state prisoners present their constitutional claims to the state courts in

the first instance. See id. (citing 28 U.S.C. § 2254(b)). Should the state court

reject a federal claim on procedural grounds, the procedural default doctrine

bars further federal review of the claim, subject to certain well-established

exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82–84, 97

S.Ct. 2497, 53 L.Ed.2d 594 (1977). If the state court denies a federal claim

on the merits, then the provisions of § 2254(d) come into play and prohibit

federal habeas relief unless the state court's decision was either: (1)

“contrary to, or involved an unreasonable application of, clearly established

Federal law,” 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)(1)-

(2). Finally, when conducting its review under § 2254(d), the federal court is

generally confined to the record before the state court that adjudicated the

claim. See Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398–99,

179 L.Ed.2d 557 (2011).

Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014). As just mentioned, regarding

claims that were decided on the merits by state courts,

a federal court may grant habeas corpus relief to a state prisoner on a claim

that was adjudicated on the merits in state court only if it concludes that the

state court's decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable

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

court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

A state court decision is contrary to clearly established Federal law if the

state court arrives at a conclusion opposite to that reached by the Supreme

Court on a question of law or if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and

arrives at a result opposite to the Supreme Court's result.

A state court decision involves an unreasonable application of clearly

established Federal law when the state court correctly identifies the

governing legal principle but unreasonably applies it to the facts of the

particular case. To meet that standard, the state court's decision must be

so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement. It is well established in this circuit that the objectively

unreasonable standard of § 2254(d)(1) means that a petitioner must identify

some increment of incorrectness beyond error in order to obtain habeas

relief.

Santana v. Capra, No. 15-CV-1818 (JGK), 2018 WL 369773, at *7–8 (S.D.N.Y. Jan. 11,

2018) (Koeltl, J.) (citations and internal quotation marks omitted).

Unexhausted and Procedurally Defaulted Claims

Respondent maintains that several of Petitioner’s claims are unexhausted and/or

procedurally defaulted.6 Specifically, Respondent contends that claims 27 and 88 are

unexhausted and that Claim 2 is also procedurally defaulted, and that claims 1 and 5 are

partially unexhausted. According to Respondent, the aspect of claim 1 that is partially

unexhausted is the argument that there was no evidence that the burglar forcibly entered

the victims’ home. Respondent contends that argument is unexhausted and now

procedurally defaulted. Respondent contends that the portion of claim 5 relating to the

6 See, Smith v. Scully, 588 F. App'x 16, 17 (2d Cir. 2014) (Because “were he to return to the state courts

with his unexhausted claim, those courts would find the claim barred by the application of a state

procedural rule, we must deem the claim procedurally defaulted.” Jackson v. Conway, 763 F.3d 115, 133

(2d Cir.2014) (quotation marks omitted).”); see also, Rustici v. Phillips, 308 F. App'x 467, 469 (2d Cir.

2009) (“In New York, a defendant may not collaterally attack a conviction based on a claim that he could

have raised on direct appeal where he unjustifiably failed to raise it. N.Y.Crim. Proc. Law §

440.10(2)(c).”).

7 Claim 2 alleges that there was legally insufficient evidence to support the conviction for Possession of a

Forged Instrument and Possession of Stolen Property, and that those charges were not included in the

felony complaint filed in Brighton Town Court.

8 Claim 8 alleges ineffective assistance of appellate counsel based on the following events: counsel’s

admission in the appellate brief that Petitioner had possessed stolen property and had been seen in

possession of stolen property, counsel’s failure to argue on appeal that the charges for Criminal

Possession of a Forged Instrument and Criminal Possession of Stolen Property were not included in the

Felony Complaint, counsel’s failure to argue on appeal that there was no evidence that Petitioner had

used a stolen credit card or been in possession of stolen property, counsel’s failure to argue on appeal

that Petitioner had been denied a felony hearing, counsel’s failure to argue on appeal that Petitioner did

not have the opportunity to appear in the Grand Jury and counsel’s failure to argue on appeal that the

“whole case against Petitioner was based on hearsay.”

sufficiency of the evidence is unexhausted and now procedurally barred. Respondent

contends that while claim 8 is unexhausted, it is not procedurally defaulted since

Petitioner could still bring a coram nobis motion on that claim in state court. However,

respondent argues that claim 8 should be denied on its merits. In sum, Respondent

contends that, except for claim 8, all of these claims (claim 2 and parts of claims 1 and

5) are procedurally defaulted and should be denied on the merits, since Petitioner cannot

show cause, prejudice or actual innocence, and that unexhausted-but-not-procedurally-

defaulted claim 8 should be denied on its merits.

Petitioner does not dispute that these claims identified by Respondent are

unexhausted and/or procedurally barred. However, he maintains that the failure to

exhaust is due either to ineffective assistance of counsel or to the fact that he did not

know that he could appeal the denial of the two 440 motions that he filed while his direct

appeal was pending.

From the recitation of the facts set forth earlier it appears to the Court that

Petitioner exhausted only two of the claims that he is attempting to raise here: The claim

that there is legally insufficient evidence to support the burglary conviction and the claim

that trial counsel was ineffective for failing to cross-examine Bour. Those are the only

claims that Petitioner raised to both the Appellate Division and the Court of Appeals.

Consequently, it appears that all other claims in the Petition are unexhausted, and, except

for claim 8, are also procedurally defaulted.

“That procedural default can only be cured by a showing of cause for the default

plus prejudice, or a showing of actual innocence.” Aparicio v. Artuz, 269 F.3d 78, 91 (2d

Cir. 2001) (citation omitted); see also, St. Helen v. Senkowski, 374 F.3d 181, 184 (2d Cir.

2004) (“In the case of procedural default (including where an unexhausted claim no longer

can proceed in state court), we may reach the merits of the claim “only if the defendant

can first demonstrate either cause and actual prejudice, or that he is actually innocent.”

Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)

(internal quotation marks and citations omitted).”)

Liberally construing Petitioner’s papers, the Court understands him to claim

“cause” due to his ignorance of the fact he could appeal the denial of his § 440 motions

and to his appellate attorney’s ineffectiveness. The Court also understands Petitioner to

be alleging that he is actually innocent.

As for Petitioner’s claim that he did not know he could appeal the denial of his §

440 motions, that excuse is insufficient to establish cause. See, e.g., Parker v.

Wenderlich, No. 14-CV-5896 JG, 2015 WL 5158476, at *10 (E.D.N.Y. Sept. 2, 2015)

(“Parker asserts that he was unfamiliar with how to appeal from a CPL § 440 motion[,

however,], Parker's lack of familiarity with the law is not sufficient cause to excuse his

default.”) (collecting cases). Moreover, Petitioner also could not demonstrate prejudice,

since he has not claimed, nor is there any indication, that an appeal from either of those

denials would have succeeded.

As for Petitioner’s contention that his failure to exhaust was caused by the

ineffectiveness of his appellate counsel, to establish cause he would need to show that

his appellate attorney’s performance amounted to ineffective assistance of counsel in

violation of the Sixth Amendment. See, Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001)

(“A defense counsel's ineffectiveness in failing to properly preserve a claim for review in

state court can suffice to establish cause for a procedural default only when the counsel's

ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to

counsel.” ). However, as will be discussed further below, Petitioner has not shown that

his appellate attorney was ineffective, and consequently he cannot rely on this argument

to establish cause.

To the extent that Petitioner is claiming that he is actually innocent, the law

applicable to such a claim is clear:

The petitioner’s burden in making a gateway showing of actual innocence

is deliberately “demanding.” House v. Bell, 547 U.S. at 538, 126 S.Ct. 2064;

see Schlup v. Delo, 513 U.S. at 324, 115 S.Ct. 851 (observing that actual

innocence claims are rarely successful); accord McQuiggin v. Perkins, 569

U.S. 383, 386, 401, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) (“stress[ing]

that the Schlup standard is demanding” and cases satisfying it “rare”). It

requires, first, that petitioner adduce “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Schlup v. Delo, 513

U.S. at 324, 115 S.Ct. 851. In addition to being reliable, i.e., credible, the

evidence must be compelling. This second requirement demands “evidence

of innocence so strong that a court cannot have confidence in the outcome

of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error.” Id. at 316, 115 S.Ct. 851; accord Rivas v.

Fischer, 687 F.3d at 541.

The standard’s demand for “evidence of innocence,” Schlup v. Delo, 513

U.S. at 316, 115 S.Ct. 851 (emphasis added), references “factual

innocence, not mere legal insufficiency,” Bousley v. United States, 523 U.S.

614, 624, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); accord Dunham v.

Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also Doe v. Menefee, 391

F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.) (“As Schlup makes clear, the

issue before [the] court is not legal innocence but factual innocence.”). The

new evidence need not demonstrate factual innocence to an “absolute

certainty.” House v. Bell, 547 F.3d at 538; accord Rivas v. Fischer, 687 F.3d

at 542. But it must be sufficiently credible and compelling to allow a federal

court to conclude that “more likely than not, in light of the new evidence, no

reasonable juror would find [petitioner] guilty beyond a reasonable doubt—

or, to remove the double negative, that more likely than not any reasonable

juror would have reasonable doubt.” House v. Bell, 547 U.S. at 538, 126

S.Ct. 2064; see Schlup v. Delo, 513 U.S. at 327, 115 S.Ct. 851; Rivas v.

Fischer, 687 F.3d at 541.

As this court has recognized, this standard is “somewhat cryptic” in marrying

a seemingly absolute requirement (no reasonable juror) to a probabilistic

one (more likely than not). Rivas v. Fischer, 687 F.3d at 541 (citing Schlup

v. Delo, 513 U.S. at 339, 115 S.Ct. 851 (Rehnquist, C.J., dissenting)

(characterizing standard as “classic mixing of apples and oranges”)).

Nevertheless, this court has located some guidance for its application in

contrasts that the Supreme Court has drawn between the Schlup standard

and other familiar ones. See id.

Notably, Schlup emphasizes that “actual innocence ... does not merely

require a showing that a reasonable doubt exists in the light of the new

evidence, but rather that no reasonable juror would have found the

defendant guilty.” 513 U.S. at 329, 115 S.Ct. 851. Further, a “more likely

than not” showing as to what “no reasonable juror would have found”

requires “a stronger showing than that needed to establish prejudice,” but

not so strong as that demanded by the “‘clear and convincing’ standard.” Id.

at 327, 115 S.Ct. 851; see Rivas v. Fischer, 687 F.3d at 541.

Further, the Court has stressed that Schlup’s actual innocence standard

does not equate to the sufficiency-of-the-evidence standard in Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Jackson

asks whether the trial evidence, viewed in the light most favorable to the

prosecution, “could” allow any reasonable trier of fact to find a charged

crime proved beyond a reasonable doubt. Id. By contrast, Schlup’s actual

innocence standard considers a different “mix of evidence” from a different

“vantage point.” Rivas v. Fischer, 687 F.3d at 542. Specifically, a reviewing

court assessing the probability of actual innocence is not limited to the trial

record. To the contrary, it “must consider all the evidence, old and new,

incriminating and exculpatory,” House v. Bell, 547 U.S. at 538, 126 S.Ct.

2064 (internal quotation marks omitted), and, in doing so, “is not bound by

the rules of admissibility that would govern at trial,” Schlup v. Delo, 513 U.S.

at 327, 115 S.Ct. 851. This is because, at the gateway stage of inquiry, a

habeas court’s task is not to identify trial error or to delineate the legal

parameters of a possible new trial. It is to identify those cases in which a

compelling showing of actual innocence would make it a manifest injustice

to maintain conviction unless it was free of constitutional error. Thus,

incriminating evidence obtained in the course of an unlawful search, or

custodial admissions made in the absence of Miranda warnings, may well

be inadmissible at trial. Nevertheless, such evidence is properly considered

in assessing factual innocence, with the manner of procurement informing

reliability and relevance and, therefore, weight.

Hyman v. Brown, 927 F.3d 639, 656–58 (2d Cir. 2019).

In this case, Petitioner has clearly not made a gateway showing of actual

innocence, and he therefore cannot rely on actual innocence to allow the court to reach

the merits of his defaulted claims.

To reiterate, the only claims that are not procedurally defaulted are the portion of

Claim 1 alleging that there was legally insufficient evidence to support the burglary

conviction, the portion of Claim 7 alleging that trial counsel was ineffective for failing to

cross-examine Bour, and Claim 8, which alleges ineffective assistance of appellate

counsel. As for the remaining claims, they are procedurally defaulted and Petitioner has

not shown cause, prejudice or actual innocence. Accordingly, the procedurally defaulted

claims are denied.

Non-Cognizable Claims

Respondent alternatively maintains that many of Petitioner’s claims are “not

cognizable” in a § 2254 habeas proceeding since they allege violations of state law.

Specifically, Respondent contends that the following claims are non-cognizable: Claim

3;9 Claim 4;10 the portion of Claim 5 alleging that the prosecution failed under New York’s

Criminal Procedure Law to provide notice that Bour would be providing identification

9 Claim 3 alleges that the charges for Possession of a Forged Instrument and Possession of Stolen

Property were not included in the felony complaint, and there was no evidence as to those crimes

introduced in the Grand Jury.

10 Claim 4 alleges a “speedy trial” violation based on CPL § 30.30, or on the fact that Petitioner was taken

into custody on July 28, 2010, and his trial did not begin until March 2012.

testimony ; Claim 6;11 and Claim 10.12 The pro se Petitioner has not offered any legal

argument in response, nor can his papers be liberally construed to raise any meritorious

argument in that regard.

“A claim that a state conviction was obtained in violation of state law is not

cognizable in the federal court. Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) (citing

Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) and Dunnigan

v. Keane, 137 F.3d 117, 125 (2d Cir.1998)); see also, Guerrero v. LaManna, 325 F. Supp.

3d 476, 483 (S.D.N.Y. 2018) (“The role of federal courts reviewing habeas petitions is not

to re-examine the determinations of state courts on state law issues, but only to examine

federal constitutional or statutory claims. 28 U.S.C. § 2254(a); see Estelle v. McGuire,

502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Federal courts deciding

habeas petitions do not serve as appellate courts to review state court decisions of state

law claims. Their purpose instead is to review whether the circumstances surrounding the

petitioner's detention “violate fundamental liberties of the person, safeguarded against

state action by the Federal Constitution.” Townsend v. Sain, 372 U.S. 293, 311-312, 83

S.Ct. 745, 9 L.Ed.2d 770 (1963). Habeas petitions may not simply repackage state law

claims, which have previously been found to be meritless, in order to obtain review.

DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004).”).

As a preliminary matter, Respondent contends that Claim 4, alleging a speedy-trial

violation, is not cognizable insofar as it is based on NY CPL § 30.30. However, the Court

11 Claim 6 alleges that Petitioner did not receive a “felony complaint hearing” following his arraignment on

the felony complaint on September 7, 2010, but, instead, on September 13, 2010, he was held for action

of the Grand Jury.

12 Claim 10 alleges a “missing witness” claim, relating to the fact that there was no testimony at trial from

three persons who were included on the prosecution’s witness list, namely, the Wegmans cashier who

processed the transaction involving the stolen credit card, the police investigator who executed a search

warrant or the police investigator who sent out the Crime Information Bulletin.

liberally construes Claim 4 as also alleging a Sixth Amendment13 speedy trial claim

unrelated to CPL § 30.30, based on the total amount of time between his arrest, in August

2010, and trial, in March 2012, implicating federal rights. See, Smith v. LaClair, No. 04

CIV. 4356 (SAS), 2008 WL 728653, at *3 (S.D.N.Y. Mar. 17, 2008) (“The right to a speedy

trial is a fundamental right guaranteed by the Sixth Amendment to the United States

Constitution which is imposed on the States through the Due Process Clause of the

Fourteenth Amendment.”) (citation omitted). That portion of the claim is procedurally

defaulted, as already discussed, but it would be cognizable.14

The Court agrees, though, that the other claims that Respondent has identified as

“non-cognizable” are based on New York State law and are therefore non-cognizable in

this proceeding. For example, to the extent Petitioner believes that the trial court erred in

denying his speedy trial motion under CPL § 30.30, the claim is not cognizable. See,

Smith v. LaClair, No. 04 CIV. 4356 (SAS), 2008 WL 728653, at *3 (S.D.N.Y. Mar. 17,

2008) (“[A] violation of a state statute such as CPL § 30.30 is not cognizable on federal

habeas review. . . . C.P.L. § 30.30 sets forth a statutory time frame in which the People

of the State of New York must be ready for trial; Section 30.30 is not, as such, a statutory

embodiment of the constitutional guarantee to a speedy trial. Because C.P.L. § 30.30 is

merely a state law provision requiring the prosecution to be ready for trial, a § 30.30 claim

does not raise a federal constitutional claim. Thus, even if the trial court violated CPL §

30.30 by failing to hold an evidentiary hearing, such failure cannot support a due process

claim in a federal habeas proceeding.”).

13 Petitioner’s reply expressly references a Sixth Amendment speedy trial claim.

14 As discussed below, in addition to being denied as procedurally defaulted, the claim also lacks merit.

Similarly, Petitioner’s contention that the prosecutor was required to provide a

notice under CPL § 710.30, concerning Bour’s testimony, is not cognizable. See, e.g.,

Green v. Kirkpatrick, No. 9:16-CV-1407 (FJS), 2017 WL 4174794, at *6 (N.D.N.Y. Sept.

19, 2017) (“Regarding Petitioner's claims that the trial court should have precluded the

victim's call to 911 and a photo array identification because the prosecutor failed to serve

timely notice of intent to offer this evidence at trial under CPL § 710.30, the Court

dismisses these claims as not cognizable because they involve only the prosecution's

alleged failures to comply with a state procedural rule.”); see also, Arroyo v. Racette, No.

6:15-CV-06177 (MAT), 2016 WL 5468112, at *3 (W.D.N.Y. Sept. 29, 2016) (“To the extent

that petitioner argues that the state statute was violated because the People failed to

serve a proper § 710.30 notice, that claim is not cognizable on habeas review.”).

The same goes for Petitioner’s contentions that he could not be indicted for crimes

that were not included in the felony complaint, that there were deficiencies in the grand

jury proceedings, that he did not receive a felony complaint hearing, and that the People

were required to have testify at trial all of the persons on their witness list. See, e.g.,

Watkins v. Colvin, No. 16CV04055LAPBCM, 2019 WL 8274256, at *20 (S.D.N.Y. Aug.

30, 2019) (“[Petitioner challenges] the People’s compliance with CPL § 180.10[, which]

statute gives a defendant arraigned on a felony complaint the right to a prompt probable

cause hearing; the failure to provide such a hearing, however, does not constitute a

constitutional violation.”), report and recommendation adopted, No. 16CIV4055LAPBCM,

2020 WL 1436708 (S.D.N.Y. Mar. 23, 2020); see also, Davis v. Mantello, 42 F. App'x 488,

490 (2d Cir. 2002) (“Claims of deficiencies in state grand jury proceedings are not

cognizable in a habeas corpus proceeding in federal court.”); Proctor v. McCarthy, No.

19CV2988GBDJLC, 2020 WL 1149660, at *9 (S.D.N.Y. Mar. 10, 2020) (“[I]t is well-

settled that claims based on the sufficiency of the evidence presented to a state Grand

Jury are not cognizable under federal law and thus are not reviewable in a habeas corpus

petition.”) (citation omitted). In that regard, while Petitioner does not identify a particular

state law in connection with each of those claims, it appears nonetheless he is relying on

his understanding of state law, as there is no indication that he is relying on federal law.

Consequently, the following claims are denied as not cognizable: Claim 3; Claim

4 insofar as it is based on CPL 30.30; the portion of Claim 5 alleging a violation of CPL §

710.30; Claim 6; and Claim 10.

The Cognizable Claims Lack Merit

To summarize the foregoing discussion, the only cognizable claims in the Petition

are Claim 1 (legal insufficiency of burglary conviction), Claim 2 (legal insufficiency of

evidence to convict under Counts II and III), Claim 4 (insofar as it alleges a federal

constitutional speedy trial violation), Claim 7 (ineffective assistance of trial counsel based

on counsel’s failure to cross-examine Bour, counsel’s failure to object to the testimony of

the Wegmans employees on the grounds that they were not present in the store when

the credit card was used, and counsel’s failure to make a pretrial motion based on the

fact that some charges in the Indictment had not been included in the Felony Complaint),

Claim 8 (ineffective assistance of appellate counsel based on counsel’s improper

admission in the appellate brief that Petitioner had possessed stolen property and been

seen in possession of stolen property, counsel’s failure to argue that the charges for

Criminal Possession of a Forged Instrument and Criminal Possession of Stolen Property

were not included in the Felony Complaint, counsel’s failure to argue that there was no

evidence that Petitioner had used a stolen credit card or been in possession of stolen

property, counsel’s failure to argue that Petitioner had been denied a felony hearing,

counsel’s failure to argue that Petitioner was denied the opportunity to appear in the

Grand Jury and counsel’s failure to argue on appeal that the “whole case against

Petitioner was based on hearsay”) an Claim 9 (insufficient evidence that Petitioner

possessed stolen property). Claim 9 is redundant of Claim 2.15 Consequently, the

Petitioner really presents just five cognizable claims: Legal insufficiency of evidence to

support the burglary conviction, legal insufficiency of evidence to convict under Counts II

and III of the Indictment, ineffective assistance of trial counsel and ineffective assistance

of appellate counsel. Of these, as already discussed, the only exhausted claims are for

the legal insufficiency of the burglary conviction claim and the ineffective assistance of

trial counsel claim relating to counsel’s failure to cross-examine Bour. The remaining

claims are procedurally defaulted. Nevertheless, for the reasons discussed below, these

claims also lack merit.

Sufficiency of the Evidence

The Court earlier referred to the standard for evaluating challenges to the

sufficiency of evidence in its discussion of “actual innocence”:

A challenge to the sufficiency of the evidence [is] amenable to federal

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

(citing Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) ). To analyze the

sufficiency of the evidence of a state conviction, “‘[a] federal court must look

to state law to determine the elements of the crime.’” Ponnapula, 297 F.3d

at 179 (quotation omitted). A habeas petition challenging the sufficiency of

the evidence supporting a state-court conviction fails if “any rational trier of

fact could have found the essential elements of the crime beyond a

15 Claim 9 also contains a reference to “uncharged crimes,” by which Petitioner means that he was

improperly convicted of the “uncharged crimes” of possessing the stolen bicycle and backpack. However,

Count III of the Indictment charged Petitioner with criminal possession of stolen property based on his

possession of the stolen credit card, and the trial court clearly instructed the jury that to convict Petitioner

under Count III of the indictment is would need to find that he criminally possessed stolen property

consisting of ”a credit card or debit card.” ECF No. 12-3 at p. 801. It is unclear why Petitioner believes

that he was convicted for possessing the bicycle or the backpack, but, regardless, the argument lacks

merit in addition to being unexhausted.

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

in original). This standard places a “‘heavy burden’” on a habeas petitioner.

See United States v. Parkes, 497 F.3d 220, 225 (2d Cir. 2007) (quotation

and other citations omitted). When making its determination, the court is

required to “consider the evidence in the light most favorable to the

prosecution and make all inferences in its favor.” Fama v. Comm'r of Corr.

Servs., 235 F.3d 804, 811 (2d Cir. 2000).

Chaplin v. Kirkpatrick, No. 917CV00718MADDEP, 2018 WL 6605917, at *4 (N.D.N.Y.

Dec. 17, 2018).

Burglary in the Second Degree

Under New York Law, “[a] person is guilty of burglary in the second degree when

he knowingly enters or remains unlawfully in a building with intent to commit a crime

therein, and when: . . . 2. The building is a dwelling.” PL § 140.25(2). Here, Petitioner

contends that the evidence was insufficient to support his conviction for Burglary in the

Second Degree, stating:

There was no testimony at trial that [I] was seen at or near the home. No

fingerprints or DNA evidence of [mine was found] at the home. [I] was never

found in possession of burglary tools. No one [said] I did it. The home was

not even broke[n] into. There is testimony at trial on this issue. Well, there

was but they gave testimony [that] the home was not broke into at all.

Pet. (ECF No. 1) at p. 5.

Petitioner’s arguments on this point lack merit. It is undisputed that no one saw

Petitioner commit the burglary or possess burglar’s tools, and it is further undisputed that

no evidence was found directly linking him to the burglary such as fingerprints or DNA.

The Prosecution never claimed otherwise. Rather, the Prosecution argued that the jury

could reasonably infer that Petitioner committed the burglary under the theory of recent

and exclusive possession, since he was observed on videotape shortly after the burglary,

slightly more than a mile away from the crime scene, in possession of items taken from

the home, namely, the bicycle, the backpack and the credit card, which only the burglar

would likely have.

In evaluating the sufficiency of the evidence supporting a state conviction,

“[a] federal court must look to state law to determine the elements of the

crime.” Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir.1999). In cases

involving stolen property, such as robberies and burglaries, New York

utilizes a “recent and exclusive possession presumption,” which provides

that “evidence of unexplained or falsely explained possession of recently

stolen property is sufficient to establish a prima facie case and to enable a

jury to find guilt beyond a reasonable doubt.” People v. Baskerville, 60

N.Y.2d 374, 382, 469 N.Y.S.2d 646, 457 N.E.2d 752 (1983). In other words,

“the recent possession of the fruits of crime is evidence of the crime itself,

as of robbery, burglary.” Knickerbocker v. People, 43 N.Y. 177, 181 (1870).

If a defendant is able to provide a reasonable explanation for possessing

the stolen property, or if there is reasonable evidence to suggest that the

defendant received the stolen property from another person, then a jury may

conclude that the defendant was a part of the underlying theft or merely

received the stolen property from someone else. See Baskerville, 60 N.Y.2d

at 382-83, 469 N.Y.S.2d 646, 457 N.E.2d 752. However, if there is no

evidence showing that a defendant received the stolen property from

someone else, or if a defendant makes no attempt to explain the possession

or provides a false explanation, then a jury may infer that he was the thief.

Id. See also, e.g., People v. Everett, 10 N.Y.2d 500, 508–10, 225 N.Y.S.2d

193, 180 N.E.2d 556 (1962). This inference, if accepted by a jury, is

sufficient to find a defendant guilty beyond a reasonable doubt. See, e.g.,

Baskerville, 60 N.Y.2d at 382, 469 N.Y.S.2d 646, 457 N.E.2d 752; People

v. Shurn, 69 A.D.2d 64, 68, 418 N.Y.S.2d 445 (2d Dep't 1979) (holding that

the inference is “sufficient to constitute prima facie proof of the identity of

the possessor as the perpetrator of the crime”).

Walker v. Brown, No. 08-CV-1254 (BMC), 2009 WL 2030618, at *4 (E.D.N.Y. July 10,

2009).16 Petitioner avoids this point, and instead, insists that he cannot be guilty of

16 See, Stenson v. Heath, No. 11 CIV. 5680 RJS AJP, 2012 WL 48180, at *5 (S.D.N.Y. Jan. 10, 2012)

(Explaining that the doctrine of recent and exclusive possession “is based on People v. Galbo, which held

that: “It is the law that recent and exclusive possession of the fruits of crime, if unexplained or falsely

explained, will justify the inference that the possessor is the criminal. That rule has most frequently been

applied in cases of burglary and larceny and receiving stolen goods . . . .” People v. Galbo, 218 N.Y. 283,

burglary in the absence of some direct evidence thereof. Petitioner is mistaken, since

viewing the evidence in the light most favorable to the prosecution and drawing all

inferences in the prosecution’s favor, a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.

As for Petitioner’s contention that there was no evidence that the home was

“broken into,” he is referring to the fact that there was no evidence of forced entry. Rather,

the evidence indicated that the intruder entered the home through an unlocked door.

However, Petitioners’ argument again lacks merit, since there was clearly sufficient

evidence that a burglary occurred. To the extent Petitioner contends that there needed

to be additional evidence of a forced entry, he is mistaken. See, High v. Miller, No. 16-

CV-00984 (JFB), 2017 WL 1629139, at *9 (E.D.N.Y. May 2, 2017) (“Contrary to

petitioner's contention, burglary in the second degree can be charged even absent forced

entry. See People v. Melendez, 613 N.Y.S.2d 867, 867-68 (N.Y. App. Div. 1994)

(affirming defendant's conviction of second-degree burglary even though defendant

contended that the People did not prove that defendant's entry into the home was unlawful

because “there was no evidence of forced entry”); People v. Cooper, 571 N.Y.S.2d 114,

115-16 (N.Y. App. Div. 1991) (affirming defendant's conviction of burglary in the second

degree when no signs of forced entry into the residence existed)”).

290, 112 N.E. 1041 (1916) (Cardozo, J.) (citations omitted)), report and recommendation adopted, No.

11-CV-5680 RJS AJP, 2015 WL 3826596 (S.D.N.Y. June 19, 2015).

Criminal Possession of a Forged Instrument in the Second Degree

Criminal Possession of Stolen Property in the Fourth Degree

Petitioner also contends, in Claim 2, that there was insufficient evidence to find

him guilty of Criminal Possession of a Forged Instrument in the Second Degree and

Criminal Possession of Stolen Property in the Fourth Degree, stating:

There was no testimony at trial that Keith Carmel signed a receipt and the

defendant was never found in possession of any kind of forged instrument

of any kind. There was no testimony at trial on this issue. As well there

was no testimony at trial that the defendant used a credit card and/or was

found in possession of a stolen credit card. No one said I did it. There are

no felony complaints on these (2) charges.17

Pet., ECF 1 at p. 7.

Under New York Law, “[a] person is guilty of criminal possession of a forged

instrument in the second degree when, with knowledge that it is forged and with intent to

defraud, deceive or injure another, he utters or possesses any forged instrument of a kind

specified in section 170.10.” PL § 170.25 (McKinney). PL § 170.10(1) includes a

“contract, assignment, commercial instrument, credit card, as that term is defined in

subdivision seven of section 155.00, or other instrument which does or may evidence,

create, transfer, terminate or otherwise affect a legal right, interest, obligation or

status[.]”18 A forged credit card receipt is included under the definition in PL § 170.10(1).

See, People v. Le Grand, 81 A.D.2d 945, 946, 439 N.Y.S.2d 695, 697 (1981) (“[W]e

17 This last sentence relates to Petitioner’s incorrect and non-cognizable assertion that under New York

law he could not be indicted for a crime that had not previously been included in a felony complaint.

18 At trial the court instructed the jury that to convict defendant it would need to find, in part, that “the

defendant, Keith Edward Carmel, uttered or possessed a forged instrument which is or purports

to be or which is calculated to become or to represent, if completed, an instrument which does or may

evidence, create, transfer, terminate, or otherwise effect a legal right, interest, obligation or status. Here,

the Wegmans receipt, which was received in evidence as Exhibit Number 6.” ECF No. 12-3 at pp. 797–

798.

recognize that a credit card receipt or voucher constitutes a “written instrument” for

purposes of the forgery statute (see Penal Law, § 170.00, subd. 1).”).

Under New York Law, “[a] person is guilty of criminal possession of stolen property

in the fourth degree when he knowingly possesses stolen property, with intent to benefit

himself or a person other than an owner thereof or to impede the recovery by an owner

thereof, and when: . . . 2. The property consists of a credit card, debit card or public benefit

card[.]” PL § 165.45(2) (McKinney).

At trial, the video and electronic evidence from Wegmans together indicated that

the person shown on video, whose face was visible and who Bour further identified as

Petitioner, paid for the purchase by swiping the stolen credit card, which he possessed at

that time, through the card reader, signed the electronic keypad and then exited the store

with the merchandise and the forged credit card receipt. Accordingly, a rational trier of

fact could have found the essential elements of both Criminal Possession of a Forged

Instrument in the Second Degree and Criminal Possession of Stolen Property in the

Fourth Degree beyond a reasonable doubt. Consequently, Petitioner’s legal insufficiency

arguments (Claim 1 and Claim 2 in the Petition) lack merit.

Speedy Trial

As discussed earlier, as part of Claim 4 the Petition states: “I was incarcerated

from July 28, 2010 to date trial did not start til March 2012.” [sic]. The Court liberally

construes this statement to raise a Sixth Amendment speedy trial claim.

The determination of whether pre-trial delay violates the Sixth Amendment

is governed by Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972), which identified four factors “courts should assess in

determining whether a particular defendant has been deprived of his right[:]

Length of delay, the reason for the delay, the defendant's assertion of his

right, and prejudice to the defendant.” Barker further instructed that the

weight given to the individual factors must be evaluated on a case-by-case

basis[.]

Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003). On this point, the Second Circuit has

further stated:

“Whether a criminal defendant's right to a speedy trial has been violated is

circumstance-dependent and determined by the multi-factor balancing test

established in” Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d

101 (1972), which “weighs ‘the conduct of both the prosecution and the

defendant’ by evaluating several factors, ‘some’ of which include the

‘[l]ength of delay, the reason for the delay, the defendant's assertion of his

right, and prejudice to the defendant.’” United States v. Ray, 578 F.3d 184,

191 (2d Cir.2009) (quoting Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182);

see also Davis v. Kelly, 316 F.3d 125, 127 (2d Cir.2003) (applying Barker

factors in reviewing denial of § 2254 petition). These factors “must be

considered together with such other circumstances as may be relevant,”

and “have no talismanic qualities.” Barker v. Wingo, 407 U.S. at 533, 92

S.Ct. 2182. Rather, they require courts to “engage in a difficult and sensitive

balancing process.” Id.

Smith v. La Clair, 353 F. App'x 486, 487 (2d Cir. 2009).

Here, the period at issue between Petitioner’s arrest and the start of the trial is

nineteen months. Petitioner was in custody that entire time, but he was jailed only four

months while awaiting trial on the subject charges. During the remaining fifteen months,

Petitioner was in state prison serving his sentence for a parole violation.19 The People

first announced their readiness for trial on February 28, 2011, one year before the trial

began. Argument of motions was scheduled for April 2011. On April 4, 2011, the trial

court scheduled the trial to begin on October 4, 2011, without objection. On May 2, 2011,

Petitioner complained that he wanted a new attorney, and the trial court further adjourned

the argument of motions, until May 23, 2011, to allow defense counsel time to meet with

19 Petitioner’s reply indicates that he was released from state custody on October 31, 2011, four months

before the trial began. The trial court set bail, which Petitioner was unable to post.

Petitioner. On May 23, 2011, the trial court further adjourned the matter until June 6,

2011, at the request of defense counsel. On June 6, 2011, the matter was adjourned for

an additional week after Petitioner reportedly refused to come to court. The next

appearance was on June 20, 2011, for a status conference and argument of motions.

The trial court ruled on the motions and reiterated that the trial was still set to begin on

October 4, 2011. In the meantime, Petitioner renewed his request for new counsel, and,

on September 12, 2011, the trial court granted that application and appointed new

counsel. However, before granting the application, the court asked Petitioner whether he

understood that the trial (which was scheduled to begin in less than a month) would be

delayed if the court did so, to allow the new attorney time to prepare, to which Petitioner

responded, “All right. I understand.”20 The court then appointed new counsel, and new

counsel requested an adjournment until October 3, 2011, to allow him to review the file.

On October 3, 2011, defense counsel filed additional motions on Petitioner’s behalf, and

the court set a new trial date of February 27, 2012, without objection. On February 24,

2012, defense counsel filed a motion to dismiss on speedy trial grounds pursuant to CPL

§ 30.30. On February 27, 2012, the trial court indicated that it was considering the motion,

and that the trial would begin on February 28th. However, on February 28, 2012, the Hall

of Justice in Rochester was closed due to a power outage. On February 29, 2012, the

trial court conducted a hearing on the speedy trial application, denied the motion, and

began jury selection. On March 1, 2012, the jury was sworn.

Again, this claim is unexhausted, since Petitioner never asked any state court to

consider whether the nineteen-month period between his arrest and trial resulted in a

20 ECF No. 12-3 at p. 27.

violation of his Sixth Amendment rights. Nevertheless, the claim lacks merit since the

facts in no way support a Sixth Amendment violation. There was no unreasonable delay,

and what delays there were occurred at the request of, or due to the actions of, Petitioner.

Petitioner did not assert any speedy trial right until the eve of trial. Moreover, Petitioner

has not made any showing of prejudice. Consequently, even assuming that the speedy

trial claim had been exhausted, the Court would deny it on the merits.21

Ineffective Assistance of Trial Counsel

Petitioner contends that his trial attorney provided ineffective assistance of

counsel in violation of his Sixth Amendment rights. As already mentioned,

Petitioner specifically contends that counsel was ineffective in three respects: He

failed to cross-examine Bour concerning his identification of Petitioner; he failed to

object to the testimony of a Wegman’s employee who testified concerning

electronic records but was not present at the store when the credit card was used;

and he failed to filed a pre-trial motion objecting to the fact that Counts II and III of

the Indictment (Criminal Possession of a Forged Instrument and Criminal

Possession of Stolen Property) were not included in the Felony Complaint. Only

the first ground is exhausted, but all three grounds lack merit.

21 See, Wilson v. Henderson, 584 F.2d 1185, 1192 (2d Cir. 1978) (“Wilson complains that the twenty

month interval between his indictment and his trial violated his Sixth Amendment right to a speedy trial.

The delay appears to have been caused largely by adjournments requested by defense counsel. When

original counsel was [replaced,] further postponement was necessary in order to give the new counsel

time to familiarize himself with the case. The petitioner did not object to the delay until one month before

trial, and there was no indication that he was prejudiced by the delay. Under these circumstances, Wilson

has not suffered a violation of his Sixth Amendment right to a speedy trial. See Barker v. Wingo, 407 U.S.

514, 530-532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States ex rel. Spina v. McQuillan, 525 F.2d

813, 817-818 (2d Cir. 1975); United States v. Drummond, 511 F.2d 1049, 1054 (2d Cir.), cert. denied 423

U.S. 844, 96 S.Ct. 81, 46 L.Ed.2d 65 (1975); United States v. Infanti, 474 F.2d 522, 527-528 (2d Cir.

1973).”).

The familiar test set forth in Strickland v. Washington, 466 U.S. 668 (1984),

for evaluating an ineffective assistance of counsel claim has two prongs. The first

requires showing that counsel's performance “fell below an objective standard of

reasonableness.” Id. at 688, 694. “Constitutionally effective counsel embraces a

‘wide range of professionally competent assistance,’ and ‘counsel is strongly

presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.’” Greiner v. Wells,

417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). Fulfilling

the second prong of an ineffective assistance claim requires a showing of prejudice

which translates to “a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. “The habeas petitioner bears the burden of establishing both deficient

performance and prejudice.” Greiner, 417 F.3d at 319 (citing United States v.

Birkin, 366 F.3d 95, 100 (2d Cir. 2004)).

A defense attorney cannot be deemed ineffective for failing to pursue an

unmeritorious defense or application. See, United States v. Kirsh, 54 F.3d 1062,

1071 (2d Cir. 1995) (“[T]he failure to make a meritless argument does not rise to

the level of ineffective assistance, see United States v. Javino, 960 F.2d 1137,

1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477, 121 L.Ed.2d 383 (1992),

and “strategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable[.]” Strickland v. Washington, 466

U.S. at 690, 104 S.Ct. at 2066; United States v. Eisen, 974 F.2d 246, 265 (2d

Cir.1992), cert. denied, 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993);

United States v. Aguirre, 912 F.2d 555, 560 (2d Cir.1990).”).

Petitioner’s contention that counsel was ineffective for failing to cross-

examine Bour lacks merit since counsel expressly indicated that he made a

strategic decision not to do so, and that decision was reasonable. In particular,

counsel wanted to avoid any testimony concerning the fact that Bour was a parole

officer who was familiar with Petitioner from having supervised him on parole for

over a decade. In any event, the failure to cross-examine Bour was insignificant

since the video evidence was clear enough that the jury was free to decide for itself

whether Petitioner was the person shown on the video, and the jury was instructed

that it could not convict Petitioner unless it was convinced beyond a reasonable

doubt that Petitioner was the person who committed the crimes.22

Petitioner’s contention that his attorney was ineffective for failing to object

to the testimony of a Wegmans employee, who testified concerning information in

the store’s computer system, on the ground that she was not present when the

stolen credit card was used, also lacks merit since it incorrectly assumes that was

a valid objection. In any event, defense counsel objected to the introduction of that

evidence on other grounds, and he strenuously cross-examined the witness about

the reliability of the Wegmans computers.

Finally, Petitioner’s contention (apparently based on nothing more than his

subjective opinion) that his attorney should have filed a motion objecting to the fact

that Counts II and III of the indictment were not included in the felony complaint,

also lacks merit, since such an application would have failed:

As for Petitioner's claim that his trial counsel should have challenged the

discrepancy between the Felony Complaint and the Indictment, New York

law offers no ground for such a challenge. Rather, the law provides that,

22 ECF No. 12-3 at p. 787.

while a felony complaint serves as the basis for the commencement of a

criminal action, see N.Y.C.P.L. § 100.10(5), that instrument is superseded,

and thus rendered legally irrelevant for purposes of challenging a

subsequent conviction, by the grand jury's decision to indict, see Brown v.

Perlman, No. 03cv2670 (RJH), 2006 WL 2819654, at *6 (S.D.N.Y. Sept. 29,

2006) (“[T]he grand jury indictment superceded any prior accusatory

actions, rendering any alleged pre-indictment deficiencies irrelevant.”);

People v. Smith, 757 N.Y.S.2d 491, 491 (2d Dep't 2003) (“[E]ven if the

felony complaint was defective, it was superseded by a valid indictment,

rendering any claim regarding a purported defect in the felony complaint

academic.”). In deciding whether to issue an indictment, the grand jury is

free to make an “independent determination that there is legally sufficient

evidence that crimes have been committed and reasonable cause to believe

that the defendant committed the crimes charged,” regardless of what

information appears in the initial accusatory instrument. Black, 705

N.Y.S.2d at 698 (citing People v. Wicks, 76 N.Y.2d 128, 133 (1990)).

Indeed, New York law does not prohibit the grand jury from returning an

indictment even on charges that were not included in a prior felony

complaint. See N.Y.C.P.L. § 190.65(2).

McKelvey v. Bradt, No. 13CV3527 (CM) (DF), 2016 WL 3681457, at *15 (S.D.N.Y.

July 6, 2016) (emphasis added).

Ineffective Assistance of Appellate Counsel

Petitioner contends that his appellate attorney provided ineffective assistance of

counsel in violation of his Sixth Amendment rights. As already mentioned, Petitioner

specifically contends that appellate counsel was ineffective by admitting, in the appellate

brief, that Petitioner had possessed stolen property and been seen in possession of stolen

property. Petitioner further contends that appellate counsel should have argued that

Petitioner’s speedy trial rights were violated, that the charges for Criminal Possession of

a Forged Instrument and Criminal Possession of Stolen Property were not included in the

Felony Complaint, that there was no evidence that Petitioner had used a stolen credit

card or been in possession of stolen property, that Petitioner had been denied a felony

hearing, that Petitioner did not have the opportunity to appear in the Grand Jury and that

the “whole case against Petitioner was based on hearsay.” This entire claim is

unexhausted and lacks merit in any event.

As a preliminary matter, Petitioner’s assertion, that appellate counsel harmed him

by conceding that he possessed stolen property and/or that he was seen in possession

of stolen property, is unfounded. Rather, appellate counsel merely stated, as part of a

legal argument directed at the burglary conviction, that the evidence viewed in the light

most-favorable to the prosecution merely showed Petitioner to be in possession of stolen

property: “That video, viewed in a light most favorable to the People, showed that

sometime after the burglary (perhaps hours afterwards) an individual, later identified as

Mr. Carmel, with some of the items taken in the burglary. While that evidence might suffice

for possession of stolen property or forgery convictions, it cannot sustain a conviction for

burglary.”23 Appellate counsel made a few additional statements in that same vein and

context, namely, that while the evidence viewed in the light most-favorable to the

prosecution might have shown Petitioner in possession of stolen property, that was

insufficient evidence of guilt. Appellate counsel’s statements in that regard do not amount

to ineffective assistance of counsel, but, rather, they were factually correct and part of a

sound strategy to primarily attack the legal sufficiency of the burglary conviction, for which

Petitioner was sentenced to sixteen years to life.

As for the remainder of the claim, that appellate counsel failed to raise certain

arguments on appeal, the applicable legal principles are clear:

With respect to claims of ineffective assistance of appellate counsel, the

Supreme Court has also held, as relevant here, that “appellate counsel who

files a merits brief need not (and should not) raise every nonfrivolous claim,

23 ECF No. 12-2 at p. 84.

but rather may select from among them in order to maximize the likelihood

of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746,

145 L.Ed.2d 756 (2000) (describing Barnes, 463 U.S. 745, 103 S.Ct. 3308);

see also Lynch v. Dolce, 789 F.3d 303, 319 (2d Cir. 2015).

Chrysler v. Guiney, 806 F.3d 104, 118 (2d Cir. 2015). “Counsel's failure to raise a claim

on appeal constitutes “constitutionally inadequate performance” where “counsel omitted

significant and obvious issues while pursuing issues that were clearly and significantly

weaker.” Morales v. United States, 651 F. App'x 1, 5 (2d Cir. 2016) (quoting Mayo v.

Henderson, 13 F.3d 528, 533 (2d Cir.1994), also citing Jackson v. Leonardo, 162 F.3d

81, 85 (2d Cir.1998)).

Here, none of the points raised by Petitioner involve “significant and obvious

issues” that were “clearly and significantly” stronger than the issues raised by appellate

counsel. Rather, to the extent that they have any potential merit at all,24 the issues raised

by Petitioner are weaker than the issues that appellate counsel actually raised.

Consequently, even if the claim was exhausted it would be denied on the merits.

CONCLUSION

The application under 28 U.S.C. § 2254 is denied. The Clerk of the Court is

directed to close this case. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a

certificate of appealability, since Petitioner has not made a substantial showing of the

denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. §

1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to

appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States,

369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be

24 Some of them are clearly meritless for reasons already discussed.

directed on motion to the United States Court of Appeals for the Second Circuit in

accordance with Rule 24 of the Federal Rules of Appellate Procedure.

So Ordered.

Dated:Rochester, New York

November 5, 2020

ENTER:

. . ti

CHARLES/J. Sl USA

United States District Judge

37