Liggins v. Capra

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JEFFREY LIGGINS, :

Petitioner, : MEMORANDUM DECISION

-V- : 21-CV-6458 (DC)

MICHAEL CAPRA, Superintendent, :

Respondent. :

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APPEARANCES: JEFFREY LIGGINS

Petitioner Pro Se

Green Haven Corrections

P.O. Box 4000

Stormville, NY 12582

ERIC GONZALEZ, Esq.

Kings County District Attorney

By: Rebecca Height, Esq.

Assistant District Attorney

350 Jay Street

Brooklyn, New York 11201

Attorney for Respondent

CHIN, Circuit Judge:

On July 2, 2015, following a jury trial, Petitioner Jeffrey Liggins was

convicted in the Supreme Court of the State of New York, Kings County (Harrington,

J.), of two counts of criminal sexual act in the second degree and four counts of sexual

abuse in the second degree. Dkt. 10 at 866-68. The Appellate Division, Second

Department, affirmed his convictions, People v. Liggins, 124 N.Y.S.3d 851 (2d Dep't 2020)

("Liggins I"), and the New York Court of Appeals denied his application for leave to

On November 18, 2021, Liggins filed this petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Dkt. 1. Respondent, represented by

the District Attorney of Kings County, filed its opposition to the Petition on February 7,

2022. Dkt. 9.

On October 25, 2023, the case was reassigned to the undersigned.

For the reasons that follow, the Petition is DENIED.

STATEMENT OF THE CASE

A. The Facts’

On August 2, 2012, thirteen-year-old K.R. helped his boss Liggins, a forty-

six-year-old owner of a charter bus company, clean buses until 10:00 p.m. in a Foster

Avenue bus lot owned by Liggins. Dkt. 10 at 949, 955. K.R. then accompanied Liggins

to his "office," an apartment in Brooklyn. Id. at 949. At the apartment, Liggins

instructed K.R. to sleep in Liggins's bedroom and to take NyQuil. Id. K.R. complied,

even though he was not sick. Id.

1 The facts are drawn from the People's brief on the direct appeal to the Appellate Division,

which was filed in this Court as part of Respondent's Opposition to the Petition. A more

detailed recitation of facts, which does not bear repeating, is set forth in the state appellate brief

and is supported by detailed citations to the record, including the trial transcript. See Dkt. 10 at

948-99.

At approximately 2:00 a.m., Liggins sexually assaulted K.R. by performing

anal and oral sex on him while K.R. pretended to sleep. Id. The morning after, Liggins

drove K.R. back to his mechanic shop, where K.R. then called his father to pick him up.

On their drive home, K.R. told his father what happened. Id. at 958. K.R.'s father took

K.R. home and called the police. Id. at 959. When K.R.'s mother arrived home later that

day, she found that K.R. was "[q]uiet and off to himself," and also made a call to the

police department. Id. Police Officer Christopher Schlit responded to K.R.’s residence

and found that K.R. was "very upset" and "embarrassed." Id. Officer Schlit took K.R.

and his mother on a canvass of the neighborhood so that K.R. could identify the

apartment where the incident occurred. Id. K.R. identified Liggins's basement

apartment. Id. Officer Schlit knocked but there was no answer at the door. Id.

Officer Schlit then took K.R. and his mother to Kings County Hospital. Id.

The triage nurse interviewed K.R. and rated him as "level two" on the Emergency

Severity Index, meaning that the urgency of his treatment was "critical." Id K.LR.

brought with him his boxer shorts (on which Liggins had ejaculated) and Q-tips with

which K.R. had swabbed himself and gave them to Officer Schlit. Id. At approximately

8:00 p.m., Samantha Joseph, an examiner on the hospital's Sexual Assault Response

Team, met with K.R., who consented to "a full head to toe forensic exam." Id. at 960.

Joseph used a sexual assault evidence collection kit, and collected swabs from K.R.'s

mouth, neck, abdomen and penis. She also collected the underwear he wore to the

hospital that day. Joseph documented that K.R. was cooperative, but had a "flat affect,"

was "emotionless," and appeared to be "traumatized." Id.

At approximately 9:50 p.m., Police Officer Robert Kropp, a member of the

Brooklyn South Evidence Collection Team, arrived at Kings County Hospital and spoke

to K.R., who he observed had a "[vJery shy" demeanor. Id. Officer Schlit gave the boxer

shorts and Q-tips that K.R. had given him earlier to Officer Kropp. Id. at 960-61.

Joseph also released the sexual assault evidence collection kit, which included the

underwear she had collected from K.R., to Officer Kropp. Id. at 961. Officer Kropp then

"vouchered" the boxer shorts, Q-tips, and the sexual assault evidence collection kit. Id.

The vouchered evidence was sent to the forensic biology laboratory of the Office of the

Chief Medical Examiner ("OCME") for further investigation. Id.

Detective Joseph Singletary, a member of the Brooklyn Special Victims

Unit, was called to Kings County Hospital and met with K.R. and K.R.’s parents. Id.

Detective Singletary noted that K-R. was "clearly upset" and "shaking." Id. After

speaking with K.R. and both of K.R.’s parents, Detective Singletary identified Liggins as

suspect. Id. On August 16, 2012, Detective Singletary arrested Liggins. Id. On

October 22, 2013, Detective Singletary executed a court order to take a swab from the

inside of Liggins's cheeks. Id. Detective Niurca Quinones, Detective Singletary's

colleague, assisted Detective Singletary in vouchering the swab. Id. at 597. Detective

Singletary then sent the swab to the OCME lab for DNA analysis. Id. at 962.

On August 6, 2012, OCME received the vouchered sexual assault evidence

collection kit, including K.R.’s underwear, and on February 15, 2013, OCME received

K.R.’s boxers and the vouchered Q-tips. Id. On October 24, 2013, OCME received the

buccal swab taken from Liggins. Id. at 963. These items were DNA tested, and Michael

McCasland, a criminalist at OCME, conclusively matched semen from K.R.’s boxer

shorts to Liggins's DNA. Id. at 966.

B. Procedural History

a. State Court Proceedings

1. The Trial Court

Later that year, Liggins was charged with two counts of criminal sexual

act in the second degree and four counts of sexual abuse in the second degree.” Id. at

950. At trial, K.R. -- who by then was 16 years old -- testified about his experience the

night of August 2, 2012, and the lasting effects the abuse had on him. Id. at 332-434.

K.R.'s father, Police Officers Schlit and Kropp, and Detectives Singletary and Quinones

also testified for the People, detailing their interactions with K.R. in the moments after

the assault. See id. at 452-555, 596-598. Doctor Anne Meltzer, an expert on child

psychology and sexual abuse, testified about common behaviors of sexual assault

victims. Id. at 567-581. Samantha Joseph testified for the People as well, explaining her

2 Defendant was also charged under the same indictment with other offenses that were either

dismissed or were not put to the jury.

treatment of K.R. at Kings County Hospital. Id. at 599-634. Finally, Michael McCasland

testified for the People, explaining his DNA analysis and how he concluded that the

semen on K.R.'s boxer’s matched Liggins's DNA. Id. at 635-93. Only Liggins testified

for the defense. Id. at 705-763.

The jury convicted Liggins on all counts. Id. at 866-68. The trial court then

adjudicated Liggins as a second child sexual assault felony offender pursuant to

N.Y.C.P.L. § 440.19° and thereafter sentenced Liggins to two consecutive 15-year prison

terms (a total of 30 years), with 20 years of post-release supervision on the criminal

sexual act counts, with concurrent one-year terms on the sexual abuse counts. Id. at 897.

2. The Direct Appeal

On May 30, 2019, Liggins, represented by counsel, appealed to the

Appellate Division, Second Department, arguing that (1) the admission of the DNA

evidence at trial denied him of his Sixth Amendment right to confront the witnesses

5 The court adjudicated Liggins as a second child sexual assault felony offender because he had

three prior convictions for sexual felonies against boys under the age of fifteen: (1) a 1994

conviction for Sexual Abuse in the First Degree, wherein Liggins pleaded guilty to sexually

abusing two male victims, aged twelve and fifteen, while claiming to be a Boy Scout leader and

providing NyQuil to one of the victims, (2) a 2003 conviction for Attempted Sexual Abuse in the

First Degree, wherein Liggins rubbed his penis against a nine-year-old boy, whom defendant

met while working at an overnight camp, and (3) a 2005 conviction for Attempted Sexual Abuse

in the First Degree, wherein Liggins had rubbed his penis against a nine-year old boy, whom

defendant met while volunteering at an after-school program. Dkt. 9 at 4-5.

against him; (2) his counsel was ineffective for failing to preserve the issue; and (3) his

sentence was excessive and should be reduced in the interest of justice. Id. at 901-39.

On July 8, 2018, the Appellate Division affirmed Liggins's convictions and

sentence. Liggins I, 124 N.Y.S.3d at 851. The court held that Liggins's argument that his

Sixth Amendment rights under the Confrontation Clause were violated was

unpreserved for appellate review and declined to review the issue in the exercise of its

interest of justice jurisdiction. Id. It also found that Liggins's argument that his counsel

was ineffective for failing to raise the Confrontation Clause issue was meritless, as the

issue was "not 'so clear-cut and dispositive that no reasonable defense counsel would

have failed to assert it." Id. (quoting People v. Rodriguez, 101 N.E.3d 977, 977 (N.Y. 2018)).

Finally, the Appellate Division held that "[t]he sentence imposed was not excessive.” Id.

On September 12, 2018, the New York Court of Appeals denied Liggins's

application for leave to appeal. Liggins IT, 152 N.E.3d at 1180 (Rivera, J.).

b. Proceedings in this Court

On November 18, 2020, proceeding pro se, Liggins filed the Petition

asserting that (1) the trial court improperly admitted the DNA reports through the

OCME analyst at trial, thereby violating his right of confrontation; (2) his trial counsel

was ineffective for failing to raise the Confrontation Clause issue; and (3) his sentence

was excessive. Dkt. 1.

On February 2, 2020, the District Attorney's Office filed its opposition to

the Petition. Dkt. 9. On June 22, 2022, Liggins filed his reply. Dkt. 14.

On October 25, 2023, the case was reassigned to the undersigned.

DISCUSSION

A. Federal Review of State Convictions

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

adjudicated on the merits in state court unless that adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d); see Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857

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

court's decision must be accorded "substantial deference.” Fischer v. Smith, 780 F.3d 556,

560 (2d Cir. 2015) (citing Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009)). "A federal

court may reverse a state court ruling only where it was 'so lacking in justification that

there was ... [no] possibility for fairminded disagreement.” Vega v. Walsh, 669 F.3d

123, 126 (2d Cir. 2012) (per curiam) (quoting Harrington, 562 U.S. at 103); see also Weizel

v. Lambert, 565 U.S. 520, 524 (2012) (per curiam) (quoting Harrington, 562 U.S. at 102).

A federal court cannot review a habeas petition unless the petitioner "has

exhausted the remedies available” in state courts. 28 U.S.C. § 2254(b)(1)(A). This

requirement affords state courts the "opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights." Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir.

2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). "This requires that the

prisoner ‘fairly present’ his constitutional claim to the state courts, which he

accomplishes 'by presenting the essential factual and legal premises of his federal

constitutional claim to the highest state court capable of reviewing it." Jackson v.

Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d

Cir. 2005)).

Moreover, "federal courts will not review questions of federal law

presented in a habeas petition when the state court's decision rests upon a state-law

ground that ‘is independent of the federal question and adequate to support the

judgment.” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S.

722,729 (1991)). In other words, if the state court refused to consider an argument

because it was procedurally barred under state law, the argument is barred from federal

habeas review so long as the procedural bar is "adequate to support the judgment."

Murden v. Artuz, 497 F.3d 178, 191-92 (2d Cir. 2007) (quoting Jimenez v. Walker, 458 F.3d

130, 138 (2d Cir. 2006)). A petitioner's failure to comply with a state procedural rule

qualifies as such an adequate and independent state ground, provided that (1) the state

court actually "relied on the procedural bar as an independent basis for its disposition

of the case,” Harris v. Reed, 489 U.S. 255, 261-62 (1989) (citation omitted), and (2) the state

procedural rule is "firmly established and regularly followed," James v. Kentucky, 466

U.S. 341, 348 (1984).

The Second Circuit has "held repeatedly that the contemporaneous

objection rule" -- that state appellate courts will review only those errors of law that are

presented contemporaneously such that the trial court is "reasonably prompted" to

correct them -- "is a firmly established and regularly followed New York procedural

rule." Downs v. Lape, 657 F.3d 97, 103-04 (2d Cir. 2011) (collecting cases). Hence, the

Circuit has affirmed the denial of habeas relief based on the Appellate Division's ruling

that the failure of a petitioner to object at trial rendered a claim unpreserved for

appellate review. See, e.g., Garcia v. Lewis, 188 F.3d 71, 81-82 (2d Cir. 1999) (affirming the

denial of habeas relief where the petitioner's trial counsel failed to bring to trial court's

attention a claim that he later attempted to advance on appeal). If a claim is

procedurally barred pursuant to an independent and adequate state rule, a federal

habeas court may not review it on the merits, unless the petitioner demonstrates (1)

"cause for the default and actual prejudice as a result of the alleged violation of federal

law," or (2) "that failure to consider the claims will result in a fundamental miscarriage

of justice." Coleman, 501 U.S. at 750.

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B. Analysis

In the Petition, Liggins contends that (1) the trial court improperly

admitted the DNA reports through Michael McCasland at trial and thus violated his

right of confrontation; (2) his trial counsel was ineffective for failing to raise the

Confrontation Clause issue; and (3) his sentence was excessive. Dkt. 1. I discuss each

claim in turn.

a. The Confrontation Clause

The Sixth Amendment's Confrontation Clause provides that "in all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. Amend. VI. In Crawford, the Supreme Court held

that "out-of-court statements by witnesses that are testimonial are barred, under the

Confrontation Clause, unless witnesses are unavailable and defendants had prior

opportunity to cross-examine witnesses, regardless of whether such statements are

deemed reliable by court.” 541 U.S. at 54, 58. It specifically identified "[v]arious

formulations of th[e] core class of 'testimonial’ statements" that are barred absent cross-

examination:

(1) "ex parte in-court testimony or its functional equivalent -- that is,

material such as affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial

statements that declarants would reasonably expect to be used

prosecutorially";

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(2) "extrajudicial statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or

confessions”; and

(3) "statements... made under circumstances which would lead an

objective witness reasonably to believe that the statement would be

available for use at a later trial.”

Id. at 51-52 (citations omitted). The Supreme Court has made clear that the

Confrontation Clause applies to forensic reports and testimony being offered to prove a

fact in a criminal trial. See, e.g., Bullcoming v. New Mexico, 564 U.S. 647, 657-58 (2011)

("The Confrontation Clause . . . does not permit the prosecution to introduce a forensic

laboratory report containing a testimonial certification, made in order to prove a fact at

a criminal trial, through the in-court testimony of an analyst who did not sign the

certification or personally perform or observe the performance of the test reported in

the certification."); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009) (holding that

"[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte

out-of-court affidavits" by an individual that has not been subjected to cross-

examination); Williams v. Illinois, 567 U.S. 50, 83-84 (2012) (plurality opinion) ("We

[have] emphasized that if a statement is not made for 'the primary purpose of creating

an out-of-court substitute for trial testimony,’ its admissibility 'is the concern of state

and federal rules of evidence, not the Confrontation Clause.” (citation omitted).

Consistent with the Supreme Court precedent outlined above, the New

York Court of Appeals has held that the Confrontation Clause is violated when

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laboratory reports as to the DNA profile generated from evidence submitted to a

laboratory by the police in a pending criminal case are admitted into evidence and the

analyst who generated or independently reviewed the DNA profile is not present for or

has not been subject to cross-examination. People v. John, 52 N.E.3d 1114, 1123-24 (N.Y.

2016). It concluded that "an analyst who witnessed, performed or supervised the

generation of [a] defendant's DNA profile, or who used his or her independent analysis

on the raw data, as opposed to a testifying analyst functioning as a conduit for the

conclusions of others, must be available to testify.” Id. at 1128.

Liggins argues that that his Sixth Amendment right to confrontation was

violated when Michael McCasland, the OCME analyst, testified connecting Liggins's

DNA to the semen found on K.R.'s boxers. Dkt. 1 at 24-30. Liggins argues that

McCasland "was not involved in the electrophoresis stage of the testing process of the

boxers” and the "electrophoresis stage is a critical step of which the testifying witness

must have personal knowledge.” Id. at 26 (quoting People v. John, 52 N.E.3d at 1122-23).

The Appellate Division rejected this claim, finding that it was "unpreserved for

appellate review, and we decline to review this issue in the exercise of our interest of

justice jurisdiction." Liggins I, 124 N.Y.S.3d at 851.

Habeas relief is thus not available to Liggins for this claim. For an

independent and adequate state ground to bar habeas relief, the state court rendering

the judgment must "clearly and expressly state that its judgment rests upon a state

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procedural bar." Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Glenn v.

Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)). Here, the Appellate Division clearly and

expressly stated that Liggins's confrontation claim was unpreserved for appellate

review. Liggins I, 124 N.Y.S.3d at 851.

Moreover, Liggins has failed to demonstrate that he is entitled to an

exception to the procedural default rule, because he has not shown either (1) cause and

actual prejudice or (2) that a fundamental miscarriage of justice would occur if the

merits of the federal claim were not considered. See Edwards v. Carpenter, 529 U.S. 446,

451 (2000) (citations omitted); Coleman, 501 U.S. at 748..

Liggins's confrontation claim fails on the merits in any event. Under New

York law, the admission of DNA evidence does not violate the Confrontation Clause

where an analyst who performed testing on the DNA is available to testify at trial. See

People v. John, 52 N.E.3d at 1128 ("We conclude that an analyst who witnessed,

performed or supervised the generation of defendant's DNA profile, or who used his or

her independent analysis on the raw data... □ must be available to testify." (emphasis

added)). McCasland performed an independent analysis on the raw data, see Dkt. 10 at

685 (McCasland testifying "I was the one that analyzed the results for both the DNA

profiles from the evidence and the DNA profile that was obtained from [] Liggins"]); id.

at 688 (McCasland testifying "I analyzed the results [of DNA testing on defendant's

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exemplar] at my desk"), testified at trial, and was subject to cross examination. Dkt. 10

at 680-93. Accordingly, Liggins's confrontation claim fails on the merits.

b. Ineffective Assistance of Counsel

In general, to prevail on a claim of ineffective assistance under federal law,

a petitioner must (1) show that counsel's performance was so deficient as to fall below

"an objective standard of reasonableness"; and (2) establish prejudice by demonstrating

"a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694

(1984). In the context of a habeas petition under 28 U.S.C. § 2254, "[e]stablishing that a

state court's application of Strickland was unreasonable . . . is all the more difficult. The

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ ... and when

the two apply in tandem, review is ‘doubly’ so." Harrington, 562 U.S. at 105 (citations

omitted). Therefore, "[t]he operative question” when a federal court reviews a state

court's ineffective assistance of counsel ruling is "not whether [the] federal court

believes the state court's determination was incorrect, but rather whether that

determination was objectively unreasonable." Waiters, 857 F.3d at 478 (alterations

adopted) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

The standard to establish an ineffective-assistance-of-counsel claim under

New York law is lower than under federal law. See People v. Honghirun, 78 N.E.3d 804,

807 (N.Y. 2017). In New York, a defendant must show only "that counsel failed to

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provide meaningful representation.” People v. Alvarez, 125 N.E.3d 117, 120 (N.Y. 2019)

(citing People v. Stuliz, 810 N.E.2d 883 (N.Y. 2004); People v. Baldi, 429 N.E.2d 400 (N.Y.

1981)). Unlike the federal standard, see Strickland, 466 U.S. at 694, under the state

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

ineffective assistance. See Alvarez, 125 N.E.3d at 120.

Liggins contends that his counsel was ineffective for failing to raise the

confrontation issue at trial. Dkt. 1 at 39-40. The Appellate Division rejected this claim

on the merits, holding that the "issue was not 'so clear-cut and dispositive that no

reasonable defense counsel would have failed to assert it." See Liggins [, 124 N.Y.5.3d at

851 (citing People v. Rodriguez, 101 N.E.3d 977, 977 (N.Y. 2018)). This determination is

entitled to "substantial deference,” Fischer, 780 F.3d at 560, and will not be overturned by

a federal court conducting habeas review unless the petitioner can establish that the

state court's conclusion was “unreasonable,” see 28 U.S.C. § 2254(d). For the reasons set

forth above, Liggins's confrontation claim is meritless, and therefore the district court's

conclusion that Liggins's counsel was not ineffective for failing to raise this claim was

reasonable. See Aparicio v. Artuz, 269 F.3d 78, 100 (2d Cir. 2001) ("counsel was not

ineffective for failing to raise ... meritless argument."). Liggins's ineffective assistance

claim accordingly fails.

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c. Liggins’s Sentence

Finally, Liggins claims that his sentence was excessive given that "the

crimes occurred during a single occurrence.” Dkt. 1 at 31-38. This claim also fails. The

Appellate Division rejected this claim on the merits, finding that the sentence imposed

was not excessive. Liggins I, 124 N.Y.S.3d at 851. The Appellate Division's conclusion is

entitled to "substantial deference,” Fischer, 780 F.3d at 560, and will not be overturned

unless Liggins can establish that the decision was unreasonable, see 28 U.S.C. § 2254(d).

Liggins fails to meet this burden.

There is "[n]o federal constitutional issue ... presented where . . . the

sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383

(2d Cir. 1992). Liggins was adjudicated a second child sexual assault felony offender

pursuant to N.Y.C.P.L. § 440.19. Accordingly, he faced up to fifteen years in prison for

each of the second-degree sexual assault counts. N.Y.P.L. §§ 70.07, 130.45; N.Y.CP.L.

§ 400.19. Liggins was sentenced to fifteen years’ imprisonment with twenty-years' post-

release supervision on each count, to run consecutively to each other but concurrently

to Liggins's one-year sentences on the sexual abuse convictions. This was within the

range prescribed by state law. Moreover, Liggins had three prior convictions for

sexually assaulting boys under the age of fifteen. Accordingly, Liggins's sentence was

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not unreasonable. Liggins's excessiveness argument therefore fails. +

CONCLUSION

Liggins has failed to show a basis for relief under 28 U.S.C. § 2254.

Accordingly, his habeas petition is denied. Additionally, I decline to issue a certificate

of appealability because Dupree has not made a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2254.

The Clerk of the Court shall enter judgment accordingly and close this

case. The Clerk of Court shall also mail copies of this memorandum decision and the

judgment to Dupree at the address set forth above.

SO ORDERED.

Dated: New York, New York

February 21, 2023 oD ey

Pr { Fe. ° Ms

ee TE ey Oe

~ DENNY CHIN

United States Circuit Judge

Sitting By Designation

4 Liggins argues that his sentence was excessive in part because the prosecutor's remarks during

trial constituted improper vouching and because the People failed to file a timely Second Child

Sexual Assault Felony Offender Statement pursuant to N.Y.C.P.L. § 400.19(2). But Liggins's

vouching argument is irrelevant to the excessiveness inquiry here, and accordingly, the Court

declines to address it. Further, Liggins failed to raise the timeliness of the Second Child Sexual

Assault Felony Offender Statement on direct appeal, and accordingly, this claim is not ripe for

habeas review. See Jackson, 763 F.3d at 115. In any event, this argument is meritless -- as the

state court held in denying Liggins's motion to set aside the verdict, Liggins was "given

effective oral notice before trial" that the People planned to proceed under § 400.19(2), and

accordingly, the People’s purported failure to timely file the Statement was harmless. People v.

Liggins, 12 N.Y.S.3d 533, 540 (Sup. Ct. N.Y. County 2015).

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