Petition for Writ of Certiorari — Edward Greeman, Petitioner v. Edward Burnett, Superintendent, Fishkill Correctional Facility

Case: 23-7761,04/19/2024, DktEntry: 16.1, Page 1 of 1

fS.D.N.Y. - N.Y.C.

. 22-cv-4300

Subramanian, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 19th day of April, two thousand twenty-four.

Present:

Guido Calabresi,

Barrington D. Parker,

Michael H. Park,

Circuit Judges.

Edward Greeman,

Petitioner-Appellant,

v.

23-7761

The Superintendent of Fishkill Correctional Facility,

Respondent-Appellee,

State of New York,

Respondent.

Appellant, pro se, moves for a certificate of appealability and in forma pauperis status. Upon due

consideration, it is hereby ORDERED that the motions are DENIED and the appeal is

DISMISSED because Appellant has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Case l:22-cv-04300-AS-KHP

Document 35

Filed 10/20/23

Page 1 of 5

UNITED STATES DISTRICT COURT ,

SOUTHERN DISTRICT OF NEW YORK

EDWARD GREEMAN,

Petitioner,

22-CV-4300 (AS)

-againstTHE SUPERINTENDENT OF

FISHKILLCORRECTIONAL FACILITY,

t

MEMORANDUM OPINION

AND ORDER

»

•

•

Respondent.

ARUN SUBRAMANIAN, United States District Judge:

On March 25,2022, petitioner Edward Greeman filed a pro se petition for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254. For the following reasons, Greeman’s petition is DENIED.

.•

BACKGROUND

.

On January 23, 2020, a New York Supreme Court jury found Greeman guilty of 15 counts

of second-degree criminal possession of a forged instrument, 9 counts of first-degree criminal

tampering, and one count of second-degree criminal impersonation. See Dkt. 20 at 1187-95. He

was sentenced to an aggregate indeterminate prison sentence of 5'A to 11 years. Id. at 1214-15.

At Greeman’s trial, the government introduced evidence showing that, on multiple

occasions between September 2017 and July 2018, Greeman jammed the credit card and bill slots

of the MetroCard vending machines at the South Ferry subway station in Manhattan so that

customers would be unable to purchase or add money to a MetroCard. Then, dressing as a

Metropolitan Transit Authority (MTA) employee, Greeman collected payment from subway riders

who were unable to purchase a MetroCard. Greeman let them into the subway either by opening

the emergency gate or swiping them in with a tampered MetroCard. During three arrests, officers

discovered MetroCards in Greeman’s possession that had been bent along the magnetic strip in a

way that would allow a user to obtain a ride even if there was a zero balance on the card. See id.

at 541-625.

In February 2020, Greeman filed a pro se motion under CPL § 440.20, seeking to set aside

his sentence. Dkt. 19 at 3-7. Greeman claimed that the sentence exceeded the maximum time

permitted by statute. Id. at 6-7. In July 2020, Greeman filed a pro se motion under CPL § 440.10,

arguing that the evidence at trial was insufficient to support his convictions for second-degree

criminal possession of a forged instrument. Id. at 9-15. On October 27, 2020, Greeman’s motions

were denied. Id. at 36. The court found that Greeman’s sentence was lawful and determined that

any claim based on legal sufficiency needed to be raised on direct appeal. Id. at 37-39.

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Greeman then filed a pro se appeal in the Appellate Division, First Department. Id. at 42.

As relevant here, Greeman argued that (1) his arrest was “Warrantless and Unlawful,” (2) the

government exceeded the maximum time it had to prosecute the case under CPL § 30.30, (3) there

was not legally sufficient evidence to support his convictions for second-degree criminal

possession of a forged instrument because the government failed “to produce non-hearsay

evidence or to perform a testing of the alle[g]ed forged instruments,” and (4) the government

withheld exculpatory evidence from the grand jury, violating the Sixth Amendment. Id. at 21820. On November 18, 2021, the Appellate Division unanimously affirmed Greeman’s conviction.

See People v. Greeman, 199 A.D.3d 530 (1st Dep’t 2021).

Greeman subsequently filed a pro se application for leave to appeal to the New York Court

of Appeals. Dkt. 19 at 296. The application requested review of the Appellate Division’s findings

regarding his CPL § 30.30 claim and his sufficiency of the evidence claim. Id. at 297-98. On

January 31, 2022, the Court of Appeals denied Greeman’s application. See People v. Greeman, 37

N.Y.3d 1161 (2022). On April 1,2022, the Court of Appeals further denied Greeman’s motion for

reconsideration. See People v. Greeman, 38 N.Y.3d 1008 (2022).

Greeman, again proceeding pro se, filed a petition for a writ of habeas corpus in this Court,

pursuant to 28 U.S.C. § 2254. Dkt. 2. The petition seeks relief on four grounds. First, Greeman

claims that the arrest was warrantless and unlawful because officers arrested him at a garage “2

blocks away from [the] train station,” where they had “no jurisdiction to execute an arrest and no

warrant.” Id. at 4. Second, Greeman claims that the government exceeded the 180-day maximum

period permitted to prosecute the case under CPL § 180.80. Id. at 5. Third, Greeman claims that

there was not legally sufficient evidence to support his convictions for second-degree criminal

possession of a forged instrument because the government “failed to perform a test of the forged

instruments as required by law” or “to validate the authenticity of the forged instruments.” Id. at

7. Finally, Greeman claims that the government withheld exculpatory evidence, in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Id. at 8.

Greeman then filed a supplemental petition for a writ of habeas corpus. Dkt. 9. This

amended petition asserts the same four grounds for relief with three clarifications. First, Greeman

clarifies that ground one—that his arrest was unlawful—is based on CPL § 140.40. See id. at 5.

Second, Greeman clarifies that ground two—that his prosecution exceeded New York’s speedytrial law—is based on CPL § 30.30. See id. at 7.1 Finally, Greeman’s amended petition makes clear

that ground four is based on the government’s alleged withholding of exculpatory evidence from

the grand juiy. Id. at 10.

1 CPL § 180.80 concerns the time the government has to indict someone arrested for a felony. CPL

§ 30.30 provides that the government must be ready for trial within “six months of the commencement of

a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.”

2

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LEGAL STANDARDS

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state prisoner may

challenge his convictions or sentence in federal court when “he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A federal court may

grant relief only for claims “adjudicated on the merits” in state court, and then only if 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.” Id. § 2254(d).

DISCUSSION

I.

Unlawful Arrest & Exculpatory Evidence

Grounds one and four—that Greeman’s arrest was unlawful and that the government withheld

exculpatory evidence—are procedurally defaulted. So the Court declines to review.them on the

merits.

A federal court may not grant a § 2254 habeas petition “unless it appears that... the applicant

has exhausted the remedies available in the courts of the State” or that there is either “an absence

of available State corrective process” or “circumstances exist that render such process ineffective

to protect the rights” of the prisoner. 28 U.S.C. § 2254(b)(1). “To satisfy § 2254’s exhaustion

requirement, a petitioner must present the substance of the same federal constitutional claims that

he now urges upon the federal courts to the highest court in the pertinent state.” Aparicio v. Artuz,

269 F.3d 78, 89-90 (2d.Cir. 2001) (cleaned up). “In New York, to invoke one complete round of

the State’s established appellate review process, a criminal defendant must first appeal his or her

conviction to the Appellate Division, and then must seek further review of that conviction by

applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane,

394 F.3d 68, 74 (2d Cir. 2005) (Sotomayor, J.) (cleaned up).

Here, Greeman first appealed to the Appellate Division. In that appeal Greeman argued—as

he does here—that his arrest was unlawful and that the government withheld exculpatory evidence

from the grand jury. Dkt. 19 at 219-25. However, when Greeman later sought leave to appeal to

the New York Court of Appeals, he failed to raise these claims. Id. at 297-98. “Generally ‘we

assume that the Court of Appeals would construe a petitioner’s leave application as abandoning

claims that the petitioner had pressed to the Appellate Division below’ where those claims were

not presented to the New York high court for review.” Smith v. Duncan, 411 F.3d 340, 345 (2d

Cir. 2005) (quoting Galdamez, 394 F.3d at 74). Accordingly, the claims are procedurally defaulted.

Id.

The Court may not review procedurally defaulted claims on the merits “unless the prisoner can

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

law, or demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of

3

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justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Greeman has not raised any arguments

explaining why such exceptions would apply here. The Court thus declines to review grounds one

and four on the merits.

n.

Speedy-Trial Rights

Ground two—that the government violated the New York speedy-trial statute by failing to

prosecute him within 180 days—is not a cognizable basis for federal habeas relief. “[I]t is not the

province of a federal habeas court to reexamine state-court determinations of state-law questions.

In conducting habeas review, a federal court is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68

(1991).

Greeman’s speedy-trial argument is based on a requirement under New York law, CPL

§ 30.30. “This provision is purely a creature of New York state statute and does not protect a

federal constitutional right.” Parrish v. Lee, 2015 WL 7302762, at *11 (S.D.N.Y. Nov. 18, 2015).

Accordingly, ground two cannot support federal habeas relief.

m.

Sufficiency of the Evidence

The state court rejected ground three on the merits. Therefore, the Court cannot grant

habeas relief unless it finds that “no fairminded jurist,” Brown v. Davenport, 596 U.S. 118, 135

(2022) (cleaned up), would find that, “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Greeman cannot meet this

demanding standard.

Greeman was convicted of second-degree criminal possession of a forged instrument. The

government was required to prove beyond a reasonable doubt that Greeman possessed a forged

instrument—in this case, a bent MetroCard—with knowledge that “it is forged and with intent to

defraud, deceive or injure another.” See N.Y. Penal Law § 170.25; see also People v. Mattocks, 12

N.Y.3d 326, 332 (2009) (holding that “the MetroCards defendant possessed were forged

instruments under article 170 of the Penal Law” because they had been bent to allow the defendant

to “acquire free rides on what were worthless MetroCards”). At trial, the government introduced

evidence including (1) testimony from officers regarding the fact that bent MetroCards were found

in Greeman’s possession during three arrests, Dkt. 20 at 115-21, 370-76, (2) testimony from an

MTA fraud investigator explaining how the bent MetroCards work, id. at 454-64, and

(3) surveillance video showing Greeman admitting people into the subway by swiping a

MetroCard and accepting payment, id. at 85-91. While the MTA fraud investigator testified that

he never checked to see whether the recovered MetroCards had “legitimate value added to them

by regular customers,” id. at 476, a reasonable juror could still conclude that the government had

met its burden of showing that Greeman knowingly possessed the bent MetroCards with the intent

to defraud.

4

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Greeman’s habeas petition must therefore be denied because he cannot show that the

Appellate Division unreasonably applied Supreme Court precedent in rejecting his sufficiency

argument.2

The Court is mindful that Greeman faces over a decade in prison for a fare-evasion scheme.

As explained, Greeman has not presented a basis for a federal court to provide relief. But as

outlined in Respondent’s October 19,2023 submission (Dkt. 34), Greeman may still have avenues

for relief, including filing a motion in New York Supreme Court under § 440.10 or seeking

clemency from the governor. Greeman may also contact the New York County District Attorney’s

Office to see if they will provide support for any further motion or application.

CONCLUSION

For the foregoing reasons, it is hereby ordered that Greeman’s petition for a writ of habeas

coipus be denied. The Clerk of Court is directed to close this case.

As Greeman has not made a substantial showing of the denial of a constitutional right, a

certificate of appealability will not issue. See 28 U.S.C. § 2253(c). The Court certifies that,

pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith.

SO ORDERED.

Dated: October 20, 2023

New York, New York

ARUN SUBRAMANLAN

United States District Judge

2 Greeman cites New York laws in support of his unlawful arrest and sufficiency claims. See Dkt. 9.

To the extent that these two claims are predicated on state law, rather than the Fourth Amendment and the

Due Process Clause, habeas relief is also unavailable for the reasons stated in Section II.

5

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

X

EDWARD GREEMAN;

Petitioner,

22 CIVIL 4300 (AS)

-against-

JUDGMENT

THE SUPERINTENDENT OF FISHKILL

CORRECTIONAL FACILITY,

Respondent.

X

It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons

stated in the Court's Memorandum Opinion and Order dated October 20,2023, the Greeman’s

petition for a writ of habeas corpus be denied. As Greeman has not made a substantial showing

of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. §

2253(c). The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order

would not be taken in good faith.; accordingly, the case is closed.

DATED: New York, New York

October 23, 2023

RUBY J. KRAJICK

Clerk of Court

I

Case: 23-7761,06/28/2024, DktEntry: 22.1, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

28th day of June, two thousand twenty-four.

Edward Greeman,

Petitioner - Appellant,

ORDER

v.

Docket No: 23-7761

The Superintendent of Fishkill Correctional Facility,

Respondent - Appellee,

State of New York,

Respondent.

Appellant, Edward Greeman, filed a motion for panel reconsideration, or, in the

alternative, for reconsideration en banc. The panel that determined the appeal has considered the

request for reconsideration, and the active members of the Court have considered the request for.

reconsideration en banc.

IT IS HEREBY ORDERED that the motion is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

v

Appendix

I -■

i

Case: 23-7761,04/19/2024, DktEntry: 16.1, Page 1 of 1

7

f

S.D.N.Y. -N.Y.C.

22-cv-4300

Subramanian, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 19th day of April, two thousand twenty-four.

Present:

Guido Calabresi,

Barrington D. Parker,

Michael H. Park,

Circuit Judges.

Edward Greeman,

Petitioner-Appellant,

23-7761

v.

The Superintendent of Fishkill Correctional Facility,

Respondent-Appellee,

State of New York,

Respondent.

Appellant, pro se, moves for a certificate of appealability and in forma pauperis status. Upon due

consideration, it is hereby ORDERED that the motions are DENIED and the appeal is

DISMISSED because Appellant has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Appendix A.»

1

k

Case: 23-7761,07/08/2024,

ntry: 23.1, Page 1 of 1

AN DATE

S.D.N.Y. -N.Y.C.

22-cv-4300

Subramanian, J.

United States Court of Appeals

CAD TUC

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 19th day of April, two thousand twenty-four.

Present:

Guido Calabresi,

Barrington D. Parker,

Michael H. Park,

Circuit Judges.

Edward Greeman,

Petitioner-Appellant,

■'-V

r ..

23-7761

v.

The Superintendent of Fishkill Correctional Facility,

Respondent-Appellee,

State of New York,

Respondent.

Appellant, pro se, moves for a certificate of appealability and in forma pauperis status. Upon due

consideration, it is hereby ORDERED that the motions are DENIED and the appeal is

DISMISSED because Appellant has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

I

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

ATrueCepy

Catherine O’Hagan

lK

Unlei States Cow rtf Appeals,^Second Circuit

SSECOND u

CMT

mjA*.

MANDATE IS

JU.

U>^*-

N 07/08/2024 __

Appendix

2

J

k

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

EDWARD GREEMAN,

Petitioner,

22-CV-4300 (AS)

-againstTHE SUPERINTENDENT OF

FISHKILLCORRECTIONAL FACILITY,

.

ORDER

Respondent.

ARUN SUBRAMANIAN, United States District Judge:

On October 20, 2023, the Court issued a Memorandum Opinion and Order denying

Petitioner Edward Greeman’s petition for a writ ofhabeas corpus. Dkt. 35. On November 16,2023,

Greeman submitted a motion for reconsideration of that Order. Dkt. 40. The Court denied the

motion. Dkt. 44. On January 3, 2024, Greeman submitted a second motion under Federal Rule of

Civil Procedure Rules 59(e) and 60(b). Dkt. 45. The Court denied the motion. Dkt. 48.

Greeman now files another motion to reopen this case pursuant to Federal Rule of Civil

Procedure 60(b).1 Under Rule 60(b), a party may seek relief for six reasons: (1) “mistake,

inadvertence, surprise, or excusable neglect;” (2) certain “newly discovered evidence”; (3) “fraud

..., misrepresentation or misconduct by an opposing party;” (4) “the judgment is void;” (5) “the

judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively is no longer equitable; or” (6) “any other

reason that justifies relief.” Fed. R. Civ. Pro. 60(b).

Greeman’s request to reopen is based on contentions previously raised in his prior motions,

and which the Court rejected. See Dkts. 44,48. Greeman’s argument is not a valid basis to reopen

the case, and so the request is DENIED. The Clerk of Court is directed to terminate the motion

at Dkts. 52 and 55.

SO ORDERED.

Dated: May 31, 2024

New York, New York

(yi—

ARUN SUBRAMANIAN

United States District Judge

1 Greeman also states that he is making his motion pursuant to 28 U.S.C. § 1915A and Federal Rule of Civil

Procedure 60(e). But neither the statute nor rule relates to a motion.to reopen.

Appendix B .

V,

'P

’>---- FILED

7

JUDICIAL COUNCIL OF THE SECOND CIRCUIT

$

2

p

JUL 0 2 2024

'^igfeO’faB» Write,

In Re:

CHARGE OF JUDICIAL MISCONDUCT

Docket numbers: 24-90007-jm, 24-90008-jm

Before the Judicial Council of the Second Circuit:

Complaints having been filed on February 6, 2024 and February 8,2024, alleging misconduct on

the part of District and Magistrate Judges of this Circuit, and the complaints having been dismissed on

May 15, 2024, by the Chief Judge of the Circuit, and a petition for review having been filed timely on

June 4,2024 and amended on June 14, 2024.

Upon consideration thereof by the Council it is

ORDERED that the petition for review is DENIED for the reasons stated in the order dated

May 15, 2024.

The clerk is directed to transmit copies of this order to the complainant and to the District and

Magistrate Judges whose conduct is the subject of the underlying complaints.

Dated: July 2, 2024

New York, New York

y

Appendix D.

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