Bonilla v. Griffin

• Court: District Court, E.D. New York
• Decided: August 15, 2019
• Docket: 2:16-cv-03676
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

_____________________

No 16-CV-3676 (JFB) _____________________

ULISES BONILLA,

Petitioner,

VERSUS

THOMAS GRIFFIN,

Respondent.

___________________

MEMORANDUM AND ORDER August 15, 2019 ___________________ JOSEPH F. BIANCO, Circuit Judge (sitting by § 265.01(2); and one count of endangering designation): the welfare of a child, in violation of N.Y. Penal Law § 260.10(1). (T. 1332-33.)2 On On June 24, 2016, Ulises Bonilla June 15, 2012, petitioner was sentenced to an (“petitioner” or “Bonilla”) petitioned this indeterminate period of incarceration of Court for a writ of habeas corpus, pursuant to twenty-five years to life for the murder 28 U.S.C. § 2254, challenging his conviction charge, and a determinate seven and one-half in New York State Court. (See Pet., ECF No. year period of incarceration for the rape 1.)1 On December 20, 2011, following a jury charge followed by twenty years of post- trial, petitioner was convicted of one count of release supervision. (S. 19-20) 3 The murder in the second degree, in violation of sentence for the rape conviction was N.Y. Penal Law § 120.25(1); one count of imposed to run consecutively to the sentence rape in the first degree, in violation of N.Y. imposed for the murder conviction. (S. at Penal Law § 130.35(3); two counts of sexual 20.) Regarding the remaining counts, the abuse in the first degree, in violation of N.Y. court ordered concurrent sentences to the Penal Law § 130.65(3); one count of indeterminate twenty-five years to life and criminal possession of a weapon in the fourth determinate seven and one-half year degree, in violation of N.Y. Penal Law sentences. (S. at 20-21.)

1 The Court uses the pagination assigned by the 2“T.” refers to the trial transcript. (ECF Nos. 10-2 and electronic case filing system when citing to the 10-3. petition and its accompanying memoranda of law. (ECF Nos. 1, 1-1, and 1-2.) 3 “S.” refers to the sentencing transcript. (ECF No. 10-4.) In the instant habeas action, petitioner from J.V. and often spent time at the house challenges his conviction on the following across the street from J.V.’s. (T. at 433, 670- grounds: (1) “[t]he Appellate Division 73.) rendered a decision that was an unreasonable application of clearly established federal Despite J.V.’s initial refusal, petitioner law, when it found that it was legally lead J.V. to a handicapped stall in the ladies sufficient to establish petitioner’s guilt” for restroom in the park where they started the second-degree murder and first-degree kissing. (T. at 680-83.) Shortly thereafter, rape convictions; and (2) “[t]he Appellate petitioner began biting J.V.’s lip and Division rendered a decision that was an removing her skirt and underwear to digitally unreasonable application of clearly and sexually penetrate her. (T. at 684-86.) established federal law, when it found that Uncomfortable and scared, J.V. pushed petitioner did not unequivocally request the petitioner off, left the bathroom, and began assistance of counsel before making walking to her home. (T. at 687-88.) I.A. and statements to law enforcement officials.” S.D. saw J.V. and petitioner kissing, and then (Pet. 5-7.) For the reasons discussed below, walk into the bathroom, and observed her the petition is denied in its entirety. hiking up her skirt when she exited the bathroom followed by petitioner. (T. at 436, I. BACKGROUND 455.) I.A. and S.D. then left the park and headed to J.V.’s home and told J.V.’s parents A. Facts what they saw. (T. at 436-37, 455.) J.V.’s father, Armando, immediately called the The following facts are adduced from the police to report the incident and then left the underlying record and the instant petition. house in an upset state, heading to the nearby deli. (T. at 516-17.) During the summer of 2010, ten-year-old Juvenile Victim (“J.V.”) lived with her When J.V. arrived home, fearing she mother Susana V.4, her father Armando V., would be punished, she did not tell her her sister N.V., and her brother O.V. at 180 family what happened in the park. (T. at Kinkel Street in Westbury, New York; 689-90.) P.O. Christopher Bendetto of the petitioner lived down the block. (T. at 503- Nassau County Police Department 05, 670-71.) At the time, J.V. and petitioner responded to the V. family home in response frequently saw each other and kissed. (T. at to Armando’s 911 call. (T. at 466.) P.O. 674-75.) This contact escalated and Bendetto spoke with I.A., S.D., and J.V. (T. petitioner would touch J.V.’s breasts, vagina, at 467-68.) At this time, J.V. did not tell P.O. and buttocks. (T. at 675.) On September 24, Bendetto about what transpired in the park 2010, in the afternoon, ten-year-old J.V. was and no arrests were made. (T. at 469, 690.) playing in Bunkyreid Park in Westbury, New York, with her two minor friends, ten-year- Later that evening, Armando was still at old I.A. and eleven-year-old S.D., when the nearby deli and his friend, Angel Leon petitioner approached them. (T. at 431-35, (“Leon”), spoke with him and observed him 673.) J.V.’s two friends recognized to be visibly upset. (T. at 473-74.) While still petitioner because he lived down the block at the deli, Armando again called the police

4 “V.” is used in lieu of the victim and his family’s complete last name in order to protect the identity of the victim’s minor children involved in this incident. to report the incident between petitioner and Armando headed to his house with Leon and his daughter. (T. at 493.) a few others. (T. at 483-84.) Moments later, petitioner, wearing a black do-rag and Shortly thereafter, petitioner entered the holding a beer bottle, approached Armando’s deli and confronted Armando about calling daughter N.V. and others who were seated the police. (T. at 476-78.) Petitioner told together in a car parked outside the V. family Armando, “I want to fix this man-to-man.” home. (T. at 638-40.) Petitioner told them (Id.) A brief altercation between Armando he wanted to fight Armando and asked N.V., and petitioner ensued, but other patrons “Would it be okay if I kill your father?” (T. intervened to stop the fight, and petitioner at 640-41.) left. (Id.) Approximately ten minutes later, petitioner returned to the deli with a few Thereafter, Armando arrived at his house friends carrying bats and sticks, prompting and petitioner and Armando began fighting. Armando to hide behind the counter. (T. at (T. at 774-75.) N.V. saw petitioner strike 478-79.) Unable to locate Armando, Armando with a “little metal pipe,” but petitioner and his friends left the deli. (T. at Armando took it from petitioner and struck 480.) Police then responded to the deli and, petitioner with the pipe before dropping it. with their escort, Armando returned home (T. at 775-76.) Armando and petitioner then where he informed Susana of the argument started punching each other repeatedly. (T. with petitioner. (T. at 480-81, 517.) Two at 776.) While they were fighting there were days later, petitioner told Jocelyn Gonzalez multiple witnesses present and they (“Gonzalez”), a friend of his, that Armando remarked that the two were fighting face-to- jumped him at the deli and that he was going face, so close to each other that at times it to get revenge. (T. at 636-38.) looked like they were hugging. (T. at 481- 85.) Although it was dark outside, witnesses On September 28, 2010, at observed petitioner punch Armando in the approximately 5:00 p.m., petitioner’s friend left torso, side, and back multiple times. (T. Misael Berrios (“Berrios”) and a third at 484-85.) individual (“John Doe”)5 went to the hospital with petitioner as he had injured his hand at At the outset of the fight, N.V. saw one work. (T. at 926-29.) After two hours at the of petitioner’s friends, Johnny, strike hospital, the group went to Westbury Deli Armando in the leg with a stick. (T. at 777- and purchased beers. (T. at 929-31.) 78.) N.V. tried to intervene in the fight, but Eventually, they proceeded to 169 Kinkel Johnny pushed her to the ground and held her Street, where they usually spent time, to there. (T. at 646.) Momentarily, during the drink beer. 6 (T. at 932.) fight, petitioner’s sister (Diana Bonilla) hit Armando twice in the back with her hand. At approximately 10:00 p.m., still (T. at 778-79.) Otherwise, the fight was drinking in the backyard at 169 Kinkel exclusively between petitioner and Street, petitioner received a phone call Armando. (T. at 485, 507, 646, 935.) informing him that Armando was talking to others about him. (T. at 933.) In response, Armando’s wife Susana, hearing noises petitioner called Armando to tell him that he outside, noticed the fight and tried to wanted to fight him. (Id.) After the call, intervene, but Berrios took out a firearm,

5 The individual was only identified by a nickname at 6 The house at 169 Kinkel Street is across the street trial. (T. at 928.) from the V. family home. (T. at 932.) shot it in the air, and declared that it was a abdomen. (T. at 899-902.) It was fight between petitioner and Armando only. determined that Armando’s cause of death (T. at 486, 507-08, 805-06.) After the was “[m]ultiple stab wounds to [his] chest gunshot, people began running away from and abdomen with perforation of heart, the scene. (T. at 646.) stomach and pancreas.” (T. at 904.)

Petitioner, along with Berrios, fled Members of the Nassau County Crime towards petitioner’s home. (T. at 939-40.) Scene Unit investigated the scene that night Although no one saw petitioner wielding a and discovered a black do-rag, metal pipes, knife during the fight (T. at 485, 514, 828- wooden sticks, and beer bottles. (T. at 562- 29), Berrios testified that petitioner said to 67.) In addition, a bloody knife was him, during their flight from the scene, “I discovered in the street in front of fucked up. I stabbed him. I got him . . . You petitioner’s home. (T. at 567-69.) Further, are good. I fucked up. I’m done.” (T. at 939- Diana Bonilla’s Acura was parked in the 45.) Subsequently, petitioner got into the vicinity of the scene, and had bloodstains on front passenger seat of an Acura that the rear passenger door, seatback, and belonged to his sister and immediately drove ceiling. (T. at 585-86.) Swabs of the blood off. (T. at 489-90, 513, 781-83.) on both the knife and the Acura were taken for DNA testing and a DNA mixture was Meanwhile, Armando’s family and obtained, with the major contributor being friends noticed that Armando was bleeding the deceased. (T. at 850-53.) heavily from his torso. (T. at 487-89.) After taking a few steps towards his house with his On November 26, 2010, two months wife’s aid, Armando collapsed unresponsive after the incident, following a lengthy on the front lawn. (T. at 484-89.) investigation involving anonymous tips and tracking petitioner’s online activity, At approximately 10:27 p.m., P.O. James petitioner was apprehended at Pennsylvania Monroe of the Nassau County Police Station in New York City. (H. at 15-16.)7 Department, responded to 180 Kinkel Street The arresting officer, Detective James to find a street littered in debris, and Cereghino (“Detective Cereghino”), Armando lying unresponsive on the ground. apprehended petitioner and transported him (T. at 538-42.) An ambulance was called and to the Nassau County Homicide Squad Armando was transported to Nassau (“Homicide Squad”) in Mineola, New York. University Medical Center. (T. at 553-58.) (H. at 16.) During the trip, petitioner told During an autopsy performed on Armando, Cereghino, “I wanted to be out for it was discovered that Armando sustained Christmas.” (H. at 17.) twelve stab wounds in the side of his neck, chest, and abdomen during the incident. (T. Once they arrived at the Homicide at 900-02.) Following an autopsy, the Squad, Detective Cereghino took petitioner Nassau County Deputy Medical Examiner to an interview room where he was read his confirmed that the majority of the wounds Miranda rights and then the following were on Armando’s left chest, torso, and exchange took place:

7 “H.” refers to the transcript of the suppression hearing held before the trial court on August 17, 2011. (ECF No. 10-1.) B. Procedural History Q: Okay. Now that I have advised you of your rights, are you willing to 1. State Court Proceedings answer questions? a. Suppression Hearing A: I don’t know if I could call a lawyer or something. On August 17, 2011, a suppression hearing was held in Nassau County Supreme Q: I’m sorry, could you speak up? Court, during which Detective Cereghino testified regarding the circumstances A: I don’t know if I could call surrounding petitioner’s arrest and somebody to call me a lawyer or petitioner’s post-arrest statements. (H. at 6- something. 70.) At the close of testimony, the hearing court requested written submissions Q: That’s up to you, whatever it is regarding whether: (1) defendant knowingly, that you want to do. intelligently, and voluntarily waived his right to counsel before making statements to A: I can’t make any phone calls Detective Cereghino and (2) defendant (inaudible)? should have been provided a Spanish interpreter during his interactions with the Q: Ultimately, yes, you’ll be able to police. (H. at 71.) make a phone call, but I’m asking you now if you want to speak to me Ultimately, the court concluded that without a lawyer being present. petitioner did not make “an unequivocal invocation of his right to counsel” during the A: I could speak to you. exchange with Detective Cereghino and that petitioner speaks and understands English Q: You will speak to me? “perfectly well.” (H. at 101.) Therefore, the court concluded that the lack of an interpreter A: Yeah. was not problematic. (H. at 101.) The court denied petitioner’s suppression motion and (Transcript of Post-Arrest Interview 6-7.)8 his statements were deemed admissible. Petitioner then spoke with the police and the (Id.) entire interview, including this exchange, was recorded by video. b. Trial and Sentencing

Petitioner was tried in Nassau County Supreme Court starting on December 1, 2011. During the trial, the prosecution presented evidence, including the following: the testimony of J.V., eyewitnesses, and members of Armando’s family; members of the Nassau County Police Department; and

8 The transcript and DVD recording of the post-arrest interview were not electronically filed on the docket for this case, but have been provided to the Court. expert witnesses involved in the On May 15, 2012, petitioner was investigation. (T. at 430-1036.) In addition, sentenced to an indeterminate term of defense counsel presented a case, during incarceration of twenty-five years to life for which petitioner’s sister Diana Bonilla the murder charge and a determinate term of testified as an alibi witness, stating that on seven and one-half years of incarceration for September 24, 2010, petitioner was at home the rape charge followed by twenty years of by 4:30 p.m., then they went together to a post-release supervision. (S. at 19-20.) The tattoo parlor where they stayed until sentence for the rape conviction was approximately 7:10 p.m., until they returned imposed to run consecutively to the sentence home for the rest of the evening. (T. at 1057- imposed for the murder conviction. (S. at 70, 1095-98, 1100-09.) After both sides 20.) Regarding the remaining counts, the rested, defense counsel moved for a trial court ordered they be served concurrent to order of dismissal based on the sufficiency of the indeterminate twenty-five years to life the evidence for “the murder and related and determinate seven and one-half year charges and the rape and related charges.” sentences. 9 (S. at 21.) (T. at 1166-68.) The court denied the motion, but granted a motion to submit c. Appeals manslaughter, as a lesser charge, to the jury. (T. at 1167-68.) On April 16, 2014, petitioner appealed his conviction to the Second Following deliberations, on December Department of the New York State Appellate 20, 2011, the jury found petitioner guilty of Division, arguing that: (1) the evidence was one count of murder in the second degree, legally insufficient to find petitioner guilty of one count of rape in the first degree, two murder in the second degree and the counts of sexual abuse in the first degree, one weapons-related charge; (2) the prosecution count of criminal possession of a weapon in did not prove that petitioner committed rape the fourth degree, and one count of in the first degree beyond a reasonable doubt; endangering the welfare of a child. (T. at (3) the court erred in failing to sever the 1132-33.) The jury acquitted petitioner of sexual assault counts from the murder and one count of criminal possession of a weapon weapons-related counts; and (4) petitioner in the fourth degree. (T. at 1333.) After the did not receive a fair trial as the hearing court jury was excused, defense counsel moved to erroneously denied the suppression of set aside the verdict pursuant to N.Y. Crim. petitioner’s post-arrest videotaped statement. Pro. § 330.30. (T. at 1336-37.) The motion (See App. Div. Br. at 19-60, ECF No. 10- was denied. (T. at 1337-38. ) 5.)10

9 The specifics of the imposed sentence are as follows: criminal possession of a weapon in the fourth degree, (1) count of murder in the second degree, twenty-five one year of incarceration to be served concurrently; years of incarceration to life; (2) count of rape in the and (5) count of endangering the welfare of a child, first degree, seven and one-half years of incarceration one year of incarceration to be served concurrently. followed by twenty years of post-release supervision (S. at 19-21.) to be served consecutively to the murder count; (3) counts of sexual abuse in the first degree, four years 10 The Court uses the pagination assigned by the of incarceration followed by ten years of post-release electronic case filing system when citing to supervision to be served concurrently; (4) count of petitioner’s Appellate Division brief. (ECF No. 10- 5.) On April 15, 2015, the Second established federal law, when it found that Department affirmed petitioner’s conviction. petitioner did not unequivocally request the People v. Bonilla, 127 A.D.3d 985, 985 assistance of counsel before making (N.Y. App. Div. 2d Dep’t 2015.) The statements to law enforcement officials.” Second Department rejected petitioner’s (Pet’r’s Memo. of Law, ECF No. 1-1.) arguments regarding insufficiency of the Respondent filed a response in opposition to evidence for the conviction, emphasizing the petition on October 6, 2016. (Resp.’s Br., that during their review of the underlying ECF No. 10.) Petitioner submitted a reply to record, they “accord[ed] great deference to the opposition on June 23, 2016. (Pet’r’s the jury’s opportunity to view the witnesses, Reply, ECF No. 13.) The Court has fully hear the testimony, and observe demeanor.” considered the submissions and arguments of Id. at 986. In addition, the Second the parties, as well as the underlying record. Department found that the severance of specific counts was not required as “the II. STANDARD OF REVIEW nature of the proof for each of the offenses was material and admissible as evidence To determine whether a petitioner is upon the trial of the other counts.” Id. at 985- entitled to a writ of habeas corpus, a federal 86. Finally, the Second Department rejected court must apply the standard of review set petitioner’s arguments regarding forth in 28 U.S.C. § 2254, as amended by the suppression of his statement as “the record Antiterrorism and Effective Death Penalty supports the . . . finding that the [petitioner] Act (“AEDPA”), which provides, in relevant did not unequivocally request the assistance part: of counsel before making statements to law enforcement.” Id. at 985. Petitioner sought (d) An application for a writ of habeas leave to appeal to the New York State Court corpus on behalf of a person in custody of Appeals, arguing that the Second pursuant to the judgment of a State court Department erred in affirming the hearing shall not be granted with respect to any court’s denial of petitioner’s motion to claim that was adjudicated on the merits suppress the statements. See People v. in State court proceedings unless the Bonilla, 25 N.Y.2d 1198 (2015). The court adjudication of the claim – denied leave to appeal on July 29, 2015. Id. (1) resulted in a decision that was 2. The Instant Petition contrary to, or involved an unreasonable application of, clearly established On June 24, 2016, petitioner moved Federal law, as determined by the before this Court for a writ of habeas corpus Supreme Court of the United States; or pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner raises two issues: (1) “[t]he (2) resulted in a decision that was based Appellate Division rendered a decision that on an unreasonable determination of the was an unreasonable application of clearly facts in light of the evidence presented in established federal law, when it found that it the State court proceeding. was legally sufficient to establish petitioner’s guilt” for the second-degree murder and 28 U.S.C. § 2554. ‘“Clearly established first-degree rape convictions; and (2) “[t]he Federal law’ means ‘the holdings, as Appellate Division rendered a decision that opposed to the dicta, of [the Supreme] was an unreasonable application of clearly Court’s decisions as of the time of the relevant state-court decision.’” Green v. Cir. 2009) (quoting Spears v. Greiner, 459 Travis, 414 F.3d 288, 296 (2d Cir. 2005) F.3d 200, 203 (2d Cir. 2006)). (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). III. DISCUSSION

A decision is “contrary to” clearly Petitioner argues that he is entitled to established federal law, as determined by the habeas relief as the state court unreasonably Supreme Court, “if the state court arrives at applied federal law in concluding that: a conclusion opposite to that reached by [the (1) the evidence at trial was sufficient to Supreme Court] on a question of law or if the establish his guilt of murder in the second state court decides a case differently than degree and rape in the first degree; and [the Supreme Court] has on a set of (2) petitioner did not unequivocally request materially indistinguishable facts.” assistance of counsel before making Williams, 529 U.S. at 413. A decision is an statements to law enforcement officers. (Pet. “unreasonable application” of clearly at 5-7.) For the reasons discussed below, the established federal law if a state court Court denies petitioner’s request for habeas “identifies the correct governing legal relief. Petitioner’s insufficiency of the principle from [the Supreme Court’s] evidence claim is procedurally barred, and, decisions but unreasonably applies that in any event, the Court concludes that it lacks principle to the facts of [a] prisoner’s case.” merit. The suppression of evidence claim, Id. though adequately exhausted, fails on the merits. AEDPA establishes a deferential standard of review: ‘“a federal habeas court A. Procedural Requirements may not issue the writ simply because that court concludes in its independent judgment 1. Exhaustion that the relevant state-court decision applied clearly established federal law erroneously As a threshold matter, a district court or incorrectly. Rather, that application must shall not review a habeas petition unless “the also be unreasonable.’” Gilchrist v. O’Keefe, applicant has exhausted the remedies 260 F.3d 87, 93 (2d Cir. 2001) (quoting available in the courts of the State.” 28 Williams, 529 U.S. at 411). The Second U.S.C. § 2254(b)(1)(A). Although a state Circuit added that, while ‘“[s]ome increment prisoner need not petition for certiorari to the of incorrectness beyond error is required . . . United States Supreme Court to exhaust his the increment need not be great; otherwise, claims, see Lawrence v. Florida, 549 U.S. habeas relief would be limited to state court 327, 333 (2007), he still must fairly present decisions so far off the mark as to suggest his federal constitutional claims to the judicial incompetence.’” Id. (quoting highest state court having jurisdiction over Francis S. v. Stone, 221 F.3d 100, 111 (2d them, see Daye v. Attorney Gen. of N.Y., 696 Cir. 2000)). Finally, “if the federal claim F.2d 186, 191 n.3 (2d Cir. 1982) (en banc). was not adjudicated on the merits, ‘AEDPA Exhaustion of state remedies requires that a deference is not required, and conclusions of petitioner ‘“fairly presen[t]’ federal claims to law and mixed findings of fact and the state courts in order to give the State the conclusions of law are reviewed de novo.’” ‘opportunity to pass upon and correct’ Dolphy v. Mantello, 552 F.3d 236, 238 (2d alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (alteration in original) (quoting Thompson, 501 U.S. 722, 731-32 (1991). Picard v. Connor, 404 U.S. 270, 275 (1971)). “[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the However, “it is not sufficient merely that petitioner failed to exhaust state remedies the federal habeas applicant has been and the court to which the petitioner would through the state courts.” Picard, 404 U.S. be required to present his claims in order to at 275-76. To provide the State with the meet the exhaustion requirement would now necessary “opportunity,” the prisoner must find the claims procedurally barred.’” Reyes “fairly present” his claims in each v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) appropriate state court (including a state (emphasis omitted) (quoting Coleman, 501 supreme court with powers of discretionary U.S. at 735). review), alerting that court to the federal nature of the claim and “giv[ing] the state Where the petitioner “can no longer courts one full opportunity to resolve any obtain state-court review of his present constitutional issues by invoking one claims on account of his procedural default, complete round of the State’s established those claims are now to be deemed appellate review process.” O’Sullivan v. exhausted.” DiGuglielmo v. Smith, 366 F.3d Boerckel, 526 U.S. 838, 845 (1999); see also 130, 135 (2d Cir. 2004) (first citing Harris v. Duncan, 513 U.S. at 365-66. “A petitioner Reed, 489 U.S. 255, 263 n.9 (1989); then has ‘fairly presented’ his claim only if he has citing Grey v. Hoke, 933 F.2d 117, 120 (2d ‘informed the state court of both the factual Cir. 1991)). Therefore, “[f]or exhaustion and the legal premises of the claim he asserts purposes, ‘a federal habeas court need not in federal court.’” Jones v. Keane, 329 F.3d require that a federal claim be presented to a 290, 294-95 (2d Cir. 2003) (quoting Dorsey state court if it is clear that the state court v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)). would hold the claim procedurally barred.’” “Specifically, [petitioner] must have set forth Reyes, 118 F.3d at 139 (quoting Grey, 933 in state court all of the essential factual F.2d at 120). allegations asserted in his federal petition.” Daye, 696 F.2d at 191-92 (first citing Picard, However, “exhaustion in this sense does 404 U.S. at 276; then citing United States ex not automatically entitle the habeas rel. Cleveland v. Casscles, 479 F.2d 15, 19- petitioner to litigate his or her claims in 20 (2d Cir. 1973)). To that end, “[t]he chief federal court. Instead, if the petitioner purposes of the exhaustion doctrine would be procedurally defaulted [on] those claims, the frustrated if the federal habeas court were to prisoner generally is barred from asserting rule on a claim whose fundamental legal those claims in a federal habeas proceeding.” basis was substantially different from that Woodford v. Ngo, 548 U.S. 81, 93 (2006) asserted in state court.” Id. at 192 (footnote (first citing Gray v. Netherland, 518 U.S. omitted). 152, 162 (1996); then citing Coleman, 501 U.S. at 744-51). 2. Procedural Bar The procedural bar rule in the review of Like the failure to exhaust a claim, the applications for writs of habeas corpus is failure to satisfy the state’s procedural based on the comity and respect that state requirements deprives the state courts of an judgments must be accorded. See House v. opportunity to address the federal Bell, 547 U.S. 518, 536 (2006). Petitioner’s constitutional or statutory issues in a federal claims also may be procedurally petitioner’s claims. See Coleman v. barred from habeas corpus review if they exhausted his claims when his letter seeking were decided at the state level on adequate leave to appeal included no substantive and independent grounds. See Coleman, 501 issues and simply attached his Appellate U.S. at 729-33. Division brief to the submission instead. Meatley, 886 F. Supp. at 1013-14. However, Once it is determined that a claim is the instant matter is distinguishable because procedurally barred under state rules, a petitioner did submit an issue in his letter federal court may still review such a claim on application to the Court of Appeals. its merits if the petitioner can demonstrate Therefore, by presenting only the motion to both cause for the default and prejudice suppress claim in his application to the Court resulting therefrom, or if he can demonstrate of Appeals, petitioner abandoned the other that the failure to consider the claim will issues, including the insufficiency of the result in a miscarriage of justice. Id. at 750 evidence claims. See Galdamez v. Keane, (citations omitted). A miscarriage of justice 394 F.3d 68, 74 (2d Cir. 2005); Grey v. Hoke, is demonstrated in extraordinary cases, such 933 F.2d 117, 120 (2d Cir. 1991) (“The fair as where a constitutional violation results in import of petitioner’s submission to the the conviction of an individual who is Court of Appeals, consisting of his brief to actually innocent. Murray v. Carrier, 477 the Appellate Division that raised three U.S. 478, 496 (1986). claims and a letter to the Court of Appeals arguing only one of them, was that the other 3. Application two had been abandoned.”) Because petitioner did not fairly present this claim to First, as to petitioner’s claim that the the appropriate state courts “in order to give hearing court erroneously found petitioner’s the state the ‘opportunity to pass upon and statements admissible even though he correct’ alleged violations of its prisoners’ invoked his right to counsel, the Court finds federal rights,” this claim is unexhausted. this claim adequately exhausted. This claim Duncan, 513 U.S. at 365 (quoting Picard, appeared in petitioner’s direct appeal and in 404 U.S. at 275). his brief seeking leave to appeal to the New York State Court of Appeals. Further, the Here, petitioner no longer has any state Second Department denied this claim on the court remedies available to him because of merits. Accordingly, this Court will address New York State’s procedural rules, and so the substance of this claim, applying AEDPA the insufficiency of the evidence claim is deference. deemed procedurally defaulted. See Moss v. New York, 10-CV-5840 (SJF), 2014 WL Next, as to petitioner’s insufficiency of 585928, at *9 (E.D.N.Y. Feb. 12, 2014). In the evidence claim, the Court finds that this addition, petitioner is unable to overcome claim was not adequately exhausted as this procedural bar as he has not petitioner failed to include this claim in his demonstrated cause or prejudice resulting brief seeking leave to appeal to the New from the default, nor a miscarriage of justice York State Court of Appeals. In his reply if this claim is not reviewed. brief, petitioner argues that Meatley v. Artuz, Notwithstanding the aforementioned, the 886 F. Supp. 1009, 1014 (E.D.N.Y. 1995) Court, in an abundance of caution, will permits his claim to be deemed exhausted. proceed to address the merits of this claim. (See Pet’r’s Reply Br. at 1.) In Meatley, it was determined that a petitioner adequately B. Merits sufficiency claim unless the record is ‘so totally devoid of evidentiary support that a 1. Insufficiency of the Evidence due process issue is raised.’” Sanford v. Burge, 334 F. Supp. 2d 289, 303 (E.D.N.Y. Petitioner argues that there was 2004) (quoting Bossett v. Walker, 41 F.3d insufficient evidence to support his 825, 830 (2d Cir. 1994)). When considering convictions for murder in the second degree the sufficiency of the evidence of a state and rape in the first degree. (See Pet’r’s conviction, “[a] federal court must look to Memo. of Law at 1-14.) This claim is state law to determine the elements of the without merit. crime.” Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). A petitioner ‘bears a very heavy burden’ when challenging evidentiary sufficiency in a. Second Degree Murder a writ of habeas corpus. Einaugler v. Supreme Court of New York, 109 F.3d 836, Petitioner claims that the evidence 840 (2d Cir. 1997) (internal quotation marks presented at trial was legally insufficient to omitted) (quoting Quirama v. Michele, 983 support his conviction of second degree F.2d 12, 14 (2d Cir. 1993)). A criminal murder because (1) no direct evidence – conviction in state court will not be whether physical evidence or testimonial overturned if, “after viewing the evidence in evidence – conclusively linked him to the the light most favorable to the murder weapon (i.e., the knife); (2) the prosecution, any rational trier of fact could government’s witness, Berrios, was not have found the essential elements of the credible, as evidenced by his inconsistent crime beyond a reasonable doubt.” Jackson statements and receipt of immunity from v. Virginia, 443 U.S. 307, 319 (1979); see prosecution; and (3) there is no explanation also Policano v. Herbert, 507 F.3d 111, 115- for why, although petitioner was seen in the 16 (2d Cir. 2007) (stating that “[i]n a front seat of his sister’s car, his blood was not challenge to a state criminal conviction found in the backseat where the victim’s brought under 28 U.S.C. § 2254 … the blood was discovered. (See Pet’r’s Memo. applicant is entitled to habeas corpus relief if of Law at 1-8.) it is found that upon the record evidence adduced at the trial no rational trier of fact In New York, “[a] person is guilty of could have found proof of guilt beyond a murder in the second degree when, with reasonable doubt” (internal quotation marks intent to cause the death of another, he causes omitted) (quoting Jackson, 443 U.S. at the death of such person . . . .” N.Y. Penal 324)). Even when ‘faced with a record of Law § 125.25[1]. The New York Court of historical facts that supports conflicting Appeals has consistently held that the intent inferences [a court] must presume—even if to kill can be inferred from both the it does not affirmatively appear in the defendant’s conduct and surrounding record—that the trier of fact resolved any circumstances. See People v. Bracey, 41 such conflicts in favor of the prosecution, N.Y.2d 296, 301 (1977); see also Bossett, 41 and must defer to that resolution.’ Wheel v. F.3d at 830 (“[A] conviction may be based Robinson, 34 F.3d 60, 66 (2d Cir. upon circumstantial evidence and inferences 1994) (internal quotation marks omitted) based upon the evidence, and the jury is (quoting Jackson, 443 U.S. at 326). Thus, exclusively responsible for determining a “[a] habeas court will not grant relief on a witness’ credibility.”) finding that petitioner was the individual Viewing the facts in the light most who repeatedly stabbed Armando, causing favorable to the prosecution, the Court his death. See Bossett, 41 F.3d at 830. concludes that, based on the evidence in the underlying record, a rational trier of fact The Court likewise rejects petitioner’s could have certainly found proof beyond a claim that there was insufficient evidence to reasonable doubt that petitioner was guilty of establish his guilt of second-degree murder murder in the second degree. In particular, because Berrios was not a credible witness. the Court finds that the following evidence Regarding the evaluation of witness adduced at trial rationally supports the jury’s testimony, “[a]ll issues of credibility, decision to find petitioner guilty and the including the credibility of a cooperating Appellate Division’s affirmation of that witness, must be resolved in favor of the finding: J.V. testified that petitioner had jury’s verdict.” United States v. Riggi, 541 sexual relations with her, which (upon her F.3d 94, 108 (2d Cir. 2008). father learning about such relations) provoked an altercation between her father Petitioner refers to People v. Garafolo, and petitioner at the Westbury Deli days 44 A.D.2d 86 (N.Y. App. Div. 2d Dep’t before the fatal fight (T. at 476-78, 635-38, 1974) to argue that Berrios’ testimony was 517); between the time of the altercation at not credible, entitling him to relief. (Pet’r’s the deli and the fatal fight, petitioner told Mem. of Law at 4-6.) In Garafolo, a police people he wanted to fight Armando (T. at officer testified that he observed unlawful 481-82, 638, 772, 933); immediately prior to untaxed cigarettes through a bag, which the the fatal fight, petitioner asked Armando’s court observed was not possible. Id. at 88- daughter, N.V., if she would mind if he killed 89. The court found that this testimony was her father (T. at 640, 652); multiple patently incredible and necessary to support witnesses testified that the fatal fight was the conviction; therefore, the Second exclusively between petitioner and Armando Department reversed the conviction. Id. By (T. at 485, 646-47, 506-07, 935); petitioner contrast, here, the jury heard an abundance was seen repeatedly striking Armando in the of evidence aside from Berrios’ alleged left torso, side, and back (T. at 484-85, 644, inconsistent statements, to conclude 776-77); the twelve fatal stab wounds petitioner was guilty of the crimes. See sustained by Armando, according to medical United States v. Diaz, 176 F.3d 52, 107 (2d testimony, corroborates witness testimony Cir. 1999) (although cooperating witness for that petitioner struck Armando on the left the prosecution was suspected of perjury, the side of his chest and abdomen (T. at 484-85, court found “there was an abundance of 644, 776-77, 900-02); following the fight, evidence that corroborated [the witness’s] petitioner said to Berrios, “I fucked up. I description of these events”). Moreover, stabbed him. I got him. You are good. I petitioner’s defense counsel thoroughly fucked up. I’m done.” (T. at 939). questioned Berrios regarding his inconsistent statements about seeing petitioner get in the Therefore, although no one testified that car and petitioner’s statements. (T. at 952- they saw petitioner wield a knife, the 53.) Further, Berrios’ cooperation surrounding circumstances, the fact that the agreement was made known to the jury prior murder weapon was recovered outside to the People’s direct examination. (T. at petitioner’s residence, and petitioner’s 921-24.) Accordingly, because there was an statements, rationally support the jury’s abundance of independent evidence to convict petitioner of murder in the second questions by the prosecutor that arguably degree and the jury had adequate opportunity mischaracterized J.V.’s prior testimony, and to decide whether Berrios was a credible (2) Dr. Pompey testified that the only witness, the Court rejects petitioner’s claim abnormal finding in J.V.’s examination was that there was insufficient evidence to find a “V-shaped cleft at the 5 o’clock position” him guilty of murder in the second degree. which could be consistent with both digital penetration or partial penile penetration. (Id. Finally, petitioner’s contention that there at 10-13). For the reasons set forth below, was insufficient evidence of guilt because the Court finds petitioner’s arguments to be petitioner’s blood was not found in the car he without merit.11 entered following the fatal incident also fails. First, the Court notes that, although In New York, “[a] person is guilty of rape petitioner’s blood was not discovered in the in the first degree when he or she engages in aforementioned car, Armando’s blood was. sexual intercourse with another person . . . (T. at 869-70.) In any event, as discussed [w]ho is less than eleven years old.” N.Y. supra, given the totality of the evidence Penal Law § 130.35(3). The New York State presented to the jury, the absence of Court of Appeals has held that “[s]exual petitioner’s blood in the car certainly does intercourse ‘has its ordinary meaning and not lead to a determination that no “rational occurs upon any penetration, however trier of fact could have found the essential slight.’” People v. Carroll, 95 N.Y.2d 375, elements of the crime beyond a reasonable 383 (2000) (citing N.Y. Penal Law doubt.” Jackson, 443 U.S. at 319. § 130.00(1)). Moreover, “the testimony of a child victim alone is sufficient” to establish b. First Degree Rape rape in the first degree. Id. (stating that corroboration is only required when victim is Petitioner also asserts that the Appellate deemed unable to consent due to mental Division unreasonably applied federal law in defect or mental incapacity). affirming that there was sufficient evidence to establish petitioner’s guilt of rape in the Here, after careful review of the record, first degree, arguing that the evidence was the Court concludes that J.V.’s testimony (T. insufficient because there was “questionable at 684-87) was sufficient for a rational trier witness testimony” and “equivocal medical of fact to find that the requisite elements of evidence in support thereof.” (Pet’r’s Mem. rape in the first degree were proven beyond of Law at 9.) Specifically, petitioner claims a reasonable doubt. See People v. Wyre, 97 that the evidence adduced at trial was A.D.3d 976, 977 (N.Y. App. Div. 3d Dep’t insufficient to support a finding of rape in the 2012) (rejecting a defendant’s arguments first degree because (1) J.V. only testified to that though a victim stated that sexual penile penetration in response to leading intercourse took place, without a specific

11 The Court notes that respondent urges the Court to Correa v. Duncan, 172 F. Supp. 2d 378, 281 characterize petitioner’s arguments regarding the (E.D.N.Y. 2001) (stating that a weight of the evidence evidence surrounding the rape in the first degree claim “is a pure state law claim grounded in New conviction as a weight of the evidence claim. To the York Criminal Procedure Law § 470.15(5), whereas a extent that petitioner makes a weight of the evidence legal sufficiency claim is based on federal due process claim, such a claim is not cognizable on habeas corpus principles . . . Accordingly, the Court is precluded review as it exclusively implicates issues of state law. from considering the claim.”). The Court, due to See Pitre v. Griffin, No. 16 CIV 6258 (BMC), 2016 petitioner’s pro se status, liberally construes this claim WL 7442653, at *12 (E.D.N.Y. Dec. 26, 2016); as a legal sufficiency claim. statement that penetration occurred and a Before police question a suspect in police lack of physical evidence, a conviction custody, the suspect must first be advised of should be overturned). In addition to J.V.’s certain rights, which include the right not to testimony, the medical testimony that J.V.’s be questioned without an attorney. Miranda injuries could be consistent with partial v. Arizona, 384 U.S. 436 (1966). If this right penile penetration (T. at 754) further is invoked, police officers must immediately corroborates J.V.’s testimony. See People v. discontinue questioning the suspect. Davis Green, 239 A.D.2d 248, 249 (N.Y. App. Div. v. United States, 512 U.S. 452, 457-58 1st Dep’t 1997) (finding that, though there (1994). However, the suspect invoking the was not conclusive medical evidence of rape, right to counsel “must at a minimum make it did not negate the credible testimony of a ‘some statement that can reasonably be child victim, where victim’s testimony was construed to be an expression of a desire for consistent with slight penetration). the assistance of an attorney in dealing with Moreover, to the extent petitioner questions custodial interrogation.’” United States v. J.V.’s credibility, as noted above, “a habeas Oehne, 698 F.3d 119, 122-23 (2d Cir. 2012) court ‘must defer to the jury’s assessment of (quoting McNeil v. Wisconsin, 501 U.S. 171, the credibility of witnesses.’” Martin v. 178 (1991)). In other words, “[i]f the Smith, No. 09-CV-5515 (SLT), 2013 WL suspect’s statement is not an unambiguous or 420102, at *10 (E.D.N.Y. Feb. 1, 2013) unequivocal request for counsel, the officers (quoting Taylor v. Napoli, No. 09-CV-2511 have no obligation to stop questioning him.” (NGG), 2011 WL 3648228, at *6 (E.D.N.Y. Davis, 512 U.S. at 461-62. Accordingly, Aug. 16, 2011)). officers are not required to cease questioning a suspect who only “makes a reference to an In sum, the Court finds that petitioner’s attorney that is ambiguous or equivocal in sufficiency of the evidence claim (as to both that a reasonable officer in light of the the murder and rape convictions) is without circumstances would have understood only merit, and thus, the state court’s ruling was that the suspect might be invoking the right not contrary to, or an unreasonable to counsel.” Id. at 459. Of particular application of, clearly established federal relevance here, the bare reference to a lawyer law. is not sufficient to invoke the right to counsel. Id. at 462 (“[m]aybe I should talk 2. Request for Counsel to a lawyer” was “not a request for counsel”).

Petitioner also claims that the Second In the instant matter, petitioner was read Department “rendered a decision that was an his Miranda rights by Detective Cereghino unreasonable application of clearly and responded with “I don’t know if I could established federal law, when it found that call a lawyer or something?” and “I don’t petitioner did not unequivocally request the know if I could call somebody to call a assistance of counsel before making lawyer or something.” (H. at 60-62; Pet’r’s statements to law enforcement.” (Pet’r’s Memo. of Law at 18.) Detective Cereghino Memo. of Law at 15.) In response, informed petitioner that it was up to him, and respondent argues that the state court’s petitioner proceeded to ask “I can’t make any decision was correct and, even if statements phone calls?” (H. at 60-62; Pet’r’s Mem. of should have been suppressed, any error Law at 18.) Detective Cereghino told would be harmless as they were never petitioner that ultimately he could make a introduced at trial. (Resp’s Br. at 16-23.) phone call and asked if he was still willing to speak to him without a lawyer present and inside Rochester General Hospital, he petitioner proceeded to do so.12 (H. at 60-62; invoked his right to counsel, when he asked Pet’r’s Memo. of Law at 18.) [the officer], ‘if he would be able to call an attorney.’ The Court finds that this inquiry After conducting a hearing, the state on the part of the defendant amounted only court found that, although petitioner may to an equivocal assertion of the right to have questioned whether he could have a counsel, which did not require cessation of lawyer present, he did not unequivocally questioning. The defendant’s question invoke his right to counsel, and Detective lacked the clear implication of a present Cereghino was under no duty to discontinue desire to consult with counsel.”); United questioning as a result of petitioner’s States v. Jesus Abarca, No. 1:05CR175 JCH, statements. Numerous federal courts, 2006 WL 1300604, at *15 (E.D. Mo. 2006) including the Second Circuit, have reached (“Considering the question in context, it is the same conclusion under similar not clear that Wilkinson was actually circumstances. For example, in Dormire v. requesting the presence of an attorney when Wilkinson, 249 F.3d 801, 805 (8th Cir. he asked ‘Could I call my lawyer?’ . . . [The 2001), the Eighth Circuit held: “We conclude officer] could have reasonably believed in that the state court was not unreasonable in these circumstances that Wilkinson was determining that Wilkinson’s question merely inquiring whether he had the right to ‘Could I call my lawyer?’ was not an call a lawyer, rather than believing that unambiguous request for counsel.” See also Wilkinson was actually requesting Diaz v. Senkowski, 76 F.3d 61, 64-65 (2d Cir. counsel.”). 1996) (“Do you think I need a lawyer?” was not a “clear statement” of suspect’s desire to In sum, the question of whether invoke counsel); accord United States v. petitioner’s statements invoked his right to Zamora, 222 F.3d 756, 766 (10th Cir. 2000) counsel was thoroughly presented to the (statement that “I might want to talk to an hearing court and petitioner has not shown attorney” was not “an unequivocal request that the state court’s decision to uphold the for counsel”); United States v. Doe, 170 F.3d admissibility of the statement was contrary 1162, 1166 (9th Cir. 1999) (defendant’s to, or an unreasonable application of, federal question “What time will I see a lawyer?” law, nor was it an unreasonable was not a clear invocation of right to counsel determination of the facts in light of the and did not require questioning to cease); evidence presented. United States v. Degaule, 797 F. Supp. 2d 1332, 1381 n.56 (N.D. Ga. 2011) (asking In any event, because the post-arrest “Do I call my attorney now?” at end of statement was not presented at trial, any error interview was insufficient to invoke right to was harmless. See, e.g., Gordon v. Mantello, counsel); United States v. Cook, No. 07-CR- 155 F. App’x 562, 565 (2d Cir. 2005) 6195 CJS, 2008 WL 728883, at *14 (“Preliminarily, we observe that, because (W.D.N.Y. Mar. 17, 2008) (“The Court also these initial statements were not introduced rejects the defendant’s argument that any into evidence at Gordon’s trial, any error in statements he made to [the law enforcement the trial court’s judgment that the statements officer] must be suppressed, since prior to were not custodial was necessarily making any such statements, while still harmless.)

12 The Court has reviewed the relevant portions of the DVD and transcript. Accordingly, petitioner’s suppression claim fails on the merits and does not provide a basis for habeas relief, IV. | CONCLUSION For the foregoing reasons, petitioner has demonstrated no basis for relief under 28 U.S.C, § 2254. Therefore, the petition for a writ of habeas corpus is denied. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall close this case. SQ ORDERED.

J PH F. BIANCO ed States Circuit Judge (sitting by designation) Dated: August 15, 2019 Central Islip, New York oh 3k ok Petitioner proceeds pro se. Respondent is represented by Cristin Connell, Assistant District Attorney, Nassau County District Attorney’s Office, 262 Old Country Road, Mineola, NY 11501.