McManus v. Vann

• Court: District Court, E.D. New York
• Decided: August 9, 2019
• Docket: 2:18-cv-03800
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

_____________________ FILED CLERK N-o CV-18-3800 (JFB) 8/9/2019 2:23 pm _____________________ U.S. DISTRICT COURT STEVEN MCMANUS, EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE Petitioner,

VERSUS

SUPERINTENDENT MARY VANN,

Respondent.

___________________

MEMORANDUM AND ORDER August 9, 2019 ___________________

JOSEPH F. BIANCO, Circuit Judge (sitting by referenced matters not in evidence; (2) designation): vouched for the witnesses; (3) acted as an unsworn witness; (4) attempted to shift the Steve McManus (“petitioner”) petitions burden; (5) attacked petitioner’s trial counsel this Court for a writ of habeas corpus, rather than the evidence; and (6) pursuant to 28 U.S.C. § 2254, challenging his mischaracterized the evidence. (Pet. 6, ECF convictions in New York State Court. On No.1) June 15, 2015, following a jury trial in the Supreme Court of New York, Nassau County For the reasons discussed below, (the “trial court”), petitioner was convicted of petitioner’s request for a writ of habeas sexual abuse in the first degree (N.Y. Penal corpus is denied in its entirety. Law (“NYPL”) § 130.65[1]), and criminal obstruction of breathing or blood circulation I. BACKGROUND (NYPL § 121.11). Petitioner was sentenced to seven years’ imprisonment, with a The following facts are adduced from concurrent sentence of one year the petition, respondent’s answer and incarceration, followed by fifteen years of memorandum in opposition, and the post-release supervision. underlying record.

Petitioner challenges his convictions on the single ground of prosecutorial misconduct during summation. Specifically, petitioner claims that the prosecutor (1) noticed that he was “fiddling” with either his A. Factual Background fly or belt. (Id.) Chirokikh then entered the toilet area and saw Mary, crouched on the 1. The Evidence floor, crying. (T. 935.) Chirokikh then told the owner and another individual to On the evening of August 29, 2013, Mary apprehend petitioner. (Id.) After returning to Doe1 entered Jack Duggan’s Pub in Floral Mary’s side, Mary, in a state of shock, told Park with a small group of friends. (T. 641- Chirokikh that petitioner had sexually 45.)2 Shortly thereafter, Mary went to the assaulted her and that she thought she was ladies’ restroom. (T. 648-49.) The restroom going to die. (Id.) John Duggan, the owner of was divided by a door into two areas: the sink Jack Duggan’s Pub (T. 474-75), testified that area and the toilet area. (T. 650.) Mary he saw the petitioner exit the ladies’ room and entered the sink area where she waited and head toward the back door (T. 540-41). began texting on her phone. (Id.) Moments Duggan also saw Mary, with her blouse open, later, petitioner entered the ladies’ room. (T. crying on the floor in the bathroom (T. 545), 653.) When petitioner entered the sink area, before following one of Mary’s friends, Evan he began to sing, make small talk, and kiss Triantafilis, out the back door in pursuit of Mary. (Id.) Believing he was drunk, Mary petitioner (T. 542). Duggan and Triantafilis pushed petitioner aside and told him he was then found petitioner hiding in the bushes, confusing her for someone else. (T. Id.) buckling his belt. (T. 548-51.) They then According to Mary, petitioner became kept him from leaving the area until the aggressive and continued to kiss her on the police arrived. (T. 553-54.) neck. (T. 654.) Mary began to scream. (T. 655.) Her phone was knocked out of her hand Mary was questioned by Nassau County and fell between the doorway and the sink. Detective Susan Entenmann who observed (T. Id.) Petitioner then grabbed her by the no visible injuries. (T. 986.) She was neck, covering Mary’s mouth, and pushed transported to the hospital and examined by her into the toilet area. (T. 654-55.) Once Theresa Dillman, a Sexual Assault Nurse inside, petitioner pulled Mary’s dress straps Examiner (“SANE” nurse). (T. 806.) The down. (T. 670.) He then groped her breasts exam revealed that Mary’s injuries included and continued to try to kiss her neck. (T. 654, three tears to her vagina (T. 829-33), redness 658.) According to Mary, petitioner raped on both sides of her neck, and abrasions on her at this time. (T. 654-55.) her upper buttocks and the back of her arms. (T. 819-20). Petitioner’s DNA was found on Svetlana Chirokikh, a friend of Mary’s, Mary’s neck. (T. 1024-25.) testified that, during this time, Mary’s friends became concerned about how long she had 2. Trial been in the restroom and enlisted the bar’s co- owner, who used a butter knife to unlock the a. Petitioner’s Written Statement to door to the ladies’ room. (T. 932-33.) Once Investigating Detective the door began to open, petitioner dropped Mary and walked passed Chirokikh on his During opening statements, petitioner’s way out the bathroom. (T. 934.) Chirokikh counsel described the encounter between

1 The victim will be referred to herein by the 2 “T.” refers to the trial transcript submitted by the pseudonym “Mary Doe” for purposes of government. (ECF Nos. 6-3 to 6-18.) confidentiality. petitioner and Mary as consensual. (T. 425- indicate that the patient contracted HIV prior 26.) Counsel explained that, when petitioner to the assault and required a different entered the toilet area of the bathroom, he medication regimen. (T. 816-17.) If the found Mary sitting on the toilet. (T. 426.) blood work shows the patient is negative, the Petitioner excused himself and re-entered the patient is “prophylactically” treated and put sink area. (T. 426.) After Mary was done, on a 30-day medication regimen. (T. at 817.) she rejoined petitioner in the sink area and began to dance with petitioner. (T. 426.) c. DNA Specialist Testimony According to petitioner’s counsel, this is when petitioner and Mary began kissing. (T. DNA specialist Christopher Chillseyzn 426.) Counsel told the jury that Mary slapped testified that he initially screened several petitioner after he commented on her weight. articles of petitioner’s clothing for the (Id.) In his affidavit in support of the presence of blood (T. 1018), before further petition, petitioner’s counsel states that he testing found that petitioner’s DNA, mentioned these details from petitioner’s collected from his shorts and T-shirt, was written statement in the opening because he consistent with the DNA found on Mary’s had anticipated that the detective who took neck, (T. 1024-25). On cross-examination, the statement would be called as a witness Chillseyzn testified that he was primarily during trial to admit this statement. (Aff. at looking for blood on petitioner’s clothing in 15, ECF No. 10.) However, the detective was order to test for human DNA and that, while not called as a witness, the statement was not he determined there was human DNA on admitted, and petitioner failed to produce petitioner’s clothes, he could not say evidence to support these claims made during conclusively where that DNA came from opening. (i.e., from skin or from sexual contact with Mary). (T. 1037-39.) Petitioner’s counsel b. SANE Nurse Testimony also questioned Chillseyzn regarding the lack of Mary’s DNA on petitioner’s shorts or Theresa Dillman, the SANE nurse, pants. (T. 1038-39.) On redirect, Chillseyzn testified during direct examination that she testified that, in the hypothetical posed by administered medication to Mary to prevent petitioner’s trial counsel, DNA specialists do her from contracting a sexually transmitted not test for skin cells because, “[t]here will be disease. (T. 818.) Dillman testified that millions of those present from the victim. So SANE nurses are required to conduct blood identifying skin cells from one person or work tests for Hepatitis B, Hepatitis C, another is not possible.” (T. 1041.) Human Immunodeficiency Virus (“HIV”), and syphilis. (T. 815.) She further testified it d. Prosecutor’s Summation3 is also part of procedure to administer preventive treatments for gonorrhea, In the beginning of her summation, the chlamydia, and trichomonas. (T. 815.) prosecutor asked the jury to take into Dillman also explained that the hospital is consideration Mary’s composure during obligated to ask any patient between the ages cross-examination and direct examination. of 13 and 64 if they want to be tested for HIV (T. 1132-35.) For instance, the prosecutor to “reduce the instances of HIV.” (T. 816.) told the jury that the way Mary answered the If the patient is HIV-positive, it would questions was significant because it showed

3 Below is a summary of the prosecutor’s summation. comments that are the subject of the petition is A more detailed discussion regarding certain contained in the legal analysis. that she was not defensive or evasive and was And I remind the jurors again anything said respectful. (T. 1134-35.) The prosecutor by the attorneys in opening, closing, or pointed to Mary’s continued answers despite anything at other times throughout the trial is the fact that it was uncomfortable for her, not evidence in the case.” (Tr. 1189-90.) The even when petitioner’s trial counsel asked prosecutor then pointed out that she was only Mary an “offensive” question (T. 1135). mentioning the opening statement to show Moreover, the prosecutor argued that Mary there was a lack of evidence to prove the had no motive to lie. (T. 1136-37.) The encounter was consensual. (T. 1190.) The prosecutor also pointed out that, although objection was overruled. (Id.) petitioner’s trial counsel had suggested the encounter was consensual, there was no The prosecutor then discussed the SANE evidence in the trial record to support that. (T. nurse’s testimony. (T. 1195-96.) She argued 1139.) In doing so, she reminded the jury that that a patient would not need to be tested for “what defense counsel says, what I say is not “HIV or gonorrhea or chlamydia or evidence.” (T. 1139.) The prosecutor also trichomonas” if the encounter only involved pointed to evidence demonstrating the consensual kissing. (T. 1195.) Petitioner’s encounter was not consensual. For example, trial counsel objected on the grounds that Duggan, the owner of the bar, had testified Mary was never told she was being treated for that after petitioner was arrested, he found gonorrhea. (T. 1196.) The court overruled Mary’s phone in the garbage pail near the the objection, stating that “the jury’s sink area of the bathroom. (T. 559.) During recollection will control.” (Id.) summation, the prosecutor argued that Duggan’s testimony indicates that there was The prosecutor also presented footage a struggle between Mary and the petitioner from security cameras showing that that because “no 22-year-old girl is throwing her petitioner had been watching Mary at the bar. phone into the garbage pail in a bar.” (T. (T. 1154.) The prosecutor also argued that 1164.) petitioner observed the cast on Mary’s arm, and knew Mary was in a “vulnerable” Later in the summation, the prosecutor condition that night. (T. 1154.) Petitioner mentioned petitioner’s trial counsel’s objected to this statement, but it was opening in which he suggested, in detail, that overruled, with the court stating, “They are the encounter was consensual. (T. 1189.) comments.” (T. 1154) The prosecutor reiterated that there was “no evidence that this was consensual” between Finally, the prosecutor concluded her petitioner and Mary. (Id.) Trial counsel summation by asking the jury to “[t]ell this objected when the prosecutor began to rebut defendant with [its] verdict that what the version of the facts referenced in the [petitioner] did to Mary is not acceptable…. opening by petitioner’s counsel – namely, Tell this defendant he’s guilty beyond a that upon the petitioner entering the reasonable doubt on each and every count of bathroom, Mary asked him to stay. (Id.) this indictment.” (T. 1203-04.) When petitioner’s trial counsel pointed out that there was no evidence of that version of e. Motion for Mistrial & Jury the facts (although he opened on it), the court Instructions then stated, “I agree there’s no evidence to that effect. I believe Ms. Burke is referring After summation, petitioner’s trial to something said on opening statements. counsel submitted a motion for a mistrial and objected to the prosecutor’s attack of his report. (Id. at 17.) The petitioner was opening statement. (T. 1207.) Trial counsel sentenced to seven years’ imprisonment, with argued that allowing the prosecutor to repeat a concurrent sentence of one-year these statements shifted the burden onto incarceration, followed by fifteen years of petitioner. (Id.) The court denied the post-release supervision. (Id. at 17.) application, finding that the prosecutor did not say anything to shift the burden. (T. B. Procedural History 1207-08.) However, the judge said he would “reiterate and emphasize again . . . that 1. State Procedural History anything said by counsel on opening statement or summation or in argument to the On June 8, 2016, petitioner filed a direct Court is not evidence in the case and is not to appeal to the Supreme Court, Appellate be considered as such.” (T. 1208). Division, Second Department, in which he argued, inter alia, that the prosecutor’s During jury instructions, the court summation mischaracterized the evidence, emphasized to the jury that anything said by referred to matters not in evidence, shifted the counsel in opening statements or summations burden of proof, denigrated the defense, was not evidence. (T. 1214.) The court also improperly appealed to the sympathy of the instructed the jurors that if “the attorneys, jury, deprived appellant of a fair trial, and that during the course of their summations, or I, the verdict was against the weight of the in my charge, allude to the facts and your evidence. The petitioner also requested a new recollection of those facts disagrees with the pre-sentencing hearing. (See ECF No. 6, at i- attorneys or my recital, you must disregard ii.) what we say. It is your recollection, understanding and evaluation of the facts On May 3, 2017, the Appellate Division which govern.” (T. at 1214-15.) denied his appeal on both procedural and substantive grounds. See People v. f. The Verdict and Sentence McManus, 53 N.Y.S.3d 368 (2d Dep’t 2017). In affirming his conviction, the Appellate The jury found petitioner guilty of sexual Division rejected petitioner’s argument that abuse in the first degree (NYPL § 130.65(1)) the verdict was against the weight of the and criminal obstruction of breathing or evidence, holding that the evidence was blood circulation (Id. § 121.11). The “legally sufficient to establish defendant’s petitioner moved to set aside the verdict guilt beyond a reasonable doubt.” Id. at 763. pursuant to Criminal Procedure Law (“CPL”) In addition, the Appellate Division held that § 330.30. (ECF No. 6-19.) On August 31, most of defendants’ claims of prosecutorial 2015, the trial court denied the motion in its misconduct were unpreserved for appellate entirety.4 (ECF No. 6-21.) During review, and in any event, were within “the sentencing, petitioner’s trial counsel bounds of permissible comment, fair addressed errors made in the presentence response to the defendant’s attack on the report. (ECF No. 6-22 at 8-13.) The credibility of the complainant, fair comment sentencing court stated that the “minutes will on the evidence and the reasonable inferences go along with the defendant” as well as the to be drawn therefrom, or permissible

4 Trial court held that petitioner’s moving papers were insufficient as a matter of law to authorize the court to set aside the verdict pursuant to § 330.30 (1). rhetorical comment.” (Id.) The Appellate Division also stated that “any improper comments were isolated and not so egregious II. STANDARD OF REVIEW that they deprived the defendant of a fair trial.” (Id.) Finally, to the extent that any To determine whether petitioner is prejudice may have resulted from certain entitled to a writ of habeas corpus, a federal remarks, the Appellate Division held that it court must apply the standard of review set was “ameliorated by the Supreme Court’s forth in 28 U.S.C. § 2254, as amended by the curative instructions to the jury.” (Id.) Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides, in relevant Petitioner sought leave to appeal to the part: New York State Court of Appeals from the Appellate Division’s decision affirming the (d) An application for a writ of habeas convictions, arguing prosecutorial corpus on behalf of a person in misconduct during summation. (ECF No. 6- custody pursuant to the judgment of a 27.) On July 25, 2017, the New York Court State court shall not be granted with of Appeals denied petitioner leave to appeal. respect to any claim that was See McManus, 29 N.Y.3d 1093. adjudicated on the merits in State court proceedings unless the 2. The Instant Petition adjudication of the claim—

On July 2, 2018, petitioner moved before (1) resulted in a decision that was this Court for a writ of habeas corpus, contrary to, or involved an pursuant to 28 U.S.C. § 2254, on the ground unreasonable application of, clearly that the cumulative effect of the prosecutor’s established Federal law, as improper comments during summation determined by the Supreme Court of overwhelmed petitioner’s right to a fair trial. the United States; or Specifically, petitioner claims that during summation, the prosecutor: (1) referenced (2) resulted in a decision that was matters not in evidence; (2) vouched for the based on an unreasonable witnesses; (3) acted as an unsworn witness; determination of the facts in light of (4) attempted to shift the burden; (5) attacked the evidence presented by the State trial counsel rather than the evidence; and (6) court proceedings. mischaracterized the evidence. (See Pet. 6.)

Respondent filed an answer and 28 U.S.C. § 2554. “Clearly established memorandum of law opposing the petition on Federal law” is comprised of “the holdings, October 5, 2015. (ECF No. 6.) On as opposed to the dicta, of [the Supreme] November 5, 2018, petitioner’s trial counsel Court’s decisions as of the time of the filed an affidavit in support of petitioner. relevant state-court decision.” Green v. (ECF No. 10.) On July 16, 2019, petitioner’s Travis, 414 F.3d 288, 296 (2d Cir. 2005) trial counsel filed an affirmation with (quoting Williams v. Taylor, 529 U.S. 362, updated copy of the trial transcript. (ECF No. 412 (2000)). 12.) The Court has fully considered all

submissions of the parties. A decision is “contrary to” clearly

established federal law, as determined by the

Supreme Court, “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the For the reasons discussed below, the state court decides a case differently than [the Court denies the petition in its entirety. As a Supreme Court] has on a set of materially threshold matter, some of petitioner’s claims indistinguishable facts.” (Id.) as to the summation-related prosecutorial misconduct are procedurally barred. In any AEDPA establishes a deferential event, the Court has reviewed all of standard of review: “‘a federal habeas court petitioner’s claims and finds that habeas may not issue the writ simply because the relief is unwarranted. court concludes in its independent judgment that the relevant state-court decision applied A. Procedural Bar clearly established federal law erroneously or incorrectly. Rather, that application must 1. Independent and Adequate State also be unreasonable.’” Gilchrist v. O’Keefe, Ground 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). A petitioner’s federal claims may be The Second Circuit added that, while procedurally barred from habeas review if “‘[s]ome increment of incorrectness beyond they were decided at the state level on error is required . . . the increment need not “independent and adequate” state procedural be great; otherwise, habeas relief would be grounds. Coleman v. Thompson, 501 U.S. limited to state court decisions so far off the 722, 729–33 (1991); acoord Michigan v. mark as to suggest judicial incompetence.’” Long, 463 U.S. 1032, 1041 (1983). A Id. (quoting Francis S. v. Stone, 221 F.3d procedural rule is adequate if it is “firmly 100, 111 (2d Cir. 2000)). Finally, “if the established and regularly followed by the federal claim was not adjudicated on the state in question.” Garcia v. Lewis, 188 F.3d merits, ‘AEDPA deference is not required, 71, 77 (2d Cir. 1999) (quoting Ford v. and conclusions of law and mixed findings of Georgia, 498 U.S. 411, 423-24 (1991)). To fact and conclusions of law are reviewed de be independent, the “state court must actually novo.’” Dolphy v. Mantello, 552 F.3d 236, have relied on the procedural bar as an 238 (2d Cir. 2009) (quoting Spears v. independent basis for its disposition of the Greiner, 459 F.3d 200, 203 (2d Cir. 2006)). case” and by “clearly and expressly stat[ing] that its judgment rests on [this] state III. DISCUSSION procedural bar.” Harris v. Reed, 489 U.S. 255, 261-65 (1989); see also Allan v. Petitioner argues that the cumulative Conway, No. 08–CV–4894 (JFB), 2012 WL effect of the prosecutor’s improper comments 70839, at *9 (E.D.N.Y. Jan. 10, 2012) (“The during summation deprived petitioner of his appellate court’s statement that petitioner’s right to a fair trial. Specifically, petitioner claim was ‘unpreserved’ is sufficient to argues that the prosecutor’s summation establish that it was relying on a procedural included: (1) mention of matters not in bar as an independent ground in disposing of evidence; (2) the prosecutor vouching for her the issue.” (citation omitted)); Figueroa v. witness; (3) the prosecutor acting as an Grenier, No. 02 Civ. 5444 DAB, 2005 WL unsworn witness; (4) attempts to shift the 249001, at *8 (S.D.N.Y. Feb. 3, 2005) (citing burden to petitioner; (5) attacks on trial Harris, 489 U.S. at 265 n.12) (same). In counsel rather than the evidence; and (6) addition, a state court’s reliance on an mischaracterization of the evidence. (See independent and adequate procedural bar Pet. 6). precludes habeas review even if the state guilty beyond a reasonable doubt.” House v. court also rejected the claim on the merits in Bell, 547 U.S. 518, 536-37 (2006) (quoting the alternative. See, e.g., Harris, 489 U.S. at Schlup v. Delo, 513 U.S. 298, 327 (1995)). 264 n.10 (holding that “a state court need not fear reaching the merits of a federal claim in 2. New York’s Preservation Doctrine an alternative holding,” so long as the state court “explicitly invokes a state procedural On direct appeal, the Appellate Division bar rule as a separate basis for decision”); concluded that petitioner’s claims alleging Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. prosecutorial misconduct during summation 1996) (same). were unpreserved pursuant to New York’s contemporaneous objection rule, codified at A federal habeas court may not review a C.P.L. § 470.05(2). McManus, 150 A.D.3d procedurally barred claim on the merits at 763 (“Most of the defendant's claims that unless the petitioner can demonstrate “cause certain of the prosecutor's summation for the default and actual prejudice as a result remarks deprived him of a fair trial are of the alleged violation of federal law, or unpreserved for appellate review (see CPL demonstrate that failure to consider the claim 470.05 [2]).”). . . . will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. A “New York’s contemporaneous objection petitioner may demonstrate cause by showing rule provides that a party seeking to preserve one of the following: “(1) the factual or legal a claim of error at trial must lodge a protest basis for a petitioner’s claim was not to the objectionable ruling ‘at the time of such reasonably available to counsel, (2) some ruling . . . or at any subsequent time when the interference by state officials made [trial] court had an opportunity of effectively compliance with the procedural rule changing the same.’” Whitley v. Ercole, 642 impracticable, or (3) the procedural default F.3d 278, 286 (2d Cir. 2011) (citing C.P.L. was the result of ineffective assistance of § 470.05(2)). “New York courts consistently counsel.” McLeod v. Graham, No. 10 Civ. interpret § 470.05(2) to require that a 3778(BMC), 2010 WL 5125317, at *3 defendant specify the grounds of alleged (E.D.N.Y. Dec. 9, 2010) (citing Bossett v. error in sufficient detail so that the trial court Walker, 41 F.3d 825, 829 (2d Cir. 1994)). may have a fair opportunity to rectify any Such prejudice can be demonstrated by error.” Garvey v. Duncan, 485 F.3d 709, 715 showing that the error “worked to his actual (2d Cir. 2007) (citation omitted). Thus “[a] and substantial disadvantage, infecting his general objection is not sufficient to preserve entire trial with error of constitutional an issue” because a “defendant must dimensions.” Torres v. Senkowski, 316 F.3d specifically focus on the alleged error.” Id. at 147, 152 (2d Cir. 2003) (citations omitted). A 714 (collecting state court authority); see miscarriage of justice is demonstrated in also, e.g., McCall v. Capra, 102 F. Supp. 3d extraordinary cases, such as where a 427, 445 (E.D.N.Y. 2015) (“‘The word “constitutional violation has probably objection alone [is] insufficient to preserve resulted in the conviction of one who is the issue for [appellate] review’ in the New actually innocent.” Murray v. Carrier, 477 York state courts.” (quoting People v. U.S. 478, 496 (1986). To overcome a Tevaha, 644 N.E.2d 1342, 1342 (1994))); procedural default based on a miscarriage of Umoja v. Griffin, No. 11 CV justice, the petitioner must demonstrate that 0736(PKC)(LB), 2014 WL 2453620, at *21 “more likely than not, in light of the new (E.D.N.Y. May, 29 2014) (holding that evidence, no reasonable juror would find him petitioner’s claim was procedurally barred despite “petitioner’s counsel’s timely “were unpreserved for appellate review” object[ions]” because “counsel was not under § 470.05(2). McManus, 150 A.D.3d at specific in his objections”); Adams v. 763. The Appellate Division’s holding was Artus, No. 09–cv–1941 (SLT)(VVP), 2012 adequate and independent because it “clearly WL 1077451, at *7 (E.D.N.Y. Feb. 24, and expressly stat[ed] that its judgment rests 2012) (finding that because counsel “twice on a state procedural bar.” Reed, 489 U.S. only stated ‘Objection’ . . . these objections 263; Harris, 489 U.S. at 263; see also Allan, did not likely meet the specificity required to 2012 WL 70839, at *9 (“The appellate be preserved on appeal under New York’s court’s statement that petitioner’s claim was preservation rule.”). ‘unpreserved’ is sufficient to establish that it was relying on a procedural bar as an The Second Circuit has “held repeatedly independent ground in disposing of the that the contemporaneous objection rule is a issue.” (citation omitted)). firmly established and regularly followed New York procedural rule.” Downs v. Lape, Thus, petitioner’s claims that the 657 F.3d 97, 104 (2d Cir. 2011) (citing prosecutor vouched for witnesses, acted as an Whitley, 642 F.3d at 286-87; Richardson v. unsworn witness, and attacked trial Greene, 497 F.3d 212, 219 (2d Cir. 2007); counsel rather than the evidence are not Garvey, 485 F.3d at 718; Taylor v. Harris, preserved for habeas review because 640 F.2d 1, 2 (2d Cir. 1981) (per curiam)). petitioner failed to object and “specify the Furthermore, the Second Circuit has grounds of alleged error in sufficient detail so “observed and deferred to New York’s that the trial court may have a fair opportunity consistent application of its to rectify any error.” 5 Duncan, 485 F.3d at contemporaneous objection rules.” Garcia, 715. Therefore, the Court, as explained 188 F.3d at 79 (citation omitted); see also above, can review these particular claims Bossett, 41 F.3d at 829 n.2 (respecting state only if petitioner shows cause for the default court’s application of § 470.05(2) as an and prejudice resulting therefrom, or shows adequate bar to federal habeas review); that a miscarriage of justice would result if Fernandez v. Leonardo, 931 F.2d 214, 216 the Court did not review the (2d Cir. 1991) (noting that failure to make claims. However, petitioner has made no objection at trial constitutes adequate such showing. procedural default under § 470.05(2)). Thus, the New York preservation doctrine provides Petitioner argues that trial counsel failed an independent and adequate ground for to comply with § 470.05 because he “was decision on habeas review. afraid too many ‘overruled’ objections would prejudice the jury against petitioner.” (Aff. 3. Analysis 13.) This explanation does not constitute cause for procedural default. See Carrier, Here, the Appellate Division properly 477 U.S. at 486-87 (finding that “[t]he mere decided that certain of the petitioner’s claims fact that counsel failed to recognize the of prosecutorial misconduct were factual or legal basis for a claim, or failed to procedurally barred on, holding that they raise the claim despite recognizing it, does

5 Petitioner’s other claims that the prosecutor: (1) procedurally barred. However, as discussed below, referenced matters not in evidence; (2) they fail on the merits. mischaracterized the evidence; and (3) shifted the burden were appropriately objected to and thus are not not constitute cause for a procedural default” during summation deprived petitioner’s right and holding that “ignorant or inadvertent to a fair trial. With respect to the merits, the attorney error” is not cause for any resulting Appellate Division held that “some of the procedural default). Additionally, trial challenged portions of the prosecutor’s counsel’s own strategic decisions regarding summation were within the bounds of his objections6 are not “some objective factor permissible comment, fair response to the external to the defense [that] impeded defendant’s attack on the credibility of the counsel’s efforts to comply with the State’s complainant, fair comment on the evidence procedural rule.” Carrier, 477 U.S. at 488. and the reasonable inferences to be drawn therefrom, or permissible rhetorical In any event, petitioner cannot show comment.” McManus, 150 A.D.3d at 763 prejudice, much less a manifest injustice, (citing People v. Halm, 81 N.Y.2d 819, 821 because, as discussed below, the trial court (1993); People v. Ashwal, 39 N.Y.2d 105, ameliorated any potential prejudice that may 110 (1976); People v. Ramrattan, 126, 6 have resulted from certain remarks by issuing N.Y.S.3d 131, 133 (2015)). The Appellate curative instructions to the jury. McManus, Division further held that, “[t]o the extent 150 A.D.3d at 763. Additionally, petitioner that any prejudice may have resulted from has failed to show this case would result in a certain remarks, it was ameliorated by the miscarriage of justice if the Court failed to Supreme Court’s curative instructions to the review the claims on the merits because he jury . . . , which the jury is presumed to have has not demonstrated that, absent the followed.” McManus, 150 A.D.3d at 763 objectionable conduct by the prosecutor, (citations omitted). Finally, the Appellate “more likely than not . . . no reasonable juror Division concluded that “[a]ny improper would find him guilty beyond a reasonable comments were isolated and not so egregious doubt.” House, 547 U.S. at 536-38. Thus, that they deprived the defendant of a fair certain portions of petitioner’s prosecutorial trial.” Id. (citations omitted). misconduct claim (namely, that the prosecutor vouched for witnesses, acted as an For the reasons set forth below, the Court unsworn witness, and attacked petitioner’s agrees with the Appellate Division regarding trial counsel rather than the evidence) are the merits. The Appellate Division’s decision procedurally barred. However, in an was not contrary to, nor did it involve an abundance of caution, the Court has unreasonable application of, clearly examined all of petitioner’s claims on the established federal law, nor was it an merits and concludes that they all fail on the unreasonable application of the facts in light merits for the reasons discussed infra. of the evidence in the record. In short, none of the alleged misconduct in the summation, B. Merits Analysis either individually or collectively, provides a basis for habeas relief in this case. 7 Petitioner argues that the cumulative effect of the prosecutor’s improper comments

6 In the ineffective assistance of counsel context, the be considered ineffective assistance of counsel” and Second Circuit has held that such strategic decisions that failing to make certain objections is an example of are not indicative of counsel’s ineffectiveness. See the “kind of strategic decisions left to the discretion of United States v. Walker, 24 F. App'x 57, 60 (2d Cir. trial counsel” (citation omitted)). 2001) (stating that “in light of the overwhelming government proof, trial counsel’s strategic decision to 7 Petitioner points to a litany of the prosecutor’s try to maintain credibility with the jury could hardly statements without any analysis. (See Pet. 20-25.) 1. Legal Standard To warrant relief, the Court must conclude that the comments “so infected the “A criminal conviction ‘is not to be trial with unfairness as to make the resulting lightly overturned on the basis of a conviction a denial of due process.” Darden, prosecutor’s comments standing alone’ in an 477 U.S. at 181 (quoting Donnelly, 416 U.S. otherwise fair proceeding.” Gonzalez v. at 647). However, “not every trial error or Sullivan, 934 F.2d 419, 424 (2d Cir. infirmity which might call for the application 1991) (quoting United States v. Young, 470 of supervisory powers correspondingly U.S. 1, 11 (1985)). “It is ‘a rare case’ in constitutes a ‘failure to observe that which improper comments in a prosecutor’s fundamental fairness essential to the very summation are so prejudicial that a new trial concept of justice.’” Donnelly, 416 U.S. at is required.” United States v. Newton, 369 642 (quoting Lisenba v. California, 314 U.S. F.3d 659, 680 (2d Cir. 2004) (quoting United 219, 236 (1941)). Rather, a petitioner must States v. Rodriguez, 968 F.2d 130, 142 (2d show that he “suffered actual prejudice Cir. 1992)); see also United States v. Shareef, because the prosecutor’s comments during 190 F.3d 71, 78 (2d Cir. 1999) summation had a substantial and injurious (“[P]rosecutorial misconduct is a ground for effect or influence in determining the jury’s reversal only if it causes the defendant verdict.” Bentley v. Scully, 41 F.3d 818, 824 ‘substantial prejudice.’”) (quoting United (2d Cir. 1994). Factors considered in States v. LaMorte, 950 F.2d 80, 83 (2d Cir. determining such prejudice include “(1) the 1991)); Johnson v. Conway, No. 08–CV– severity of the prosecutor’s conduct; (2) what 3302 (DLI), 2010 WL 3942897, at *6 steps, if any, the trial court may have taken to (E.D.N.Y. Oct. 6, 2010) (noting that “the remedy any prejudice; and (3) whether the propriety of comments made by a prosecutor conviction was certain absent the prejudicial during summation generally does not present conduct” (the “Bentley factors”). Id. (citing a meritorious federal question” (quoting Sims Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d v. Ercole, No. 09 Civ. 4398, 2010 WL Cir. 1991)). This test applies to improper 1685434, at *9 (S.D.N.Y. Apr. 23, 2010)) questions in examining witnesses as well as (internal citation omitted)). For prosecutorial to improper comments made in summation. misconduct to amount to constitutional error, See United States v. Melendez, 57 F.3d 238 “it is not enough that the prosecutor’s (2d Cir. 1995) (summation); United States v. remarks were undesirable or even universally McCarthy, 54 F.3d 51, 55-56 (2d Cir. condemned.” Darden v. Wainwright, 477 1995) (cross-examination). U.S. 168, 181 (1986) (citation omitted). Instead, the prosecutor’s comments “must Moreover, “[w]hen analyzing the severity represent ‘egregious misconduct.’” Celleri v. of alleged misconduct, the court examines the Marshall, No. 07–CV–4114 (JFB), 2009 WL prosecutor’s statements in the context of the 1269754, at *17 (E.D.N.Y. May 6, 2009) entire trial.” Miller v. Barkley, No. 03 Civ. (quoting Donnelly v. DeChristoforo, 416 8580 (DLC), 2006 WL 298214, at *2 U.S. 637, 642 (1974)); accord Shareef, 190 (S.D.N.Y. Feb. 8, 2006) (citing United States F.3d at 78. v. Thomas, 377 F.3d 232, 244 (2d Cir. 2004)); accord Jackson v. Conway, 763 F.3d 115,

Although the Court does not refer to each and every they do not individually or collectively rise to the level statement in its analysis, the Court has reviewed the of a constitutional violation that would warrant habeas entire summation (and all of the statements to which relief in this case. petitioner objects in this petition) and concludes that 146 (2d Cir. 2014) (“The habeas court must remarks amounted to such egregious consider the record as a whole . . . because misconduct as to render Floyd’s trial even a prosecutor’s inappropriate or fundamentally unfair.” Id. at 353. erroneous comments or conduct may not be sufficient to undermine the fairness of the 2. Application proceedings when viewed in context.” (citations omitted)). In Floyd v. Meachum, Here, petitioner argues that the for example, the court recognized one of prosecutor: (1) mentioned matters not in those “rare cases” where prosecutorial evidence; (2) vouched for her witness; (3) misconduct was so egregious as to warrant acted as an unsworn witness; (4) attempted to reversal, and, in doing so, “emphasize[d] that shift the burden to petitioner; (5) attacked [its] holding . . . [was] based on the trial counsel rather than the evidence; and (6) cumulative effect of the three alleged mischaracterized the evidence. (Pet. at 6.). categories of improper remarks,” and that the As set forth below, petitioner’s claims are “case [did] not involve one, or a few isolated, without merit. brief episodes; rather, it involve[d] repeated a. Claim Regarding Reference to and escalating prosecutorial misconduct from Matters Not in Evidence initial to closing summation.” 907 F.2d 347, 353 (2d Cir. 1990). In that case, “the Petitioner argues that the prosecutor, in evidence against [petitioner] was not heavy,” her summation, referenced matters not in id. at 356, and the prosecutor: (1) made evidence. (Pet. 6.) However, petitioner cites “references to the Fifth Amendment [that] to examples that would fall within fair could well have been interpreted by the jury commentary by the prosecutor on the as a comment on [the defendant]’s failure to evidence and reasonable inferences that can testify,” id. at 353; (2) “repeated remarks that be drawn from such evidence, as well as on the Fifth Amendment was ‘a protection for the lack of evidence to support the defense’s the innocent’ and not ‘a shield’ for ‘the theory of the case. guilty’ [that] incorrectly stated the law by

diluting the State’s burden of proof beyond a For example, in his affidavit in support reasonable doubt and undermining the of the petition, trial counsel also directs the presumption of innocence,” id. at 354; (3) Court to the prosecutor’s remarks regarding “impermissibly asked the jury to pass on her the security camera footage of the victim – personal integrity and professional ethics with her cast – being within sight of petitioner before deliberating on the evidence, thereby and in a position of vulnerability. (Aff. 13- implying that she personally vouched for [a 14.) Although counsel refers to that key witness’s] credibility,” id.; and, (4) statement as “mind reading” at best (id. at “characterized [the defendant], who did not 14), a prosecutor is permitted to argue to the testify, as a liar literally dozens of times jury that an individual, in the particular throughout her opening and closing position of the defendant on that video, summations,” id., and, (5) “erroneously would be able see Mary’s cast and may equated [the defendant]’s alleged lies with further argue how those observations of the proof of guilt beyond a reasonable doubt,” id. cast may have impacted the defendant’s at 355. The Second Circuit held that “under mental state. Thus, there is no basis to disturb the totality of the circumstances presented the trial court’s ruling that this argument by here, that the cumulative effect of the the prosecutor was fair commentary on prosecutor’s persistent and clearly improper inferences that could be drawn from the video In any event, even assuming arguendo and the trial record as a whole.8 (T. 1154.) that petitioner is correct in his contention that the prosecutor improperly commented on Similarly, petitioner argues that the evidence outside the record, such comments prosecutor improperly referenced trial do not raise any constitutional concerns in the counsel’s opening statements about the context of this case. First, the prosecutor's encounter being consensual, even though statements were not severe, especially in the trial counsel’s opening is not evidence. context of trial counsel’s arguments and Petitioner contends that this was done to set attacks on the complainant's credibility. up a “straw man’s argument.” (Aff. 15-16.) However, that argument also is without Second, any prejudicial impact of the merit. The record reflects that the prosecutor statements was neutralized by the trial was merely responding to the suggestion by judge’s numerous instructions to the jury; trial counsel that the encounter between both before and after the summations, in petitioner and Mary was consensual. Not which the trial judge explicitly instructed the only did trial counsel make that suggestion in jury that the lawyers’ summations were not to his opening, he repeated that suggestion in be considered as evidence.10 (T. 1093, 1208, his summation.9 By referring to the trial 1214.) In fact, the prosecutor even reiterated counsel’s opening, the prosecutor was not this in reference to the trial counsel’s attempting to argue the existence of facts opening, by telling the jury that “what outside the record; rather, the purpose was defense counsel says, what [the prosecutor] the exact opposite – namely, to show the says is not evidence.” (T. 1139.) absence of facts to support a consensual encounter. (T. 1139, 1165, 1189-90.) It is Finally, petitioner has not shown that his well settled that “the prosecution is entitled to conviction was uncertain absent these respond to the arguments raised by the prosecutor’s comments. As the Second defense in summation.” People v. Rivera, 551 Circuit has noted, “[o]ften, the existence of N.Y.S.2d 34 (1st Dep’t 1990) (citing People substantial prejudice turns upon the strength v. Galloway, 54 N.Y.2d 396 (1981)). of the government’s case: if proof is strong, Accordingly, the trial court did not err in then the prejudicial effect of the comments overruling the prosecutor’s arguments in this tends to be deemed insubstantial; if proof of regard. guilt is weak, then improper statements are more likely to result in reversal.” United

8 The Court notes that the trial court also overruled a court told the jury, “Throughout the trial I have previous objection by the prosecutor as to trial advised you and I advise you again what was said by counsel’s purported mischaracterization of evidence, the attorneys either on their opening statements or on while stating that the prosecutor could “certainly their closing statements are not evidence. What was comment as well.” (T. 1106.) Thus, the trial court said by the attorneys during the course of the trial in applied this rule evenly. making an application to me is not evidence. The only evidence, again, comes from the testimony of the 9 In his opening, trial counsel describes a consensual witnesses and in the form of the exhibits that have been “making out” without any forced contact. (T. 425-26, admitted into evidence.” (T. 1212.) Later, the court 429.) In his summation, petitioner’s trial counsel reiterated this point, telling the jury, “[y]our verdict again stated that the evidence “proves kissing, making must be based upon the evidence alone. Opening out,” not rape. (T. 1103.) statements, summations and arguments and remarks of counsel are not evidence and may not be considered 10 For example, after summations, when petitioner’s by you as evidence.” (T. 1214.) trial counsel raised some of these same concerns, the States v. Modica, 663 F.2d 1173, 1181 (2d 78.) The SANE nurse testified that Mary told Cir. 1981); see also Bentley, 41 F.3d at 824- her she had been sexually assaulted. (T. 809, 25 (holding that a petitioner failed to 812, 867-68.) She also observed vaginal demonstrate prejudice where there was injuries, consistent with sexual assault, and “compelling evidence in the prosecution’s noted them in the medical records. (T. 828- case . . . [and] the prosecutor’s summation 30, 846, 878-79, 902.) The SANE nurse also comments were both brief and documented the injuries to Mary’s upper isolated”); Bradley v. Meachum, 918 F.2d buttocks, arms, and neck. (T. 819-20, 881-82, 338, 343 (2d Cir. 1990) (“The clear evidence 912-13.) After testing, petitioner’s DNA of guilt demonstrates that [petitioner] was not matched the DNA swabbed from Mary’s prejudiced by the prosecutor’s improper neck. (T. 1024, 1034-35.) remarks.”). In short, even assuming the statements Here, in addition to the victim, three were improper, “compelling evidence in the witnesses (i.e., Chirokikh, Duggan, and prosecution’s case” was presented at trial Triantafilis) provided crucial testimony. As allowing a jury to conclude beyond a explained above, Chirokikh testified that, reasonable doubt that petitioner was guilty after receiving assistance from Duggan in without a significant probability that these prying open the door, she saw petitioner rush “isolated” comments contributed to out of the bathroom. (T. 933-34, 566-67.) petitioner’s conviction, or “had a substantial Chirokikh saw, in the bathroom, Mary on the or injurious effect on the jury’s verdict.” floor crying, with her dress hanging around Bentley, 41 F.3d at 825. Accordingly, these her waist without a bra. (T. 935, 946.) Mary comments do not provide a basis for habeas then immediately told Chirokikh that she had relief in this case. been sexually and physically assaulted (T. 935-36.) Duggan and Triantafilis then saw b. Claim Regarding Vouching for Mary on the floor of the bathroom, upset, Witnesses with her chest uncovered. (T. 519, 541-42, Petitioner next argues that the prosecutor 545, 613.) These two then chased petitioner vouched for her witness during summation. outside, cornering him after he jumped a (Pet. 6.) The Court notes that there were no fence. (T. 545-47, 569, 613.) Petitioner’s contemporaneous objections to the pants were unbuckled and neither Duggan statements on the record and, in any event, nor Triantafilis saw him going to the agrees with the state court that the comments bathroom in the area. (T. 551, 614.) Duggan were appropriately made in response to and Triantafilis felt threatened and petitioner defense counsel’s summation. Specifically, attempted to run away multiple times. (T. each one of the allegedly improper 577-78, 582-83, 585, 597, 598, 604.) statements responded to defendant’s Triantafilis testified that, after he accused arguments regarding Mary’s credibility. petitioner of rape, petitioner responded that he would “get away with it” and was not It is well established under New York law afraid of jail or prison. (T. 615-16, 623-25.) that a prosecutor's summation comments Video footage at Duggan’s also corroborated regarding a witness’s credibility are not the testimony, capturing petitioner opening considered improper vouching when offered the door to a unisex bathroom, without as a fair response to attacks by the defense entering, and then entering the ladies’ counsel during summation on the credibility bathroom, while Mary was in there. (T. 977- of a prosecution witness. See, e.g., People v. Melendez, 815 N.Y.S.2d 551, 559 (1st Dep’t (citing United States v. Robinson, 485 U.S. 2006) (“The portions of the 25, 32 (1988)). Therefore, both New York prosecutor’s summation to which defendant and federal law recognize the prosecutor's objected as ‘vouching’ were responsive to the right to rebut attacks on witness credibility defense summations and fair comment based during summations. upon the evidence.”) (citing People v. Overlee, 666 N.Y.S.2d 572 (1997)); People In the instant case, petitioner’s trial v. Beggs, 796 N.Y.S.2d 826, 828 (4th Dep’t counsel made several comments on the 2005) (“In his summation, defense counsel complainant’s credibility during his commented on the credibility of the victim summation, including: and her mother, and the comments of the prosecutor to which defense counsel raised (1) “She is 140 pounds. A bodybuilder an objection were directly related to those couldn’t hold 50 pounds out like that issues. Thus, the comments of the prosecutor the amount of time she said it was were a fair response to the observations of going on. You couldn’t - -I couldn’t defense counsel on summation and did not hold my briefcase out there for that deprive defendant of a fair trial.”), appeal long. That is incredible. She’s gone denied, 803 N.Y.S.2d 32 (2005); People v. too far.” (T. 1100-01); Dixon, 795 N.Y.S.2d 586, 587 (1st Dep’t 2005) (“The challenged portions of the (2) “And she was confused when she was prosecutor’s summation were responsive to here. It went this way first: Two the defense arguments, and did not . . . hands choking me. Then it was two constitute improper vouching.”), appeal hands, one on the throat, one on the denied, 804 N.Y.S.2d 42, (2005); People v. shoulder, lifting me up off the Barber, 787 N.Y.S.2d 424, 427 (3d Dep’t ground,” (T. 1101.); and 2004) (prosecutor’s comments during summation that the victim had “no motive to (3) “Can you believe Mary []11? Is it lie” did not constitute plausible?” (T. 1104). improper vouching where “the defense ha [d] attacked the credibility of As a result, the prosecutor was entitled to the prosecution witnesses in summation”), rebut defense counsel’s summation with appeal denied, 795 N.Y.S.2d 171 (2005). contrary assertions. As such, the prosecutor’s cited comments were proper. Moreover, as the Second Circuit has For instance, the prosecutor countered noted in the federal context, petitioner’s attack by stating, “[T]his picture “the prosecution and defense are generally of a deceitful liar that defense counsel is entitled to wide latitude during closing trying to paint for you doesn’t square with the arguments so long as they do not misstate the person that you saw take the stand in this evidence. Under the invited or fair response courtroom. That is not the appearance that doctrine, the defense summation may open she gives and you had an opportunity to the door to an otherwise inadmissible evaluate her with your own eyes.” (Def. T. prosecution rebuttal.” United States v. 723:18-23.)12 The prosecutor went on to say Tocco, 135 F.3d 116, 130 (2d Cir. 1998) that “[a]ll the evidence in this case, every

11 Last name omitted. 12 Petitioner and trial counsel cite to a trial transcript (Def. T., ECF No. 12), with different pagination than that submitted by the respondent (ECF No. 6). Thus, single piece of evidence supports what Mary the “jury’s recollection [would] control.” (Id. says happened in that bathroom. And you’ve at 782:13-16.) The Court finds that these heard a lot of evidence in this trial . . . .” (Id. comments did not make the prosecutor an at 789:10-12.) Because “[a]n argument by unsworn witness because she did not support counsel that his witnesses have testified the case with her own “veracity or position” truthfully is not vouching for their when she made these remarks. People v. credibility,” Overlee, 666 N.Y.S.2d at 580- Moye, 12 N.Y.3d 743, 744 (2009) (citing 81, these comments were not improper. People v. Lovello, 1 N.Y.2d 436, 439, 154 N.Y.S.2d 8, 136 N.E.2d 483 [1956]) (“An In any event, even assuming arguendo attorney may not “mak[e] himself an that the comments were improper, they do unsworn witness” by “supporting his case by not rise to a constitutional dimension under his own” or anyone else’s “veracity and the Bentley factors. First, the comments were position”). Moreover, “[a] prosecutor is not not egregious, especially in light of the entire precluded from vigorous advocacy, or the use summation and the context of the case. The of colorful adjectives, in summation.” second and third Bentley factors also do not United States v. Rivera, 971 F.2d 876, 884 support a finding of a denial of due process. (2d Cir. 1992) (citing United States v. Wilner, Any prejudicial impact of the statements was 523 F.2d 68, 74 (2d Cir. 1975)); see also neutralized by the trial judge’s instructions to United States v. Jaswal, 47 F.3d 539, 544 (2d the jury. As discussed supra, both before and Cir. 1995) (rejecting argument that after the summations, the trial judge prosecutor’s characterization of the explicitly instructed the jury that the lawyers’ defendant’s case as a “fairy tale” was summations were not to be considered as improper). evidence. (T. 1139, 1165, 1189-90.) Finally, the Court finds that petitioner’s “clear These statements, taken in context, evidence of guilt demonstrates that [he] was “were not expressions of personal belief but not prejudiced” by these remarks even if they rather an appropriate response to were improper. Bradley, 918 F.2d at 343. [petitioner]’s challenge to the credibility of Accordingly, these comments do not support the People’s witnesses.” People v. Ortiz, 629 habeas relief in this case. N.Y.S.2d 235, 236 (1995). For instance, the prosecutor referred to the lack of a motive for c. Claim Regarding Acting as an Mary or her friends to lie (Def. T. 721:22-24, Unsworn Witness 774:22-25), that the video footage indicated that petitioner was strong (Def. T. 766:22- Petitioner also contends that the 23),13 and that petitioner would not have fled prosecutor acted as an unsworn witness or the scene if the encounter had been offered her personal opinions during consensual (Def. T. 770:15-19). Therefore, summation “[f]ourteen times.” (Aff. 11.) the Court finds that these type of statements However, petitioner only objected to one by the prosecutor did not constitute improper statement regarding medical treatment after vouching. See Jaswal, 47 F.3d at 544 the sexual abuse. (Def. T. 782:9-11). The (finding prosecutor’s comments, such as court overruled this objection, holding that stating “I think you can conclude” in

“Def. T.” refers to the pagination in the trial transcript could not have held Mary up during the altercation submitted by trial counsel (ECF No. 12). referenced earlier. (T. 1100-01.) 13 This evidence was used by the prosecutor to undermine trial counsel’s argument that petitioner reference to the evidence, insufficient to entire summation, they cause the defendant demonstrate prosecutorial misconduct substantial prejudice.”). Accordingly, habeas because they “clearly communicate[] nothing relief on this ground is unwarranted. more than a comment on the evidence.” (citation omitted)). d. Claim Regarding Attempt to Shift the Burden Even assuming arguendo that some of the prosecutor’s comments constituted improper Petitioner claims that six references to vouching, none of them affected the fairness petitioner’s trial counsel’s opening statement of the trial. The comments were not resulted in “burden shifting statements.” egregious. Moreover, both the curative (Aff. 12.) These statements focused on instructions and overwhelming evidence of petitioner’s claims that: (1) he did not use the guilt prevent this Court from concluding that men’s bathroom because he found it too there was any actual prejudice as to these dirty; and (2) the encounter was sexual. (See statements. Petitioner has not shown that his Aff. Ex., ECF No. 10-1 at 18.) At trial, conviction was uncertain, but for these petitioner only objected to the comments comments made by the prosecutor during regarding consent and was overruled. (Def. summation. “Where the specific remarks the T. 776:1-15.) After summation, petitioner’s prosecutor makes neither ‘touch upon [n]or trial counsel argued that the prosecutor’s bolster the most potent of the government’s statements shifted the burden to defendant evidence,’ a court will not generally overturn and moved for a mistrial. (T. 1207.) The court a verdict.” Miller, 2006 WL 298214, at *3 denied the application, finding that nothing (quoting United States v. Elias, 285 F.3d 183, said by the prosecutor shifted the burden to 192 (2d Cir. 2002)). Accordingly, habeas petitioner. (T. 1208.) For the reasons relief is not warranted because “the discussed earlier, the prosecutor was prosecutor’s statements were brief and permitted to rebut trial counsel’s assertion (in constituted only a small portion of her the opening and summation) that the summation.” Figueroa, 2011 WL 1838781, encounter was consensual. A prosecutor at *23; see also Miller, 2006 WL 298214, at does not shift the burden by simply pointing *3 (finding that the prosecutor’s allegedly out to the jury that there is no factual support improper statements did not warrant reversal for a defense theory of the case that was because they “were brief and not a significant articulated in an opening or closing part of the State’s argument or summation”); statement. See Ford v. Ricks, No. 01-CV- Escobar v. Senkowski, No. 02–cv–8066 0775A (VEB), 2007 WL 9225082, at *7 (LAK/THK), 2005 WL 1307939, at *15 (W.D.N.Y. Feb. 27, 2007) (“Although a (S.D.N.Y. May 26, 2005) (“To render a trial prosecutor may not suggest that a defendant fundamentally unfair . . . a prosecutor’s has an affirmative obligation to present improper comments during summation must evidence on his own behalf, the Second be more than ‘short and fleeting,’ but must Circuit has recognized that once a defendant instead be ‘so numerous and, in combination, does in fact put on a defense case, the so prejudicial that a new trial is required.’” prosecutor may fairly comment on the (quoting Tankleff v. Senkowski,135 F.3d 235, defense’s failure to call witnesses to support 253 (2d Cir. 1998))); United States v. Rivera, his factual theory.” (citations omitted)). The 22 F.3d 430, 437 (2d. Cir. 1994) (“A Court also does not find that the comment prosecutor’s statements during summation, if regarding the bathroom concerning. (Def. T. improper, will result in a denial of due 741:16-21.) It did not shift the burden process rights only if, in the context of the regarding the actual crime, but merely discredited a purported reason for petitioner instructed the jury that “[t]he defendant did not using the men’s bathroom, where the not testify in this case. I charge you that the security camera footage put petitioner in the fact he did not testify is not a factor for which very bathroom he claimed to have been an inference unfavorable to the defendant filthy. (T. 977-78.) may be drawn.” (T. 1229.) Therefore, even assuming arguendo that the cited statements However, even assuming that such were improper, the comments were not statements did, in fact, shift the burden, it did severe and the measures taken by the trial not create a constitutional issue in this case. court were sufficient to eliminate any As the Second Circuit has explained, potential prejudice. Moreover, such statements would have had no impact on the When such a [burden-shifting] verdict in light of the overwhelming comment has been made, the evidence. Accordingly, habeas relief on this court should sustain, not ground is denied. overrule, the defendant's objection, and it would be well e. Claim Regarding Attacking Counsel advised to caution the Rather Than the Evidence government against making such arguments and to make a Petitioner also argues that the prosecutor precautionary statement directly attacked defense counsel five times. (Aff. 12; to the jury that the defendant has ECF No. 10-1 at 1.) Although petitioner no such obligation. Nonetheless, correctly notes that direct attacks on the the trial court’s instructions to credibility or motives of defense counsel are the jury at the close of not permissible, United States v. the summations were entirely Friedman, 909 F.2d 705 (2d Cir. 1990), “a proper, repeatedly stating that the prosecutor does have the right to comment on government bore the burden of the defense counsel’s argument during proving each element of its case summation,” Mickens v. United States, 53 F. beyond a reasonable doubt . . . .14 Supp. 2d 326, 332 (E.D.N.Y. 1999) (citing United States v. Caputo, 808 F.2d 963, 968 United States v. Walker, 835 F.2d 983, 989 (2d Cir. 1987)); see also United States v. (2d Cir. 1987). Here, the judge ensured that Marrale, 695 F.2d 658, 667 (2d Cir. 1982) there was no confusion on where the burden (holding that the prosecutor’s comments in lies. In particular, during jury instructions, direct response to defense counsel’s the court emphasized that the prosecution has arguments were permissible and that the trial the burden of proving beyond a reasonable court was in “a better position” to evaluate doubt “each and every element of the crimes the defense counsel’s tactics making the which defendant is charged” (T. 1228-29), prosecutor’s response proper). and that “[t]his burden remains upon the prosecution throughout the trial and never Here, petitioner argues that it is shifts to the defendant. No defendant is “improper for the prosecutor to use required to prove his innocence. The inflammatory language which appeals to the defendant does not have to prove or disprove sympathies and fears of the jury.” (Aff. 12 anything,” (T. 1229). The court further (citing Ortiz, 497 N.Y.S.2d at 679.)

14 As noted supra, while making these statements jury that what he and petitioner’s trial counsel said regarding consent, the prosecutor also informed the during summations was “not evidence.” (T. 1139.) However, the prosecutor’s statements in Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) Ortiz were much more severe. For instance, (holding prosecutor’s error in summation was the prosecutor said, “Is the Defense Counsel remedied by trial court’s instructions to the arguing to you that [the victim] should have jury); see also United States v. Rivera, 971 been cut more than one time; there should F.2d 876, 885 (2d Cir. 1992) (finding that the have been more holes?” and “in his most trial court's instructions cured any prejudice egregious accusation suggested defense arising from prosecutorial error). Finally, the counsel might know where the knife was.” proof of petitioner's guilt was overwhelming 497 N.Y.S.2d at 680. In the instant matter, and, thus, the alleged comments were the prosecutor’s comments were generally in harmless. See Bentley, 41 F.3d at 824 direct response to trial counsel’s assertions (holding that review of a habeas throughout the trial. As discussed supra, the corpus challenge based upon prosecutorial prosecutor rebutted trial counsel’s theory of misconduct includes consideration of consent and also rehabilitated Mary’s “whether the conviction was certain absent credibility. (Def. T. 721-722.) the prejudicial conduct”). Accordingly, these comments do not provide a basis for habeas In any event, to the extent the prosecutor relief in this case. in her summation should not have referred to certain questions by petitioner’s trial counsel f. Claim Regarding Mischaracterization on cross-examination of the complainant of the Evidence (such as regarding her weight) as “offensive,” (Tr. 1135), neither that comment nor any of Petitioner also contends that the the other alleged attacks on defense counsel, prosecutor mischaracterized the evidence deprived the petitioner of a fair trial. First, during summation. (Aff. 12.) Specifically, the prosecutor’s conduct was not severe the petitioner claims that: (1) the prosecutor under the first Bentley factor.15 Again, any incorrectly stated that Mary had thrown her potential prejudice from the prosecutor’s phone in the garbage pail during the comments was cured by jury instructions that encounter with petitioner; (2) that Mary’s reminded jurors, among other things, that the dress was pulled down; (3) the prosecutor arguments and remarks of counsel are not mischaracterized the DNA expert testimony evidence. In particular, the court instructed during summation; and (4) that the the jury that: (1) statements counsel during prosecutor misstated Mary’s testimony that opening and summations of counsel are not her tampon was pushed “up” instead of evidence (T. 1212); (2) the only evidence “aside” as he attacked her. 16 (Aff. 12-13.) As comes from witness testimony and exhibits discussed below, the prosecutor was that have been admitted into evidence (T. permitted to argue reasonable inferences that 1212); (3) the jury is not to be affected by could be drawn from the evidence and any sympathy or bias or any other consideration slight variation between the argument and the outside the evidence (T. 1214); and (4) the evidence (such as the condition of the defendant has no obligation to prove his tampon) certainly did not rise to a innocence (T. 1229). See Gonzalez v. constitutional magnitude.

15 The Court notes that the comment was made in the 16 Petitioner also points to comments regarding the context of arguing that the complainant’s demeanor lack of evidence that the encounter was consensual did not change no matter how difficult the questioning (Def. T. 751-52.) The Court has already discussed was. (T. 1135.) why these comments were not improper and does not repeat that analysis here. 1. The Prosecutor’s Remark Regarding prosecutor to argue from the evidence that the Mary’s Cell Phone petitioner was the cause of the dress coming down, and particular use of the word “pull” Petitioner argues that the prosecutor (as opposed to “the dress came down”) was mischaracterized testimony when she stated not significant in the context of the entire that the “complainant threw [her cell phone] evidence regarding the non-consensual in [a garbage pail.]” (Aff. 12.) However, nature of the encounter. petitioner misstates the prosecutor’s actual comments. The prosecutor stated to the jury 3. The Prosecutor’s Remark Regarding that: “[Mary’s] phone got knocked out of her the Condition of the Tampon hands and that was later corroborated by the fact that John Duggan went into the bathroom Similarly, the prosecutor’s remarks on . . . and found it in the garbage pail by the the location of Mary’s tampon were not sink.” (T. 1164.) The prosecutor then improper. (Def. T. 764:8-11.) Mary testified emphasized this piece of evidence to show that petitioner shoved the tampon to the side that there was some form of fight, stating, during the attack. (T. 660-61.) During “[T]hat tells you that there was a struggle. summation, the prosecutor explained that, if Why does it tell you there was a struggle? rape was to occur while Mary wore her How does that corroborate Mary’s tampon, the tampon would be pushed up. (T. testimony? Because no 22-year old girl is 844, 1178.) The difference between “pushed throwing her phone into the garbage pail.” to the side” or “pushed up” was not material (T. 1164.) The prosecutor did not argue that to the underlying evidence and argument, and Mary threw her phone in the garbage, but certainly did not constitute prosecutorial rather was arguing (as permitted) that the fact misconduct. that the phone was in the garbage implied that a struggle had taken place (rather than a 4. The Prosecutor’s Remark on DNA consensual encounter). Expert Testimony

2. The Prosecutor’s Remark on Mary’s Finally, the prosecutor’s comments on Dress the Chillseyzn’s testimony were permissible. During summation, the prosecutor explained Petitioner points to prosecutor’s to the jury that testing for DNA on skin cells comments about Mary’s dress being pulled would have been a waste of time: down during the struggle. (Def. T. 755:18- 22.) The prosecutor’s remarks were again a They’re looking for stains. reasonable inference that could be drawn They’re looking for blood, from the trial testimony. During direct they’re looking for semen, examination, Mary testified that when they’re looking for secretions petitioner initially became aggressive, he like saliva. They are not testing “started grabbing her neck and the dress came for skin cells. And the reason for down . . .” (T. 658.) During summation, the that is there would be no way for prosecutor stated that as Mary struggled, them to visually look at a swab petitioner “groped her, pulled her dress and determine which skin cells down, touched her breasts and touched her all belong to who. Those skin cells over the body.” (T. 1169.) Given the are labeled Mary’s and the testimony, it was certainly permissible for the defendant’s. They are not labeled male, female. You would have to misconduct, the evidence of petitioner’s guilt test all of the skin cells that are was so overwhelming that the outcome found on that swab in order to would have been the same absent the alleged find whether any of those skin prejudicial conduct. See Gonzalez, 934 F.2d cells are foreign to Mary’s body. at 424. It doesn’t make sense. It is no efficient, it is not cost effective. In sum, having analyzed all of petitioner’s prosecutorial misconduct claims (T. 1200.) These comments were referring to on the merits, the Court concludes that the Chillseyzn’s testimony during re-direct statements in the prosecutor’s summation examination, in which Chillseyzn explained raised by petitioner do not, individually or that under a hypothetical posed by collectively, rise to the level of a petitioner’s trial counsel, in which the penis constitutional violation given the nature of entered the vaginal cavity, it would not be the statement, the instructions by the court, possible to identify skin cells from one and the overwhelming proof of guilt. person or another.17 (T. 1041.) Thus, this was a fair comment on the evidence. IV. CONCLUSION

In any event, even assuming arguendo For the foregoing reasons, this Court that these comments could be construed as a finds that petitioner has demonstrated no mischaracterization of the evidence, it does basis for habeas relief under 28 U.S.C. § not rise to the level of a constitutional 2254. Accordingly, this petition for a writ of violation. First, the comments were not habeas corpus is denied in its entirety. egregious and it cannot be said that the statements “infected the trial” in such a manner as to deny due process and cause the resulting conviction. In Donnelly, the Supreme Court found that a prosecutor’s remark, while unambiguously improper, was merely trial error, and that the “distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct” that “amount[s] to a denial of constitutional due process” must be maintained. 416 U.S. at 647-48. Here, none of the prosecutor’s comments rise to the level of egregious misconduct. Moreover, any potential prejudice from these prosecutor’s comments was again cured by jury instructions that reminded jurors, among other things, that the arguments and remarks of counsel are not evidence. Additionally, as discussed supra, even if the Court were to accept petitioner’s argument that these comments constituted

17 Specifically, Chillseyzn said that there “will be identifying skin cells from one person or another is not millions of [skin cells] present from the victim. So possible.” (T. 1041.) Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no _ certificate of appealability shall issue. 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 purposes of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall enter judgment accordingly and close this case. sO D.

J F. BIANCO ted States Circuit Judge (Sitting by designation) August 9, 2019 Central Islip, New York 3B oR Petitioner is proceeding pro se at Altona Correctional Facility, 555 Devils Den Road, P.O. Box 3000 Altona, NY 12910. Respondent is represented by Madeline Singas of the Nassau County District Attorney’s Office, 262 Old Country Road, Mineola, New York 11501.