Rubin v. Lamanna

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

NO. 18-CV-1924

QUINTON RUBIN,

Petitioner,

VERSUS

JAMIE LAMANNA,

Respondent,

MEMORANDUM AND ORDER August 5, 2019

JOSEPH F. BIANCO, United States Circuit Judge (sitting by designation):

Quinton Rubin (hereinafter, “petitioner”) having first obtained a warrant or court order; petitions this Court for a writ of habeas (4) the verdict was against the weight of the corpus, pursuant to 28 U.S.C. § 2554, evidence and the prosecution failed to prove challenging his conviction in New York State its case beyond a reasonable doubt; and court. Petitioner was convicted on April 16, (5) petitioner’s sentence was harsh and 2014 of murder in the second degree (N.Y. excessive. For the reasons discussed herein, Penal Law (“Penal Law”) § 125.25(1)) in the petitioner’s request for a writ of habeas Supreme Court of New York Suffolk County, corpus is denied in its entirety. and was sentenced to twenty years to life in prison. I. BACKGROUND

In the instant habeas petition, petitioner A. Factual Background

challenges his conviction on the following The following facts are adduced from the grounds: (1) petitioner’s Fourteenth underlying record and the instant petition. Amendment rights were violated under Batson v. Kentucky, 476 U.S. 79 (1986); 1. The Evidence (2) the trial court improvidently exercised its discretion when it permitted improper On November 12, 2012, petitioner spent testimony by a witness for the prosecution; the day with his eleven-year old son “J.” (T. (3) petitioner’s Fourth Amendment rights were violated when the prosecution allegedly introduced petitioner’s phone records and cell site information into evidence without 87.)1 J is petitioner’s child with his estranged observed petitioner run down the driveway wife, Melissa Oyola (“Oyola”). (T. 79.) J and onto the street, and Oyola then went into lives with Oyola and his sister. (Id.) the house to check on her children, and called Petitioner was not living with Oyola on the the police. (T. 113.) Oyola told the 911 date in question, as petitioner had moved out operator that the perpetrator was her on August 29, 2012. (T. 104.) Petitioner and husband. (T. 117.) Officer Coyne arrived on Oyola had a history of domestic violence, the scene and found Berry dead on the bed. including an incident where Oyola stabbed (T. 45.) Berry had bled heavily and had petitioner. (T. 144.) severe trauma to his face and chest. (T. 46.) Officer Coyne recovered a dark mask with a On the dates at issue, November 12 and skull on it at the end of the driveway. (T. 47.) 13 of 2012, petitioner and Oyola were Oyola identified the assailant as the petitioner married, but were separated. (T. 103.) At to Officer Coyne. (T. 46.) that time, Oyola and another man, Sean Berry (“Berry”), had been dating since May of That same morning, petitioner contacted 2012. (T. 104.) Berry and petitioner knew his attorney to explain that “something was each other and called each other “cousins.” going on, that he might be involved.” (T. (T. 105.) In her testimony at trial, Oyola 563.) The attorney instructed petitioner and admitted to having sexual relations with his girlfriend to come to his office between Berry while she and petitioner were still the hours of 1:00 p.m. and 2:00 p.m. that living together. (T. 164.) afternoon. (Id.) Petitioner drove to the parking lot of the attorney’s office, and upon Early in the morning, on November 13, exiting his automobile, was taken into 2012, J woke up ill. (T. 80-81.) He looked custody by the police. (Id.) for his mother, but she was not in the house and had left her phone on the dining room 2. Trial table. (T. 81.) J then called petitioner to ask whether he knew where his mother was. (T. Petitioner was tried by a jury in Supreme 82.) During the phone call, J told petitioner Court, Suffolk County. The Court will that Berry had come over to the house. (T. summarize the portions of the trial relevant to 82.) After this phone call, J returned to bed. petitioner’s claims.

(T. 83.) a. Jury Selection

At or around 4:30 a.m. on November 13, During jury selection, the following 2012, Oyola was with Berry in a trailer in the exchanges took place between a prospective driveway of Oyola’s house. (T. 107.) At that juror and the attorneys, Mr. Kutzrock for the time, petitioner knocked on the window to People and Mr. Besso for defendant: the trailer. (T. 105-108.) After the third knock, Berry instructed Oyola to open the MR. KURTZROCK: You know door because he thought it was the children what, in all of our lives we have to – knocking. (T. 109.) Once inside, petitioner we hear people tell us things. So wielded a gun and shot Berry in the face. (T. sometimes if they’re in positions of 111.) Petitioner then shot Berry several more authority, those of us with kids, times at close range before he ran out of the especially if there’s two kids, you trailer and onto the street. (T. 112.) Oyola know, there’s gonna be times when

1 Citations to “T.” are references to the transcript of 8-17.) The Court uses the pagination noted on the trial petitioner’s March 2014 jury trial. (ECF Nos. 8-14 to transcript. someone says well, you know, he * * * pulled my hair; oh, no, but she, you know, hit me with a whiffle ball bat MR. BESSO: . . . [H]ow about and you have to make a decision. Do yourself, if [the defendant] didn’t you think you would be able to do that testify does that signal to you he must . . . , if you get picked as a juror? have done something?

PROSPECTIVE JUROR: Are you PROSPECTIVE JUROR: No, but it’s going back to the red light or green his attorney’s doing. light? MR. BESSO: Well, he and I together. (JS. 14.)2 PROSPECTIVE JUROR: Oh. Later, the prospective juror gave uncertain answers to defense attorney Mr. Besso’s voir MR. BESSO: We’re as one person. dire: PROSPECTIVE JUROR: Oh. MR. BESSO: Okay . . . do you believe that the truth can come in many types MR. BESSO: You understand I’m his of shades or it can be distorted or attorney, right? misunderstood? PROSPECTIVE JUROR: Okay. No, PROSPECTIVE JUROR: Could you yes right. repeat the question? MR. BESSO: But he and I are like MR. BESSO: Do you believe that the one person right now. truth could come in many types of shades of the truth or could be (JS. at 73-74). distorted or misunderstood by the person that’s perceiving what that fact The prosecutor ultimately exercised a or that truth is? peremptory challenge against the prospective juror, an African-American female. (JS. 84.) PROSPECTIVE JUROR: Could be, Defense counsel raised an objection, stating could be. that “[i]t’s the only person of color in the whole audience that was left, and she didn’t MR. BESSO: Do you believe it could say anything that I feel would be, you know, be misinterpreted? for cause. I know [the prosecutor] doesn’t have to give a reason, but I would just want PROSPECTIVE JUROR: Might be. to make sure.” (JS. 84-85. ) The trial court construed defense counsel’s comment as a (JS. 62-63.) possible challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and noted that,

2 Citations to “JS.” are references to the February 27, 2014 transcript of the jury selection for petitioner’s trial. The Court uses the pagination noted on the jury selection transcript. “for a Batson objection you have to show a Berry died from gunshot wounds to the torso, pattern,” and then indicated to the prosecutor and the five bullets were removed from that “it’s up to you whether or not you want Berry’s body by a medical examiner and to address that.” (JS. 85.) After a discussion were examined by a forensics ballistics with the trial court judge as to whether in fact expert with the Suffolk County Crime the prospective juror was African-American, Laboratory. (T2. 20; T. 252.) It was the prosecutor then stated that the reasoning determined that all five bullets were fired behind his peremptory strike was that from the same gun, and were consistent with “[s]ome of the answers that she gave today a revolver-type ammunition. (T. 466.) At seemed a little confused at times . . . .” (JS. trial, a forensic scientist from the Suffolk 86.) The prosecutor also noted that the County Crime Laboratory testified that a .357 prospective juror had given “hesitant” and revolver could shoot the type of bullets that difficult to understand answers on the killed Berry and could also shoot the type of previous day of jury selection. (Id.) The trial ammunition found in petitioner’s apartment. court agreed with the prosecutor’s non- (T. 470.) discriminatory reasoning, and stated “if what you’re offering is a Batson challenge, it’s Additionally, Oyola, an eye-witness to denied.” (JS. 87.) Defense counsel did not the incident, testified that she immediately object, and replied, “[a]ll right, Judge.” (Id.) recognized the shooter as petitioner, and could see his eyes and recognize his voice b. Presentation of Evidence despite the fact that the lower part of his face was covered by a mask. (T. 113-16, 129). The prosecution called numerous Oyola testified that she witnessed the witnesses to the stand, including petitioner’s petitioner shooting Berry from a distance of estranged wife (Oyola) and son (J), custodian about four feet, and then observed petitioner of records for MetroPCS (Kenneth LeCesne), shoot four additional shots at Berry from a a forensic scientist in the firearms ballistics distance of about two feet. (T. 110, 210; see unit at the Suffolk County Crime Laboratory T.2. 13-14). Through testimony from J, it (Roy Sineo), the detective from the Suffolk was revealed that the mask worn by the County Police Department who executed the shooter, that was found on the street near search warrant in connection with the where the shooter fled, was similar to the underlying criminal case (Detective Michael mask that petitioner wore when he went quad Mahan) (T. 20, 78, 82, 470), and the deputy riding. (T. 84-85.) medical examiner of the Suffolk County Medical Examiner’s Office (Dr. Stephanie Further, the testimony revealed that the Horowitz) (T2., ECF No. 18-8, at 20).3 police obtained records of petitioner’s cell- site information from MetroPCS. (T. 299.) At trial, the evidence demonstrated that Cell-site information consists of a detailed when police executed a search warrant at record of phone logs with cell tower petitioner’s residence on November 14, information, that can be used to determine the 2012, they found a .357 Winchester cartridge proximity and location of a cell phone in and two .38 Special Winchester shell casings. relation to particular cell tower at a particular (T. 371, 373.) Trial testimony revealed that time. (T. 299.) At trial, the prosecution

3 Citations to “T2.” are references to the March 11, 2014 transcript from petitioner’s trial. This segment of the transcript was filed separately from the rest of the trial transcript, and has its own pagination. called Kenneth LeCesne, a custodian of the New York Supreme Court in Suffolk records for MetroPCS, to give testimony as County to twenty years to life in prison on to the location of petitioner’s cell phone April 16, 2014. throughout the day on November 13, 2012. (T. 297.) Through this testimony, it was B. Procedural History

revealed that at 3:15 a.m. on November 13, 1. Direct Appeal 2012, petitioner received a call from J’s cell phone. (T. 337.) The call lasted five minutes Petitioner appealed to the Second and was transmitted by tower 875, sector 2. Department of the New York State Appellate (T. 337.) Tower 875 sector 2 was located Division. On direct appeal, petitioner argued eight-tenths of a mile from petitioner’s that: (1) the trial court erroneously decided residence. (T. 409, 410.) At 3:20 a.m., defense counsel’s Batson challenge; (2) the petitioner called his son, but the call went court erroneously permitted a records unanswered; the same tower 875 sector 2 custodian to testify about technical aspects of transmitted that call. (T. 337-38). Petitioner cell phone towers and the contents of then called Oyola’s cell phone at 3:22 a.m., petitioner’s cell phone records; (3) the using the code *67 to block his phone number prosecution obtained petitioner’s cell phone from the receiver. (T. 338-39.) The call records and cell site information without a lasted 74 seconds and was also transmitted by court order, in violation of his Fourth tower 875 sector 2. (T. 339.) At 4:22 a.m., Amendment rights; (4) the prosecution failed petitioner called J, and the call was to prove appellant guilty of murder in the transmitted by tower 878 sector 3 located in second degree beyond a reasonable doubt and Bay Shore on Bay Avenue, approximately his conviction was against the weight of the six-tenths of a mile from Oyola’s house. (T. evidence; and (5) petitioner’s sentence of 20 339-40, 411.) The call was answered and years to life incarceration was harsh and lasted 36 seconds. (T. 339.) excessive. On October 12, 2016, the Second Department affirmed the trial court’s The last call from petitioner to his son judgment of conviction and sentence. People occurred at 4:23 a.m. and began at tower 509 v. Rubin, 39 N.Y.S.3d 74 (2nd Dep’t 2016). sector 1 and ended at tower 878 sector 4, indicating movement by petitioner during the On February 9, 2016, respondent made a time of the call. (T. 340, 412.) Tower 509 motion to enlarge the court record to include sector 1 and Tower 878 sector 4 were located an order pursuant to the Stored 1.4 miles and six-tenths of a mile from Communications Act, 18 U.S.C. 2703, Oyola’s house, respectively. This testimony signed by Justice Condon on January 22, and the records from petitioner’s cell phone 2013, for MetroPCS cell phone records from provider and cell towers placed petitioner’s November 12 through November 13 of 2012 cell phone at an area less than one mile from for petitioner and petitioner’s girlfriend. Oyola’s residence right before the crime (Resp. Opp., Ex. 25, ECF No. 8-25.) The occurred around 4:30 a.m. (T. 410-11). Second Department granted the motion to expand the record on March 29, 2016. (Resp.

c. Verdict and Sentence Opp., Ex. 26, ECF No. 8-26.)

On appellate review, the Second At trial, a jury found petitioner guilty of Department concluded that petitioner’s murder in the second degree in violation of Batson challenge was “unpreserved for Penal Law § 125.25(1). He was sentenced by appellate review” because he did not object to the trial court’s acceptance of the was not against the weight of evidence.” Id. prosecutor’s facially race-neutral explanation Finally, the Second Department held that for striking the prospective juror. Rubin, 39 “the sentence imposed was not excessive.” N.Y.S.3d at 76. The court concluded that, Id. “[i]n any event, there is no basis to disturb the County Court’s determination that the Petitioner requested leave to appeal to the race-neutral explanation provided by the New York State Court of Appeals, and the prosecutor for striking the juror was not request was denied on December 27, 2016. pretextual.” Id. Moreover, the “defendant’s See People v. Rubin, 28 N.Y.3d 1126 (N.Y. additional claim that his cell phone records 2016). were improperly admitted” was also unpreserved for appellate review. Id. at 847. 2. The Instant Petition

The court held that, “[i]n any event, contrary On March 19, 2018, petitioner filed a to the defendant’s contention, the record timely petition before this Court for a writ of demonstrates that the prosecution properly habeas corpus, pursuant to 28 U.S.C. § 2254. obtained his cell phone records by court order (ECF No. 1.) Petitioner raises the same five issued pursuant to the Stored challenges in the instant action as he did in Communications Act . . . .” Id. (internal his appeal to the Second Department. citations omitted). Namely, petitioner challenges his conviction

The Second Department also concluded on the following grounds: (1) the that the lower court properly permitted the prosecutor’s reason for exercising his records custodian to testify regarding the peremptory strike to excuse a prospective movements of the defendant’s phone. The juror was a pretext for discrimination and court determined that “the challenged therefore violated petitioner’s Batson rights; testimony, which was based on records (2) the trial court improvidently exercised its showing the proximity of the phone to discretion when it permitted improper particular cell phone towers, was within the technical testimony by the prosecution’s record custodian’s knowledge and witness, a custodian of cell phone records; (3) experience.” Id. (citing People v. Paige, 891 petitioner’s Fourth Amendment rights were N.Y.S.2d 374, 376 (1st Dep’t 2009)). violated when the prosecution introduced into evidence the petitioner’s phone records As to the weight of the evidence and cell site information without having first challenge, the Second Department found that obtained a warrant or court order to obtain the evidence “was legally sufficient to these records; (4) the prosecution failed to establish the defendant’s guilt beyond a prove petitioner was guilty of murder beyond reasonable doubt” after reviewing it in the a reasonable doubt and the verdict was light most favorable to the prosecution. Id. against the weight of evidence; and (5) his Indeed, after conducting an independent sentence was harsh and excessive. (Pet.) review of the weight of the evidence and The People filed a response to the petition on reviewing the record itself, the appellate August 6, 2018. (Resp. Opp., ECF No. 8.) court was “satisfied that the verdict of guilt Petitioner did not file a reply.4 The Court has

4 This Court issued an Order on May 3, 2019 noting such a motion. (ECF No. 9.) The Order instructed that petitioner had indicated in his petition that he may petitioner that, if he did not file a letter, the petition be attempting to file a Section 440 motion, and would be decided based on the current record. (Id.) instructing petitioner to file a letter with the Court by To date, petitioner has not filed a letter or otherwise May 24, 2019 indicating whether or not he had filed fully considered the parties’ submissions, as conclusion opposite to that reached by [the well as the underlying record. Supreme Court] on a question of law or if the state court decides a case differently than [the II. STANDARD OF REVIEW Supreme Court] has on a set of materially

To determine whether petitioner is indistinguishable facts.” Williams, 529 U.S. entitled to a writ of habeas corpus, a federal at 413 (2000). A decision is an court must apply the standard of review set “unreasonable application” of clearly forth in 28 U.S.C. § 2254, as amended by the established federal law if a state court Antiterrorism and Effective Death Penalty “identifies the correct governing legal Act (“AEDPA”), which provides in relevant principles from [the Supreme Court’s] part: decisions but unreasonably applies that principle to the facts of [a] prisoner’s case.” (d) An application for a writ of habeas Id. corpus on behalf of a person in

custody pursuant to the judgment of a AEDPA establishes a deferential State court shall not be granted with standard of review: “a federal habeas court respect to any claim that was may not issue the writ simply because the adjudicated on the merits in State court concludes in its independent judgment court proceedings unless the that the relevant state-court decisions applied adjudication of the claim – clearly established federal law erroneously or incorrectly. Rather the application must be (1) resulted in a decision that was unreasonable.” Gilchrist v. O’Keefe, 260 contrary to, or involved and F.3d 87, 93 (2d Cir. 2001) (quoting Williams, unreasonable application of, clearly 529 U.S. at 411) (emphasis added). The established Federal law, as Second Circuit added that, while “[s]ome determined by the Supreme Court of increment of incorrectness beyond error is the United States; or required…the increment need not be great;

(2) resulted in a decision that was otherwise, habeas relief would be limited to based on an unreasonable state court decisions so far off the mark as to determination of facts in light of the suggest judicial incompetence.” Id. (quoting evidence presented by the State court Francis S. v. Stone, 221 F.3d 100, 111 (2d proceedings. Cir. 2000)). Finally, “if the federal claim was not adjudicated on the merits, ‘AEDPA 28 U.S.C §2254. “‘Clearly established deference is not required, and conclusions of Federal law’ means ‘the holdings, as opposed law and mixed findings of fact and to the dicta, of [the Supreme] Court’s conclusions of law are reviewed de novo.’” decisions as of the time of the relevant state- Dolphy v. Mantello, 552 F.3d 236, 238 (2d court decision.’” Green v. Travis, 414 F.3d Cir. 2009) (quoting Spears v. Greiner, 459 288, 296 (2d Cir. 2005) (quoting Williams v. F.3d 200, 203 (2d Cir. 2006)). 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 on the grounds that: (1) the Supreme Court, “if the state court arrives at a

communicated with the Court regarding the instant petition. prosecutor’s explanation for exercising his marks omitted). To be independent, the peremptory strike to excuse a prospective “state court must actually have relied on the juror was a pretext for discrimination and procedural bar as an independent basis for its therefore violated petitioner’s Batson rights; disposition of the case,” by “clearly and (2) the trial court improvidently exercised its expressly stat[ing] that its judgment rests on discretion when it permitted improper a state procedural bar.” Harris v. Reed, 489 technical testimony by the prosecution’s U.S. 255, 261-63 (1989) (internal quotation witness, a custodian of cell phone records; marks omitted). In addition, a state court’s (3) petitioner’s Fourth Amendment rights reliance on an independent and adequate were violated when the prosecution procedural bar precludes habeas review even introduced into evidence the petitioner’s if the state court also rejected the claim on the phone records and cell site information merits in the alternative. See, e.g., id. at 264 without having first obtained a warrant or n.10 (holding that “a state court need not fear court order to obtain these records; (4) the reaching the merits of a federal claim in an prosecution failed to prove petitioner was alternative holding,” so long as the state guilty of murder beyond a reasonable doubt court “explicitly invokes a state procedural and the verdict was against the weight of bar rule as a separate basis for decision”); evidence; and (5) his sentence was harsh and Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. excessive. 1996) (same).

For the reasons set forth below, The procedural bar is based on the petitioner’s request for a writ of habeas “comity and respect” that state judgments corpus is denied in its entirety. Specifically, must be accorded. House v. Bell, 547 U.S. the Court concludes that petitioner's claims 518, 536 (2006). Its purpose is to maintain relating to the Batson challenge and the the delicate balance of federalism by violation of the Stored Communications Act retaining a state’s rights to enforce its laws are procedurally barred from habeas review. and to maintain its judicial procedures as it Moreover, the Court concludes that all of sees fit. Coleman, 501 U.S. at 730-31. petitioner’s claims, including the Generally, the Second Circuit has deferred to procedurally barred claims, are without state findings of procedural default as long as merit. they are supported by a “fair and substantial basis” in state law. Garcia, 188 F.3d at 78. A. Procedural Bar However, there is a “small category” of

1. Independent and Adequate State “exceptional cases in which [an] exorbitant Ground application of a generally sound [procedural] rule renders the state ground inadequate to A petitioner’s federal claims may be stop consideration of a federal question.” Lee procedurally barred from habeas review if v. Kemna, 534 U.S. 362, 376, 381 (2002). they were decided at the state level on Nevertheless, principles of comity “counsel “independent and adequate” state procedural that a federal court that deems a state grounds. Coleman v. Thompson, 501 U.S. procedural rule inadequate should not reach 722, 729-33 (1991); see, e.g., Michigan v. that conclusion lightly or without clear Long, 463 U.S. 1032, 1041 (1983). The support in state law.” Garcia, 188 F.3d at 77 procedural rule at issue is adequate if it is (citation and internal quotation marks “firmly established and regularly followed by omitted). the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (internal quotation If a claim is procedurally barred, a federal Failing to preserve a Batson challenge for habeas court may not review it on the merits appeal “constitutes an independent and unless the petitioner demonstrates both cause adequate state ground” which precludes a for the default and prejudice resulting habeas court from further consideration of therefrom, or if he demonstrates that the the claim. Rodriguez v. Schriver, 392 F.3d failure to consider the claim will result in a 505, 510 (2d Cir. 2004); see also Galarza v. miscarriage of justice. Coleman, 501 U.S. at Keane, 252 F.3d 630, 638 (2d Cir. 2001) 750. A petitioner may demonstrate cause by (“[A] party must raise his or her Batson showing one of the following: “(1) the factual challenges in a manner that would allow a or legal basis for a petitioner’s claim was not trial court to remedy the problem at trial”). reasonably available to counsel, (2) some Here, the Appellate Division expressly held interference by state officials made that petitioner’s failure to “object to the compliance with the procedural rule County Court’s acceptance of the impracticable, or (3) the procedural default prosecutor’s explanation” and his failure to was the result of ineffective assistance of “articulate any reason why he believed that counsel.” McLeod v. Graham, No. 10 Civ. the explanation was pretextual,” rendered 3778, 2010 WL 5125317, at *3 (E.D.N.Y “his present contention that the prosecutor’s Dec. 9, 2010) (citing Bossett v. Walker, 41 explanation was pretextual . . . unpreserved F.3d 825, 829 (2d Cir. 1994)). Prejudice can for appellate review.” Rubin, 39 N.Y.S.3d at be demonstrated by showing that the error 75; see also People v. Figueroa, 714 “worked to his actual and substantial N.Y.S.2d 241, 242 (2nd Dep’t 2000) (“The disadvantage, infecting his entire trial with defendant’s contentions on appeal with error of constitutional dimensions.” Torres v. respect to the explanations offered are Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) unpreserved for appellate review, since the (citation and internal quotation marks defendant did not address the merits of the omitted). A miscarriage of justice is prosecution’s facially-neutral explanations at demonstrated in extraordinary cases, such as trial.”) Petitioner thus failed to preserve the where a “constitutional violation has issue for appeal to this Court on a habeas probably resulted in the conviction of one petition. who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). To overcome a In addition, petitioner has not procedural default based on a miscarriage of demonstrated cause for, or actual prejudice justice, the petitioner must demonstrate that resulting from, the default. First, he has “more likely than not, in light of the new offered no explanation for why he failed to evidence, no reasonable juror would find him preserve his objection with respect to the guilty beyond a reasonable doubt.” House v. Batson challenge at trial, and thus has not Bell, 547 U.S. 518, 536-38 (2006). shown “cause” for the procedural default. Second, he has not shown prejudice because, as discussed below, each of these claims fails 2. Application to Petitioner’s Claim for on the merits and the evidence of his guilt Batson Violations was overwhelming. See Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003); McLeod, The Court concludes that petitioner’s 2010 WL 5125317, at *3; People v. Hudgins, claim regarding the Batson challenge is No. 07–CV–01862–(JFB), 2009 WL procedurally barred because this claim was 1703266, at *6 (E.D.N.Y. June 18, 2009). decided at the state level on adequate and Petitioner has also failed to show this case independent state procedural grounds. would result in a miscarriage of justice if the Court failed to review the claims on the statement that petitioner's claim was merits. Thus, this claim is procedurally “unpreserved” is sufficient to establish that it barred. was relying on a procedural bar as an independent ground in disposing of the issue. However, in an abundance of caution, the See, e.g., Figueroa v. Grenier, No. 02–cv– Court reviews the merits of petitioner’s 5444 DAB GWG, 2005 WL 249001, at *8 Batson challenge below, and finds the claims (S.D.N.Y. Feb. 2, 2005). Additionally, New to be without merit. York’s preservation doctrine is firmly established and regularly followed. See 3. Application to Petitioner’s Claim for Garvey v. Duncan, 485 F.3d 709, 715-16 (2d Violations of the Stored Cir. 2007). Communications Act Furthermore, the Appellate Division’s Petitioner claims that his Fourth reliance on the preservation doctrine was not Amendment rights were violated when the exorbitant in this case. As noted above, prosecution introduced his cell phone records in Lee, the Supreme Court concluded that into evidence without having obtained a there is a limited category of “exceptional warrant or court order. Petitioner’s claim for cases” in which the state appellate court violations of his Fourth Amendment rights applied a firmly-established and regularly- because of noncompliance with the Stored followed procedural ground in an Communications Act claim is procedurally “exorbitant” manner so that the application of barred from habeas corpus review since it the ground was inadequate, and a federal was decided at the state level on adequate and court was therefore not barred from independent procedural grounds. reviewing that claim on the merits in a habeas

As discussed supra, petitioner appealed appeal. 534 U.S. at 376. Although the his conviction to the Appellate Division on Supreme Court did not set forth a test that five grounds, one of which was that his cell must be followed to determine whether an phone records were improperly admitted application of a procedural ground was because they were obtained in violation of exorbitant, the Second Circuit concluded the Stored Communications Act. However, in Cotto v. Herbert that there were three in the Appellate Division’s decision factors that could be derived from Lee and affirming the judgment of petitioner’s should be considered as guideposts in the conviction, the Appellate Division declined analysis. 331 F.3d 217, 240 (2d Cir.2003). to review petitioner’s Stored These factors are: “(1) whether the alleged Communications Act claim, stating that it violation was actually relied on in the trial was unpreserved for appellate review, citing court, and whether perfect compliance with to N.Y.C.P.L. § 470.05(2). Rubin, 39 the state rule would have changed the trial N.Y.S.3d at 76. Essentially, this statute court’s decision; (2) whether state case law “grants an appellate court the discretion to indicated that compliance with the rule was decline to review claims if they were not demanded in the specific circumstances preserved by being sufficiently presented to presented; and (3) whether petitioner had or decided by the trial court.” Ashley v. substantially complied with the rule given Burge, No. 05 Civ. 4497(JGK), 2006 WL ‘the realities of trial,’ and, therefore, whether 3327589, at *4 (E.D.N.Y. Nov. 3, 2006); see demanding perfect compliance with the rule also People v. Medina, 53 N.Y .2d 951, 952 would serve a legitimate government (N.Y.1981). The Appellate Division’s interest.” Id. In accordance with the Cotto factors, the improperly admitted cell phone records was Appellate Division in the instant case did not procedurally barred was not exorbitant. Thus, apply the preservation doctrine in an the Appellate Division’s holding that exorbitant manner. With respect to the petitioner’s claim was unpreserved for first Cotto factor, this factor weighs against appellate review represents an adequate and petitioner because, even assuming arguendo independent state law ground to deny habeas that petitioner had preserved the objection, as relief. discussed below, this claim fails on the merits. Notwithstanding petitioner’s failure to preserve this claim, this Court may still The second Cotto factor also weighs consider it on the merits if petitioner can heavily against petitioner. New York courts demonstrate either “cause and prejudice” for have consistently held that a defendant must the procedural default or that failure to make specific arguments to the suppression consider the claim will result in a miscarriage courts regarding allegedly improperly of justice, i.e., that he is actually innocent of obtained evidence in order to preserve those the crimes for which he was arguments for appellate review. See, e.g., convicted. See Coleman, 501 U.S. at 748– People v. John, 27 N.Y.3d 294, 303 (2016) 51; Murray, 477 U.S. at 496. Petitioner has (claim regarding warrantless search of a gun failed to demonstrate cause or prejudice. box was unpreserved for appellate review With respect to cause, petitioner makes no because the specific argument was not made argument for why he did not move to to the suppression court); People v. suppress the cell phone records. Robinson, 778 N.Y.S.2d 808, 809 (4th Dep’t Additionally, petitioner has not demonstrated 2004) (where defendant failed to move to that prejudice would occur because the suppress evidence, a claim that the seizure record contains overwhelming evidence of was unconstitutional was unpreserved for petitioner’s guilt, even without the cell phone appeal). records– namely, the combined effect of the testimony of the eyewitness to the incident, Finally, with respect to the the testimony of petitioner’s son who was third Cotto factor, petitioner failed to communicating with petitioner prior to the “substantially comply” with the preservation incident, the testimony of law enforcement rule, and demanding full compliance does officers, and the physical evidence recovered serve a legitimate government interest. including the mask, the shell casings, and Petitioner failed to move to suppress the bullets. Nonetheless, in an abundance of relevant cell phone records either before or caution, the Court reviews petitioner’s claim during the trial. Essentially, the trial judge on the merits below. was unable to assess whether the cell phone records were obtained in violation of B. Merits Analysis petitioner’s constitutional rights. Full compliance with the preservation rule is Petitioner raises five grounds for habeas critical so that the trial judge has an relief: (1) the prosecutor’s explanation for opportunity to prevent any reversible error, exercising his peremptory strike to excuse a and because New York “has an interest in the prospective juror was a pretext for finality of criminal trials.” See Ashley, 2006 discrimination and therefore violated WL 3327589 at *5-7. Considering all three petitioner’s Batson rights; (2) the trial court Cotto factors, the Appellate Division’s improvidently exercised its discretion when conclusion that petitioner’s claim of it permitted improper technical testimony by the prosecution’s witness, a custodian of cell issue was based on race.” McKinney, 326 phone records; (3) petitioner’s Fourth F.3d at 98. Amendment rights were violated when the prosecution introduced into evidence the “Throughout the Batson procedure, the petitioner’s phone records and cell site burden of proving that a strike was exercised information without having first obtained a on an impermissible discriminatory ground warrant or court order to obtain these records; remains with the movant.” Messiah v. (4) the prosecution failed to prove petitioner Duncan, 435 F.3d 186, 195 (2d Cir. 2006). was guilty of murder beyond a reasonable Thus, “the third step of the Batson inquiry doubt and the verdict was against the weight requires a trial judge to make an ultimate of evidence; and (5) his sentence was harsh determination on the issue of discriminatory and excessive. None of these arguments intent based on all the facts and provide grounds for habeas relief in the circumstances.” Jordan v. Lefevre, 206 F.3d. instant case. 196, 200 (2d Cir. 2000) (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d 1. Batson Violations Cir. 1991)). “Ordinarily, at step three, ‘the decisive question will be whether counsel’s a. Legal Standard race-neutral explanation for a peremptory challenge should be believed.’” Messiah, Batson v. Kentucky, 476 U.S. 79 (1986), 435 F.3d at 195 (quoting Hernandez v. New set forth a three-step inquiry for determining York, 500 U.S. 352, 365 (1991) (plurality)). whether a party has exercised peremptory challenges in a racially discriminatory Often, the best indication of manner. Harris v. Kulhmann, 346 F.3d 330, discriminatory intent “will be the demeanor 343 (2d Cir. 2003) (citing McKinney v. Artuz, of the attorney who exercises the challenge. 326 F.3d 87, 97-98 (2d Cir. 2003)). First, the In addition, race-neutral reasons for moving party, i.e., the opponent of the peremptory challenges often invoke a juror’s peremptory challenge, must make out a demeanor (e.g., nervousness, inattention), prima facie case that the non-moving party’s making the trial court’s firsthand peremptory challenge was based on racial observations of even greater importance.” discrimination. McKinney, 326 F.3d at 97. Snyder v. Louisiana, 552 U.S. 472, 477 Second, the non-moving party must come (2008) (citation omitted). As a result, the forward and assert a race-neutral explanation trial court must evaluate not only whether the for the challenge. Id. at 98. Notably, attorney’s demeanor demonstrates “although a race-neutral reason is given, it discriminatory intent, but also whether the need not be persuasive or even plausible” juror’s demeanor can be said to have during the second step of this inquiry. Id. “At “credibly” demonstrated a valid reason for this [second] step of the inquiry, the issue is the strike of the juror. Id. the facial validity of the prosecutor’s explanation. Unless a discriminatory intent Because “these determinations of is inherent in the prosecutor’s explanation, credibility and demeanor lie ‘peculiarly the reason offered will be deemed race within a trial judge’s province,’ reviewing neutral.” Purkett v. Elem, 514 U.S. 765, 768 courts generally must ‘defer to [the trial (1995). Third, the trial court must then court] in the absence of exceptional decide “whether the moving party carried the circumstances.’” Id. (quoting Hernandez, burden of showing by a preponderance of the 500 U.S. at 365-66). Furthermore, even evidence that the peremptory challenge at though “[r]easonable minds reviewing the record might disagree about the prosecutor’s Boozer’s confusion with regard to questions credibility [regarding prospective jurors’ asked during the jury selection process. demeanors], . . . on habeas review that does Concern over a juror’s confusing answers to not suffice to supersede the trial court’s voir dire questions is a valid reason for a credibility determination.” Rice v. Collins, prosecutor exercising a peremptory 546 U.S. 333, 341-42 (2006). Thus, “[t]o challenge. See Galarza v. Keane, 252 F.3d secure habeas relief [under Batson] petitioner 630 (2d Cir. 2001). must demonstrate that a state court’s finding of the absence of purposeful discrimination In Galarza, the Second Circuit held that a was incorrect by clear and convincing juror’s confusion can be the basis for a valid evidence, 28 U.S.C. § 2254(e)(1), and that peremptory strike. There, the state the corresponding factual determination was prosecutor utilized a peremptory strike ‘objectively unreasonable’ in light of the against one Hispanic juror because the record before the court.” Miller-El v. prosecutor “thought she had a problem Cockrell, 537 U.S. 322, 348 (2003). understanding.” Galarza, 252 F.3d at 633. Additionally, the prosecutor used a b. Application peremptory strike against another juror because “[h]e seemed somewhat confused Petitioner claims that the “[t]he today when [the trial court judge] asked him prosecutor’s reason for exercising a point blank questions about certain things, he peremptory challenge to excuse [the] would say no, then he would go ahead and prospective juror . . . were [sic] a pretext for answer in the affirmative.” Id. The Second discrimination,” and thus was a Batson Circuit found that the trial court did not err in violation. (Pet. 6.) The Appellate Division accepting these reasons for striking the held that “there is no basis to disturb the prospective juror, and therefore the Batson County Court’s determination that the race- challenges over these two jurors were neutral explanation provided by the without merit. Id. at 639; see also United prosecutor for striking the prospective juror States v. Hunter, 86 F.3d 679, 683 (7th Cir. was not pretextual.” Rubin, 39 N.Y.S.3d at 1996) (concluding the government did not 76. violate Batson when it exercised a peremptory challenge because of the juror’s The Court concludes that the state courts’ “confused answers to certain voir dire determinations were not unreasonable questions”); Barbara v. Goord, No. CV 98- applications of clearly established federal 4569 (RR), 2001 WL 1776159, at *6 law. On the contrary, the trial court properly (E.D.N.Y. Dec. 27, 2001) (crediting the applied the Batson analysis with respect to prosecutor’s reason regarding the juror’s the challenged juror. Though it was confusion and therefore rejecting petitioner’s somewhat unclear whether defense counsel Batson challenge). Thus, under Galarza, a was even attempting to raise a Batson juror’s confusion during voir dire questions is challenge, the trial court did consider the an acceptable reason to exercise a prosecutor’s proffered race-neutral reasons peremptory challenge. for the peremptory strike of the prospective juror before concluding that there was no Furthermore, in light of the heavy Batson violation. deference given to the trial court’s determination, Snyder, 552 U.S. at 477, this Specifically, the prosecutor’s proffered Court concludes that the trial court judge’s race-neutral reason for the strike involved determination “of the absence of purposeful discrimination” was not clearly erroneous. not lie for errors of state law.” (quoting Lewis Miller-El, 537 U.S. at 348; see also United v. Jeffers, 497 U.S. 764, 780 (1990)). States v. Biaggi, 853 F.2d 89, 96 (2d Cir. Instead, for a habeas petitioner to prevail in 1988) (“Where the court itself has conducted connection with a claim regarding an the voir dire and thus was able to observe as evidentiary error, the petitioner must “show well the demeanor of the prospective jurors, that the error deprived [him] of a we believe the court’s assessment of the fundamentally fair trial.” Taylor,708 F.2d at prosecution’s stated reasons for excusing 891; see also Zarvela v. Artuz, 364 F.3d 415, jurors is entitled to special deference.”). 418 (2d Cir. 2004) (“Even erroneous evidentiary rulings warrant a writ of habeas Here, the prosecutor offered a race- corpus only where the petitioner ‘can show neutral explanation for the strike, and defense that the error deprived [him] of a counsel did not offer any explanation as to fundamentally fair trial.’” (quoting Rosario why the proffered reason was pretextual. v. Kuhlman, 839 F.2d 918, 925 (2d Cir. Because the prosecutor’s explanation for the 1988))). In other words, “[t]he introduction strike was racially neutral, see Galarza, 252 of improper evidence against a defendant F.3d 639, and the special deference afforded does not amount to a violation of due process to the trial court’s assessment of the unless the evidence ‘is so extremely unfair prosecution’s stated reasons for excusing that its admission violates fundamental jurors, Biaggi, 853 F.2d at 96, petitioner has conceptions of justice.’” Dunningan v. not demonstrated that the “state court’s Keane, 137 F.3d 117, 125 (2d Cir. 1998) finding of the absence of purposeful (quoting Dowling v. United States, 493 U.S. discrimination was incorrect by clear and 342, 352 (1990)), abrogated on other convincing evidence . . . and that the grounds by Perry v. New Hampshire, 565 corresponding factual determination was U.S. 228 (2012). ‘objectively unreasonable’ in light of the record.” Miller-El, 537 U.S. at 348. To constitute a denial of due process Accordingly, this Court finds that petitioner under this standard, the erroneously admitted has failed to demonstrate that the denial of his evidence must have been “sufficiently Batson claim in state court involved an material to provide the basis for conviction or unreasonable application of federal law, or an to remove a reasonable doubt that would have unreasonable determination of the facts. existed on the record without it.” Petitioner’s Batson claims do not warrant Dunnigan, 137 F.3d at 125 (internal relief. quotation marks omitted) (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 2. Introduction of Expert Testimony 1992)); see also Collins v. Scully, 755 F.2d From a Lay Witness 16, 19 (2d Cir. 1985) (holding that evidence must be “crucial, critical, highly significant”) a. Legal Standard (citation and internal quotation marks

It is well-settled that “[e]rroneous omitted)). Moreover, the court “must review evidentiary rulings do not automatically rise the erroneously admitted evidence in light of to the level of constitutional error sufficient the entire record before the to warrant issuance of a writ of habeas jury.” Dunnigan, 137 F.3d at 125 (citation corpus.” Taylor v. Curry, 708 F.2d 886, 891 and internal quotation marks omitted). In (2d Cir. 1983); see Estelle v. McGuire, 502 making this due process determination, the U.S. 62 (1991) (“[H]abeas corpus relief does Court should engage in a two-part analysis, examining (1) whether the trial court’s evidentiary ruling was erroneous under New throughout the relevant period. (T. 296-344.) York State law, and (2) whether the error In People v. Paige, the First Department held amounted to the denial of the constitutional that a custodian of records, not qualified as an right to a fundamentally fair trial. See Wade expert, properly testified “to matters within v. Mantello, 333 F.3d 51, 59 n.7 (2d Cir. her knowledge and experience,” when she 2003); Davis v. Strack, 270 F.3d 111, 123-24 testified as to the “probable location of (2d Cir. 2001). As set forth below, the Court defendant’s phone at a time the particular call has reviewed petitioner’s objections was made” based upon cell phone records regarding the testimony of the MetroPCS and cell tower information. 891 N.Y.S.2d custodian of records under this two-part test, 374, 376 (1st Dep’t 2009). On direct appeal and concludes that it does not warrant habeas in this case, the Second Department, relying relief. on Paige, found that petitioner’s challenge to LeCesne’s testimony failed, because the b. Application “testimony, which was based on records showing the proximity of the phone to Petitioner argues that the trial court particular cell phone towers, was within the improperly permitted a lay witness, Kenneth record custodian’s knowledge and LeCesne, the custodian of records for experience.” Rubin, 39 N.Y.S.3d at 76. MetroPCS (petitioner’s cell carrier), to give “technical testimony.” (Pet. 6.) Specifically, The conclusions of the First and Second petitioner argues that LeCesne improperly Departments are consistent with federal was permitted to testify about the operation courts who have analyzed this issue. Federal of cell towers and the location of petitioner’s courts have admitted lay witness testimony cell phone on the dates relevant to the regarding cellular telephone communications underlying crime. (Id.) with a cell tower and how the records stored from these communications tend to indicate As a general principle of evidence, a lay the approximate location of the user’s cell witness can only testify to facts based on his phone. See United States v. Baker, 496 F. or her personal knowledge or experience. App’x 201, 204 n.1 (3d Cir. 2012) Ferguson v. Hubbell, 97 N.Y. 507, 512 (concluding that a custodian of records for a (1884) (“The general rule of law is that cell phone company could properly testify as witnesses must state facts within their to the operation of cell phone tower sites knowledge, and not give their opinions or without being qualified as an expert where their inferences.”). However, a witness may the testimony “consisted entirely of reading offer a lay opinion “when the subject matter and interpreting [the defendant’s] cell phone of that testimony is such that it is impossible records, including records detailing the to accurately describe certain facts without locations of cell phone towers used to carry including some opinion or impression.” out his phone calls”); United States v. Kale, People v. Dax, 650 N.Y.S.2d 94, 95 (1st 445 F. App’x 482, 485-86 (3d Cir. 2011) Dep’t 1996); see also People v. Russell, 567 (finding that custodian of record’s testimony N.Y.S.2d 548, 553 (2d Dep’t 1991), aff’d. 79 concerning the operations of cell phone N.Y.2d 1024 (1992). towers “did not require any scientific, technical, or other specialized knowledge,” In this case, LeCesne testified about the and was proper lay testimony); United States general operations of cell phone towers, and v. Feliciano, 300 F. App’x 795, 801 (11th then interpreted petitioner’s cell phone Cir. 2008) (classifying law enforcement records to identify the location of the phone officer’s testimony concerning defendant’s cell phone records, including the location of light of the overwhelming evidence of cell phone towers, and the defendant’s cell petitioner’s guilt, specifically the combined phone location based on those cell tower effect of the testimony of the eyewitness to records, as lay testimony based on personal the incident, testimony of petitioner’s son knowledge and not an expert opinion); who was communicating with petitioner prior United States v. Fama, No. 12-CR-186 to the incident, testimony of law enforcement (WFK), 2012 WL 6102700, at *2 (E.D.N.Y. officers, and the physical evidence recovered Dec. 10, 2012) (finding that such testimony including the mask, the shell casings, and is based on personal knowledge, and bullets, the error would not have been so constitutes lay witness testimony); United prejudicial as to deprive the petitioner of a States v. Henderson, No. 10–cr–117, 2011 fundamentally fair trial. See Rosario, 839 WL 6016477, at *5 (N.D. Okla. Dec. 2, 2011) F.2d at 924. (admitting lay witness testimony regarding the probable location of defendant’s cell 3. Fourth Amendment Claim phone based on cell phone and tower records). Petitioner alleges that he is entitled to habeas relief because it was “a violation of Here, the Court concludes that the [his] fourth amendment rights when the testimony elicited from LeCesne concerning prosecution introduced into evidence, the operations of cell phone towers did not without having obtained a warrant or a court implicate any scientific, technical, or other order, [his] cell phone records . . . .” (Pet. 8.) specialized knowledge, but rather was based As discussed supra, the Court concludes that upon LeCesne’s own personal knowledge. this claim is procedurally barred. However, LeCesne had been employed with MetroPCS in an abundance of caution, the Court reviews since August 2011 (T. 297), had received this claim on the merits, and concludes that eighty hours of training in order to testify this claim is entirely without merit. accurately about cell phone and tower records from Metro PCS in their compliance a. Legal Standard unit (T. 298), has testified over 220 times on behalf of the company concerning such It is well-settled that “[w]here the State documents (T. 298-299), and has personal has provided an opportunity for full and fair experience and knowledge dealing with litigation of a Fourth Amendment claim, a MetroPCS’s cell tower and cell site records state prisoner may not be granted (T. 299). Thus, the Court concludes that federal habeas corpus relief on the ground LeCesne’s testimony regarding the general that evidence obtained in an unconstitutional operations of cell phone towers and the search or seizure was introduced at his trial.” location of petitioner’s cell phone based on Stone v. Powell, 428 U.S. 465, 494 (1976). the cell site records was within the scope of The Second Circuit has further explained that his personal knowledge. Accordingly, this under Powell: Court agrees with the Second Department Review of fourth amendment claims that LeCesne’s testimony was proper for a lay in habeas petitions would be witness. Thus, the trial court’s ruling was not undertaken in only one of two erroneous under state or federal law. instances: (a) if the state has provided

Further, even assuming arguendo that no corrective procedures at all to the trial court erroneously permitted LeCesne redress the alleged fourth amendment to testify regarding the cell site records, in violations; or (b) if the state has provided a corrective mechanism, but totality of state procedures allegedly did not the defendant was precluded from provide rational conditions for inquiring into using that mechanism because of an federal-law ... questions.’” Id. (quoting Paul unconscionable breakdown in the M. Bator, Finality in Criminal Law and underlying process. Federal Habeas Corpus Review for State Prisoners, 76 Harv. L. Rev. 441, 456-57 Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. (1963)). 1992). Courts have described such a

breakdown as occurring when the state court Here, there is no evidence of “‘disruption “failed to conduct a reasoned method of or obstruction of [the] state proceeding’ inquiry into relevant questions of fact and typifying an unconscionable breakdown.” law.” Id. at 71 (internal quotation marks and Cappellan, 975 F.2d at 70 (quoting Shaw v. citations omitted). Scully, 654 F. Supp. 859, 864 (S.D.N.Y.

1987)). The petitioner failed to avail himself b. Application of the New York State procedure, by failing

to move to suppress the allegedly As to the first prong of the Fourth unconstitutionally obtained evidence. Amendment analysis, New York State has Therefore, he may not now raise this issue on adequate corrective procedures for litigating federal habeas review. Fourth Amendment claims, which are set

forth in C.P.L. § 710.10 et seq. See, In addition, contrary to petitioner’s e.g., Capellan, 975 F.2d at 70 n.1 (“[T]he contentions, a court order was, in fact, issued ‘federal courts have approved New York’s to obtain petitioner’s cell phone records procedure for litigating Fourth Amendment pursuant to the Stored Communications Act, claims . . . as being facially adequate.’” 18 USC § 2703(d). (See Resp. Opp., Ex. 25). (quoting Holmes v. Scully, 706 F. Supp. 195, Moreover, though petitioner does not raise it, 201 (E.D.N.Y. 1998))); McPhail v. Warden, the Court in an abundance of caution also has Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. conducted an analysis pursuant to the recent 1983) (New York’s procedure for litigating a decision in Carpenter v. United States, 138 S. Fourth Amendment claim in a criminal trial Ct. 2206 (2018), issued after the relevant complied with requirement that state provide proceedings in this case. an opportunity to litigate such claims). In Carpenter, the Supreme Court was Accordingly, petitioner must show that faced with the question of “whether the an “unconscionable breakdown” occurred in Government conducts a search under the New York State’s statutory mechanism for Fourth Amendment when it accesses reviewing Fourth Amendment claims. historical cell phone records that provide a In Cappellan, the Second Circuit gave comprehensive chronicle of the user’s past examples of “the sort of disruption or movements.” 130 S. Ct. at 2211. There, cell- obstruction of a state proceeding typifying an site records were obtained over a period of unconscionable breakdown.” 975 F.2d at 127 days of Carpenter’s movements, and the 70 (internal quotation marks and citations records were obtained through an order omitted). The Second Circuit guided that an pursuant to the Stored Communications Act, unconscionable breakdown might occur if which required a showing by the government the trial court “yielded to mob intimidation of of “reasonable grounds” for believing that the the jury” or if “the process furnished was records were “relevant and material to an ‘claimed to be meaningless [because] the ongoing investigation,” which is a standard lower than probable cause. Id. at 2217, 2221. Pursuant to Second Circuit precedent pre- Ultimately, the Court acknowledged that the Carpenter, the prosecution was entitled to information obtained through cell-site rely on the January 22, 2013 order signed by records “does not fit neatly under existing Justice Condon to obtain petitioner’s cell precedents,” but determined that it was a phone records. The state court followed search demanding Fourth Amendment existing Supreme Court precedent at the time protections and concluded that orders such as of the decision. Moreover, the January 22, the one in Carpenter should be based on a 2013 order did not use the “reasonable finding of probable cause, not the lower grounds standard” but was actually based on standard utilized under Section 2703(d). Id. a finding of “specific and articulable facts at 2210-11. showing probable cause.” (Resp. Opp., Ex. 25) (emphasis added.) Thus, Carpenter, In United States v. Zodhiates, the Second which focused on court orders issued under a Circuit acknowledged the Carpenter decision standard lower than probable cause, is issued during the pendency of that appeal, but inapplicable for this New York state court held that “when the Government “act[s] with order issued based on probable cause. See an objectively reasonable good-faith belief People v. Clark, 97 N.Y.S.3d 711, 713 (2d that their conduct is lawful,” the exclusionary Dep’t 2019) (“In any event, the court order rule does not apply. 901 F.3d 137, 143 (2d authorizing the acquisition of the records Cir. 2018). The prosecution in Zodhiates made an express finding of probable cause . . obtained cell phone records, which disclosed . [a]ccordingly, the order ‘was effectively a the general area of the defendant’s phone’s warrant’ which complied with the location, through a subpoena under the requirement of Carpenter.”); People v. Cutts, Stored Communications Act, instead of a 88 N.Y.S.3d 332 (N.Y. Sup. Ct. 2018) warrant. Id. at 141. The defendant argued for (finding that, because the state court order suppression of those records because the was based on probable cause, Carpenter did higher showing of probable cause was not not apply). met. Id. at 143. The Court rejected the defendant’s argument, finding that the For all the above reasons, the Court finds government acted in good faith in relying on no Fourth Amendment violation. appellate precedent (existing at the time before the Carpenter decision) which stood 4. Sufficiency of the Evidence Claim for the proposition that a warrant was not required for cell phone records. Id. at 143- Petitioner claims that the prosecution 44; see also United States v. Guillen, No. 17- failed to prove petitioner’s guilt to the charge CR-512 (KMW), 2018 WL 5831318, at *15 of murder in the second degree beyond a (S.D.N.Y. Nov. 7, 2018) (finding that before reasonable doubt and that his conviction was Carpenter, the issuance of a cell-site order on against the weight of evidence. (Pet. 9.) It is only reasonable cause and not probable cause well established that weight of the evidence was “in compliance with a federal statute and legal sufficiency are two distinct claims, which was not clearly unconstitutional at the each requiring a discrete analysis. People v. time [and] it was reasonable for law Bleakley, 69 N.Y.2d 490, 495 (1987). Thus, enforcement officers to rely on the order” the Court will address each claim in turn. (internal quotation marks and citations omitted)). a. Legal Standard: Weight of the Evidence In a weight of the evidence claim, b. Legal Standard: Legal Sufficiency of “[e]ven if all the elements and necessary the Evidence findings are supported by some credible However, this Court can review evidence, the court must examine the petitioner’s legal sufficiency claim, and evidence further. If based on all the credible concludes that this claim is without merit. evidence a different finding would not have

been unreasonable, then the appellate court On appeal, the Second Department held must, like the trier of fact below, ‘weigh the that “[v]iewing the evidence in the light most relative probative force of conflicting favorable to the prosecution . . . , we find that testimony and the relative strength of it was legally sufficient to establish the conflicting inferences that may be drawn defendant's guilt beyond a reasonable doubt. from the testimony.’” Id. (quoting People ex Rubin, 39 N.Y.S.3d at 76 (internal citations rel. MacCracken v. Miller, 291 N.Y. 55, 62 omitted). As set forth below, having (1943)). carefully reviewed the record, this Court concludes that this determination by the state However, the law is clear that a “weight court regarding the sufficiency of the of the evidence” claim is based on state evidence was not contrary to, nor an law. See, e.g., Correa v. Duncan, 172 F. unreasonable application of, clearly Supp. 2d 378, 381 (E.D.N.Y. 2001) (“A established federal law, nor was it based upon ‘weight of the evidence’ argument is a pure an unreasonable determination of the facts in state law claim grounded in New York light of the evidence presented at trial. Criminal Procedure Law § 470.15(5),

whereas a legal sufficiency claim is based on The law governing habeas relief from a federal due process principles.” (citations state conviction based on insufficiency of the omitted)). The Court cannot consider a evidence is well established. See Einaugler purely state law claim on federal habeas v. Supreme Court of N.Y., 109 F.3d 836, 839 review. See Lewis v. Jeffers, 497 U.S. 764, (2d Cir. 1997) (“The Due Process Clause of 780 (1990) (“[F]ederal habeas corpus relief the Fourteenth Amendment prohibits does not lie for errors of state law . . . .”). conviction ‘except upon proof beyond a Further, as the Second Circuit has reasonable doubt of every fact necessary to highlighted, “assessments of the weight of constitute the crime with which [the evidence or the credibility of the witnesses defendant] is charged.’” (quoting In re are for the jury and not grounds for reversal Winship, 397 U.S. 358, 364 (1970))). on appeal.” Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Therefore, to the extent However, a petitioner “bears a very petitioner raises a weight of the evidence heavy burden,” Einaugler, 109 F.3d at 840 claim under state law, the Court cannot (quoting Quirama v. Michele, 983 F.2d 12, review it.5 14 (2d Cir. 1993)), and a “state criminal conviction will be upheld if, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

5 The Court notes that the Second Department rejected this claim on the merits, holding that the verdict was not against the weight of the evidence. Rubin, 39 N.Y.S.3d at 76. have found the essential elements of the death of another person, he causes the death crime beyond a reasonable doubt.’” Vassell of such person or of a third v. McGinnis, No. 04-CV-0856(JG), 2004 person.” N.Y.P.L. § 125.25(a)(1). WL 3088666, at *5 (E.D.N.Y. Dec. 22, 2004) (emphasis in original) (quoting Jackson v. c. Application Virginia, 443 U.S. 307, 319 (1979)); see also Policano v. Herbert, 507 F.3d 111, 115 In the instant petition, petitioner seeks generally to challenge the legal sufficiency of -16 (2d Cir. 2007) (“[I]n a challenge to a state the evidence, though petitioner fails to make criminal conviction brought under 28 U.S.C. any specific challenge. (Pet. 9.) For the § 2554 [,] . . . the applicant is entitled to reasons set forth below, the Court concludes habeas corpus relief if it is found that upon that this ruling was neither contrary to, nor an the record evidence adduced at the trial no unreasonable application of, clearly rational trier of fact could have found proof established federal law, nor was it an of guilt beyond a reasonable doubt.” (internal unreasonable determination of the facts in quotation marks omitted) (quoting Jackson, light of the entire record. Thus, this claim 443 U.S. at 324)). does not entitle petitioner to habeas relief.

Further, even when “faced with a record The Court concludes that there was of historical facts that supports conflicting sufficient evidence at trial that would allow a inferences, [this Court] must presume—even rational trier of fact to conclude beyond a if it does not affirmatively appear in the reasonable doubt that petitioner murdered record—that the trier of fact resolved any Berry. As a non-exhaustive list, jurors were such conflicts in favor of the prosecution, and presented with the following evidence: must defer to that resolution.” Wheel v. (1) when Oyola called 911, she immediately Robinson, 34 F.3d 60, 66 (2d Cir. 1994) identified the shooter as her husband, (quoting Jackson, 443 U.S. at 326). Thus, petitioner (T. 113-16); (2) Oyola recognized “[a] habeas court will not grant relief on a petitioner’s voice and could see his eyes sufficiency claim unless the record is ‘so when he entered the trailer during the murder totally devoid of evidentiary support that a (T. 129); (3) Oyola witnessed petitioner shoot due process issue is raised.’” Sanford v. Berry from a distance of about four feet (T. Burge, 334 F. Supp. 2d 289, 303 (E.D.N.Y. 110), and then witnessed petitioner shoot the 2004) (quoting Bossett v. Walker, 41 F.3d remaining shots from a distance of about two 825, 830 (2d Cir. 1994)). feet (T. 210); (4) the murder occurred immediately after petitioner learned from his When considering the sufficiency of son that Berry was at Oyola’s residence (T. the evidence of a state conviction, “[a] 82); (5) cell phone records indicated that J. federal court must look to state law to spoke to petitioner that night, followed by determine the elements of the crime.” petitioner calling Oyola’s phone using *67 to Quartararo v. Hanslmaier, 186 F.3d 91, 97 block his phone number (T. 337, 338); (2d Cir.1999). Accordingly, in this case, the (6) Berry died from five gunshot wounds to Court looks to New York law for the the torso as described by expert witness elements of murder in the second degree. testimony (T.2 20); (7) the five bullets Under the relevant New York law, “[a] removed from Berry’s body were all .38 person is guilty of murder in the second caliber (T. 464) ; (8) police recovered from degree when . . . [w]ith intent to cause the petitioner’s bedroom two .38 shell casings and a .357 Winchester cartridge (T. 371, 373); (9) a .357 revolver could shoot the .38 a. Legal Standard caliber bullets which killed Berry and could When a petitioner claims that his also shoot the type of ammunition found in sentence is harsh and excessive, for purpose petitioner’s apartment, as described by expert of habeas review, “[n]o federal constitutional testimony (T. 470, T. 425); (10) the dark issue is presented [if] . . . the sentence is mask worn by the shooter that was found on within the range prescribed by state the street where Oyola saw petitioner flee law.” White v. Keane, 969 F.2d 1381, 1383 was similar to ones petitioner wore when he (2d Cir. 1992); see also Alfini v. Lord, 245 F. rode his quad (T. 84-85, 187, 190); and (11) Supp. 2d 493, 502 (E.D.N.Y. 2003) (“It is records from petitioner’s cell phone provider well settled that an excessive sentence claim and cell towers placed petitioner’s cell phone may not be raised as grounds for habeas in an area less than one mile from Oyola’s corpus relief if the sentence is within the residence right before the crime occurred range prescribed by state law.”); McCalvin v. around 4:30 a.m. (T. 410, 411). Senkowski, 160 F. Supp. 2d 586, 589 Additionally, the Court notes that the intent (S.D.N.Y. 2001) (“Sentencing decisions are requirement for a conviction of murder in the not cognizable on habeas corpus review second degree under New York law is unless the sentence imposed falls outside the satisfied by the evidence that petitioner shot range prescribed by state law.”); Thomas v. Berry multiple times at close range. See Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. People v. Bell, 844 N.Y.S.2d 407, 408 (2nd 1997) (dismissing excessive sentence claim Dep’t 2007) (finding that shooting the victim where petitioner’s sentence fell within the twice at close range is enough to satisfy statutorily prescribed range.). intent); People v. Hogan, 631 N.Y.S.2d 405, 405 (2nd Dep’t 1995) (“The defendant’s b. Application intent to cause the death of another person On appeal, the Appellate Division (see Penal Law §125.25 [1]), is manifest in concluded that petitioner’s sentence was his act of repeatedly shooting at the witnesses neither harsh nor excessive. Rubin, 39 at close range.”) (citing People v. Horton, 18 N.Y.S.3d at 76. For the reasons discussed N.Y.2d 355, 359 (N.Y. 1966))). below, this Court concludes that the

Thus, the Court concludes that, based Appellate Division’s holding was not upon the testimony and evidence presented to contrary to, nor an unreasonable application the jury, petitioner’s claim that his conviction of, clearly established federal law. is legally insufficient is meritless. The Court concludes that petitioner’s

sentence was within the permissible range 5. Harsh and Excessive Sentence prescribed by New York state law, and thus

As noted above, petitioner was sentenced there is no federal question for habeas to twenty years’ to life imprisonment on the review. See White, 969 F.2d at 1383. Here, crime of murder in the second degree. petitioner was found guilty of murder in the Petitioner now contends that the sentence second degree in New York. (Pet. 1). New imposed by the trial court of twenty years to York classifies murder in the second degree life is harsh and excessive. (Pet. 16). as a class “A-1” felony. See Penal Law §125.25. The sentencing range for a class A- 1 felony under New York law is an indeterminate term with a range of 15 years enter judgment accordingly and close this to life to 25 years to life. See Penal Law case. §70.00. In petitioner’s case, the trial court sentenced petitioner to 20 years to life, which falls within the statutorily prescribed range. SO □ Therefore, petitioner’s harsh and excessive claim does not raise a federal constitutional issue. See Nash v. Green Haven Corr. Facility, No. 10-CV-003113 (FB), 2014 WL 4165366, at *14 (E.D.N.Y. Aug. 12, 2014) SEPH F. BIANCO (finding no federal question for habeas nited States Circuit Judge (sitting review concerning New York sentence of 25 y designation) years to life for murder in the second degree). Dated: August 5, 2019 Accordingly, as petitioner’s sentence Central Islip, New York falls within the statutorily prescribed range, there is no basis for habeas relief on these * * * grounds. Petitioner proceeds pro se. Respondent is represented by Timothy D. Sini, District IV. CONCLUSION Attorney of Suffolk County and Karla L. Lato, Assistant District Attorney, Suffolk For the reasons set forth above, the Court County District Attorney’s Office, 200 concludes that petitioner has demonstrated no Center Drive, Riverhead, NY 11901 basis for habeas relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus is denied in its entirety. 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

6 To the extent petitioner claims that his sentence is cruel and unusual punishment under the Eighth Amendment, the Court rejects such a claim on this same basis. In any event, the Court finds no basis to conclude that petitioner’s sentence of twenty years to life imprisonment is so grossly disproportionate to the crime committed so as to violate his Eighth Amendment rights given the nature of his criminal activity in this case. 22