Glass v. Superintendent

DONALD GLASS, Petitioner, v. SUPERINTENDENT, Eastern Correctional Facility, Respondent.

Civ. No. 9:18-CV-517 (GLS/DJS)

United States District Court, N.D. New York

July 30, 2021

DONALD GLASS Petitioner, Pro Se

HON LETITIA JAMES

Attorney General for the State of New York

OF COUNSEL: JAMES FOSTER GIBBONS, ESQ.

Assistant Attorney General

Attorney for Respondent

REPORT-RECOMMENDATION and ORDER^[1]

DANIEL J. STEWART UNITED STATES MAGISTRATE JUDGE

Pro se Petitioner Donald Glass was convicted after trial of rape in the first degree and criminal sexual act in the first degree. Dkt. No. 1, Pet., p. 1. He was sentenced to a determinate term of twenty years in prison as to each count, with a period of post-release supervision. SR. at pp 554-555.^[2]Petitioner presently seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pet. He filed several additional documents in support of the Petition. Dkt. Nos. 3 & 4. Respondent opposes the Petition. Dkt. No. 11-1, Resp.'s Mem. of Law. Petitioner has also filed various letters in support of his Petition. Dkt. Nos. 15-16, 20-21, & 23-29. For the reasons that follow, this Court recommends that the Petition be denied.

I. BACKGROUND

Petitioner was named in a three-count indictment charging him with rape in the first degree and two counts of criminal sexual act in the first degree. SR. at pp. 71-73. Petitioner proceeded to trial in Albany County Court. See generally Tr. As relevant to this Petition, the prosecution's evidence included testimony regarding DNA evidence obtained following a medical examination of the victim. Tr. at p. 198. That evidence showed the presence of the victim's DNA, as well as that of a man. SR. at p. 327. Testing of the DNA sample found some evidence of DNA consistent with Petitioner's DNA. SR. at pp. 329-330. Though consistent with Petitioner, the evidence was clear that the DNA evidence could not exclude Petitioner nor did it definitely implicate him. See, e.g., SR. at pp. 330-332. The Jury convicted Petitioner on all counts. SR. at pp. 355-356.

Petitioner appealed his conviction to the Appellate Division, Third Department. SR. at pp. 1-65. That court modified Petitioner's sentence, but otherwise affirmed. People v. Glass, 150 A.D.3d 1408 (3d Dep't 2017). Petitioner sought leave to appeal to the New York Court of Appeals, SR. at pp. 452-458, which was denied. People v. Glass, 30 N.Y.3d 1115 (2018). This petition followed.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner bears the burden of proving by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234697, at *3 (S.D.N.Y. Aug. 28, 2003). A federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either:

1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).

The Second Circuit has summarized the application of the standard of review under AEDPA as follows:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition “clearly established” when the state court ruled? 2) If so, was the state court's decision “contrary to” that established Supreme Court precedent? 3) If not, did the state court's decision constitute an “unreasonable application” of that principle?

Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362 (2000) and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). The standard of review under § 2254(d) is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). “[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

The phrase “clearly established Federal law” refers to “the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to” established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413. A state court decision is an “unreasonable application” of established Supreme Court precedent “if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. AEDPA also requires that “a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001).

III. DISCUSSION

Petitioner raises several grounds for relief: 1) the verdict was against the weight of the evidence; 2) prosecutorial misconduct and ineffective assistance of counsel related to the prosecutor's summation; and 3) that his sentence was excessive. Pet. at pp. 6-11; see also Dkt. No. 2 at p. 2. Respondent seeks dismissal of the Petition on the ground that some of Petitioner's claims have been procedurally defaulted, some are not cognizable in a habeas proceeding, and on the merits. Resp.'s Mem. of Law at pp. 717. For the reasons that follow, the Court recommends that the Petition be dismissed.

A. Certain Claims Are Not Cognizable

“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). “[Q]uestion[s] of state law . . . [are] not subject to federal habeas review.” Freeman v. Kadien, 684 F.3d 30, 35 (2d Cir. 2012). “Simply put, ‘federal habeas corpus relief does not lie for errors of state law.'” DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) (quoting Estelle v. McGuire, 502 U.S. at 67).

Petitioner claims that the verdict was against the weight of the evidence because the evidence “conflicted with the victim[']s description of the assailant.” Pet. at p. 9. It is clear that “a ‘weight of the evidence' argument is a pure state law claim grounded in the criminal procedure statute. . . . Since a ‘weight of the evidence claim' is purely a matter of state law, it is not cognizable on habeas review.” Mobley v. Kirkpatrick, 778 F.Supp.2d 291, 311-12 (W.D.N.Y. Apr. 20, 2011) (citing, inter alia, N.Y. Crim. Proc. Law § 470.15(5); 28 U.S.C. § 2254(a); People v. Bleakley, 69 N.Y.2d 490, 495 (N.Y. 1987); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922)); see also Kimbrough v. Bradt, 949 F.Supp.2d 341, 360 (N.D.N.Y. 2013) (“It is well-settled that claims attacking a verdict as against the weight of the evidence are not cognizable in a federal habeas proceeding.”).

Plaintiff's claim that his sentence was excessive is also not cognizable in this proceeding. It is well settled that “[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Here, Petitioner was sentenced to a twenty year determinate term on each charge. SR at pp. 554-555. On appeal, Petitioner's aggregate term of imprisonment was reduced “by operation of law” to fifty years in prison. People v. Glass, 150 A.D.3d at 1409 n. 1. As modified, the Appellate Division concluded “we do not view the aggregate sentence imposed to be harsh or excessive.” Id. at 1411. Petitioner does not claim that the sentence is inconsistent with state law, only that it exceeds what is fair. Pet. at p. 11. Petitioner's claim that his sentence is harsh and excessive is not cognizable under federal habeas review. See White v. Keane, 969 F.2d at 1383; Garrido-Valdez v. Poole, 384 F.Supp.2d 591, 599 (W.D.N.Y. 2005).

B. Claims Regarding the Prosecutor's Summation

Petitioner claims that the prosecuting attorney engaged in misconduct during her summation with respect to representations made about the DNA evidence and that his trial counsel was ineffective in failing to object to those statements. Pet. at p. 6. During trial, the parties disputed the strength of the DNA evidence presented. Petitioner's counsel argued strenuously that reasonable doubt existed because the DNA evidence had not produced a definitive match to his client. Tr. at pp. 645-649. He endeavored to focus the juror's attention on what he viewed as the indeterminate nature of the evidence by highlighting that the evidence established only that Petitioner - “Cannot be excluded. Cannot be included or excluded.” Tr. at p. 646. The prosecuting attorney responded to this argument. Though the Petition does not specifically reference the portions of that response to which Petiti...