Stallone v. Kopp

MEMORANDUM AND ORDER Petitioner Jerome Stallone (“Petitioner”), proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. §2254, challenging a conviction and sentence for robbery in the first degree and burglary in the second degree in the County Court, County of Suffolk (the “trial court”). On this petition, Petitioner raises several claims as follows: Prosecutorial misconduct in the grand jury proceedings Ineffective assistance of the subsequently disbarred defense counsel Purported denial of the constitutional right to testify at trial Alleged Batson violations and racial discrimination during jury selection Because each of these claims is procedurally barred and/or substantively without merit, and because none represent a procedure or decision that was contrary to, or an unreasonable application of, clearly established federal law, the petition is denied. Background A review of the petition, filings by the Respondent, and the state court record¹ reveals that Petitioner was convicted by a jury after trial, during which trial, the prosecution introduced evidence identifying Petitioner as a person who, on November 28, 2016, burglarized and robbed a jewelry store in Southampton, Suffolk County. The jury selection took place over the course of multiple days; neither party made any Batson challenges nor was there any on-the-record mention of any of the prospective jurors’ race. (J. Tr.) At trial, while the prosecution was unable to present any conclusive forensic evidence linking Petitioner to the robbery/burglary of the jewelry store — a point extensively addressed by the defense counsel — multiple witnesses testified and identified Petitioner as the perpetrator. Notably, Petitioner’s former parole officer testified that she knew Petitioner from having regularly met him in the months before November 2016 and later identified him from the “wanted” flyers as the person sought in connection with the jewelry store robbery.² (Trial Tr. 202-17.) The robbed store’s owner and her two employees, who all were in the store at the time of the robbery, identified Petitioner in court as the person who, on November 28, 2016, entered the store. (Trial Tr. 133-35, 189, 421.) The owner also described being threatened by Petitioner who, while in close proximity to her, used a hammer to smash a display window and extract $23,000 worth of jewelry. (Trial Tr. 418-19, 420-21, 424.) She testified that she believed the Petitioner would hit her with the hammer, an experience she found frightening and traumatizing. (Trial Tr. 420-21, 424, 426, 450.) The defense counsel extensively cross-examined the store owner regarding the fact that, in her initial statements to law enforcement, she did not mention this threat. (Trial Tr. 426-45.) The People also presented testimony from a medical assistant familiar with the fact that Petitioner had a full hip replacement surgery on October 31, 2016. (Trial Tr. 386-87.) She testified to witnessing Petitioner riding his bicycle to his post-surgery appointment on November 16, 2016. (Trial Tr. 386-87, 396.) As part of the defense case, Petitioner challenged the value of the in-court identification by presenting an expert witness who testified about the challenges associated with memory reconstruction and various identification procedures. (Trial Tr. 479-559.) Though offered the opportunity, Petitioner decided not to testify: THE COURT: Mr. Stallone, you do not wish to testify in this case? THE DEFENDANT: I don’t want to testify. (Trial Tr. 541.) After defense rested, (Trial Tr. 560), the People presented their rebuttal witness — the investigating detective — who described the procedures by which the store owner and her two employees made their prior identifications of Petitioner from the photo spreads presented to them at the police station in the months after the robbery. (Trial Tr. 561-66.) After both sides rested, (Trial Tr. 589), Petitioner requested that the defense counsel read Petitioner’s statement in the record. (Trial Tr. 596.) In sum, Petitioner sought to argue to the jury that the prosecutor “suborned perjury” from the medical assistant regarding her having seen him riding a bicycle on November 16, 2016, two weeks after his hip replacement surgery. (Trial Tr. 597.) Petitioner insisted that his grand jury testimony, including the exhibits — his medical records, also admitted in evidence at trial, (Trial Tr. 559-60) — painted a different picture, and he could not have been riding the bicycle on the day in question. (Trial Tr. 597.) After the trial court, outside of the jury presence, heard from the defense counsel and Petitioner, (Trial Tr. 596-602), the defense counsel told the court that he was ready to give closing arguments, adding, “now my client is mentioning about testifying himself, but the case is over and now we’re into closing arguments.” (Trial Tr. 597-98.) Nevertheless, Petitioner continued reiterating his claim that the prosecutor had elicited perjury from the medical assistant: THE DEFENDANT:…I went to the facility by van. I was placed in a medical van by a wheelchair and brought to the facility by the people at the facility with one of their nurses as an escort. The woman who testified in this court said that she saw me riding a bicycle at that facility. And it’s a major issue because that’s the only thing that alleges that I rode a bicycle. If anything was to be taken from that time, it’s that I was not in a condition to ride a bicycle. That’s my biggest concern. I did not go there by bicycle. I was taken by van from a facility where I was recovering from hip replacements, taken by van by one of their escorts. THE COURT: Okay. Sit down. You had an opportunity to testify if you wanted to. You told your lawyer you did not want to testify. I asked you in court and you said on the record you did not want to testify. That ship has sailed. THE DEFENDANT: Sorry, your Honor. THE COURT: Don’t say anything else. (Trial Tr. 601-02.) The parties proceeded with their summations, and, at the conclusion of the trial, the jury convicted Petitioner on all three counts: Robbery in the First Degree, a class B violent felony, in violation of New York Penal Law (hereinafter, “Penal Law”) §160.15(3), Burglary in the Second Degree, a class C violent felony, in violation of Penal Law §140.25(1)(c), and Burglary in the Third Degree, a class D felony, in violation of Penal Law §140.20. (Trial Tr. 763-64.) After the conviction, but prior to sentencing, Petitioner moved the trial court pursuant to C.P.L. §330.30 to vacate the verdict, arguing that both the defense counsel and the trial court misinterpreted the law which resulted in the denial to Petitioner of his right to testify at trial. (DE 9-9, ECF pp. 1-16.) The trial court denied the motion finding that Petitioner “did not request to testify and was denied that right, but merely wanted to place on the record that the People had suborned perjury by calling a witness who they knew testified falsely when she testified that she saw [Petitioner] on a bicycle on the day of the incident.” (DE 9-9, ECF p. 34.) At the subsequent sentencing hearing, Petitioner insisted on relieving his defense counsel and appeared pro se. (Sent’g Tr. 10-14, DE 9-11.) The court sentenced Petitioner as a persistent felony offender³ to an indeterminate term of 20 years to life of incarceration. (Sent’g Tr. 75.) Petitioner pursued an appeal; the Appellate Division, Second Department rejected Petitioner’s claim of a denial of the right to testify, and declined to consider the claims of ineffective assistance of trial counsel, finding that the allegations relied on the facts outside the record and thus subject to a motion pursuant to C.P.L. §440.10.⁴ See People v. Stallone, 204 A.D.3d 841, 842, 166 N.Y.3d 271, 274 (2022), leave to appeal denied, 39 N.Y.3d 942, 193 N.E.3d 531 (2022).⁵ Petitioner collaterally attacked the judgment of conviction by filing seven motions pursuant to C.P.L. §440.10.⁶ The court denied the first six motions, holding that the claims were without merit, untimely, procedurally barred, and/or improperly raised on collateral review. Petitioner raised multiple claims on these motions, but only following are directly relevant to the present petition: denial of the constitutional right to testify at trial and alleged ineffective assistance by subsequently disbarred trial counsel.⁷ After the court denied his six C.P.L. §440.10 motions and the Appellate Division denied his direct appeal, Petitioner filed the present Petition. (DE 1.) After the case was fully briefed by both parties, Petitioner mailed a copy of his seventh C.P.L. §440.10 motion to the Court and requested that the pending “motion be made a part of the pending habeas corpus petition.” (DE 14, ECF p. 1.) The claims contained in the seventh C.P.L. §440.10 motion do not relate back to the claims raised in the Petition and are not exhausted, therefore, the Court declines to consider these untimely claims on the present Petition.⁸ Discussion Standard of Review This petition is reviewed under the well-established standard of review of habeas corpus petitions, including the authority of this Court to review such matters, the application of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the exhaustion doctrine, the independent and adequate procedural bar, the cause and prejudice exception, AEDPA deference, the evaluation of claims of ineffective assistance of counsel, and the liberal construction afforded to filings by pro se petitioners, as more fully discussed in Licausi v. Griffin, 460 F. Supp. 3d 242, 255-60 (E.D.N.Y. 2020), appeal dismissed, No. 20-1920, 2020 WL 7488607 (2d Cir. Nov. 17, 2020). The discussion of these principles set forth in Licausi is incorporated herein by reference. The Instant Petition As noted, Petitioner seeks habeas relief on the following grounds: prosecutorial misconduct in the grand jury proceedings, ineffective assistance of the subsequently disbarred defense counsel, purported denial of his right to testify at trial, and alleged Batson violations and systemic racism during jury selection. (DE 1, ECF pp. 3-4.) Even according the petition the solicitous treatment afforded to pro se pleadings, none of the grounds support habeas relief. Petitioner’s unexhausted claim of the alleged prosecutorial misconduct during the grand jury proceedings is rooted in the state law rights and is not cognizable on the habeas petition.⁹ To the extent that Petitioner’s factually-based claims were fully considered by the state court, see People v. Stallone, 204 A.D.3d 841, 166 N.Y.S.3d 272 (2022), such determinations must be given deference by this Court under the AEDPA. First, Petitioner’s claim of ineffective assistance of his defense counsel based on that counsel’s subsequent disbarment because of the unrelated allegations of financial misconduct does not warrant relief as the state court’s denial of this claim on Petitioner’s sixth C.P.L. §440.10 motion was neither contrary to nor an unreasonable application of clearly established federal law.¹⁰ Next, the Court finds no error in the Appellate Division’s determination concerning the purported denial of Petitioner’s right to testify at trial. The state court record shows that Petitioner requested to make a statement about prosecutor’s misconduct and witness’ alleged perjury.¹¹ The defense counsel read the statement to the trial court and Petitioner later reiterated the argument himself. However, Petitioner made no on-the-record request to testify, repeating instead his claim that the prosecutor “suborned perjury” from the medical assistant. (Trial Tr. 598-602.) Whether the Court considers Petitioner’s argument as a standalone claim or within the ineffective assistance of counsel framework, Petitioner fails to demonstrate that the state court’s determination was made contrary to, or as an unreasonable application of, clearly established federal law.¹² Finally, Petitioner cannot proceed on claims that are were not fully exhausted and hence subject to the procedural bar, as Petitioner has failed to demonstrate (1) “cause for the default and actual prejudice as a result of the alleged violation of federal law” or (2) “that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). As such, Petitioner’s unexhausted claim of the alleged Batson violations and systemic racism during jury selection is procedurally barred and, based on the state court record before the Court, patently without any merit.¹³ Thus, the petition is denied in its entirety. Conclusion Because the Court has considered all of Petitioner’s arguments and found them meritless, the petition is DENIED. A certificate of appealability shall not issue because Petitioner has not made a substantial showing that he was denied any constitutional rights. See 28 U.S.C. §2253(c)(2). I certify that any appeal of this Order as to those issues would not be taken in good faith, and thus in forma pauperis status is denied for the purposes of any appeal on those grounds. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to mail a copy of this Order to Petitioner and to close the case. SO ORDERED. Dated: December 12, 2024