Benton v. McCarthy
| Docket Number | 9:20-CV-710 (MAD/ATB) |
| Decision Date | 23 September 2022 |
| Parties | JERRY BENTON, Petitioner, v. TIMOTHY MCCARTHY, Superintendent, Respondent. |
| Court | U.S. District Court — Northern District of New York |
JERRY BENTON, Petitioner pro se
PAUL B. LYONS, Ass't Attorney General, for Respondent
ORDER AND REPORT-RECOMMENDATION
This matter has been referred to me for Report and Recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
Petitioner challenges a judgment of conviction, rendered after a jury trial in the Onondaga County Court on May 21, 2015. (Petition (“Pet.”) ¶ 2). Petitioner was found guilty of Manslaughter, First Degree and Criminal Possession of a Weapon, Third Degree. (Pet. ¶ 5). On June 19, 2015 petitioner was sentenced as a second felony offender to a determinate term of 25 years imprisonment with 5 years post-release supervision on the manslaughter conviction and a concurrent term of 2½ to 7 years imprisonment on the weapons conviction. (Pet. ¶ 3).[1] Prior to his direct appeal on June 8, 2015, petitioner made a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30 which was denied by the trial judge.[2] (SR 158-69). On December 21, 2018, the Appellate Division, Fourth Department affirmed petitioner's conviction, and the New York Court of Appeals denied leave to appeal on March 28, 2019. People v. Benton, 167 A.D.3d 1522 (4th Dep't 2018), Iv denied, 33 N.Y.3d 946 (2019).
Petitioner filed a pro se coram nobis motion in the Appellate Division, asserting ineffective assistance of appellate counsel. (State Court Record (“SR”) 272-96).[3] The Appellate Division summarily denied the coram nobis application, and the New York Court of Appeals denied leave to appeal. People v. Benton, 173 A.D.3d 1862 (4th Dep't), Iv. denied, 34 N.Y.3d 979 (2019).
In his federal habeas corpus application, petitioner raises the following claims:
1. Trial counsel was ineffective.
2. The trial court abused its discretion in failing to afford trial counsel an adjournment of the trial date.
3. The trial court did not make an individual assessment at sentencing and the sentence was harsh and excessive.
4. Appellate counsel was ineffective when she failed to raise meritorious issues.
Respondent filed an answer to the petition, together with a memorandum of law and the pertinent state court records. (Dkt. Nos. 12, 13, 16). Respondent has also traditionally filed a DVD containing the video evidence shown at petitioner's trial. (Dkt. No. 18).
Petitioner has filed a traverse. (Dkt. No. 29). To his traverse, petitioner attached a document in support of his ineffective assistance of trial counsel claim that was not before the New York State courts. (Dkt. No. 29 at 50). Respondent has moved to strike this document, and petitioner has responded in opposition. (Dkt. Nos. 32, 41). For the following reasons, this court agrees with the respondent, will grant the motion to strike, and will recommend denial of the petition.
“‘In reviewing a state court's decision on the merits under § 2254(d), federal courts are generally not permitted to expand the record beyond what was before the state court.'” Osborne v. Graham, No. 15-CV-6042(CJS), 2018 WL 1827673, at *7 (W.D.N.Y. Apr. 17, 2018) (quoting Kelley v. Larkin, 680 Fed.Appx. 5, 7 (2d Cir. Feb. 21, 2017) (citing Cullen v. Pinholster, 563 U.S. 170, 181-85 (2011)). If the petitioner has failed to develop the factual basis for a claim in state court, section 2254(e)(2) provides that the court may only grant an evidentiary hearing in certain circumstances. 28 U.S.C. § 2254(e)(2)(A) & (e)(2)(B). The claim must either (1) rely on a “new rule” of constitutional law, previously unavailable, and which was made retroactive to cases on collateral review by the United States Supreme Court, or (2) the factual predicate could not have previously been discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(i) & (e)(2)(A)(ii).
In addition, it is required that the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(B).
In this case, the document that petitioner seeks to add to the record is an email, sent on May 16, 2015, two days before petitioner's trial began. (Dkt. No. 29 at 50). The email is from petitioner's second chair trial attorney, Uzma A. Gulamali, Esq., to his principal attorney, Robert S. Baska, Esq. The email contains random comments regarding the location of files. However, the document includes some questions regarding the evidence and “some thoughts” about petitioner's case. (Id.) Two of the “thoughts” have been circled and involve the possible identity of the “stabber.” The first refers to the police interview of an individual, who is not mentioned elsewhere in the record and who did not testify at trial. This individual allegedly identified another individual as the perpetrator of the crime during the police interview. The second “thought” was a question asking “Who is Quanzo?” Apparently “Robertson indicated he could possibly be the stabber.”[4] The email asks whether the police “followed” these “possible leads.” (Id.)
Respondent argues that this document may not be considered in further support of the petition because it was not part of the state court record, and petitioner has failed to establish its significance. (Dkt. No. 32). Petitioner appears to concede that the document was not considered by any state court, but petitioner argues that he urged his “trial” attorney to present the document to the state court. Petitioner states that “it was one of the main reasons [he] filed for ineffective assistance of counsel.” (Dkt. No. 41). Petitioner states that the document is relevant because the names of these other two potential perpetrators “kept coming up,” but that the police never followed the leads. Finally, petitioner claims that Quanzo's name was mentioned several times by “Robertson” and “was reported and described on the 911 tape,” which petitioner attempted to obtain for trial, but which was “somehow destroyed.” (Id.)
At trial, the petitioner did not call any witnesses. He maintained that he was not the individual who stabbed the victim. He relied upon counsel's cross-examination of several individuals who identified him based on the security camera video of the incident. In his direct appeal and other state court papers, petitioner alleged ineffective assistance of both trial and appellate counsel.
In his traverse, petitioner may be attempting to supplement his claim for ineffective assistance of trial counsel. This email shows that two days before trial, Ms. Gulamali raised some issues with Mr. Baska about the identity of other potential perpetrators whose names had come up during police interviews. It does not show that Mr. Baska failed to consider those issues, nor does it show that he was unaware of “Quanzo's” identity.[5] Petitioner argues that he feels that the court should consider this document even though he did not present it in any of his state court proceedings. If he had, these facts, if relevant, could have been developed at the state level. Petitioner's reasoning does not justify his failure to present this document in support of his state court proceedings, and he has not established that he is entitled to an evidentiary hearing on the bases listed above. Thus, respondent's motion to strike is granted. In any event, even if the court were to consider this document, it would not change this court's analysis of the merits of the petition.
The petitioner was charged in the stabbing death of Bryan Sheppard (a/k/a “Gadget”), which occurred during the early morning hours of June 7, 2014 in front of the Solvay Super Saver convenience store (“Super Saver”) on Milton Avenue in the City of Syracuse. The prosecution's theory of the case was that the petitioner and the victim belonged to two rival gangs: Bricktown (petitioner) and 110 (Sheppard), and the stabbing was retaliation for the 2012 murder of a Bricktown member (Eric Walker (a/k/a “Bell”) by a member of 110 (Dion Robertson a/k/a “Lito”).[7]
On June 7, 2014, Sheppard and four of his friends, Dion Robertson, Tashawn Albert (a/k/a “K.O. or Knockout”),[8] General Davis, Jr. (a/k/a “Iceberg'),[9] and a man only known as “Telace”[10] headed to the “Gravity” night club which was located next door to the Super Saver. (Davis: TV2 at 412-19, 448-49; Albert: TV3 at 549-53; Robertson: TV3 at 649, 651-53, 656, 671). Sheppard and his friends rode to Gravity in Davis's van. They parked the van in the Super Saver parking lot and walked toward the night club.
As they walked by the Super Saver, Davis and Albert saw Daquan Sullivan (a/k/a “Kiss”) outside the store. (Davis: TV2 at 419-20; Albert: TV3 at 552-53, 556; Robertson: TV3 at 657-58). Sullivan was a member of Bricktown. The men also saw other Bricktown gang members-Joshua Hester and Artel Clarke-in the area. (Davis: TV2 at 421-22; Albert: TV3 at 553, 555-56; Robertson: TV3 at 666). Albert testified that he saw petitioner there as well. (Albert: TV3 at 553, 566-68, 573). Albert stated that he saw “Jerry and Kiss” in front of the store, and they later went inside the store. (Albert TV3 at 558-60). Albert also testified that he saw petitioner and Kiss (Sullivan) walking away from the store after the stabbing. (Albert TV3 at 560). Albert did not witness the stabbing itself because he was across the street speaking with his baby's mother. (Albert TV3 at 557, 560).
Lateefia Williams went to the...
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