Mesko v. Lilley
| Decision Date | 03 December 2019 |
| Docket Number | 9:18-CV-872 (GTS) |
| Parties | PETER MESKO, Petitioner, v. LYNN LILLEY, Respondent. |
| Court | U.S. District Court — Northern District of New York |
MARGARET A. CIEPRISZ, ESQ.
Ass't Attorney General
Petitioner Peter Mesko seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."). Respondent opposes the Petition. Dkt. No. 13, Answer ("Ans."). Petitioner has paid the statutory filing fee.
Petitioner filed the Petition on July 26, 2018. After petitioner paid the filing fee, in an Order dated August 14, 2018, the Court ordered Respondent to file an answer to the Petition and all relevant records. Dkt. No. 6 ("Order"). In addition to his Answer, on December 13, 2018, Respondent filed a memorandum of law, Dkt. 12 ( ), and state court records, Dkt. No. 14-1-14-6 ("SR"), including the trial transcript, Dkt. No.14-7 ("Tr."). Petitioner filed a traverse/reply in opposition to Respondent's Answer on January 11, 2019, Dkt. No. 18 ("Reply").
Petitioner subsequently filed a motion requesting appointment of counsel, Dkt. No. 17, and a motion to hold the Petition in abeyance, Dkt. No. 19. Respondent filed an opposition to the two motions, Dkt. No. 20. Both motions were denied by a Decision and Order dated June 27, 2019, Dkt. No. 21.
For the reasons that follow, the Petition is denied and dismissed.
On February 13, 2014, petitioner was indicted by a Grand Jury sitting in Tompkins County, New York, on charges of rape in the first degree, burglary in the second degree, and sexual abuse in the first degree. SR 45.1 The charges arose from an incident which occurred at a house party in Ithaca, NY, in the early morning hours of March 30, 2013. Pet. at 9; SR 641.2
Early that morning, petitioner, among others, attended a house party in Ithaca, N.Y.Pet. at 9; SR 641. The victim's girlfriend resided at the house, and the two had retired to the girlfriend's bedroom instead of partying. Pet. at 9; SR 641. The two women awoke around 4:45 AM to find that a male, whom they later identified as petitioner, had climbed onto their bed and mounted the victim from behind. Pet. at 10; SR 641. The victim's girlfriend shoved him off the bed, and the two fled. Pet. at 10; SR 641. The victim's girlfriend briefly returned to her room and took two photographs of petitioner with her cell phone. Pet. at 10; SR 641-42.
The victim reported the incident to the authorities the same day. SR 642. After an investigation, defendant was arrested and indicted on the three counts noted above. Id.
On January 29, 2015, following a jury trial, petitioner was convicted of burglary in the second degree and sexual abuse in the first degree. Pet. at 4; SR 642; Tr. 573, 586-87. After further deliberation, the jury could not reach a verdict on the first degree rape count, which was ultimately dismissed. SR 377, 642; Tr. 618-19. Petitioner was sentenced on March 27, 2015, to a five-year determinate sentence and three years post-release supervision. Pet. at 4; SR 642; Tr. 630, 657.3
Petitioner appealed the conviction to the New York Supreme Court, Appellate Division, Third Department ("Appellate Division") on April 6, 2015. Pet. at 2; SR 261, 642. He arguedthat: (1): the People failed to prove his guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence; (2) prosecutorial misconduct deprived him of a fair trial; (3) the prosecutor's elicitation of evidence of a police interview of a witness and the arrest of petitioner implied that petitioner invoked his constitutional right to remain silent and deprived him of a fair trial; (4) the integrity of the grand jury proceedings was impaired; (5) he received ineffective assistance of counsel; (6) the cross examination of a defense witness eliciting hearsay responses was improper and irrelevant; and (7) the court considered inappropriate factors in sentencing him. Pet. at 2; SR 2, 261, 642-45. On May 11, 2017, the Appellate Division affirmed the judgment of conviction. Pet. at 2; SR 641-46; see also People v. Mesko, 55 N.Y.S.3d 748 (N.Y. App. Div. 2017).4
Petitioner filed an application for leave to appeal in the New York Court of Appeals, arguing that (1) the Appellate Division erred in affirming petitioner's conviction for burglary in the second degree because he had permission to be in the residence, the bedroom was not secured, and, therefore, was not a separate dwelling; and (2) the "prosecutorial missteps," specifically the prosecutor's "improper" cross-examination of a witness and her "inappropriate and demeaning" references to petitioner during summation, were "far more serious than the [c]ourt found." SCR 647; see also Pet. at 2. The Court of Appeals denied leave to appeal on August 18, 2017. Pet. at 2; SR 653; see also People v. Mesko, 64 N.Y.S.3d 681 (N.Y. 2017) (table). Petitioner did not seek further review. Pet. at 3.
Construing the Petition liberally, petitioner claims that he is entitled to habeas relief onthe following grounds: (1) the conviction is supported by legally insufficient evidence; (2) there was prosecutorial misconduct during cross-examination and summation; (3) the trial court erred in allowing the police officers' testimony implying petitioner remained silent because it "created a prejudicial inference of consciousness of guilt;" (4) he was denied a fair trial because the integrity of the grand jury proceedings was compromised; and (5) his trial counsel was ineffective. Pet. at 17-50, 16-26; Order at 2.5
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the state court's decision (1) "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) "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 Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This standard is "highly deferential" and "demands that state-court decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted)).
The Supreme Court has repeatedly explained that "a federal habeas court mayoverturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with th[e] Court's precedents.'" Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see Metrish v. Lancaster, 569 U.S. 351, 358 (2013) () (quoting Richter, 562 U.S. at 103)).
Additionally, the AEDPA foreclosed "using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court's findings are not unreasonable under §2254(d) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion. Wood v. Allen, 558 U.S. 290, 301 (2010). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, 550 U.S. at 473.
Federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with "clear and convincing evidence." Id. at 473-74 (quoting 28 U.S.C. § 2254(e)(1)). "A state court decision is based on a clearly erroneous factual determination if the state court failed to weigh all of the relevant evidence before making its factual findings." Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (internal quotation marks omitted).
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must show that counsel's performance fell below an objective standard of professional reasonableness, and that, but for counsel's errors, the result of the proceedings would have been different. Premo, 562 U.S. at 121-22; Strickland v. Washington, 466 U.S. 668, 694 (1984). The standard "must be applied with scrupulous care" in habeas proceedings, because such a claim "can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial or [in pretrial] proceedings[.]" Premo, 562 U.S. at 122. Strickland does not guarantee perfect representation, only a reasonably competent attorney." Richter, 562 U.S. at 110 (quoting Strickland, 466 U.S. at 687) (internal quotation marks and further citation omitted). A petitioner must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Even if ...
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