Sherrod v. Artus
| Decision Date | 08 November 2016 |
| Docket Number | No. 6:13-CV-06539 (MAT),6:13-CV-06539 (MAT) |
| Parties | ANTHONY SHERROD, Petitioner, v. DALE A. ARTUS, Superintendent, Respondent. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Anthony Sherrod ("petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being detained in respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated pursuant to a judgment entered June 16, 1998, in Erie County Court (Tills, J.), following a jury verdict convicting him of an eleven-count indictment which included three counts of rape in the first degree (N.Y. Penal Law § 130.35), three counts of sodomy in the first degree (former N.Y. Penal Law § 130.50(1)), two counts of robbery in the second degree (N.Y. Penal Law § 160.10), one count of sex abuse in the first degree (N.Y. Penal Law § 130.65), one count of kidnapping in the second degree (N.Y. Penal Law § 135.20), and one count of unauthorized use of a motor vehicle in the first degree (N.Y. Penal Law § 165.08).
On June 24, 2016, this Court granted petitioner's request to vacate a previously-imposed stay and amend his petition to add one additional claim regarding ineffective assistance of appellate counsel.1 The Court denied respondent's motion to dismiss and directed respondent to file a response to the petition by September 21, 2016. Respondent has now responded and petitioner has replied to that response.
Petitioner's conviction arose out of a June 25, 1997 incident in which he abducted a young woman from a mall parking lot. Petitioner then tied the victim to a fence and sexually abused her over a period of approximately five hours, before she was able to escape. After a jury trial, petitioner was convicted as indicted, as outlined above. On June 16, 1998, he was sentenced, as a second felony offender, to an aggregate determinate term totaling 90 years, which was deemed a determinate term of 50 years pursuant to N.Y. Penal Law § 70.30(1)(e)(vii). The relevant procedural history in this case was recited in the Court's Decision and Order dated June 24, 2016, and that summary is incorporated herein by reference. Doc. 24 at 1-5.
On August 30, 2016, petitioner moved for a third time to stay the proceedings and amend his petition. Doc. 25. This motion, according to petitioner, seeks to "clarify the factual and legal bases of one of his seven original claims and to delete one of his seven claims from the petition." Doc. 25 at 3.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to this petition. AEDPA "revised the conditions under which federal courts may grant habeas relief to a person in state custody." Kruelski v. Connecticut Super. Ct. for Judicial Dist. of Danbury, 316 F.3d 103, 106 (2d Cir. 2003) (citing 28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of habeas corpus under 28 U.S.C. § 2254 only if the state court's adjudication of the petitioner's claim on the merits is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or involved an "unreasonable determination of the facts" in light of the evidence presented. 28 U.S.C. § 2254(d)(2).
The Court denies petitioner's most recent motion to stay and amend his petition. The Court has already allowed petitioner to stay and amend his petition once, and the latest amended petition does not add any substantial new grounds for relief. Therefore, petitioner has failed to show "good cause" for staying and amending his petition and his motion is denied. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
The petition, as amended, raised grounds of (1) prosecutorial misconduct (grounds one through four of the original petition [doc. 1]); (2) ineffective assistance of trial and appellate counsel (grounds five and seven of original petition, and grounds one and three of amended petition [doc. 9]); and (3) unduly suggestive identification procedures (ground six of original petition and ground two of amended petition).
Petitioner raises three arguments regarding prosecutorial misconduct. First, petitioner contends that the prosecutor suborned perjury from nurse Jane Arbek, who testified regarding the collection of DNA samples from the victim; chemist Richard Spencer, who testified regarding the testing of DNA material; and Officer Micheal DiVito, one of petitioner's arresting officers. A witness perjures him or herself when "she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Petitioner argues that error occurred at the trial level because Nurse Arbek testified that she took two swabs of DNA material from the victim and later corrected her testimony to say that it was actually four, not two, swabs. There was no evidence at trial, and petitioner has come forward with none, to indicate thatthis initially mistaken testimony prejudiced petitioner in any way. Spencer's testimony at trial merely confirmed that there were four swabs. Thus, as to Nurse Arbek and Spencer, petitioner has not come forward with any evidence tending to establish that their testimony was perjurious.
Petitioner also contends that the prosecutor suborned perjury from arresting Officer DiVito, who testified that when petitioner was sitting in the back of a patrol vehicle he made the spontaneous statement, "[W]hat did she say I did?" See T. 226.2 At the Huntley hearing in this case, see People v. Huntley, 43 N.Y.2d 175 (1977), Officer DiVito did not testify regarding this particular statement. Nevertheless, there is no indication that the statement was false, and to the extent Officer DiVito testified to any statements not noticed pretrial, there is no chance that such testimony affected the outcome of the trial given the otherwise overwhelming evidence against petitioner. See Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011) (); see also, e.g., Black v. Rock, 103 F. Supp. 3d 305, 320 (E.D.N.Y. 2015) ().
Petitioner next contends that the prosecutor allowed arresting officers to present "false" physical evidence against him at trial,in the form of a shoelace. Evidence at trial established that when the victim escaped the fence to which petitioner had tied her, she brought with her one shoelace and left behind a second with which she had been bound. This shoelace was presented at trial and petitioner's arresting officers testified that it was found on petitioner following his arrest. The shoelace was matched with the shoelace the victim escaped the crime scene carrying. There is no indication whatsoever that the evidence was somehow "false." Therefore, again, petitioner has failed to establish that any prosecutorial misconduct occurred. See, e.g., Bowers v. Walsh, 277 F. Supp. 2d 208, 225 (W.D.N.Y. 2003) ().
Finally, petitioner contends that the prosecutor withheld DNA evidence regarding one Judah Gehl, with whom the victim had had previous sexual contact. Evidence of Mr. Gehl's DNA was excluded from trial pursuant to New York's rape shield law. See CPL § 60.42. This evidence was not withheld, however; it was the subject of motion argument in court and it actually relates to petitioner's ineffective assistance of trial counsel argument, in which he contends that trial counsel was ineffective for failure to present testimony as to Gehl's DNA. As such, petitioner has not established that the prosecutor committed any misconduct with regard to Gehl's DNA evidence. See Bowers, 277 F. Supp. 2d at 225.
Petitioner raises various claims of ineffective assistance of trial and appellate counsel. To establish ineffective assistance of counsel at either the trial or appellate level, a defendant first must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and second, that "there is a reasonable probability that, absent the errors [by counsel], the fact finder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. 668, 687, 695 (1984). Under Strickland, the Court is required to consider alleged errors by counsel "in the aggregate." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Petitioner contends that trial counsel was ineffective for failing to investigate the chemist Richard Spencer's notes and failing to properly cross-examine Spencer. Petitioner raised this ground in his December 12, 2012 CPL § 440.10 motion, which was denied on May 20, 2013, and the Fourth Department denied leave to appeal on September 11, 2013.
The Court has reviewed this claim along with the record in this case, and finds that there is no basis in the record for concluding that counsel was ineffective for failing to "investigate" Spencer's notes and properly cross-examine him. This ground relates to petitioner's contention that the prosecutorsuborned perjury from Nurse Arbek and chemist Richard Spencer. As discussed above, there is no indication of any prosecutorial misconduct surrounding the testimony of these two witnesses. Additionally, there are no obvious errors in trial counsel's cross-examination of Spencer. Thus, the state court's decision on this issue was not an unreasonable application of relevant federal precedent. See 28 U.S.C. § 2254(d)(1).
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