Carrion v. McIntosh

UNITED STATES DISTRICT COURT                                              
SOUTHERN DISTRICT OF NEW YORK                                             
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                                   :                                 
JOSE CARRION,                           :                                 
                                   :                                 
               Petitioner,         :       23-CV-7374 (JMF)          
                                   :                                 
     -v-                           :                                 
                                   :     OPINION AND ORDER           
MRS. MCINTOSH, Superintendent, Clinton   :                                
Correctional Facility,                  :                                 
                                   :                                 
               Respondent.         :                                 
                                   :                                 
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JESSE M. FURMAN, United States District Judge:                            
Jose Carrion, proceeding without counsel, petitions for a writ of habeas corpus pursuant 
to Title 28, United States Code, Section 2254.  See ECF No. 1 (“Petn.”), at 1-15.  Carrion was 
convicted after a jury trial in New York Supreme Court of various offenses relating to the rape 
and molestation of his niece, who was between eight and fourteen years old at the time, and 
sentenced (after a reduction) to an aggregate term of fifty years’ imprisonment.  In his Petition, 
Carrion argues that (1) the verdict was against the weight of the evidence; (2) the trial court erred 
in admitting certain testimony under the “prompt outcry” exception to hearsay; (3) his counsel 
was constitutionally ineffective for failing to convey a plea offer to him; and (4) his sentence was 
excessive.  See Petn. at 2, 10.  For the reasons that follow, Carrion’s Petition is dismissed. 
                     BACKGROUND                                      
In 2016, Carrion was arrested and indicted on a slew of charges relating to the alleged 
rape and molestation of his niece, who was then fourteen years old.  See ECF No. 16 (“Resp.’s 
Mem.”), at 1-3.  The proof against him at trial included the victim’s testimony, corroborating 
testimony from her mother, the testimony of an expert in child sexual abuse and development 
psychology, and obscene videos of the victim extracted from Carrion’s phone.  See id. at 23-29.  
In addition, the trial court admitted testimony from two of the victim’s friends under the prompt 
outcry hearsay exception, id. at 16, 30, albeit with an instruction to the jury that the testimony 
was not to be considered for its truth but only for the fact that the victim had disclosed the 
alleged abuse, see People v. Corrion, 144 N.Y.S.3d 852, 854 (1st Dep’t 2021).1  Carrion did not 

present any evidence in his defense.  See Resp.’s Mem. 28.  On February 5 and 6, 2018, the jury 
found Carrion guilty on all counts.  See id. at 29.  On March 2, 2018, the trial court sentenced 
him to an aggregate sentence of eight-eight to ninety-four years’ imprisonment.  See id.   
Carrion appealed to the Appellate Division, First Department.  See Corrion, 144 
N.Y.S.3d at 853.  As relevant here, Carrion argued that the jury’s verdict was against the weight 
of the evidence, that the trial court had improperly admitted evidence under the prompt outcry 
exception, and that his sentence was excessive.  See ECF No. 15-1, at 57-81.  By opinion dated 
June 3, 2021, the Appellate Division affirmed.  First, the court held that “[t]he verdict was not 
against the weight of the evidence,” noting that “[t]here is no basis for disturbing the jury’s 

credibility determinations” and that “[p]ortions of the victim’s testimony were corroborated by” 
other testimony and the videos found on Carrion’s cellphone.  144 N.Y.S.3d at 853.  Second, the 
court held that the trial judge had “properly admitted” the prompt outcry testimony from the 
victim’s two friends.  Id.  The court noted that “[t]he testimony was brief” and general in nature 
and that “[a]ny prejudice was limited by the [trial] court’s instructions that the outcry testimony 
was not offered for the truth of what was said, but for the fact the disclosure was made.”  Id.  


1    Carrion was charged as “Jose Corrion,” which is therefore how his name is spelled 
throughout the state-court records, including the caption on appeal.  But the correct spelling is 
“Carrion,” see, e.g., ECF No. 17-1 (“Jan. 23, 2018 Trial Tr.”), at 18-19, which the Court uses 
here.                                                                     
Finally, without explicit comment on Carrion’s excessive-sentence claim, the court reduced the 
sentence to fifty years’ imprisonment.  See id.  Carrion unsuccessfully sought leave to appeal to 
the Court of Appeals.  See 37 N.Y.3d 991 (2021).                          
Carrion, proceeding without counsel, then moved to vacate his conviction pursuant to 

Section of 440.10 of New York Criminal Procedure Law (“CPL”) on the ground that he had 
received ineffective assistance of counsel.  See ECF No. 15-1, at 198.  Specifically, he claimed 
that his trial lawyer never informed him of the prosecution’s plea offer and that he would have 
pleaded guilty had he known of the offer.  Id.  In a written opinion dated January 10, 2023, the 
New York Supreme Court denied Carrion’s motion without a hearing.  See ECF No. 15-1, at 
257.  The court held that there was no need for a hearing because Carrion’s claim that his lawyer 
had not informed him of the plea offer was “flatly refuted by the record.”  Id. at 261.  Surveying 
the trial transcript, the court found that Carrion was “informed of the plea offer on multiple 
occasions” because it was conveyed “in open court, in the presence of [Carrion] and defense 
counsel.”  Id. at 260-61.  Moreover, the offer was declined by Carrion, “who commented ‘I never 

touch her anyway.’”  Id. at 261.  Accordingly, the court concluded, Carrion had “not shown that 
counsel was deficient.”  Id.  Nor had he “demonstrated prejudice.”  Id. at 262.  Thereafter, 
Carrion moved for leave to appeal to the Appellate Division, see ECF No. 15-1, at 266, which 
motion was denied on the ground that there was “no question of law or fact presented which 
ought to be reviewed,” People v. Carrion, No. 2023-01916, 2023 WL 3985512 (1st Dep’t June 
13, 2023).                                                                
                    APPLICABLE LAW                                   
This Court’s authority to grant the writ of habeas corpus is limited by Title 28, United 
States Code, Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 
1996 (“AEDPA”).  See Cruz v. Superintendant, No. 13-CV-2414 (JMF), 2016 WL 2745848, at 
*5 (S.D.N.Y. May 11, 2016).  A writ of habeas corpus may be granted “with respect to any claim 
that was adjudicated on the merits in State court proceedings” only if (1) the state court’s denial 
of the petitioner’s claim “resulted in a decision that was contrary to . . . clearly established 

Federal law, as determined by the Supreme Court of the United States”; (2) the state court’s 
denial of relief “resulted in a decision that . . . involved an unreasonable application of[] . . . 
clearly established Federal law, as determined by the Supreme Court of the United States”; or (3) 
the state court’s denial of relief “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).   
It is well established that a state court decision can be “contrary to” Supreme Court 
precedent in either of two ways: first, “if the state court arrives at a conclusion opposite to that 
reached by [the Supreme] Court on a question of law” or, second, “if the state court confronts 
facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at 
a result opposite to [the Court’s].”  Williams v. Taylor, 529 U.S. 362, 405 (2000).  A state court 

unreasonably applies clearly established precedent “if the state court identifies the correct 
governing legal rule” from the Supreme Court’s cases “but unreasonably applies it to the facts of 
the particular state prisoner’s case.”  Id. at 407.  Alternatively, “a state-court decision . . . 
involves an unreasonable application of [Supreme Court] precedent if the state court either 
unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it 
should not apply or unreasonably refuses to extend that principle to a new context where it 
should apply.”  Id. at 408; see generally Richard S. v. Carpinello, 589 F.3d 75 (2d Cir. 2009). 
Notably, “an unreasonable application of federal law is different from an incorrect 
application of federal law.”  Williams, 529 U.S. at 410.  That is, the issue is not whether the state 
court committed error, or even clear error, but “whether the state court’s application of clearly 
established federal law was objectively unreasonable.”  Id. at 409; see also Lockyer v. Andrade, 
538 U.S. 63, 75 (2003) (“The gloss of clear error fails to give proper deference to state courts by 
conflating error (even clear error) with unreasonableness.”).  That threshold is “substantially 

higher” than incorrectness.  Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks 
omitted).  Specifically, where AEDPA applies, federal habeas relief is precluded “so long as 
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”  Harrington, 
562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).  Put differently, 
“[a]s a condition for obtaining habeas corpus from a federal court, 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.”  Id. at 103.  “This is a ‘difficult to meet’ and 
‘highly deferential standard for evaluating state-court rulings.’”  Cullen, 563 U.S. at 181 
(citations omitted).                                                      

Furthermore, as noted, a federal court may grant habeas relief under AEDPA if the state 
court’s decision 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)(2).  A state court’s 
factual determinations, however, are “‘presumed to be correct’” and may only be rebutted “‘by 
clear and convincing evidence.’”  Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (quoting 
28 U.S.C. § 2254(e)(1)); accord Bierenbaum v. Graham, 607 F.3d 36, 48 (2d Cir. 2010).  This 
requires “substantial deference” to the state court’s determinations.  Brumfield v. Cain, 135 S. Ct. 
2269, 2277 (2015).  “If [r]easonable minds reviewing the record might disagree about the finding 
in question, on habeas review that does not suffice to supersede the trial court’s . . . 
determination.”  Id. (alternations in original) (internal quotation marks and citations omitted).  
Nor may the federal court characterize the state’s decisions as unreasonable “merely because [it] 
would have reached a different conclusion in the first instance.”  Wood v. Allen, 558, U.S. 290, 
301 (2010).  That said, “‘[e]ven in the context of federal habeas, deference does not imply 

abandonment or abdication of judicial review,’ and ‘does not by definition preclude relief.’”  
Brumfield, 135 S. Ct. at 2277 (alteration in original) (quoting Miller-El v. Cockrell, 537 U.S. 
322, 340 (2003)).                                                         
Finally, the Court is obliged to construe pro se pleadings liberally and to interpret them 
“to raise the strongest arguments that they suggest.”  Triestman v. Fed. Bureau of Prisons, 470 
F.3d 471, 474 (2d Cir. 2006) (emphasis omitted) (citations omitted); see also Green v. United 
States, 260 F.3d 78, 83 (2d Cir. 2001).  That said, a pro se litigant is not exempt “from 
compliance with relevant rules of procedural and substantive law.”  Traguth v. Zuck, 710 F.2d 
90, 95 (2d Cir. 1983); see also United States v. Starling, 76 F.4th 92, 99 (2d Cir. 2023).  
                      DISCUSSION                                     

As noted, Carrion makes four arguments in his Petition: that (1) the verdict was against 
the weight of the evidence; (2) the trial court erred in admitting certain testimony under the 
“prompt outcry” exception to hearsay; (3) his counsel was constitutionally ineffective for failing 
to convey a plea offer to him; and (4) his sentence was excessive.  See Petn. at 2, 10.   
The Court will address each argument in turn.                        
A.  The Weight of the Evidence Claim Is Not Reviewable                    
Carrion’s first claim — that the jury’s verdict was against the weight of the evidence, see 
Petn. at 2, 5 — can be swiftly rejected.  A weight-of-the-evidence claim is “purely a creature of 
state law.”  Porter v. Keyser, No. 15-CV-816 (JMF), 2016 WL 1417847, at *3 (S.D.N.Y., Apr. 8, 
2016).  Carrion’s claim therefore asserts an “error of state law, for which [federal] habeas review 
is not available.”  Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002).  Perhaps 
recognizing this fatal flaw, Carrion asks the Court in his reply to reframe his weight-of-the-
evidence claim to be a sufficiency-of-the-evidence claim.  See ECF No. 26, at 1.  Even if the 

Court were to indulge Carrion’s belated request, however, the claim would fail for two reasons.  
First, any legal sufficiency claim would be procedurally barred because Carrion did not present it 
to the state courts.  See, e.g., Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“[E]xhaustion 
of state remedies requires that [a] petitioner fairly present federal claims to the state courts in 
order to give the [s]tate the opportunity to pass upon and correct alleged violations of its 
prisoners’ federal rights.”).  Second, and in any event, any legal sufficiency claim would fail on 
the merits because, taken together, the prosecution’s evidence — which included testimony from 
the victim and a host of corroboration, from the victim’s mother’s testimony to obscene videos 
found on Carrion’s cellphone — was plainly sufficient to support the jury’s verdict.  See Jackson 
v. Virginia, 443 U.S. 307, 319 (1979) (holding that the standard of review for a legal sufficiency 

claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any 
rational trier of fact could have found the essential elements of the crime beyond a reasonable 
doubt”).  Accordingly, Carrion’s first claim, however framed, must be and is rejected. 
B.  The Improper Admission of Evidence Claim Fails                        
Next, Carrion challenges the trial court’s admission of testimony pursuant to the prompt 
outcry exception to the prohibition on hearsay.  See Petn. at 7.  Significantly, admission of 
evidence in violation of state law, without more, does not support federal habeas relief.  Instead, 
to rise to the level of constitutional error sufficient to warrant habeas relief, the error must have 
deprived the petitioner of a fundamentally fair trial.  See Taylor v. Curry, 708 F. 2d 886, 891 (2d 
Cir. 1983) (citing Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973)).  More specifically, the 
petitioner must show that the evidentiary error resulted in evidence being admitted that was 
“crucial, critical, and highly significant.”  McKinnon v. Superintendent, 422 F. App’x 69, 73 (2d 
Cir. 2011) (summary order) (cleaned up).  The admitted evidence must have “contributed to the 

verdict,” and the error must create “a previously non-existent reasonable doubt.”  Perez v. 
Phillips, 210 F. App’x 55, 58 (2d Cir. 2006) (summary order).  Applying these strict standards, 
courts commonly hold that the erroneous admission of cumulative hearsay evidence was 
“harmless . . . when the evidence against the petitioner at trial was substantial and/or the 
improperly admitted testimony was cumulative of other admissible evidence.”  Bowen v. 
Phillips, 572 F. Supp. 2d 412, 419 (S.D.N.Y. 2008).                       
Carrion’s claim falls well short of the constitutional threshold.  At bottom, Carrion’s 
contention is that the trial court erroneously admitted the prompt outcry evidence because, as a 
matter of state law, it was not sufficiently prompt.  That contention is dubious because, as the 
Appellate Division explained, “[t]he outcry testimony at issue occurred on a weekday when the 

victim was in the eighth grade after a weekend when defendant had entered her room and 
inappropriately touched her.”  Corrion, 144 N.Y.S.3d at 853 (citing cases).  In any event, even 
assuming for the sake of argument that admission of the testimony was error as a matter of state 
law, Carrion has not shown that the error deprived him of a fundamentally fair trial.  The victim 
herself testified at trial and her testimony was corroborated by ample other evidence, including 
her mother’s testimony and the inculpatory videos from Carrion’s own cellphone.  Moreover, as 
the Appellate Division observed, the prompt outcry testimony “was brief, and very few details of 
the incidents were admitted.”  Id.  And finally, “[a]ny prejudice was limited by the [trial] court’s 
instructions that the outcry testimony was not offered for the truth of what was said, but for the 
fact the disclosure was made.”  Id.  In other words, the other evidence against Carrion “was 
substantial” and the allegedly improper testimony was both limited in nature and “cumulative of 
other admissible evidence.”  Bowen, 572 F. Supp. 2d at 419.               
C.  The Ineffective Assistance of Counsel Claim Fails                     

Next, Carrion contends, as he did in his CPL 440.10 motion, that he was deprived of 
effective assistance of counsel because his trial counsel failed to advise him of the prosecution’s 
plea offer.  See Petn. at 10.  A lawyer’s failure to advise a defendant of a plea offer constitutes 
ineffective assistance of counsel if the defendant shows a “reasonable probability” that he 
“would have accepted the . . . plea offer had [he] been afforded effective assistance of counsel,” 
that “the plea would have been entered without the prosecution canceling it or the trial court 
refusing to accept it,” and that “the end result of the criminal process would have been more 
favorable by reason of a plea to a lesser charge or a sentence of less prison time.”  Missouri v. 
Frye, 566 U.S. 134, 147 (2012); see also Strickland v. Washington, 466 U.S. 668, 687-89 (1984).  
But Carrion’s claim is doomed by the New York Supreme Court’s denial of his CPL 440.10 

motion and this Court’s deferential standard of review.  The state court found, based on its 
review of the trial transcript, that Carrion’s claim was “flatly refuted by the record” because 
Carrion was “informed of the plea offer on multiple occasions” in open court.  ECF No. 15-1, at 
260-61.  It also rejected Carrion’s assertion of prejudice on the ground that Carrion had declined 
the plea offer in open court with the words “‘I never touch her anyway.’”  Id. at 261.  The state 
court’s conclusions find support in the record.  See Jan. 23, 2018 Trial Tr. at 20; ECF No. 15-1, 
at 224-25.  At a minimum, given the deference owed to the state court’s factual findings, the 
Court cannot say that its conclusions were “contrary to, or involved an unreasonable application 
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or 
were “based on an unreasonable determination of the facts.”  28 U.S.C. § 2254(d); see, e.g., 
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“The question is not whether a federal court 
believes the state court’s determination under the Strickland standard was incorrect but whether 
that determination was unreasonable — a substantially higher threshold.” (internal quotation 

marks omitted)).  It follows that Carrion’s ineffective assistance claim must be and is rejected. 
D.  The Excessive Sentence Claim Fails                                    
Finally, Carrion challenges his sentence — which was reduced on appeal to fifty years’ 
imprisonment — as unconstitutionally excessive.  Petn. at 8.2  “It is well established that an 
excessive sentence claim may not provide grounds for habeas corpus relief where a petitioner’s 
sentence is within the range prescribed by state law.”  Morales v. Collado, No. 21-CV-3177 
(JMF), 2023 WL 1993334, at *2 (S.D.N.Y., Feb. 14, 2023) (cleaned up); see also Keita v. Fields, 
No. 20-CV-6154 (JMF), 2020 WL 6647288, at *2 (S.D.N.Y., Nov. 12, 2020) (denying an 
excessive sentence claim where the challenged sentence was within the range prescribed by state 
law).  That is the case here, as Carrion’s sentence was within the range prescribed by New York 

law for a second felony offender convicted of three of more violent felony offenses, one of 
which is a Class B felony.  Carrion was convicted of nine Class B felonies, which are punishable 
by up to twenty-five years’ imprisonment each, see N.Y. Penal Law § 70.02, subject to a fifty-
year maximum sentence where, as here, the defendant was convicted of three or more violent 
felony offenses, at least one of which is a Class B felony, see id. § 70.30(1)(e)(vii)(A).  



2    Respondent contends that Carrion’s excessive-sentence claim is procedurally barred, see 
Resp.’s Mem. at 47, but the Court disagrees, as Carrion argued on appeal that “[t]he court’s 
nearly 90-year sentence was extraordinarily excessive and should be reduced,” citing the 
Fourteenth Amendment to the U.S. Constitution.  ECF No. 15-1, Resp.’s Ex. B (“Br. for Def.”) 
at 77-81.  In any event, the claim fails on the merits for the reasons that follow. 
Accordingly, his fifty-year sentence was “within the range prescribed by state law” and cannot 
support federal habeas relief.  Morales, 2023 WL 1993334, at *2. 
                           CONCLUSION 
 For the reasons stated above, Carrion’s Petition must be and is DISMISSED.  As Carrion 
has not made a substantial showing of the denial of a constitutional right, a certificate of 
appealability will not issue.  See 28 U.S.C. § 2253(c); see also, e.g., Matthews v. United States, 
682 F.3d 180, 185 (2d Cir. 2012).  In addition, this Court certifies, pursuant to Title 28, United 
States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good 
faith, and in forma pauperis status is thus denied.  See, e.g., Coppedge v. United States, 369 U.S. 
438, 444-45 (1962).  The Clerk of Court is directed to mail a copy of this Opinion and Order to 
Carrion and to close this case. 

 SO ORDERED. 
Dated: April 11, 2024                          
New York, New York                         JESSE      RMAN 
                                          nited States District Judge 

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