Liggins v. Capra

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
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JEFFREY LIGGINS,                             : 
                        Petitioner,          :      MEMORANDUM DECISION 

                  -V-                        :      21-CV-6458 (DC) 
MICHAEL CAPRA, Superintendent,               : 
                        Respondent.          : 

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APPEARANCES:               JEFFREY LIGGINS 
                             Petitioner Pro Se 
                             Green Haven Corrections 
                             P.O. Box 4000 
                             Stormville, NY 12582 
                             ERIC GONZALEZ, Esq. 
                             Kings County District Attorney 
                             By:    Rebecca Height, Esq. 
                                   Assistant District Attorney 
                             350 Jay Street 
                             Brooklyn, New York 11201 
                                   Attorney for Respondent 
CHIN, Circuit Judge: 
            On July 2, 2015, following a jury trial, Petitioner Jeffrey Liggins was 
convicted in the Supreme Court of the State of New York, Kings County (Harrington, 
J.), of two counts of criminal sexual act in the second degree and four counts of sexual 
abuse in the second degree.  Dkt. 10 at 866-68.  The Appellate Division, Second 

Department, affirmed his convictions, People v. Liggins, 124 N.Y.S.3d 851 (2d Dep't 2020) 
("Liggins I"), and the New York Court of Appeals denied his application for leave to 

           On November 18, 2021, Liggins filed this petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254 (the "Petition").  Dkt. 1.  Respondent, represented by 
the District Attorney of Kings County, filed its opposition to the Petition on February 7, 
2022.  Dkt. 9. 
           On October 25, 2023, the case was reassigned to the undersigned. 
           For the reasons that follow, the Petition is DENIED. 
                         STATEMENT OF THE CASE 

A.  The Facts’ 
           On August 2, 2012, thirteen-year-old K.R. helped his boss Liggins, a forty- 
six-year-old owner of a charter bus company, clean buses until 10:00 p.m. in a Foster 
Avenue bus lot owned by Liggins.  Dkt. 10 at 949, 955.  K.R. then accompanied Liggins 
to his "office," an apartment in Brooklyn.  Id. at 949.  At the apartment, Liggins 
instructed K.R. to sleep in Liggins's bedroom and to take NyQuil.  Id.  K.R. complied, 
even though he was not sick.  Id. 

1 The facts are drawn from the People's brief on the direct appeal to the Appellate Division, 
which was filed in this Court as part of Respondent's Opposition to the Petition.  A more 
detailed recitation of facts, which does not bear repeating, is set forth in the state appellate brief 
and is supported by detailed citations to the record, including the trial transcript.  See Dkt. 10 at 
948-99.

           At approximately 2:00 a.m., Liggins sexually assaulted K.R. by performing 
anal and oral sex on him while K.R. pretended to sleep.  Id.  The morning after, Liggins 
drove K.R. back to his mechanic shop, where K.R. then called his father to pick him up. 
On their drive home, K.R. told his father what happened.  Id. at 958.  K.R.'s father took 
K.R. home and called the police.  Id. at 959.  When K.R.'s mother arrived home later that 
day, she found that K.R. was "[q]uiet and off to himself," and also made a  call to the 
police department.  Id.  Police Officer Christopher Schlit responded to K.R.’s residence 
and found that K.R. was "very upset" and "embarrassed."  Id.  Officer Schlit took K.R. 
and his mother on a canvass of the neighborhood so that K.R. could identify the 

apartment where the incident occurred.  Id.  K.R. identified Liggins's basement 

apartment.  Id.  Officer Schlit knocked but there was no answer at the door.  Id. 
           Officer Schlit then took K.R. and his mother to Kings County Hospital.  Id. 
The triage nurse interviewed K.R. and rated him as "level two" on the Emergency 
Severity Index, meaning that the urgency of his treatment was "critical."  Id  K.LR. 
brought with him his boxer shorts (on which Liggins had ejaculated) and Q-tips with 
which K.R. had swabbed himself and gave them to Officer Schlit.  Id.  At approximately 
8:00 p.m., Samantha Joseph, an examiner on the hospital's Sexual Assault Response 
Team, met with K.R., who consented to "a full head to toe forensic exam."  Id. at 960. 
Joseph used a sexual assault evidence collection kit, and collected swabs from K.R.'s 
mouth, neck, abdomen and penis.  She also collected the underwear he wore to the

hospital that day.  Joseph documented that K.R. was cooperative, but had a "flat affect," 

was "emotionless," and appeared to be "traumatized."  Id. 
           At approximately 9:50 p.m., Police Officer Robert Kropp, a member of the 
Brooklyn South Evidence Collection Team, arrived at Kings County Hospital and spoke 
to K.R., who he observed had a "[vJery shy" demeanor.  Id.  Officer Schlit gave the boxer 
shorts and Q-tips that K.R. had given him earlier to Officer Kropp.  Id. at 960-61. 
Joseph also released the sexual assault evidence collection kit, which included the 
underwear she had collected from K.R., to Officer Kropp.  Id. at 961.  Officer Kropp then 
"vouchered" the boxer shorts, Q-tips, and the sexual assault evidence collection kit.  Id. 
The vouchered evidence was sent to the forensic biology laboratory of the Office of the 
Chief Medical Examiner ("OCME") for further investigation.  Id. 
           Detective Joseph Singletary,  a member of the Brooklyn Special Victims 
Unit, was called to Kings County Hospital and met with K.R. and K.R.’s parents.  Id. 
Detective Singletary noted that K-R. was "clearly upset" and "shaking."  Id.  After 
speaking with K.R. and both of K.R.’s parents, Detective Singletary identified Liggins as 

 suspect.  Id.  On August 16, 2012, Detective Singletary arrested Liggins.  Id.  On 
October 22, 2013, Detective Singletary executed a court order to take a swab from the 
inside of Liggins's cheeks.  Id.  Detective Niurca Quinones, Detective Singletary's 
colleague, assisted Detective Singletary in vouchering the swab.  Id. at 597.  Detective 
Singletary then sent the swab to the OCME lab for DNA analysis.  Id. at 962.

           On August 6, 2012, OCME received the vouchered sexual assault evidence 
collection kit, including K.R.’s underwear, and on February 15, 2013, OCME received 
K.R.’s boxers and the vouchered Q-tips.  Id.  On October 24, 2013, OCME received the 
buccal swab taken from Liggins.  Id. at 963.  These items were DNA   tested, and Michael 
McCasland, a criminalist at OCME, conclusively matched semen from K.R.’s boxer 
shorts to Liggins's DNA.  Id. at 966. 
B.  Procedural History 
     a.  State Court Proceedings 
                 1.  The Trial Court 
           Later that year, Liggins was charged with two counts of criminal sexual 

act in the second degree and four counts of sexual abuse in the second degree.”  Id. at 
950.  At trial, K.R. -- who by then was 16 years old -- testified about his experience the 
night of August 2, 2012, and the lasting effects the abuse had on him.  Id. at 332-434. 
K.R.'s father, Police Officers Schlit and Kropp, and Detectives Singletary and Quinones 
also testified for the People, detailing their interactions with K.R. in the moments after 
the assault.  See id. at 452-555, 596-598.  Doctor Anne Meltzer, an expert on child 
psychology and sexual abuse, testified about common behaviors of sexual assault 
victims.  Id. at 567-581.  Samantha Joseph testified for the People as well, explaining her 

2 Defendant was also charged under the same indictment with other offenses that were either 
dismissed or were not put to the jury.

treatment of K.R. at Kings County Hospital.  Id. at 599-634.  Finally, Michael McCasland 
testified for the People, explaining his DNA analysis and how he concluded that the 

semen on K.R.'s boxer’s matched Liggins's DNA.  Id. at 635-93.  Only Liggins testified 
for the defense.  Id. at 705-763. 
           The jury convicted Liggins on all counts.  Id. at 866-68.  The trial court then 
adjudicated Liggins as a second child sexual assault felony offender pursuant to 
N.Y.C.P.L. § 440.19° and thereafter sentenced Liggins to two consecutive 15-year prison 
terms (a total of 30 years), with 20 years of post-release supervision on the criminal 
sexual act counts, with concurrent one-year terms on the sexual abuse counts.  Id. at 897. 
                 2.  The Direct Appeal 
           On May 30, 2019, Liggins, represented by counsel, appealed to the 
Appellate Division, Second Department, arguing that (1) the admission of the DNA 
evidence at trial denied him of his Sixth Amendment right to confront the witnesses 

5 The court adjudicated Liggins as a second child sexual assault felony offender because he had 
 three prior convictions for sexual felonies against boys under the age of fifteen:  (1) a 1994 
conviction for Sexual Abuse in the First Degree, wherein Liggins pleaded guilty to sexually 
abusing two male victims, aged twelve and fifteen, while claiming to be a Boy Scout leader and 
providing NyQuil to one of the victims, (2) a 2003 conviction for Attempted Sexual Abuse in the 
First Degree, wherein Liggins rubbed his penis against a nine-year-old boy, whom defendant 
met while working at an overnight camp, and (3) a 2005 conviction for Attempted Sexual Abuse 
in the First Degree, wherein Liggins had rubbed his penis against a nine-year old boy, whom 
defendant met while volunteering at an after-school program.  Dkt. 9 at 4-5.

against him; (2) his counsel was ineffective for failing to preserve the issue; and (3)  his 

sentence was excessive and should be reduced in the interest of justice.  Id. at 901-39. 
           On July 8, 2018, the Appellate Division affirmed Liggins's convictions and 

sentence.  Liggins I, 124 N.Y.S.3d at 851.  The court held that Liggins's argument that his 
Sixth Amendment rights under the Confrontation Clause were violated was 
unpreserved for appellate review and declined to review the issue in the exercise of its 

interest of justice jurisdiction.  Id.  It also found that Liggins's argument that his counsel 

was ineffective for failing to raise the Confrontation Clause issue was meritless, as the 

issue was "not 'so clear-cut and dispositive that no reasonable defense counsel would 
have failed to assert it." Id. (quoting People v. Rodriguez, 101 N.E.3d 977, 977 (N.Y. 2018)). 
Finally, the Appellate Division held that "[t]he sentence imposed was not excessive.”  Id. 
            On September 12, 2018, the New York Court of Appeals denied Liggins's 
application for leave to appeal.  Liggins IT, 152 N.E.3d at 1180 (Rivera, J.). 
      b.  Proceedings in this Court 
            On November 18, 2020, proceeding pro se, Liggins filed the Petition 
asserting that (1) the trial court improperly admitted the DNA reports through the 
OCME analyst at trial, thereby violating his right of confrontation; (2) his trial counsel 

was ineffective for failing to raise the Confrontation Clause issue; and (3) his sentence 

was excessive.  Dkt. 1.

               On February 2, 2020, the District Attorney's Office filed its opposition to 
   the Petition.  Dkt. 9.  On June 22, 2022, Liggins filed his reply.  Dkt. 14. 
               On October 25, 2023, the case was reassigned to the undersigned. 
                                   DISCUSSION 
A.        Federal Review of State Convictions 
               A federal court may not grant a habeas petition on a claim that was 
   adjudicated on the merits in state court unless that adjudication: 
         (1) resulted in a decision that 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) resulted in a decision that 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 Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857 
   F.3d 466, 477 (2d Cir. 2017).  Hence, when a claim is adjudicated on the merits, the state 
   court's decision must be accorded "substantial deference.”  Fischer v. Smith, 780 F.3d 556, 
   560 (2d Cir. 2015) (citing Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009)).  "A federal 

   court may reverse a state court ruling only where it was 'so lacking in justification that 
   there was  ...  [no] possibility for fairminded disagreement.”  Vega v. Walsh, 669 F.3d 
   123, 126 (2d Cir. 2012) (per curiam) (quoting Harrington, 562 U.S. at 103); see also Weizel 

   v. Lambert, 565 U.S. 520, 524 (2012) (per curiam) (quoting Harrington, 562 U.S. at 102).

           A federal court cannot review a habeas petition unless the petitioner "has 
exhausted the remedies available” in state courts. 28 U.S.C. § 2254(b)(1)(A).  This 
requirement affords state courts the "opportunity to pass upon and correct alleged 
violations of its prisoners’ federal rights."  Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 
2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).  "This requires that the 
prisoner ‘fairly present’ his constitutional claim to the state courts, which he 
accomplishes 'by presenting the essential factual and legal premises of his federal 
constitutional claim to the highest state court capable of reviewing it."  Jackson v. 
Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d 
Cir. 2005)). 
           Moreover, "federal courts will not review questions of federal law 
presented in a habeas petition when the state court's decision rests upon a  state-law 
ground that ‘is independent of the federal question and adequate to support the 
judgment.”  Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 
722,729 (1991)).  In other words, if the state court refused to consider an argument 
because it was procedurally barred under state law, the argument is barred from federal 
habeas review so long as the procedural bar is "adequate to support the judgment." 
Murden v. Artuz, 497 F.3d 178, 191-92 (2d Cir. 2007) (quoting Jimenez v. Walker, 458 F.3d 
130, 138 (2d Cir. 2006)).  A petitioner's failure to comply with a state procedural rule 
qualifies as such an adequate and independent state ground, provided that (1) the state

court actually "relied on the procedural bar as an independent basis for its disposition 
of the case,” Harris v. Reed, 489 U.S. 255, 261-62 (1989) (citation omitted), and (2) the state 
procedural rule is "firmly established and regularly followed," James v. Kentucky, 466 
U.S. 341, 348 (1984). 
           The Second Circuit has "held repeatedly that the contemporaneous 
objection rule" -- that state appellate courts will review only those errors of law that are 
presented contemporaneously such that the trial court is "reasonably prompted" to 

correct them -- "is a firmly established and regularly followed New York procedural 
rule."  Downs v. Lape, 657 F.3d 97, 103-04 (2d Cir. 2011) (collecting cases).  Hence, the 
Circuit has affirmed the denial of habeas relief based on the Appellate Division's ruling 
that the failure of a petitioner to object at trial rendered a claim unpreserved for 
appellate review.  See, e.g., Garcia v. Lewis, 188 F.3d 71, 81-82 (2d Cir. 1999) (affirming the 
denial of habeas relief where the petitioner's trial counsel failed to bring to trial court's 
attention a claim that he later attempted to advance on appeal). If a claim is 
procedurally barred pursuant to an independent and adequate state rule, a federal 
habeas court may not review it on the merits, unless the petitioner demonstrates (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, 501 U.S. at 750. 

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B.     Analysis 
           In the Petition, Liggins contends that (1) the trial court improperly 
admitted the DNA reports through Michael McCasland at trial and thus violated his 
right of confrontation; (2) his trial counsel was ineffective for failing to raise the 
Confrontation Clause issue; and (3) his sentence was excessive.  Dkt. 1.  I discuss each 
claim in turn. 

     a.  The Confrontation Clause 
           The Sixth Amendment's Confrontation Clause provides that "in all 
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the 
witnesses against him.”  U.S. Const. Amend. VI.  In Crawford, the Supreme Court held 
that "out-of-court statements by witnesses that are testimonial are barred, under the 
Confrontation Clause, unless witnesses are unavailable and defendants had prior 
opportunity to cross-examine witnesses, regardless of whether such statements are 
deemed reliable by court.”  541 U.S. at 54, 58.  It specifically identified "[v]arious 
formulations of th[e] core class of 'testimonial’ statements" that are barred absent cross- 
examination: 
     (1) "ex parte in-court testimony or its functional equivalent -- that is, 
        material such as affidavits, custodial examinations, prior testimony 
        that the defendant was unable to cross-examine, or similar pretrial 
        statements that declarants would reasonably expect to be used 
        prosecutorially"; 

                                     11 

     (2) "extrajudicial statements . . . contained in formalized testimonial 
        materials, such as affidavits, depositions, prior testimony, or 
        confessions”; and 
     (3)  "statements... made under circumstances which would lead an 
        objective witness reasonably to believe that the statement would be 
        available for use at a later trial.” 
Id. at 51-52 (citations omitted).  The Supreme Court has made clear that the 
Confrontation Clause applies to forensic reports and testimony being offered to prove a 
fact in a criminal trial.  See, e.g., Bullcoming v. New Mexico, 564 U.S. 647, 657-58 (2011) 
("The Confrontation Clause . . . does not permit the prosecution to introduce a forensic 
laboratory report containing a testimonial certification, made in order to prove a  fact at 

a criminal trial, through the in-court testimony of an analyst who did not sign the 
certification or personally perform or observe the performance of the test reported in 
the certification."); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009) (holding that 
"[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte 
out-of-court affidavits" by an individual that has not been subjected to cross- 
examination); Williams v. Illinois, 567 U.S. 50, 83-84 (2012) (plurality opinion) ("We 
[have] emphasized that if a statement is not made for 'the primary purpose of creating 
an out-of-court substitute for trial testimony,’ its admissibility 'is the concern of state 
and federal rules of evidence, not the Confrontation Clause.” (citation omitted). 
           Consistent with the Supreme Court precedent outlined above, the New 
York Court of Appeals has held that the Confrontation Clause is violated when 

                                     12 

laboratory reports as to the DNA profile generated from evidence submitted to a 
laboratory by the police in a pending criminal case are admitted into evidence and the 
analyst who generated or independently reviewed the DNA profile is not present for or 
has not been subject to cross-examination.  People v. John, 52 N.E.3d 1114, 1123-24 (N.Y. 
2016).  It concluded that "an analyst who witnessed, performed or supervised the 
generation of [a] defendant's DNA profile, or who used his or her independent analysis 
on the raw data, as opposed to a  testifying analyst functioning as a conduit for the 
conclusions of others, must be available to testify.”  Id. at 1128. 
            Liggins argues that that his Sixth Amendment right to confrontation was 
violated when Michael McCasland, the OCME analyst, testified connecting Liggins's 
DNA to the semen found on K.R.'s boxers.  Dkt. 1 at 24-30.  Liggins argues that 
McCasland "was not involved in the electrophoresis stage of the testing process of the 
boxers” and the "electrophoresis stage is a critical step of which the testifying witness 

must have personal knowledge.”  Id. at 26 (quoting People v. John, 52 N.E.3d at 1122-23). 
The Appellate Division rejected this claim, finding that it was "unpreserved for 
appellate review, and we decline to review this issue in the exercise of our interest of 
justice jurisdiction."  Liggins I, 124 N.Y.S.3d at 851. 
            Habeas relief is thus not available to Liggins for this claim.  For an 
independent and adequate state ground to bar habeas relief, the state court rendering 
the judgment must "clearly and expressly state that its judgment rests upon a state 

                                      13 

procedural bar."  Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Glenn v. 
Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)).  Here, the Appellate Division clearly and 
expressly stated that Liggins's confrontation claim was unpreserved for appellate 
review.  Liggins I, 124 N.Y.S.3d at 851. 
           Moreover, Liggins has failed to demonstrate that he is entitled to an 

exception to the procedural default rule, because he has not shown either (1) cause and 
actual prejudice or (2) that a fundamental miscarriage of justice would occur if the 

merits of the federal claim were not considered.  See Edwards v. Carpenter, 529 U.S. 446, 
451 (2000) (citations omitted); Coleman, 501 U.S. at 748.. 
           Liggins's confrontation claim fails on the merits in any event.  Under New 
York law, the admission of DNA evidence does not violate the Confrontation Clause 
where an analyst who performed testing on the DNA is available to testify at trial.  See 
People v. John, 52 N.E.3d at 1128 ("We conclude that an analyst who witnessed, 
performed or supervised the generation of defendant's DNA profile, or who used his or 
her independent analysis on the raw data... □ must be available to testify." (emphasis 
added)).  McCasland performed an independent analysis on the raw data, see Dkt. 10 at 

685 (McCasland testifying "I was the one that analyzed the results for both the DNA 
profiles from the evidence and the DNA profile that was obtained from [] Liggins"]); id. 

at 688 (McCasland testifying "I analyzed the results [of DNA testing on defendant's 

                                     14 

exemplar] at my desk"), testified at trial, and was subject to cross examination.  Dkt. 10 

at 680-93.  Accordingly, Liggins's confrontation claim fails on the merits. 
      b.  Ineffective Assistance of Counsel 
           In general, to prevail on a claim of ineffective assistance under federal law, 

a petitioner must (1) show that counsel's performance was so deficient as to fall below 
"an objective standard of reasonableness"; and (2) establish prejudice by demonstrating 
"a reasonable probability that, but for counsel's unprofessional errors, the result of the 
proceeding would have been different."  Strickland v. Washington, 466 U.S. 668, 688, 694 
(1984).  In the context of a habeas petition under 28 U.S.C. § 2254, "[e]stablishing that a 

state court's application of Strickland was unreasonable .  . . is all the more difficult.  The 
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ ... and when 
the two apply in tandem, review is ‘doubly’ so."  Harrington, 562 U.S. at 105 (citations 
omitted).  Therefore, "[t]he operative question” when a  federal court reviews a  state 
court's ineffective assistance of counsel ruling is "not whether [the] federal court 
believes the state court's determination was incorrect, but rather whether that 
determination was objectively unreasonable."  Waiters, 857 F.3d at 478 (alterations 
adopted) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). 
           The standard to establish an ineffective-assistance-of-counsel claim under 
New York law is lower than under federal law.  See People v. Honghirun, 78 N.E.3d 804, 
807 (N.Y. 2017).  In New York, a defendant must show only "that counsel failed to 

                                     15 

provide meaningful representation.”  People v. Alvarez, 125 N.E.3d 117, 120 (N.Y. 2019) 
(citing People v. Stuliz, 810 N.E.2d 883 (N.Y. 2004); People v. Baldi, 429 N.E.2d 400 (N.Y. 
1981)).  Unlike the federal standard, see Strickland, 466 U.S. at 694, under the state 
standard, the defendant is not required to demonstrate that he was prejudiced by the 
ineffective assistance.  See Alvarez, 125 N.E.3d at 120. 
           Liggins contends that his counsel was ineffective for failing to raise the 
confrontation issue at trial.  Dkt. 1 at 39-40.  The Appellate Division rejected this claim 

on the merits, holding that the "issue was not 'so clear-cut and dispositive that no 
reasonable defense counsel would have failed to assert it."  See Liggins [, 124 N.Y.5.3d at 
851 (citing People v. Rodriguez, 101 N.E.3d 977, 977 (N.Y. 2018)).  This determination is 
entitled to "substantial deference,” Fischer, 780 F.3d at 560, and will not be overturned by 
a federal court conducting habeas review unless the petitioner can establish that the 

state court's conclusion was “unreasonable,” see 28 U.S.C. § 2254(d).  For the reasons set 
forth above, Liggins's confrontation claim is meritless, and therefore the district court's 
conclusion that Liggins's counsel was not ineffective for failing to raise this claim was 
reasonable.  See Aparicio v. Artuz, 269 F.3d 78, 100 (2d Cir. 2001) ("counsel was not 
ineffective for failing to raise ... meritless argument.").  Liggins's ineffective assistance 
claim accordingly fails. 

                                     16 

     c.  Liggins’s Sentence 
           Finally, Liggins claims that his sentence was excessive given that "the 
crimes occurred during a single occurrence.”  Dkt. 1 at 31-38.  This claim also fails.  The 
Appellate Division rejected this claim on the merits, finding that the sentence imposed 
was not excessive.  Liggins I, 124 N.Y.S.3d at 851.  The Appellate Division's conclusion is 
entitled to "substantial deference,” Fischer, 780 F.3d at 560, and will not be overturned 
unless Liggins can establish that the decision was unreasonable, see 28 U.S.C. § 2254(d). 
Liggins fails to meet this burden. 
           There is "[n]o federal constitutional issue ... presented where . . . the 

sentence is within the range prescribed by state law."  White v. Keane, 969 F.2d 1381, 1383 
(2d Cir. 1992).  Liggins was adjudicated a second child sexual assault felony offender 

pursuant to N.Y.C.P.L. § 440.19.  Accordingly, he faced up to fifteen years in prison for 
each of the second-degree sexual assault counts.  N.Y.P.L. §§ 70.07, 130.45; N.Y.CP.L. 
§ 400.19.  Liggins was sentenced to fifteen years’ imprisonment with twenty-years' post- 
release supervision on each count, to run consecutively to each other but concurrently 
to Liggins's one-year sentences on the sexual abuse convictions.  This was within the 

range prescribed by state law.  Moreover, Liggins had three prior convictions for 
sexually assaulting boys under the age of fifteen.  Accordingly, Liggins's sentence was 

                                     17 

not unreasonable.  Liggins's excessiveness argument therefore fails. + 

                                CONCLUSION 
           Liggins has failed to show a  basis for relief under 28 U.S.C. § 2254. 
Accordingly, his habeas petition is denied.  Additionally, I decline to issue a certificate 
of appealability because Dupree has not made a substantial showing of the denial of a 
constitutional right.  See 28 U.S.C. § 2254. 
           The Clerk of the Court shall enter judgment accordingly and close this 

case.  The Clerk of Court shall also mail copies of this memorandum decision and the 
judgment to Dupree at the address set forth above. 
           SO ORDERED. 
Dated:       New York, New York 
           February 21, 2023                    oD ey 
                                            Pr   {   Fe. ° Ms 
                                 ee TE     ey   Oe 
                                  ~      DENNY CHIN 
                                          United States Circuit Judge 
                                          Sitting By Designation 

4 Liggins argues that his sentence was excessive in part because the prosecutor's remarks during 
trial constituted improper vouching and because the People failed to file a timely Second Child 
Sexual Assault Felony Offender Statement pursuant to N.Y.C.P.L. § 400.19(2).  But Liggins's 
vouching argument is irrelevant to the excessiveness inquiry here, and accordingly, the Court 
declines to address it.  Further, Liggins failed to raise the timeliness of the Second Child Sexual 
Assault Felony Offender Statement on direct appeal, and accordingly, this claim is not ripe for 
habeas review.  See Jackson, 763 F.3d at 115.  In any event, this argument is meritless -- as the 
state court held in denying Liggins's motion to set aside the verdict, Liggins was "given 
effective oral notice before trial" that the People planned to proceed under § 400.19(2), and 
accordingly, the People’s purported failure to timely file the Statement was harmless.  People v. 
Liggins, 12 N.Y.S.3d 533, 540 (Sup. Ct. N.Y. County 2015). 
                                      18