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[[COURTLISTENER_SUBOPINION {"id":"10311240","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
HEMANT MEGNATH,
Petitioner, MEMORANDUM & ORDER
20-CV-1305(EK)
-against-
MARK ROYCE,
Respondent.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Hemant Megnath petitions for a writ of habeas corpus
pursuant to
28 U.S.C. § 2254
. Proceeding pro se, he challenges
his May 2010 New York State convictions for murder, intimidating
a victim, bribing a witness, and coercion. Megnath’s petition
argues that (1) his trial and appellate counsel were
constitutionally ineffective for failing to adequately challenge
the admission of certain DNA evidence; (2) the evidence
supporting his conviction was legally insufficient; (3) the
prosecutor engaged in misconduct at trial; and (4) the trial
court erred in excluding certain alibi evidence.
In September of 2021, I stayed this case to allow
Megnath to exhaust his claim of ineffective assistance of
appellate counsel. Megnath now returns to this court having
completed that process. For the following reasons, Megnath’s
petition is denied in its entirety.
Factual and Procedural History
Megnath is serving a life sentence without the
possibility of parole for the murder of Natasha Ramen, as well
as for intimidating and bribing witnesses and for coercion.
Aff. & Mem. of L. in Opp. Pet. (“Resp’t Aff. & Mem.”) ¶¶ 4, 7–9,
ECF No. 35. The recitation below is derived from testimony at
Megnath’s trial.
A. Ramen’s Murder
On the morning of March 15, 2007, Ramen was attacked
as she left her Queens home. See Dhanrajee Lackraj 548:8–24.1 A
man put his arm around Ramen’s neck. See
id.
The man then
“disappeared.” See
id.
at 553:1–2. Ramen’s landlady, who
witnessed the attack, discovered that Ramen’s “throat was slit.”
See
id.
at 554:3–4. Ramen died from this wound around midnight
that night. See Leonard Ramen 633:8–15 (time of death); Dr.
Michael Greenberg 1112:3–10 (cause of death).
B. The Investigation
The NYPD began investigating Megnath as a suspect on
the day of the murder. See Det. Vincent Santangelo 1036:25–
1037:15, 1039:12–15. Among other discoveries, upon swabbing
Megnath’s car for biological matter, investigators found Ramen’s
DNA inside, on the driver’s side. See Det. John Entenmann
1 Citations to a name indicate testimony given by that witness at trial.
“Tr.” denotes non-testimonial portions of the trial record. The trial
transcript is filed at ECF Nos. 35-1 to 35-11.
803:11–13; Cynthia Restrepo 1202:12–1203:25; Ewelina Bajda
1376:6–1377:25, 1388:8–11. This finding was confirmed through
two analyses: (1) conventional DNA analysis, and (2) “Low Copy
Number,” or “LCN,” DNA analysis. See Cynthia Restrepo 1202:12–
1203:25 (conventional); Ewelina Bajda 1376:6–1377:25, 1388:8–11
(LCN). As the state trial court explained, “LCN DNA analysis
. . . uses a smaller sample of actual DNA evidence” for testing
than conventional - i.e., high copy number - DNA analysis.
People v. Megnath,
898 N.Y.S.2d 408
, 410 (N.Y. Sup. Ct. 2010).
In addition, investigators swabbed under the driver’s
door handle, which appeared bloody, and found blood. See Det.
John Entenmann 808:12–14; Ewelina Bajda 1425:8–18. However,
that sample — the only sample from a source with visible blood —
did not test positive for Ramen’s DNA. See Det. John Entenmann
887:12–16; see also Ewelina Bajda 1374:3–24, 1425:8–18.
The NYPD also searched Megnath’s computer. See Det.
Yolanda Johnson 957:13–960:22. A detective found that it had
been used to search Ramen’s name across several address
databases. See
id.
at 975:8–990:20. When the detective
recreated one of the searches, she found the Queens address
where Ramen was murdered. See
id.
at 990:21–993:14.
Furthermore, the name “Ramen” appeared 2,145 times on the
computer. See
id.
at 1024:3–5.
C. Trial Court Proceedings
1. Frye Hearing
Before his trial, Megnath’s trial counsel, Todd
Greenberg, sought a hearing under Frye v. United States,
293 F.
1013
(D.C. Cir. 1923), to challenge the admissibility of the LCN
DNA analysis of samples from Megnath’s car. Megnath, 898
N.Y.S.2d at 410. Under Frye, “expert testimony based on
scientific principles or procedures is admissible,” but only
after “a principle or procedure has gained general acceptance in
its specified field.” People v. Williams,
147 N.E.3d 1131
, 1139
(N.Y. 2020).2 Frye governs admissibility of DNA and similar
evidence in New York. See Megnath, 898 N.Y.S.2d at 412; accord
Parker v. Mobil Oil Corp.,
857 N.E.2d 1114
, 1120 n.3 (N.Y.
2006).
Megnath’s trial counsel argued that, as compared with
conventional DNA testing, LCN DNA testing has “increased
incidence” of certain “scientific issues or phenomena” that
impair test results. Megnath, 898 N.Y.S.2d at 413–14.
The trial court rejected this argument, ruling that
“the People clearly demonstrated, through sufficient credible
evidence presented at the Frye hearing, that LCN DNA testing as
performed” in this case “is generally accepted as reliable in
2 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
the forensic scientific community and meets the standard as
enunciated in Frye.” Id. at 413. The court credited the
testimony at the hearing of “five reputable forensic scientists”
that the LCN DNA testing performed in Megnath’s case would
“consistently yield reliable results.” Id. at 413–14. The
court then went further, opining that LCN DNA testing is not
even “a novel scientific technique” requiring its own Frye
analysis, but “is basically the same technique” as long-accepted
conventional DNA testing. See id. at 415. Consequently, the
trial court denied Megnath’s motion to exclude LCN DNA test
results under Frye. Id.
2. The State’s Case
The State called twenty-four witnesses at trial. See
Tr. 2498–502, 2505–06. In addition to recounting the
investigatory steps described above, the State presented the
following evidence:
Ramen had instituted a complaint for rape against
Megnath in 2006. See Sara Litman 563:8–565:5, 566:24–567:1.
These charges were pending against Megnath at the time of
Ramen’s death. See id.
In the months prior to Ramen’s murder, Megnath had
repeatedly and unsuccessfully sought to convince Ramen to drop
the rape allegation. See Rabindaurath Ramen 692:2–703:8.
First, Megnath implored Ramen’s father-in-law to intervene. See
id. at 694:13–16. Next, he offered a bribe. See id. at 700:4–
15. Eventually, he threatened to kill Ramen and her family.
See id. at 703:4–8.
A few months after making this threat, Megnath
approached Jarad Lojeck, his friend and colleague. See Jarad
Lojeck 906:22–907:7. Megnath knew that Lojeck was skilled in
martial arts. See id. Megnath asked Lojeck how to procure
“small weapons” like “knives.” See id. 906:22–907:7. Lojeck
advised Megnath that he could obtain knives from “iisports.com.”3
See id. at 907:3–23. When Megnath’s computer was later
searched, the text string “iisports.com” appeared on the
computer. See Det. Yolanda Johnson at 973:11–23.
Ramen’s husband saw Megnath’s car parked about one
house away from Ramen’s Queens home shortly before her death.
See Leonard Ramen 618:3–631:16.4 Megnath lived in Brooklyn, not
Queens, and he worked in Manhattan. See Ghaneshri Megnath
1986:22–1987:5; Jarad Lojeck 902:21–903:11. Moreover,
consistent with the denial of Megnath’s motion to exclude LCN
DNA evidence, the State introduced such evidence connecting
Ramen to Megnath’s car. Ewelina Bajda 1376:6–1377:25, 1388:8–
11. The State argued that Ramen’s DNA was present because of
3 The transcript also spells this as “iisport.com.”
4 See also Ghaneshri Megnath 1987:15–1988:3 (identifying Megnath’s car
as the same one seen near Ramen’s Queens home).
Megnath’s “coming into contact with her bodily fluid” during the
murder and then touching parts of the car. See Tr. 2408:3–8
(State summation).
3. The Defense Case
Megnath called twelve witnesses. See Tr. 2503–505.
Part of the defense case attacked the State’s DNA evidence and
the inferences that could be drawn from that evidence.
Megnath’s neighbor testified to having seen Ramen stepping out
of Megnath’s car and entering Megnath’s apartment in Brooklyn.
See Gabriella Guevera-Trahan 1829:2–1830:14. The defense argued
that Ramen had been in Megnath’s car and left DNA prior to the
day of the murder. See Tr. 2258:3–2259:7 (defense summation).
The defense also called Dr. Bruce Budowle as an expert
in LCN DNA. Tr. 1457:12–17. Dr. Budowle opined that the LCN
DNA test results in Megnath’s case were “not reliable,”
“inconsistent and questionable in a number of places.” Dr.
Bruce Budowle 1459:24–1460:7. The defense argued that the LCN
DNA evidence should receive “very little weight” because of “the
lack of science as per Doctor Budowle.” Tr. 2274:13–19 (defense
summation).
In addition to addressing DNA evidence, the defense
sought to present “a circumstantial alibi” for Megnath. Tr.
1804:9–10. Trial counsel sought to elicit testimony from
Megnath’s neighbor and his sister that, together, would imply
that Megnath had taken his garbage out on the morning of the
murder. See id. at 1803:17–1804:2. Specifically, defense
counsel proffered that Megnath’s sister would testify that
around 8:00 a.m. on the morning of the murder, she saw Megnath’s
car, but no garbage bags, outside Megnath’s home. See id.
1808:2–8. Then Megnath’s neighbor would testify that she saw
garbage bags outside Megnath’s home at 8:30 a.m. See id. at
1802:20–22. Moreover, the neighbor would testify, Megnath “is
the one who takes out the garbage” from his home at “that time
of the year.” Id. at 1803:1–7.
However, the trial court precluded both witnesses from
testifying about the garbage (or lack thereof) in front of
Megnath’s home. See id. 1813:11–13, 1818:19–21, 1952:10–13,
1963:14–1964:1. The court held that the proffered testimony was
evidence not of “alibi” but of Megnath’s “habit of taking the
garbage out.” See id. at 1805:6–10. And the court ruled that
inferring habit from the proffered testimony would be “ripe
speculation.” See id. at 1811:3–9.
4. Conviction and Sentencing
After the close of evidence, the State voluntarily
dismissed charges of witness tampering and criminal possession
of a weapon. See id. at 2173:9–25.5 The jury found Megnath
5 The State also dismissed a third-degree witness intimidation charge,
while proceeding on a first-degree witness intimidation charge. See id.
guilty on the remaining charges: murder, intimidating and
bribing witnesses, and coercion. Tr. 2493:12–21.6 He was
sentenced on May 11, 2010 to (1) life imprisonment without the
possibility of parole for the murder count, (2) a concurrent
sentence of twenty-five years for witness intimidation, and (3)
indeterminate terms of imprisonment of from two and one-third to
seven years for each bribing and coercion count, to be served
consecutively to each other and the murder sentence. See
Sentencing Tr. 27:8–17, ECF No. 35-11.
D. Appeals and Collateral Proceedings
Megnath appealed his conviction to the Appellate
Division, Second Department. See Megnath Br., ECF No. 35-12.
Richard Mischel represented Megnath on direct appeal. Pet. 14,
ECF No. 1. In that appeal, Mischel raised three of the
arguments that Megnath raises here: that (1) the evidence
supporting his conviction was legally insufficient; (2) the
prosecutor engaged in misconduct at trial; and (3) the trial
court erred in excluding evidence that Megnath had taken out his
garbage in Brooklyn on the morning of the murder in Queens. See
Megnath Br. at 39.
In August of 2018, the appellate court affirmed the
trial court’s judgment in its entirety. Decision & Order, ECF
6 The jury convicted on first-degree murder and thus did not reach the
lesser charge of second-degree murder.
No. 35-14. Megnath sought leave to appeal to the New York Court
of Appeals; that court denied leave in December of 2018. Order
Denying Leave, ECF No. 35–17.
As discussed in my prior order staying this case,
following the denial of leave to appeal, Megnath submitted two
petitions for habeas corpus in this court — one through attorney
Mischel, and another pro se. See Mem. & Order 4 n.2. The pro
se petition included all of the claims in Mischel’s petition and
added claims that both Mischel and Megnath’s trial counsel, Todd
Greenberg, had rendered ineffective assistance. See id.; see
also Pet. 11, 14. Specifically, Megnath asserted that trial
counsel had failed to “vigorously attack” the State’s LCN DNA
evidence, and that appellate counsel had failed to challenge the
admission of LCN DNA evidence on appeal. See Pet. 11.
Recognizing that Mischel could not argue his own
ineffectiveness, Megnath elected to proceed pro se and to pursue
both claims of ineffective assistance. See Mem. & Order 4 n.2.
Megnath’s ineffective assistance of counsel claims had
not been exhausted in state court. See id. at 2. As a result,
Megnath’s petition was “mixed” — partially unexhausted. See id.
at 5. For the reasons discussed in my prior order, I stayed
this case under Rhines v. Weber,
544 U.S. 269
(2005) to allow
Megnath to exhaust his claim for ineffective assistance of
appellate counsel. See Mem. & Order 10–11 & n.4. That claim
could still be raised in state court through a writ of error
coram nobis. See
id.
at 5–6, 6 n.3.7
Since that decision, Megnath applied in state court
for such a writ; the Appellate Division, denied Megnath’s
application; and the Court of Appeals denied leave to appeal.
See Decision & Order, ECF No. 35-20; Order Denying Leave, ECF
No. 35-23. I consequently lifted the stay, Order dated July 27,
2023, and held oral argument, at which Megnath argued pro se.
Discussion
As noted, Megnath’s petition argues that (1) his trial
and appellate counsel were constitutionally ineffective for
failing to adequately challenge the admission of LCN DNA
evidence; (2) the evidence supporting his conviction was legally
insufficient; (3) the prosecutor engaged in misconduct at trial;
and (4) the trial court erred in excluding evidence that Megnath
took out his garbage on the morning of the murder. As discussed
further below, none of these claims warrant habeas relief.
7 The stay order determined that the Rhines test for stay and abeyance
was satisfied as to the ineffective assistance of appellate counsel claim and
granted stay and abeyance without considering if it was also satisfied as to
ineffective assistance of trial counsel. See Mem. & Order 11. However, as
further discussed below, the order observed that Megnath’s “ineffective
assistance of trial counsel claim” was on its face “substantially weaker”
than his claim of ineffective assistance of appellate counsel.
Id.
at 10
n.4. Megnath had not “allege[d] with specificity what other course trial
counsel should have attempted, or what he did that he should not have.”
Id.
A. Ineffective Assistance of Counsel
1. Trial Counsel
Megnath’s petition remains mixed: he has not exhausted
his claim that his trial counsel was ineffective. New York
procedure allows Megnath to pursue a motion to vacate the
judgment premised on ineffective assistance of trial counsel
“[a]t any time after the entry of a judgment.”
N.Y. C.P.L.
§ 440.10
(1) and (2)(c). Megnath conceded during oral argument
that he did not exhaust this claim.8
While federal courts are barred from “granting relief
to an applicant who has not exhausted the remedies available in
the courts of the State,” they are welcome to “deny the
petition, regardless of whether the applicant exhausted his
state court remedies.” Abuzaid v. Mattox,
726 F.3d 311, 321
(2d
Cir. 2013) (citing
28 U.S.C. §2254
(b)). As this order grants
Megnath no relief, Megnath’s ineffective assistance of trial
counsel claim “may be denied on the merits.” See id.9
8 I do not understand Megnath to be seeking another stay and abeyance to
exhaust this claim. Nor would any be forthcoming. My order staying this
case stated that Megnath “must initiate any state court action to exhaust his
claims within sixty days of the date of this Order,” i.e. by November 29,
2021. Mem. & Order 12 (emphasis added). By its terms, that deadline applied
to any unexhausted claims, not just the ineffective assistance of appellate
counsel claim that motivated the stay.
9 Because Megnath’s exhausted claims are meritless, I need not “allow
[Megnath] to delete the unexhausted claims,” as “dismissal of the entire
petition” would not “unreasonably impair [his] right to federal relief.”
Rhines,
544 U.S. at 278
; see also Brewer v. Eckert, No. 19-CV-6486,
2020 WL
10061923
, at *6 (W.D.N.Y. Sept. 10, 2020) (“The Court need not attempt to
To prevail on an ineffective assistance of trial
counsel claim, Megnath must “establish both his trial counsel’s
deficient performance and the defendant’s resulting prejudice.”
Farhane v. United States,
77 F.4th 123, 126
(2d Cir. 2023)
(citing Strickland v. Washington,
466 U.S. 668, 687
(1984)).
The prejudice prong requires Megnath to demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Williams v. Taylor,
529 U.S. 362, 391
(2000). “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.”
Id.
The order staying this case observed that Megnath’s
“claim that trial counsel was ineffective is substantially
weaker, on first glance, than his claim of ineffective appellate
assistance.” Mem. & Order 10 n.4. The premise of Megnath’s
claim is that “trial counsel failed to ‘vigorously attack’ the
LCN DNA evidence.”
Id.
(quoting Pet. 11). Yet trial counsel
“did seek, and litigate” a Frye hearing to challenge that
evidence’s admissibility. Mem. & Order 10 n.4. And Megnath
“does not allege with specificity what other course trial
counsel should have attempted, or what he did that he should not
have.” Mem. & Order 10 n.4. At bottom, Megnath appears to
divine whether Petitioner wishes to delete his unexhausted claim
because . . . the Petition must be denied.”).
contend that his trial counsel was ineffective because he did
not prevail in the Frye hearing.
Megnath’s ineffective assistance of trial counsel
claim is meritless under Strickland. Even assuming that trial
counsel’s attack on the LCN evidence was insufficiently
“vigorous,” Megnath cannot show to a reasonable probability that
a more forceful attack on the LCN evidence would have altered
the outcome here.
First, his attorney sought to exclude the LCN DNA
evidence. While he did not prevail, “that is no evidence that
[the] losing lawyer was ineffective.” Franza v. Stinson,
58 F.
Supp. 2d 124, 135
(S.D.N.Y. 1999). Indeed, after the trial
court’s ruling admitting LCN DNA evidence, “approximately ten
decisions of various [New York] trial courts” found the decision
in Megnath’s case persuasive and likewise admitted LCN DNA
evidence. See People v. Williams,
147 N.E.3d 1131
, 1140 (N.Y.
2020) (“Underlying” those ten decisions “was the ruling in
Megnath . . . .”).
A decade after Megnath’s Frye hearing, in Williams,
the New York Court of Appeals held that admitting LCN DNA
evidence without a Frye hearing was an abuse of discretion. See
id.
In doing so, the court criticized the Frye analysis in
Megnath’s case. See
id.
Yet, even with the benefit of the
Williams decision, a New York trial court has since held a Frye
hearing and admitted LCN DNA evidence. People v. Burrus,
200
N.Y.S.3d 655
, 722 (N.Y. Sup. Ct. 2023). There is simply no
indication that the LCN DNA evidence was admitted in Megnath’s
case because of ineffective trial counsel.
Furthermore, counsel’s attack on the LCN DNA evidence
did not stop after the Frye hearing. Rather, he called an
expert to opine that the LCN DNA test results in Megnath’s case
were “not reliable,” “inconsistent and questionable in a number
of places.” See Dr. Bruce Budowle 1459:24–1460:7. And, in his
summation, he urged the jury to discredit the LCN DNA evidence
based on this expert testimony. See Tr. 2274:13–19.
Moreover, the LCN evidence was just one of two sets of
analyses of DNA showing the presence of Ramen’s DNA in Megnath’s
car. As discussed, the State also introduced conventional -
high copy number - DNA evidence. See, e.g., Cynthia Restrepo
1197:25–1199:4 (“This is the table I created reflecting the
results of the DNA testing . . . for the samples that went
through the high copy number testing.”). Thus, eliminating the
LCN evidence would merely have reduced the volume of admissible
DNA evidence. The Second Circuit has held that where, as here,
evidence of a fact was ”overwhelming,” counsel’s failure to
maximally contest that fact “would not have affected the outcome
of the trial.” United States v. Gabayzadeh,
428 F. App’x 43, 48
(2d Cir. 2011) (applying Strickland,
466 U.S. at 694
).
In addition, the defense theory at trial was that
Megnath and Ramen had a social relationship and that Ramen had
herself been in Megnath’s car. See Tr. 2258:3–2259:7 (defense
summation). Indeed, the defense elicited testimony from a
disinterested eyewitness who saw Ramen leave Megnath’s car. See
Gabriella Guevera-Trahan 1829:2–1830:14. That defense theory
accepted that Ramen’s DNA was in Megnath’s car and provided a
non-culpable explanation — which may well have made sense, given
that the State’s only test of a visibly bloody source did not
match Ramen’s DNA. See Det. John Entenmann 887:12–16; see also
Ewelina Bajda 1374:3–24, 1425:8–18.
The ineffective assistance of trial counsel claim is
denied.
2. Appellate Counsel
Megnath also claims that his appellate counsel was
ineffective because he did not challenge the admission of LCN
DNA evidence on appeal. See Pet. 11. Unlike Megnath’s
ineffective assistance of trial counsel claim, this
ineffectiveness claim has now been presented to New York’s
courts, which rejected it on the merits. See Decision & Order,
ECF No. 35-20. The Appellate Division denied Megnath’s writ of
error coram nobis because he “failed to establish that he was
denied the effective assistance of appellate counsel.”
Id.
Where a state court has rejected an ineffective
assistance claim on the merits, a habeas petitioner can prevail
on that claim only if “the state court either identified the
federal standard for ineffective assistance but applied that
standard in an objectively unreasonably way,” or “the state
applied a rule that contradicts the federal standard.” Rosario
v. Ercole,
601 F.3d 118, 122
(2d Cir. 2010); see
28 U.S.C.
§ 2254
(d). “[W]hen evaluating Strickland claims governed by
§ 2254(d),” federal courts owe “double deference.” Waiters v.
Lee,
857 F.3d 466
, 477 n.20 (2d Cir. 2017). That is, they owe
deference both to counsel’s “strategic decisions under
Strickland itself” and to “the state court’s application of
Strickland.” Dorcinvil v. Kopp, No. 20-CV-600,
2024 WL 69093
,
at *11 (E.D.N.Y. Jan. 5, 2024).
Megnath cannot satisfy this standard. The state court
relied on Jones v. Barnes,
463 U.S. 745
(1983), and People v.
Stultz,
810 N.E.2d 883
(N.Y. 2004). Both of these cases stand
for the proposition that appellate counsel is not ineffective
for selecting among possible arguments on appeal rather than
raising every colorable issue.
That rule of law is not at odds with Supreme Court
precedent. Jones remains good law. See Weingarten v. United
States,
865 F.3d 48
, 53 & n.4 (2d Cir. 2017). As the Second
Circuit put it just a few years ago, Jones “long ago made clear
that the Sixth Amendment does not require counsel to raise every
non-frivolous argument a client requests.”
Id. at 53
.
The New York courts’ application of the Jones rule
here was not “objectively unreasonable.” The Jones court
expressly recognized that “page limits on briefs” require
appellate lawyers to raise fewer than all colorable arguments.
See
463 U.S. at 753
. Here, Megnath’s appellate counsel was
limited to filing a brief of no more than 17,500 words, despite
his having requested an expansion. See Decl. of Richard E.
Mischel dated March 2, 2021 (“Mischel Decl.”) ¶ 7, ECF No. 35-
19. He used nearly every word he was granted to make three
legal points other than a challenge to the LCN DNA evidence.
Id. ¶ 10.
Moreover, counsel’s decision not to raise the LCN DNA
issue was justified. As already noted, at the time of the
appeal in this case, many New York courts had admitted LCN DNA
evidence. The Court of Appeals’ decision in Williams was years
away, and “an attorney is not required to forecast changes or
advances in the law in order to provide effective assistance.”
McCoy v. United States,
707 F.3d 184, 188
(2d Cir. 2013).
Furthermore, eliminating the evidence in this case would not
have been reasonably likely to result in Megnath’s acquittal
given the presence of conventional DNA evidence establishing the
same facts. Indeed, when the Megnath family sought a second
opinion from another lawyer before Megnath’s counsel filed his
appellate brief, the second opinion was that raising the LCN DNA
issue would be “virtually certain not to result in relief.”
Mischel Decl. ¶ 16 (quoting an email from Jonathan Edelstein,
Esq.).
For these reasons, it was not “objectively
unreasonable” for the state court to hold that Megnath’s
appellate counsel properly elected not to raise the
admissibility of LCN DNA evidence on appeal. Megnath’s
ineffective assistance of appellate counsel claim is thus
denied.
B. Sufficiency of the Evidence
“[T]he Due Process Clause of the Fourteenth Amendment
protects a defendant in a criminal case against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”
Jackson v. Virginia,
443 U.S. 307, 315
(1979). Megnath’s
petition argues that the evidence at trial was insufficient to
convict him. See Pet. 6.
However, the state court rejected this argument based
on, among other reasons, an independent and adequate state
ground: Megnath’s failure to preserve it at trial. See Decision
& Order 1, ECF No. 35-14; see also Downs v. Lape,
657 F.3d 97,
104
(2d Cir. 2011). To preserve a legal issue for appellate
review in New York, a party must register a “protest” of the
trial court’s resolution of the issue “at the time of such
ruling or instruction or at any subsequent time when the court
had an opportunity of effectively changing the same.”
N.Y.
C.P.L. § 470.05
(2). “[T]he contemporaneous objection rule is a
firmly established and regularly followed New York procedural
rule” that is “independent” of the merits of Megnath’s claims.
Downs,
657 F.3d at 104
.
That “independent and adequate” state ground of
decision controls. See
id.
“[F]ederal habeas review is
precluded as long as the state court explicitly invokes a state
procedural bar rule as a separate basis for decision.”
Velasquez v. Leonardo,
898 F.2d 7, 9
(2d Cir. 1990).
While it is possible to avoid a state procedural bar
with a showing of “cause and prejudice,” Edwards v. Carpenter,
529 U.S. 446, 451
(2000), Megnath’s only suggestion of “cause”
is the ineffective assistance of trial counsel claim rejected
above.
Procedural defaults may also be excused to avoid a
“miscarriage of justice” where the petitioner presents a
“credible and compelling claim of actual innocence.” Rivas v.
Fischer,
687 F.3d 514
, 540–41 (2d Cir. 2012). But this avenue
is available only upon “new reliable evidence . . . not
presented at trial.”
Id.
at 541 (quoting Schlup v. Delo,
513
U.S. 298, 324
(1995)). There is no such new evidence here.
The sufficiency of the evidence claim is denied.
C. Prosecutorial Misconduct
Megnath also asserts that prosecutorial misconduct
during trial deprived him of “due process and a fair trial.”
Pet. 8. Megnath contends that the prosecutor made improper
statements during summation and asked improper questions during
cross-examination.
Comments of prosecutors during trial “warrant habeas
relief only if they so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Jackson
v. Conway,
763 F.3d 115, 146
(2d Cir. 2014) (citing Darden v.
Wainwright,
477 U.S. 168, 180
(1986)). A habeas court “must
consider the record as a whole when making this determination,
because even a prosecutor’s inappropriate or erroneous comments
or conduct may not be sufficient to undermine the fairness of
the proceedings when viewed in context.”
Id.
However, the
habeas court should not consider procedurally defaulted issues —
including other instances of prosecutorial misconduct — when
considering the merits of a prosecutorial misconduct claim. See
id.
at 143–44.
Megnath’s claim of misconduct during summation was
rejected by the Second Department for — among other reasons —
failure to preserve the issue at trial. See Decision & Order 2,
ECF No. 35-14. It is therefore, like his sufficiency of the
evidence claim, procedurally defaulted. See Velasquez,
898 F.2d
at 9
.
In contrast, the Second Department rejected Megnath’s
claim of improper cross-examination solely on its merits. See
id.
The improper cross-examination claim is therefore
considered here on its merits, but without considering any
purportedly improper summation. See Jackson, 763 F.3d at 143–
44.
Megnath argues that several questions asked during the
cross-examinations of two defense witnesses deprived him of a
fair trial.10
Megnath first challenges the prosecutor’s questioning
of his uncle, Bashist Sharma, a Texas lawyer who assisted
Megnath in defending against Ramen’s rape allegation. Sharma
testified on redirect that plea bargaining is “like buying a new
car.” Bashist Sharma 1763:19–20. On recross, the prosecutor
asked if Sharma was “comparing plea bargaining, where your
nephew is indicted for a violent rape” to “negotiating for the
buying and selling of a used car.”
Id.
at 1765:25–1766:3.
10 These contentions are drawn from Megnath’s counseled brief on appeal.
Megnath Br. 58–66, ECF No. 35-12. Megnath’s pro se petition states that the
prosecutorial misconduct argument for which he seeks habeas review is the
same one his counsel raised on appeal. See Pet. 8.
Megnath also challenges several questions asked of
Fred Assenza, Megnath’s lawyer in his rape case. Assenza
testified that he “had to coax the Judge into giving” him a long
adjournment of trial. Fred Assenza 1922:17–18. The prosecutor
then asked whether Assenza was “telling this jury and this
Court” that he was “willing to mislead the Judge” in Megnath’s
rape case “in order to get the trial date” the defense
preferred.
Id.
at 1923:17–19.
Another part of the cross-examination of Assenza
focused on Assenza’s instruction to Megnath to leave his
workplace during the murder investigation and not to return
home. See
id.
at 1900:21–23, 1903:11–12. During this segment,
the prosecutor asked Assenza if he knew about the prohibition on
“hindering prosecution,” and then asked Assenza if he would like
to assert his right to counsel. See
id.
at 1899:9–1900:17.
The Second Department, in affirming the trial court’s
judgment, held that the prosecutor’s cross-examination “was
properly limited to the witnesses’ testimony on direct
examination.” Decision & Order 2, ECF No. 35-14. Moreover, it
was “relevant to the witnesses’ credibility, veracity, and
honesty.”
Id.
That holding was not contrary to, or an unreasonable
application of, clearly established federal law. See Rosario,
601 F.3d at 122
;
28 U.S.C. § 2254
(d)(1). The relevant question
is whether this cross-examination “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” Jackson,
763 F.3d at 146
(citing Darden,
477 U.S. at
180
). “When reviewing prosecutorial misconduct claims under the
“unreasonable application prong” of Section 2254(d)(1), “the
habeas court must keep in mind that this standard is a very
general one that affords courts leeway in reaching outcomes in
case-by-case determinations.”
Id.
Even where a prosecutor’s
behavior was “inappropriate, unethical, or even erroneous,” a
state court determination that the trial was fair may not be
unreasonable. Id. at 148.
Here, it was not unreasonable for the Second
Department to conclude that the cross-examinations of Sharma and
Assenza did not unduly infect Megnath’s trial with unfairness.
Even assuming the prosecutor’s questions were objectionable,
they were “largely innocuous when considered in the context of
the substantial scientific evidence against” Megnath. Poirier
v. Graham, No. 17–CV–1457,
2018 WL 5314745
, at *11 (S.D.N.Y.
Apr. 24, 2018), report and recommendation adopted,
2018 WL
5312902
(S.D.N.Y. Oct. 25, 2018) (denying prosecutorial
misconduct habeas claim under Jackson).
Megnath’s prosecutorial misconduct claims are denied.
D. Exclusion of Alibi Evidence
“The right to call witnesses in order to present a
meaningful defense at a criminal trial is a fundamental
constitutional right secured by both the Compulsory Process
Clause of the Sixth Amendment and the Due Process Clause of the
Fourteenth Amendment.” Wade v. Mantello,
333 F.3d 51, 57
(2d
Cir. 2003). Megnath asserts that he was denied this right
because the trial court excluded testimony supporting his
“circumstantial alibi case,” Tr. 1804:9–10 — that the jury could
infer that he was at home taking out his garbage on the morning
of Ramen’s murder. See Pet. 9. The trial court excluded
testimony from his neighbor and his sister that together would
have demonstrated that (1) the garbage was taken out of
Megnath’s home sometime around 8:00 a.m., and (2) Megnath
probably would have taken out that garbage because he usually
did. See Tr. 1803:1–7 and 17–22. The trial court deemed
Megnath to be proffering “habit” evidence that failed the test
of admissibility for such evidence, as the proffered pattern of
taking out the home’s garbage in the morning was not
sufficiently habitual. See
id.
at 1805:6–10, 1811:3–9.
The Second Department rejected Megnath’s argument on
this point on the merits, holding that the trial court properly
excluded the evidence for failure to meet the requirements of
habit evidence. See Decision & Order 2, ECF No. 35-14. In
support, the Second Department cited People v. Simmons,
39
A.D.3d 235, 236
(N.Y. App. Div. 1st Dep’t 2007). In Simmons,
the First Department held that the trial court “properly
precluded [a witness] from testifying that, in the month
preceding the robbery, defendant generally came directly home
every evening after work and remained there.”
Id.
That
testimony was “not admissible as habit evidence, because there
was no showing of such a repetitive pattern as to be predictive
of defendant’s conduct,” and it “had no probative value with
regard to whether he may have behaved differently on a
particular night.”
Id.
The state court’s rejection of Megnath’s argument,
relying on Simmons, was not contrary to, or an unreasonable
application of, clearly established federal law. See Rosario,
601 F.3d at 122
;
28 U.S.C. § 2254
(d)(1). The Supreme Court
gives states considerable latitude to exclude evidence from
criminal trials under rules of evidence. See Nevada v. Jackson,
569 U.S. 505, 509
(2013). Rules that are not “arbitrary or
disproportionate to the purposes they are designed to serve” are
unobjectionable. Rock v. Arkansas,
483 U.S. 44, 56
(1987).
Here, the trial court applied a New York limit on the
admissibility of evidence that was neither arbitrary nor
disproportionate. That limit, as interpreted in Simmons,
precludes as “not probative” evidence of repeated behavior that
does not rise to the level of a habit.
39 A.D.3d at 236
. The
Supreme Court has expressly confirmed that rules of evidence
that “exclude evidence if its probative value is outweighed” are
constitutional. See Holmes v. South Carolina,
547 U.S. 319, 326
(2006).
The claim based on the exclusion of alibi evidence is
denied.
Conclusion
Megnath’s petition for a writ of habeas corpus is
denied. Because Megnath has not made a “substantial showing of
the denial of a constitutional right,” a certificate of
appealability will not issue.
28 U.S.C. § 2253
. I certify
pursuant to
28 U.S.C. § 1915
(a)(3) that any appeal would not be
taken in good faith and in forma pauperis status is therefore
denied for purposes of an appeal. Coppedge v. United States,
369 U.S. 438, 444-45
(1962). Megnath, however, has a right to
seek a certificate of appealability from the Court of Appeals
for the Second Circuit. See
28 U.S.C. § 2253
(c)(1).
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United State s District Judge
D ated: February 23, 2024
Brooklyn, New Yor kCase Information
- Court
- E.D.N.Y
- Decision Date
- February 23, 2024
- Status
- Precedential