Jackson v. McCarthy

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DARYL JACKSON,
Petitioner, 	REPORT AND
RECOMMENDATION
-against-
No. 21-CV-5150-DG-JRC
TIMOTHY McCARTHY, Superintendent,
Respondent.
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JAMES R. CHO, United States Magistrate Judge:
On September 14, 2021, pro se petitioner Daryl Jackson (“Jackson” or “petitioner”) filed
the pending petition for a writ of habeas corpus (the “Petition”), pursuant to 28 U.S.C. § 2254.
See Pet. for Habeas Corpus (“Petition”), Dkt. 1. On January 28, 2022, after obtaining leave from
the Court, Jackson filed an Amended Petition. See Am. Pet., Dkt. 17. Jackson challenges his
December 1, 2016 conviction for burglary in the second degree. Jackson contends that: (1)
testimony at his trial regarding DNA testing violated his rights under the Confrontation Clause;
(2) the prosecution introduced improper DNA testimony at the grand jury stage; and (3) forensic
biology files admitted at trial were improperly redacted. For the reasons that follow, this Court
recommends denying Jackson’s petition in its entirety.
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Factual and Procedural Background1
I. 	Trial2
Petitioner’s conviction arises out of a burglary on August 2, 2014. The trial was held
before Justice James P. Sullivan and a jury, from November 23 to December 1, 2016, in Kings
County Supreme Court.
On August 2, 2014, Ervin Geiger (“Geiger”) and Patricia Gabriel3 (“Gabriel”) were
working as concierges at an apartment building located at 50 North 5th Street in Williamsburg,
Brooklyn. Trial Transcript (“Tr.”), Dkt. 29, at 27-29, 35 (ECF pages 412-14, 420). The
apartment building consisted of seven stories, divided into an east wing and a west wing, and
included approximately 220 units. Id. at 30-31, 51, 54-55, 132 (ECF pages 415-16, 436, 439-40,
517). There are surveillance cameras in the lobby, in each of the elevators, and outside the
building, which are recording in real time. Id. at 32-33 (ECF pages 417-18).
Between 9:30 p.m. and 10:00 p.m., Geiger was seated at the concierge desk in the lobby,
while Gabriel was patrolling the building. Id. at 35-37, 114 (ECF pages 420-22, 499). Petitioner
entered the building through the front door, wearing a black pinstriped suit, a white shirt, and a
black “fisherman’s hat” or “bucket hat,” and carrying a black satchel and white shopping bag.
Id. at 37-39 (ECF pages 422-24). Petitioner attempted to walk past Geiger, and Geiger called
him back and asked where he was going. Id. at 37-40, 76-77, 86-87, 91-92 (ECF pages 422-25,
1 References to the page numbers generated by the Court’s electronic case filing system appear
as “ECF page.”
2 On September 26, 2016, the trial court held a Dunaway/Huntley/Wade hearing. On October 25,
2016, the court denied petitioner’s motion to suppress his statement and the lineup identification.
See District Attorney’s Respondent’s Brief on direct appeal (“DA’s brief”), Dkt. 29-2 at 3 n.1
(ECF page 10 n.1).
3 Gabriel’s name is misspelled in parts of the trial transcript. DA’s brief, Dkt. 29-2 at 4 n.3 (ECF
page 11 n.3).
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461-62, 471-72, 476-77). Petitioner stopped and mumbled something that sounded like “4E,”
but said that he could not remember the name of the person he was visiting. Id. at 40, 76-77, 92
(ECF pages 425, 461-62, 477). Geiger told petitioner that if he did not know the name of the
person he was visiting, he could not go upstairs. Id. at 41, 77 (ECF pages 426, 462). Geiger told
petitioner to leave and to sign in at the visitor’s log at the front desk. Id. at 41-42, 92 (ECF pages
426-27, 477).
Petitioner stood at the desk and scribbled something in the visitor logbook, underneath
the brightest light fixture in the lobby, and was slightly more than an arm’s length away from
Geiger. Id. at 36, 42-43, 74, 77-79, 91-92 (ECF pages 421, 427-28, 459, 462-64, 476-77).
Geiger described petitioner as a light-skinned Hispanic male, with “a mustache and shadow,”
approximately five feet, eight inches to five feet, nine inches tall and weighing 180 to 190
pounds. Id. at 43 (ECF page 428). At trial, Geiger identified petitioner as the individual who
entered the building. Id. at 44 (ECF page 429). After writing something in the logbook,
petitioner tried to enter deeper into the building. Id. Geiger told petitioner to leave, which he
did. Id. at 44, 78-79, 92 (ECF pages 429, 463-64, 477). Geiger then called Gabriel and warned
her that petitioner had tried to go to Apartment 4E and to “beware of him.” Id. at 44-45, 79, 93,
114-15, 118-19, 124 (ECF pages 429-30, 464, 478, 499-500, 503-04, 509).
Approximately twelve minutes later, Geiger took a break, leaving Gabriel at the desk. Id.
at 46, 79, 115, 119-20 (ECF pages 431, 464, 500, 504-05). A light skinned black or Hispanic
male, wearing a black suit and a hat, then entered the building and walked past Gabriel. Id. at
116 (ECF page 501). She did not stop him because she “assumed that he lived in the building”
based on his “conservative attire.” Id. at 116-17, 120, 125-26 (ECF pages 501-02, 505, 510-11).
Based on the direction he was walking, she believed that he was headed to the east wing. Id. at
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121, 126-27 (ECF pages 506, 511-12). At trial, Gabriel was unable to identify petitioner. Id. at
120-21 (ECF pages 505-06).
Aradom Hailemelkot (“Hailemelkot”) lived with his fiancé, Melissa Grubb (“Grubb”),
and their dog, at 50 North 5th Street in Apartment 4E, on the fourth floor of the building’s east
wing. Id. at 33-34, 130-32, 205, 224 (ECF pages 418-19, 515-17, 590, 609). At approximately
9:45 p.m., Hailemelekot and Grubb left their apartment to buy groceries at a nearby store,
leaving their dog, Lola, inside the apartment. Id. at 134-35, 210-11 (ECF pages 519-20, 595-96).
Hailemelekot left the apartment door closed, but unlocked. Id. at 154 (ECF page 539). As they
left the elevator on the ground floor, petitioner entered the elevator. Id. at 136, 171-74, 187
(ECF pages 521, 556-59, 572). Petitioner took the elevator to the seventh floor. Id. at 172-73
(ECF pages 557-58).
Hailemelekot and Grubb left the building and walked to the store located less than five
minutes away. Id. at 134-36, 177, 181, 188-89, 210-11, 225-26 (ECF pages 519-21, 562, 566,
573-74, 595-96). They spent approximately ten minutes in the store and then returned home at
approximately 10:00 p.m. Id. at 136-37, 177-78, 211-12, 225-26 (ECF pages 521-22, 562-63,
596-97, 610-11). Upon entering the apartment, Hailemelekot noticed that Lola was acting
strangely, looking toward the master bedroom “with her ears pointed up.” Id. at 137-38 (ECF
pages 522-23). Hailemelekot then heard a noise in the bedroom and saw petitioner. Id. at 138
(ECF page 523). He did not know petitioner and had not given petitioner permission to enter his
apartment. Id. at 156 (ECF page 541).
Hailemelekot shouted, “Who the f*** is in my house?” Id. at 138, 140 (ECF pages 523,
525). Petitioner ran out of the bedroom towards Hailemelekot. Id. at 138, 140, 204, 213-14
(ECF pages 523, 525, 589, 598-99). Petitioner was wearing a black suit, white shirt, and black
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fisherman’s hat, and was carrying a black satchel and white plastic bag. Id. at 140, 142, 227
(ECF pages 525, 527, 612). All of the lights in the apartment were turned on, and the apartment
was “very well-lit.” Id. at 139 (ECF page 524). Hailemelekot described petitioner as
approximately five feet, seven inches tall, weighing 180 to 185 pounds, and appearing “light-
skinned Latin or black.” Id. at 141-42, 217-18 (ECF pages 526-27, 602-03). Hailemelekot
identified petitioner in court. Id. at 142 (ECF page 527).
Hailemelekot grabbed petitioner and punched him four or five times, until petitioner
pushed him up against the wall and out of the way. Id. at 141, 214-15 (ECF pages 526, 599-
600). Petitioner tried to leave the apartment and tried to grab Grubb’s purse as she stood by the
door screaming. Id. at 140-41, 215 (ECF pages 525-26, 600). In response, Hailemelekot hit
petitioner several more times. Id. at 141, 214 (ECF pages 526, 599). Petitioner “dropped
everything so he could free himself” from Hailemelekot, opened the apartment door, and ran out.
Id. at 141-42, 214-16 (ECF pages 526-27, 599-601). Petitioner’s hat fell off in the apartment
during the altercation. Id. at 142 (ECF page 527).
Hailemelekot chased petitioner out of the apartment and down the stairs. Id. at 142-43,
179 (ECF pages 527-28, 564). Geiger, who was back at the front desk, heard people yelling
“thief” and “robber” from the east wing, and saw petitioner running from the east wing and out
the front door. Id. at 46-47, 83-84, 93 (ECF pages 431-32, 468-69, 478). Hailemelekot exited
through the side exit and saw petitioner come “bursting out of the main doorway,” nearby. Id. at
143, 179-80 (ECF page 528, 564-65). Hailemelekot tried to stop petitioner, and chased him for
about three blocks before giving up the pursuit. Id. at 143, 145-46, 178-82, 187-89 (ECF pages
528, 530-31, 563-67, 572-74). Hailemelekot was able to see petitioner’s face because of the
streetlights and building lights. Id. at 143, 180-81 (ECF pages 528, 565-66).
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Hailemelekot called the police and returned to the building. Id. at 146 (ECF page 531).
In the apartment, petitioner’s hat, a black bag and a white plastic bag were scattered on the floor,
around the area where Hailemelekot fought petitioner. Id. at 147-49, 152, 161-64, 183-86, 221-
22, 226-27 (ECF pages 532-34, 537, 546-49, 568-71, 606-07, 611-12). Several pieces of
Grubb’s costume jewelry and her video camera were also scattered on the floor. Id. at 149-50,
222-23, 230, 333-34, 357 (ECF pages 534-35, 607-08, 615, 719-20, 743). Among the items in
petitioner’s bag was a tool that resembled a screwdriver with a curved, forked end. Id. at 150,
333-34 (ECF pages 535, 719-20). In the master bedroom, clothing was “all over the floor” and
all the doors were open as if someone had rummaged through them. Id. at 151, 222, 335, 357
(ECF pages 536, 607, 721, 743).
The prosecution entered into evidence surveillance video footage from three locations:
the lobby, an elevator and the exterior of the side exit. See id. at 75, 113-14, 119 (ECF pages
460, 498-99, 504).
At approximately 11:00 p.m., police officer Irene Gonzalez and her partner, Officer
Michael Vera, arrived. See id. at 117-18, 127, 149, 152-54, 327-35, 337-38 (ECF pages 502-03,
512, 534, 537-39, 713-21, 723-24). At approximately 11:15 p.m., Detectives Anthony Gonzalez
(“Det. Gonzalez”) and Richard Carney (“Det. Carney”) also arrived. Id. at 157, 336, 351-53,
457-58 (ECF pages 542, 722, 737-39, 843-44). Det. Gonzalez spoke to Hailememlokot, Geiger,
and obtained and viewed video footage from the building’s surveillance cameras. Id. at 157,
336, 353-56, 358-61, 403-04, 407-09, 419, 458 (ECF pages 542, 722, 739-42, 744-47, 789-90,
793-95, 805, 844). Det. Gonzalez created a “wanted” flyer using a still image of the suspect
from the surveillance video. Id. at 419-20, 422-23 (ECF pages 805-06, 808-09).
The following day, at approximately 4:25 p.m., police officer Matthew Vondiezelski
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(“Ofc. Vondiezelski”) of the Evidence Collection Team photographed the items that had
remained on the floor. Id. at 166-67, 252-54, 270-71, 275-77, 339-40 (ECF pages 551-52, 638-
40, 656-57, 661-63, 725-26). Ofc. Vondiezelski recovered and vouchered the hat, black satchel,
white plastic bag and screwdriver-like tool. Id. at 253-59, 268-71, 275-77 (ECF pages 639-45,
654-57, 661-63). Ofc. Vondiezelski forwarded those items to the Office of the Chief Medical
Examiner (“OCME”) for DNA analysis. Id. at 271-72 (ECF pages 657-58). Ofc. Vondiezelski
also took DNA samples of Hailemelekot and Grubb. Id. at 272 (ECF page 658).
On August 6, 2014, an investigator with the OCME received the black bag and hat
recovered from the apartment, as well as elimination samples that Ofc. Vondiezelski had
collected from Hailemelekot and Grubb. Id. at 271-72, 301-04, 314 (ECF pages 657-58, 687-90,
700). Tiffany Vasquez (“Vasquez”), a Criminalist Level IV, expert in forensic DNA analysis,
and a supervisor in the OCME’s Forensic Biology Department who had been assigned to this
case, testified at trial. Id. at 287-90, 302 (ECF pages 673-76, 688).
Ashley Warren, a member of Vasquez’s team, swabbed the hat and the black bag and
extracted DNA from the swabbed samples. Id. at 304-05, 315 (ECF pages 690-91, 701).
Vazquez independently analyzed the data from the samples. Id. at 302, 305-06 (ECF pages 688,
691-92). Vasquez “interpreted the results [of the hat sample] as a mixture of DNA” from at least
two donors. Id. at 305-07, 317-18 (ECF pages 691-93, 703-04). She was able to determine a
DNA profile from “the person who had contributed much more DNA,” whom she labeled “Male
Donor A.” Id. at 305 (ECF page 691). She determined that the sample taken from the bag was
suitable for comparison and “appeared similar to the results from the hat.” Id. at 306 (ECF page
692). On March 6, 2015, Vasquez prepared a DNA profile that was submitted to the Combined
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DNA Indexing System, a database of DNA profiles. Id. at 318-19 (ECF pages 704-05).4
On May 7, 2015, Det. Gonzalez arrested petitioner, transported him to the 94th Precinct
Detective Squad and interviewed him. Id. at 362-63, 414-16 (ECF pages 748-49, 800-02). That
same day, at the 94th Precinct, Hailemelekot identified petitioner in the number four position of
a lineup, as “the man who came bursting out of [his] bedroom door when [he] came home that
night.” Id. at 156-61, 219-20, 363-69, 417, 459-60 (ECF pages 541-46, 604-05, 749-55, 803,
845-46).
On May 25, 2015, petitioner made a telephone call from Rikers Island that was recorded.
Id. at 447-48, 461-63 (ECF pages 833-34, 847-49). The transcript of the call was not provided to
this Court, but a recording was played for the jury. Id. at 462-63 (ECF pages 848-49).
According to respondent, the following was recorded:
Other Party: Nothing was taken and nobody got hurt, right?
Petitioner: Naw, they caught the s***, you heard?
Other Party: What?
Petitioner: They caught the bag I had, I had a bag, and I ran out [of] the place,
and the dude pulled it off me, you heard, and my hat fell in the process.
Other Party: Aw man, and then, your fingerprints is on the bag and stuff?
Petitioner: They, they f***ed it up, you know, they didn’t know, they took all,
they f***ed the fingerprints up and all that. But I’m saying the hat, you know,
that’s what, that’s what put me there, you know?
Other Party: Right.
Petitioner: And they identified me in a lineup, so, I mean, there’s, there’s just no
4 Petitioner’s DNA came back as a match in the Combined DNA Indexing System, which led to
his arrest on May 7, 2015. Tr. at 432-33 (ECF pages 818-19). That fact, however, was not in
evidence. Id. at 430-36 (ECF pages 816-22).
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way around . . . .
District Attorney’s Respondent’s Brief on direct appeal (“DA’s brief”), Dkt. 29-2, at 15-16 (ECF
pages 22-23).
On August 20, 2015, petitioner made another recorded call to the same number. Tr. at
447, 463 (Dkt. 29 at ECF pages 833, 849). According to respondent, the following was
recorded:
Other Party: Did you get caught with any evidence?
Petitioner: Nah, no evidence, they saying the jewelry was in the bag? That’s
what, that’s what I’m concerned about, you hear me, ‘cause it’s a bag and a
screwdriver, I had a bag and a screwdriver. So they saying that bag and the
screwdriver which I left at the scene.
DA’s brief, Dkt. 29-2, at 16 (ECF page 23).
On May 24, 2016, OCME received a known DNA exemplar from petitioner, which Det.
Carney had taken with a cheek swab. See id. at 307-09, 321, 453-56 (ECF pages 693-95, 707,
839-42). Vasquez compared the DNA profile obtained from the known sample from petitioner
with the DNA profile that she had obtained from Male Donor A on the hat and concluded that
the two profiles matched. Id. at 309-10 (ECF page 695-96). The probability of someone having
that profile is one in greater than 6.8 trillion. Id. at 310-11 (ECF page 696-97). Vasquez
confirmed that the DNA profiles of Hailemelekot and Grubb did not match that of Male Donor
A. Id. at 318 (ECF page 704).
Similarly, Vazquez determined that the sample taken from the bag also contained a
mixture of DNA, with the major contributor matching Male Donor A. Id. at 305-06, 310-11,
318, 320-21 (ECF pages 691-92, 696-97, 704, 706-07). She further compared the profile from
the bag sample to petitioner’s profile and determined that they matched. Id. at 310-11 (ECF
pages 696-97). The probability of someone having that profile is one in greater than 6.8 trillion.
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Id. at 311 (ECF page 697).
Petitioner did not put on a case at trial. Tr. at 464, 466 (Dkt. 29 at ECF pages 850, 852).
On December 1, 2016, the court submitted to the jury one count of burglary in the second
degree and the alternative lesser included offense of criminal trespass in the second degree.5 Id.
at 556-60 (ECF pages 943-47). That same day, the jury returned a verdict convicting petitioner
of second-degree burglary. Id. at 566 (ECF page 953). The court sentenced petitioner to
nineteen years to life imprisonment, as a persistent violent felony offender. Transcript of
Sentencing held on January 9, 2017 (“Sentencing Tr.”), Dkt. 29, at 6, 15 (ECF pages 962, 971).
II. 	Direct Appeal
On appeal to the Appellate Division, Second Department, petitioner (who was
represented by new counsel) submitted an appellate brief asserting three claims:
(1) testimony regarding the DNA analysis violated defendant’s right to confront the
witnesses against him;
(2) the prosecution improperly delayed disclosure of defendant’s recorded jail telephone
calls; and
(3) petitioner’s sentence was excessive.
Br. for Defendant-Appellant on direct appeal, Dkt. 29-1.
On February 13, 2020, the Second Department modified defendant’s judgment of
conviction by reducing his prison sentence to an indeterminate term of sixteen years to life and,
otherwise affirmed petitioner’s conviction. See People v. Jackson, 180 A.D.3d 805 (2d Dep’t
2020). The Appellate Division held that petitioner’s constitutional right to confrontation “was
not violated by the testimony of” OCME criminalist Tiffany Vazquez. Rather, Vazquez’s
5 The Court declined to submit to the jury the other counts of the indictment. Tr. at 498 (Dkt. 29
at ECF page 885).
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testimony “established that she used her own independent analysis on the raw data, and did not
merely function as ‘a conduit for the conclusions of others.’” Id. at 805 (quoting People v. John,
27 N.Y.3d 294, 315 (N.Y. 2016)). The appellate court also rejected petitioner’s argument that
the prosecution untimely disclosed the recorded jail cell telephone call. Id. at 805-06. However,
the Second Department held that defendant’s sentence of an indeterminate prison term of
nineteen years was excessive. Id. at 806.
On May 7, 2020, petitioner’s application for leave to appeal to the New York Court of
Appeals was denied. See People v. Jackson, 35 N.Y.3d 993 (2020). Petitioner also filed a pro se
application for reconsideration, which was also denied. See People v. Jackson, 35 N.Y.3d 1067
(2020).
III. 	Federal Habeas Petition
On September 14, 2021, petitioner filed the instant Petition. See Dkt. 1. In his initial
Petition, Jackson contends that the DNA testimony adduced at trial violated his Confrontation
Clause rights.6 Dkt. 1 at ECF page 5. On December 14, 2021, Judge Gujarati granted
petitioner’s motion to amend his Petition. See Order dated Dec. 14, 2021. On January 28, 2022,
petitioner filed an Amended Petition. Dkt. 17. In his Amended Petition, in addition to the claim
raised in his initial Petition, petitioner also asserts that the prosecution introduced improper
evidence in the grand jury and that the forensic DNA files introduced at trial were improperly
redacted. See Dkt. 17.
6 On September 23, 2021, petitioner filed a letter with attachments in support of the Petition.
Plaintiff’s letter appeared to raise an additional ground for purported habeas relief – “Second
Ground of a Recorded Phone Call From Rikers Island.” See Dkt. 4 at ECF page 11. However,
petitioner did not request that his habeas petition be amended to include a claim regarding the
recording of his phone calls at Rikers Island. Nor did his Amended Petition include such a
claim. Dkt. 17.
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On or about February 19, 2022, petitioner field a motion to vacate the judgment of
conviction pursuant to N.Y. Crim. Proc. Law § 440.10, in Kings County Supreme Court. See
Dkt. 25 at ECF page 1. On February 24, 2022, petitioner filed a motion to stay this action to
allow him an opportunity to exhaust additional issues in state court in a section 440 motion. See
Dkt. 18. On August 30, 2022, Judge Gujarati denied the motion for a stay, finding that petitioner
failed to demonstrate good cause for his failure to exhaust. See Order dated Aug. 30, 2022.
Meanwhile, on August 16, 2022, petitioner filed a motion to further amend his petition.
See Dkt. 23. On January 31, 2023, Judge Gujarati, denied the motion to amend as futile,
observing that “several of the claims set forth in Petitioner’s proposed second Amended Petition
have not been exhausted and remain pending in state court.” Order dated Jan. 31, 2023.
Discussion
I. 	General Legal Principles
A. 	AEDPA Standard
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996), which provides in pertinent part:
[A] district court shall entertain an application for a writ of habeas corpus [on]
behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254(a). AEDPA establishes a deferential standard of review for habeas petitions
filed by state prisoners. A district court may grant a writ of habeas corpus only where a state
court’s adjudication of a petitioner’s claims on the merits (1) “‘was contrary to, or involved an
unreasonable application of,’ Supreme Court precedent that was ‘clearly established’ at the time
of the adjudication” or (2) was “based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” Shoop v. Hill, 586 U.S. 45, 48 (2019)
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(internal citations omitted); Williams v. Taylor, 529 U.S. 362, 376 (2000); 28 U.S.C.
§ 2254(d)(1) & (2). Errors of state law are not, however, subject to habeas review in federal
court. See Estelle v. McGuire, 502 U.S. 62, 67-68, 71-72 (1991). In other words, claims
concerning violations of rights that arise under state criminal or procedural law are not
cognizable, unless those violations also violate the United States Constitution. See, e.g.,
Swarthout v. Cooke, 562 U.S. 216, 221-22 (2011); Wilson v. Corcoran, 562 U.S. 1, 5 (2010).
The two clauses of subsection (1) have “independent meaning.” Williams, 529 U.S. at
405. A state court’s decision is “contrary to” clearly established Supreme Court precedent “if the
state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or
if the state court decides a case differently than [the] Court has on a set of materially
indistinguishable facts.” Id. at 412-13. Under the second clause, a decision involves an
“unreasonable application of” Supreme Court 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,” or if it “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., 529 U.S. at 407. Notably, “a
federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Gilchrist v.
O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411); see Harrington v.
Richter, 562 U.S. 86, 102 (2011). “[A] state court’s ruling must be ‘so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fair minded disagreement.’” Shoop, 586 U.S. at 48 (quoting Harrington, 562 U.S. at 103).
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In reviewing findings of fact under AEDPA, federal courts must assess whether the state
court’s determination 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). Under this standard,
a state court’s factual determinations are presumed to be correct. See 28 U.S.C. § 2254(e)(1).
Such determinations are unreasonable only where the petitioner rebuts the presumption of
correctness by “clear and convincing evidence.” Id.; see Fernandez v. Capra, 916 F.3d 215, 221
n.1 (2d Cir. 2019).
A pro se petitioner’s submissions are “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and
internal quotation marks omitted). “It is well established that the submissions of a pro se litigant
must be construed liberally and interpreted to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks,
emphasis, and citation omitted). Despite the deference afforded to pro se litigants, “even a
litigant representing himself is obliged to set out identifiable arguments in his principal brief.”
Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632-33 (2d Cir. 2016).
Before a federal habeas court may grant a petitioner’s claim on the merits, the petitioner
must overcome “three hurdles: (1) the exhaustion of state court remedies; (2) the absence of a
procedural bar; and (3) the satisfaction of AEDPA’s deferential review of a state court decision.”
Madison v. Colvin, No. 17-CV-7250, 2019 WL 3321748, at *4 (E.D.N.Y. July 24, 2019).
B. 	Exhaustion of State Remedies
A district court is not permitted to grant habeas relief unless the petitioner has exhausted
all remedies available in state court. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ
of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall
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not be granted unless it appears that . . . the applicant has exhausted the remedies available in the
courts of the State[.]”); see Davila v. Davis, 582 U.S. 521, 527 (2017). A habeas petitioner has
exhausted his or her remedies in state court only after “fairly present[ing] federal claims to the
state courts in order to give the state the opportunity to pass upon and correct alleged violations
of [ ] federal rights.” Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (citation omitted);
see Baldwin v. Reese, 541 U.S. 27, 29 (2004). Although “fair presentment” does not require
“citing chapter and verse of the Constitution” in proceedings before the state courts, Daye v.
Att’y Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc), the determination of
whether claims have been exhausted requires consideration of “the degree of similarity between
the claims that a petitioner presented to the state and federal courts[,]” Smith v. Duncan, 411 F.3d
340, 349 (2d Cir. 2005) (citation omitted). Petitioner fairly presents a claim only if he “has
informed the state court of both the factual and the legal premises of the claim he asserts in
federal court,” such that the state courts were “fairly alerted” to the claim’s federal nature.
Bierenbaum v. Graham, 607 F.3d 36, 47, 49 (2d Cir. 2010) (citation omitted); see also Baldwin,
541 U.S. at 32 (“A litigant . . . can easily indicate the federal law basis for his claim in a state-
court petition or brief, for example, by citing in conjunction with the claim the federal source of
law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling
the claim ‘federal.’”).
Nevertheless, where an individual petitioning for federal habeas review has failed to
exhaust the remedies available in state court, an application for a writ of habeas may nonetheless
be denied on the merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002). This
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is particularly appropriate where the claim is “plainly meritless” or “patently frivolous.”
Madison, 2019 WL 3321748, at *5 (citation omitted); see also Williams v. Keyser, No. 21-CV-
5151, 2025 WL 2773162, at *15 (E.D.N.Y. Sept. 29, 2025) (finding that when a district court is
presented with an unexhausted claim, it may (1) stay the petition so the petitioner may present
the claim in state court or (2) take jurisdiction over the claim for the sole purpose of dismissing
it). Thus, because petitioner’s amended claims have not been exhausted in state court, this Court
recommends that the District Court, in its discretion, assess those claims on the merits, and, as
discussed below, find that they lack merit.7
C. 	Procedural Default
Where a petitioner has procedurally defaulted by failing to raise an “on the record” claim
on direct review, or where other adequate and independent state grounds provide the basis for the
state court decision, the claims are deemed exhausted but procedurally defaulted for the purpose
of federal habeas review because state court review is no longer available. See Jackson v.
Conway, 763 F.3d 115, 143-44 (2d Cir. 2014); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir.
1994). A federal habeas petitioner may obtain a review of the merits of a procedurally defaulted
claim only upon a showing of “either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually
innocent.’” Danielson v. Lee, 715 F. App’x. 45, 47 (2d Cir. 2017); Bossett, 41 F.3d at 829. In
order to demonstrate “cause,” the petitioner must “show that some objective factor external to
7 Petitioner presents a “mixed petition” (i.e., a petition with at least one exhausted claim and at
least one unexhausted claim). Courts confronted with a mixed petition may choose one of four
paths forward: “(1) dismiss the petition in its entirety without prejudice; (2) deny the entire
petition on the merits; (3) allow the petitioner to delete the unexhausted claims and proceed with
his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner to
exhaust his unexhausted claims.” Wesley-Rosa v. Kaplan, 274 F. Supp. 3d 126, 128 (E.D.N.Y.
2017). Because Judge Gujarati denied petitioner’s application for a stay and to hold his petition
in abeyance, the Court recommends the second option. See Moncayo v. Superintendent Green
Haven Corr. Facility, 797 F. Supp. 3d 175, 194-95 (E.D.N.Y. 2025).
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the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). Counsel’s failure to recognize the factual or legal basis for a
claim, or failure to raise a claim, does not in itself constitute “cause” for a procedural default. Id.
at 486-87.
“Prejudice,” meanwhile, exists where there is a reasonable probability that the result of
the proceeding would have been different absent the alleged constitutional violation. See
Strickler v. Greene, 527 U.S. 263, 289 (1999). In establishing prejudice, the petitioner must
demonstrate “pervasive actual prejudice”; that is, it is not sufficient to establish trial errors
creating a “possibility of prejudice, but [rather, the petitioner must show] that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Murray, 477 U.S. at 494 (emphasis in original) (quoting United States v. Frady,
456 U.S. 152, 170 (1982)).
If a litigant cannot establish cause and prejudice, he may nonetheless bring the claim if he
can demonstrate a “fundamental miscarriage of justice,” see Washington v. James, 996 F.2d
1442, 1447 (2d Cir. 1993), which generally may be shown only by proving that he is “actually
innocent.” Murray, 477 U.S. at 496; see Spence v. Superintendent, Great Meadow Corr.
Facility, 219 F.3d 162, 170 (2d Cir. 2000). A petitioner bears a heavy burden to show actual
innocence, that is, factual innocence, not mere legal insufficiency. See Hyman v. Brown, 927
F.3d 639, 656 (2d Cir. 2019) (noting that a “petitioner’s burden in making a gateway showing of
actual innocence is deliberately ‘demanding’”) (internal quotation marks and citation omitted).
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II. 	Confrontation Clause Claim Regarding Trial Testimony (Dkts. 1, 17)8
Petitioner asserts that the testimony of Tiffany Vasquez regarding DNA test results
violated the Confrontation Clause of the U.S. Constitution because Vasquez did not personally
perform the DNA testing. See Pet. at ECF page 5; Letter with Supporting Documents, Dkt. 4 at
ECF pages 2-10; see also Am. Pet., Dkt. 17 at ECF pages 18-26. Vazquez testified that the DNA
profile taken from the hat and bag recovered from the crime scene matched the DNA profile
developed from petitioner’s exemplar. See Tr. at 309-11 (Dkt. 29 at ECF pages 695-97). On
direct appeal, the Second Department held that Vasquez’s “testimony established that she used
her own independent analysis on the raw data . . . .” Jackson, 180 A.D.3d at 805. This Court
concludes that the Appellate Division rejected this claim on the merits, and did not unreasonably
apply clearly established Supreme Court precedent.
The Sixth Amendment to the U.S. Constitution provides: “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” U.S.
Const. amend VI. Generally, the Confrontation Clause prohibits the use of testimonial
statements against a criminal defendant unless that defendant has an opportunity to cross-
examine the maker of the statement. See Crawford v. Washington, 541 U.S. 36, 68-69 (2004).
Statements are “testimonial” when their primary purpose is to “create[e] an out-of-court
substitute for trial testimony.” Ohio v. Clark, 576 U.S. 237, 245 (2015) (quoting Michigan v.
8 On November 29, 2021, petitioner filed a motion for leave to file an Amended Petition. Dkt.
12. In the motion, petitioner stated, “I am not bringing nothing new [I] will only expand on the
[DNA] ISSUE.” Dkt. 12. In response to the Court’s December 14, 2021 Order granting
petitioner leave to file an Amended Petition, petitioner filed his Amended Petition on January 28,
2022. Dkt. 17. In addition to new claims, the Amended Petition (Dkt. 17 at ECF pages 18-26),
also re-alleged violations of the confrontation clause in connection with Tiffany Vasquez’s
testimony as set forth in the initial Petition (Dkt. 1 at ECF page 5). See Affirmation in Opp’n to
Am. Pet. ¶ 8, Dkt. 19. This Court reviews both the claims raised in the initial Petition and the
Amended Petition.
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Bryant, 562 U.S. 344, 358 (2011)). “[W]hen a court must determine whether the Confrontation
Clause bars the admission of a statement at trial, it should determine the ‘primary purpose of the
[statement]’ by objectively evaluating the statements and actions of the parties to the encounter,
in light of the circumstances in which the [statement] occurs.” Bryant, 562 U.S. at 370.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court found that
the affidavits of a state laboratory analyst regarding narcotics testing were “testimonial” and
could not be admitted into evidence at trial absent an opportunity for the defendant to cross-
examine the analyst. See id. at 311. These affidavits constitute testimonial statements because
they are “functionally identical to live, in-court testimony” and because “the affidavits [were]
‘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 310-11 (quoting Crawford, 541 U.S.
at 52). On the other hand, the Court noted that the Confrontation Clause does not require that
everyone “whose testimony may be relevant in establishing the chain of custody, authenticity of
the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s
case.” Id. at 311 n.1.
In Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Supreme Court found that a
signed statement attesting to an analysis of the blood-alcohol content of a defendant’s blood
sample qualifies as a testimonial statement to which the Confrontation Clause applies. See id. at
663-65. Importantly, the statement is “‘formalized’ in a signed document,” which was “created
solely” for an evidentiary purpose in a criminal proceeding. Id. at 664-65. The testimony of a
different analyst, who was familiar with the laboratory’s procedure used to test the blood, but did
not observe the test or have an “independent opinion” concerning the blood-alcohol content of
the sample, was insufficient to satisfy the Confrontation Clause. Id. at 662-63. In other words,
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“surrogate testimony” of an analyst who is familiar with laboratory procedures, but did not
participate or observe the actual blood testing at issue, violates the Confrontation Clause. Id. at
652, 657, 661-62.
In Williams v. Illinois, 567 U.S. 50 (2012), a state DNA expert testified at a rape trial that
the DNA profile produced by an outside laboratory with evidence taken from the victim’s body
matched the defendant’s DNA profile developed at the state police laboratory where the expert
worked. A plurality of the Court held that the Confrontation Clause was not violated even
though an analyst from the outside laboratory did not testify at trial. Id. at 57. The plurality
found that an analysts’ notes and written materials concerning their preliminary role in the DNA
analysis did not constitute “testimonial” statements. The plurality reasoned that “when the work
of a lab is divided up” such that “numerous technicians work on each DNA profile,” it is likely
that the sole purpose of each analyst is “simply to perform his or her task in accordance with
accepted procedures.” Id. at 85. However, “[t]he Court came to no clear consensus as to what
constituted a testimonial statement in this context.”9 United States v. James, 712 F.3d 79, 91 (2d
Cir. 2013). In fact, the Second Circuit has several times observed that “Williams does not . . .
yield a single, useful holding relevant to the case before us.” Garlick v. Lee, 1 F.4th 122, 133
(2d Cir. 2021) (quoting James, 712 F.3d at 95). As a result, the Second Circuit “rel[ies] on
Supreme Court precedent predating Williams.” Id.
In Washington v. Griffin, 876 F.3d 395 (2d Cir. 2017), the Second Circuit found that a
petitioner’s Confrontation Clause rights were not violated by the testimony of an expert
9 Justice Kagan pointed out that none of the plurality’s rationales for finding that defendant’s
rights had not been violated under the Confrontation Clause garnered a majority. Williams, 567
U.S. at 120 (dissenting). Justice Breyer recognized that none of the Court’s opinions “fully deals
with the underlying question as to how, after Crawford, Confrontation Clause testimonial
statement requirements apply to crime laboratory reports.” Id. at 92 (concurring).
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laboratory analyst who did not personally prepare all of the DNA samples for testing, but was
familiar with the DNA report and the analysis contained therein. See id. at 407. Importantly, the
analyst further testified that she personally reviewed the raw data resulting from the DNA
sampling to come to an independent conclusion that the DNA profiles matched that of petitioner.
Id. at 400-01 (“Yanoff indicated that she personally reviewed the raw data resulting from all the
DNA sampling, reaching her own conclusions based on the data and comparing the DNA profile
developed from each of the crime scenes and from the swab.”). In the Second Circuit’s view of
the Supreme Court cases described above: “[T]he Supreme Court has never held that the
Confrontation Clause requires an opportunity to cross examine each lab analyst involved in the
process of generating a DNA profile and comparing it with another, nor has it held that
uncertified, unsworn notations of the sort at issue here are testimonial.” Id. at 407.
Following the Second Circuit’s decision in Washington, courts in this District have
uniformly held that clearly established Supreme Court precedent entitles a criminal defendant to
cross-examine only a DNA analyst who forms an independent expert opinion concerning the
DNA testing. See Totesau v. Lee, No. 19-CV-6992, 2022 WL 1666895, at *34-36 (E.D.N.Y.
May 25, 2022), aff’d, 2023 WL 8253683 (2d Cir. Nov. 29, 2023); Sanders v. Fischer, No. 16-
CV-4832, 2021 WL 3373127, at *8 (E.D.N.Y. Aug. 3, 2021); Aponte v. La Manna, No. 19-CV-
596, 2020 WL 4571820, at *6-7 (E.D.N.Y. Aug. 6, 2020); Beckham v. Miller, 366 F. Supp. 3d
379, 385 (E.D.N.Y. 2019). As Chief Judge Brodie explained in Sanders v. Fischer, the testifying
analyst who performed the “final-level DNA analysis, reviewed the results of OCME’s
preliminary evidence processing, produced the relevant DNA profiles, and testified to his expert
opinion that petitioner’s DNA matched the DNA recovered from the crime scene” is the person
who “perform[ed] [the] DNA test.” 2021 WL 3373127, at *8. And, “no clearly established
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Supreme Court precedent holds that the Confrontation Clause entitles a criminal defendant to
cross-examine each analyst involved in preliminary stages of forensic evidence processing.” Id.
Here, Vasquez testified that she compared the DNA profiles developed from crime scene
samples taken from the hat and bag to those developed from the samples taken from petitioner,
and she determined that the profiles matched. Tr. at 310-11, 319-21 (Dkt. 29 at ECF pages 696-
97, 705-07). Vazquez wrote the reports in the OCME files. Id. at 302-03, 308, 318-19 (Dkt. 29
at ECF pages 688-89, 694, 704-05); see Dkt. 29-6 at ECF pages 23, 27, 61-70, 73-78. Vasquez
also testified that she personally came “to [her] own independent interpretation of the data.” Tr.
at 302, 305-06, 310-11, 317-19 (ECF pages 688, 691-92, 696-97, 703-05) (“I interpreted the
results as a mixture of DNA”; “I was able to determine a DNA profile for what we call the major
contributor”; “I compared the DNA profile obtained from the known sample from Daryl Jackson
to the DNA profile I obtained from Male Donor A on the hat”; “I determined that the DNA
profile of Male Donor A that was on the hat we would expect to see once in greater than 6.8
trillion people”; “I did do an additional determination for the Male Donor A on the bag and so
that’s when I made the additional comparison to the suspect sample.”). Since Vasquez testified
that she reached her own independent conclusion based on her personal review of the raw data,
petitioner’s Confrontation Clause rights were satisfied. As the Second Circuit held in
Washington, no clearly established Supreme Court precedent holds that “the Confrontation
Clause requires an opportunity to cross-examine each lab analyst involved in the process of
generating a DNA profile and comparing it with another.” Washington, 876 F.3d at 407.
The Appellate Division held that petitioner’s right to confrontation was not violated by
Vazquez’s testimony, which “established that she used her own independent analysis on the raw
data, and did not merely function as ‘a conduit for the conclusions of others.’” Jackson, 180
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A.D.3d at 805 (citations omitted). For the reasons discussed above, the Appellate Division’s
decision was not contrary to, nor did it unreasonably apply, clearly established Supreme Court
precedent.
Regardless, any Confrontation Clause error would have been harmless here. A state
court’s error will be considered “harmless unless it had substantial and injurious effect or
influence in determining the jury’s verdict.” Alvarez v. Ercole, 763 F.3d 223, 233 (2d Cir. 2014)
(internal quotation marks and citation omitted); see Brecht v. Abrahamson, 507 U.S. 619, 623
(1993). In the context of a Confrontation Clause challenge, harmlessness depends on “the
importance of the witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the testimony of
the witness on material points, the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986); see Diaz v. Miller, No. 22-1835, 2023 WL 4363245, at *2 (2d Cir. July 6, 2023).
Here, substantial corroborating evidence connected petitioner to the burglary of the
Hailemelekot and Grubb apartment. First, petitioner was identified in court by Hailemelekot
(and in a line-up) and Geiger, each of whom saw petitioner at close range, under good lighting
conditions. Surveillance video corroborated their testimony. The videos purportedly showed
petitioner in the lobby with Geiger, and the elevator video showed petitioner getting into the
elevator at the lobby. The prosecution also introduced into evidence recorded phone calls,
during which petitioner seemingly admitted that he struggled with Hailemelekot, and left his bag
and hat at the scene of the crime. Given the other evidence supporting the jury’s verdict, any
error concerning petitioner’s right to cross-examination regarding the DNA evidence was
harmless. See Diaz, 2023 WL 4363245, at *3; Koiki v. New York, No. 18-CV-6216, 2023 WL
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4490284, at *8 (E.D.N.Y. July 12, 2023).
III. 	Confrontation Clause Claims Regarding Grand Jury and Redacted Files (Dkt. 17)
In petitioner’s Amended Petition, petitioner raises new claims, in addition to the claim in
the initial Petition relating to Vasquez. He asserts that in violation of the Confrontation Clause,
the grand jury was misled by the testimony of a DNA analyst, who did not handle, witness,
observe or supervise the DNA testing.10 See Am. Pet., Dkt. 17 at ECF pages 3-13 (Ground I).11
Petitioner further claims that his Confrontation Clause rights were violated by the admission of a
redacted version of the OCME DNA report at trial. Id. at ECF pages 16-17 (Ground III –
“Redacted Evidence Confrontation Clause”).
However, petitioner failed to exhaust his state remedies for the new claims raised in his
Amended Petition. First, petitioner failed to raise on direct appeal the claims regarding the DNA
analyst’s testimony before the grand jury and the redacted DNA report. Petitioner raised these
claims for the first time in his pro se motion for reconsideration of the New York Court of
Appeals’ denial of his request for leave to appeal. See Mot. for Recons., Dkt. 29-7 at ECF pages
30-33 (redaction issue), 40 (DNA analyst). However, a habeas petitioner cannot exhaust a claim
by raising it for the first time in an application for discretionary review to a state’s highest court.
See St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) (petition for leave to appeal to the
New York Court of Appeals is “insufficient for exhaustion purposes”); Lurie v. Wittner, 228
10 Petitioner further contends that “the entire DNA file was allowed in the Grand Jury level in
order to obtain an indictment with an analyst in violation of” his Confrontation Clause rights.
See Am. Pet., Dkt. 17 at ECF page 17. As discussed below, “claims challenging grand jury
proceedings are not cognizable in a habeas corpus proceeding in federal court.” Smith v. Boyd,
No. 24-CV-5111, 2025 WL 2880048, at *3 n.9 (E.D.N.Y. Oct. 9, 2025).
11 Petitioner styles “Ground II” as “The Trial Prosecutor Courtney Hogg Involvement with the
Grand Jury.” However, he explains that “Ground II” is not a stand-alone issue, but further
argument in support of the grand jury Confrontation Clause claim. Am. Pet. at ECF page 14 .
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F.3d 113, 124 (2d Cir. 2000). Further, a petitioner cannot exhaust a claim by raising the issue for
the first time on a motion for reconsideration. See Dean v. Smith, 753 F.2d 239, 241 (2d Cir.
1985).
Where the trial record provides a sufficient basis for presenting a claim, New York law
bars a collateral attack where the accused unjustifiably failed to raise the claim on direct appeal.
See Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003); Reyes v. Keane, 118 F.3d 136, 139 (2d
Cir. 1997) (section 440 motion must be denied “where the defendant unjustifiably failed to argue
[the] constitutional violation on direct appeal despite a sufficient record”). Since the claims
contained in petitioner’s Amended Petition are discernible from the record, they are now
procedurally barred. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001); Galdamez v. Keane,
394 F.3d 68, 74 (2d Cir. 2005); N.Y. C.P.L.R. § 440.10(2)(c). Petitioner has already had the one
direct appeal to which he is entitled. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).
Indeed, any attempt at this time by petitioner to bring a section 440 motion regarding these on-
the-record claims would fail.12 See Aparicio, 269 F.3d at 90; Bossett, 41 F.3d at 829.
Notwithstanding this Court’s conclusion that petitioner failed to exhaust his state court
remedies and that further review of his new claims is procedurally barred, the Court briefly
12 Petitioner also waived his claim regarding redactions to the DNA files by failing to object to
the redactions at trial. See N.Y. Crim. Proc. Law § 470.05(2). Defense counsel expressly stated
that “my only concern is that if the People put on the record subject to redaction, it’s going to
leave some kind of impression on the jury. I understand that portions will be redacted.” Tr. at
296 (Dkt. 29 at ECF page 682). Thus, petitioner’s counsel did not object that the records were
admitted with redactions, only that the jury not be told that the records were redacted.
Accordingly, petitioner could not have raised this claim on direct appeal since it was
unpreserved. See People v. Hardy, 4 N.Y.3d 192, 197 n.3 (2005). For this additional reason,
this claim could not be raised in state court and would be deemed procedurally defaulted. See
Nieves v. Artuz, No. 97-CV-7792, 1999 WL 1489145, at *6 (S.D.N.Y. Oct. 22, 1999) (“It is
undisputed that no objection was made to the prosecutor’s summation at trial. Therefore, the
claim can no longer be raised in state court, so it is exhausted for habeas corpus purposes.”).
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reviews the merits of each of his new claims and recommends denial of the remaining claims
contained in the Amended Petition on the merits. See 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”).
First, there is no federal constitutional right to a grand jury in state criminal prosecutions.
See Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990); see also LanFranco v. Murray, 313
F.3d 112, 118 (2d Cir. 2002). As a result, “[c]laims of deficiencies in state grand jury
proceedings are not cognizable in a habeas corpus proceeding in federal court.” Davis v.
Mantello, 42 F. App’x 488, 490-91 (2d Cir. 2002); see Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.
1989).
Second, any alleged error at the grand jury stage is rendered harmless by a conviction of
a defendant at his or her criminal trial. See Lopez, 865 F.2d at 32 (relying on United States v.
Mechanik, 475 U.S. 66, 70 (1986)). The “subsequent guilty verdict means not only that there
was probable cause to believe that the defendant[ ] [was] guilty as charged, but also that [he is]
in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then,
any error in the grand jury proceeding connected with the charging decision was harmless
beyond a reasonable doubt.” Lopez, 865 F.2d at 32 (quoting Mechanik, 475 U.S. at 70); see
Montalvo v. Annetts, No. 02-CV-1056, 2003 WL 22962504, at *17 (S.D.N.Y. Dec. 17, 2003).
Petitioner’s challenge to the DNA evidence submitted to the grand jury is not cognizable on
habeas review.
Finally, as to petitioner’s claim that portions of the DNA files were improperly redacted,
petitioner fails to explain what was redacted from the files in violation of his constitutional
rights. In fact, any error was harmless since there is no indication in the record that those files
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were published to the jury and the jury did not request to see the files during deliberations. See
Tr. at 296-323, 563-65 (Dkt. 29 at ECF pages 682-709, 950-52).
Thus, this Court respectfully recommends denying the unexhausted claims raised in
petitioner’s Amended Petition on the merits.
Conclusion
For the foregoing reasons, this Court respectfully recommends denying Daryl Jackson’s
habeas petition (initial and Amended Petition). A copy of this Report and Recommendation is
being electronically served on counsel. Further, the Court directs respondent’s counsel to serve a
copy of this Report and Recommendation by overnight mail and first-class mail on petitioner and
to file proof of service on ECF by January 23, 2026. Any objections to the recommendations
made in this Report must be filed with the Honorable Diane Gujarati within 14 days after the
filing of this Report and Recommendation and, in any event, on or before February 3, 2026. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive the
right to appeal the District Court’s order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72; Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)
(discussing waiver under the former ten-day limit).
SO ORDERED
Dated: Brooklyn, New York
January 20, 2026
s/ James R. Cho
James R. Cho
United States Magistrate Judge
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