Carrino v. Eckert

Background

Justin Carrino filed a petition under 28 U.S.C. § 2254 asking the federal court to overturn his New York convictions. After a non-jury trial in Dutchess County Court, he was convicted of predatory sexual assault, aggravated sexual abuse in the first degree, rape in the first degree, and related lesser charges. He received an aggregate sentence of 22 1/3 years to life imprisonment. New York appellate courts affirmed the convictions or denied leave to appeal, and the state court also denied Carrino’s later applications challenging the judgment.

Magistrate Judge Paul E. Davison recommended that the petition be denied in its entirety. Carrino, who represented himself, filed timely objections. The district court reviewed specific objections from the report and recommendation independently and reviewed the remaining portions for clear error.

Claims and Analysis

Sufficiency of the evidence. Carrino argued that the trial evidence was insufficient to support his convictions and that the victim’s testimony was not credible. The court held that the evidence allowed a rational factfinder to find the required elements of the charged crimes beyond a reasonable doubt. It declined to reconsider the trial judge’s credibility determination and stated that text messages not admitted at trial could not be considered in reviewing the trial record. The court also agreed that Carrino’s challenge to the evidence supporting his criminal-contempt conviction was procedurally barred because he had not overcome the applicable procedural default.

Right to be present. Carrino argued that he was denied the right to be present during material parts of the trial because the trial court did not advise him of that right during the bench trial and he might have missed sidebar conversations. The court found that the record did not show any sidebar conversations from which he was absent and that he had not shown his presence would have had a meaningful relationship to his ability to defend himself.

Evidentiary ruling. Carrino challenged the admission of a photograph showing photographs on a refrigerator and related testimony. The court concluded that the evidence was not important enough to provide the basis for the conviction or remove a reasonable doubt, particularly in light of the other testimony and medical evidence.

Ineffective assistance of appellate counsel. Carrino argued that his appellate lawyer should have challenged his sentence as punishment for going to trial and should have raised claims concerning the prosecutor’s closing argument and trial counsel’s performance. Applying the constitutional standard for ineffective assistance of counsel, the court found no reasonable probability that those arguments would have succeeded. The difference between a plea offer and the sentence after trial, by itself, did not show that Carrino was punished for exercising his trial right. The court also found that the challenged prosecutorial statements either were permissible comments on the evidence, had been stricken and ordered disregarded, or would not likely have deprived him of a fair trial in a trial decided by a judge.

Actual innocence. The court explained that actual innocence is generally a way to overcome a procedural bar, not an independent constitutional claim. Carrino relied partly on text messages that he said he received from the victim. The court agreed that he had not shown the messages were authentic or that they were sufficiently credible and compelling to make it more likely than not that no reasonable juror would have convicted him. Evidence presented at trial did not qualify as new evidence for this purpose.

Prosecutorial misconduct and ineffective assistance of trial counsel. The court found no clear error in the magistrate judge’s rejection of Carrino’s claims that the prosecutor failed to correct allegedly false testimony or present certain text messages to the grand jury. It likewise found no clear error in rejecting Carrino’s claim that trial counsel was ineffective for failing to investigate or use the text messages and a police report to challenge the victim’s credibility.

Disposition

The court adopted Magistrate Judge Davison’s report and recommendation as the opinion of the court and denied Carrino’s petition. It directed the clerk to enter judgment and close the case. The court also determined that Carrino had not made the required substantial showing of a constitutional violation, so it did not issue a certificate of appealability. It certified that an appeal would not be taken in good faith and denied permission to proceed without paying filing fees for purposes of an appeal.