Crampton v. Lilley

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ADAM C. CRAMPTON,
Petitioner,
9:23-CV-0226
v. 	(AJB/ML)
SUPERINTENDENT LILLEY,
Respondent.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
ADAM C. CRAMPTON
Pro se Petitioner
Mid-State Correctional Facility
Post Office Box 2500
Marcy, New York 13403
LETITIA A. JAMES 	JALINA J. HUDSON, ESQ.
New York State Attorney General 	Assistant Attorney General
Counsel for Respondent
28 Liberty Street
New York, New York 10005
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
I. 	INTRODUCTION
Currently before the Court in this habeas corpus proceeding filed by the petitioner, Adam
Crampton (“Petitioner”), pursuant to 28 U.S.C. § 2254, is a referral to the undersigned for a
report and recommendation from United States District Judge Anthony J. Brindisi regarding the
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Petition. (Dkt. No. 1.) Petitioner is challenging a judgment of conviction in New York State
Supreme Court of Broome County. (Dkt. No. 1.)
On February 8, 2023, Petitioner filed a pro se Petition seeking a writ of habeas corpus
challenging his confinement. (Dkt. No. 1.) Superintendent Lilley (“Respondent”) has opposed
that motion and Petitioner has not filed a traverse. (Dkt. No. 20; see generally docket sheet.)
For the following reasons, the undersigned recommends that the Petition be denied.
II. 	BACKGROUND
On June 1, 2017, in Broome County, New York, Petitioner was charged with (1) one
count of rape in the first degree in violation of N.Y. Penal Law § 130.35(1), (2) one count of
criminal sexual act in the first degree in violation of N.Y. Penal Law § 130.50(1), (3) one count
of sexual abuse in the first degree in violation of N.Y. Penal Law § 130.65(4), and (4) one count
of sexual abuse in the first degree in violation of N.Y. Penal Law § 130.65(1). (State Record
[“SR.”] at 128-131.)
On June 2, 2017, Petitioner was assigned counsel through the public defender’s office.
(SR. at 132.)
By letter dated June 29, 2017, Petitioner requested that the trial court reassign him
defense counsel because he felt that his attorney was not representing his best interest. (SR. at
323.)
On July 10, 2017, the trial court conducted a hearing regarding Petitioner’s request for
new counsel. (SR. at 276-281.) At the hearing, Petitioner explained that “anything that
[Petitioner] had to try and defend [himself] against [his] case, [he] just felt like it was shot down”
by his defense counsel. (SR. at 277.) Defense counsel explained that he and Petitioner reviewed
the police reports together and discussed a plea offer from the prosecutor’s office, which was
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time sensitive. (Id. at 278.) The Court stated “I’m not hearing anything that suggest in any way
[that defense counsel is] not doing everything that he can to best represent your interests to the
best of his ability. If there’s something you want him to do or would like him to do, if he can do
it within his ethical and legal boundaries, I’m sure he will. But it is in your best interest to work
with Mr. Rothermel.” (Id. at 279-280.)
On August 1, 2017, Petitioner waived indictment and pleaded guilty under a Superior
Court Information to rape in the first degree in violation of N.Y. Penal Law § 130.35(1), with the
understanding that he would be sentenced to 15-years incarceration followed by 15-years post-
release supervision. (Dkt. No. 1 at 1-2, SR. at 76-80, 122-25, 270.) Petitioner admitted that
between 2015 and 2017, he engaged in sexual intercourse by forcible compulsion with the
victim. (SR. at 80.) Petitioner indicated that he was pleading guilty freely and voluntarily and
that no one had forced or coerced him into pleading guilty. (SR. at 078-079.) Petitioner also
expressed understanding that, by pleading guilty, he was waiving his trial rights including the
rights to testify on his own behalf, call witnesses, and cross-examine the prosecution’s witnesses.
(SR. at 79.) Petitioner signed a waiver of appeal (SR. at 126-127) and on the record,
acknowledged (1) reviewing the appeal waiver with defense counsel, and (2) an understanding of
its terms. (SR. at 079-80.)
On October 23, 2017, Petitioner was sentenced to 15-years incarceration and 15-years
post release supervision. (Dkt. No. 1 at 1-2, SR. at 088, 122.)
On September 5, 2019, Petitioner filed a pro se motion in Broome County Supreme Court
pursuant to N.Y. Crim. Proc. L. § 440.10 seeking to vacate the judgment of conviction. (SR. at
001.) Petitioner’s motion argued that (1) his trial counsel was ineffective because (a) defense
counsel coerced Petitioner’s guilty plea, and (b) defense counsel failed to conduct any
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investigation, and (2) he is factually innocent. (Id. at 002-013.) In support of his innocence
claim, Petitioner submitted medical records showing that, for many years, he suffered from
various sexually transmitted diseases (“STDs”) including chlamydia, gonorrhea, and herpes.
(SR. at 004, 032-041.) Petitioner claimed that he learned from his grandmother that the victim
had not contracted any STDs and thus, it “would have been impossible for [the victim] to have
not contracted these diseases if [Petitioner] had in fact[,] raped her.” (SR. at 004.) Petitioner
claimed that he reported this potential defense to defense counsel, and defense counsel failed to
conduct any investigation. (Id. at 004-005.)
The People opposed Petitioner’s motion pursuant to N.Y. Crim. Proc. L. § 440.10. (SR.
at 042-047.)
On May 21, 2020, the Broome County Court issued an order directing Petitioner’s trial
counsel to respond to Petitioner’s allegations. (SR. at 199-201.)
On May 26, 2020, trial counsel filed a letter with Broome County Court stating that he
researched the defense of STD transmission and determined that the defense would not be able to
obtain the victim’s medical records to confirm whether she had contracted any STDs. (SR. at
202-204.) In addition, trial counsel explained that he had researched the transmission of herpes
and learned that the disease does not necessarily transfer to a sexual partner when the carrier is
not experiencing a current outbreak. (Id. at 203-204.) Hence, trial counsel reasoned that the
victim’s potential absence of a STD would not necessarily disprove the sexual assault
allegations. (Id.) Finally, trial counsel explained that obtaining the victim’s medical records—if
at all possible—carried a risk because if the victim had contracted a STD, the prosecution could
use that as evidence against Petitioner. (Id.)
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In addition, trial counsel informed the motion court that he visited Petitioner on ten
separate dates before the plea proceeding and, in deference to Petitioner’s learning disability,
read the entirety of the discovery to Petitioner. (SR. at 202.) Trial counsel denied coercing
Petitioner to plead guilty and said that an investigator was present during at least one of their
consultations and could confirm the same. (Id. at 202-204.)
On June 8, 2020, trial counsel filed a second letter with the Broome County Court and
affirmed under penalty of perjury pursuant to N.Y. C.P.R.L. § 2106 that the contents of his letter
dated May 26, 2020, are true and accurate to the best of his knowledge. (SR. at 208.)
On July 1, 2020, Broome County Court denied Petitioner’s motion pursuant to N.Y.
Crim. Proc. L. § 440.10 in its entirety. (SR. at 051-056.) The motion court found that trial
counsel had provided meaningful and effective representation at all stages and that a valid guilty
plea foreclosed an independent actual innocence claim. (SR. at 054-055.) The motion court also
noted that Petitioner failed to provide any medical or expert affirmation to support his contention
that the purported lack of an STD infection in the victim was proof that he had not raped her.
(SR. at 54.)
On August 4, 2020, Petitioner moved pursuant to N.Y. Crim. Proc. L. § 460.15 for leave
to appeal to the New York Appellate Division Third Department. (SR. at 057-059.) The People
opposed Petitioner’s motion seeking leave to appeal. (SR. at 113.)
On September 28, 2020, the Appellate Division Third Department granted Petitioner
leave to appeal the N.Y. Crim. Proc. L. § 440.10 motion and consolidated it with his direct
appeal. (SR. 115.)
In the consolidated appeal, Petitioner filed a counseled brief which argued that (1) his
appeal waiver was not knowing, voluntary, and intelligent and was therefore invalid; (2) he was
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denied his fundamental right to effective assistance of counsel; (3) his guilty plea was not
knowing, voluntary, and intelligent; (4) the motion court erred in directing his trial counsel to
submit a written response to the issue of fact raised in his motion pursuant to N.Y. Crim. Proc. L.
§ 440, instead of granting a hearing; (5) his constitutional right to counsel was violated when the
trial court refused to grant his request for substitute counsel; and (6) his sentence was harsh and
excessive. (SR. at 211-263.) The People filed a brief opposing Petitioner’s arguments. (SR. at
324-367.)
The Appellate Division Third Department unanimously affirmed the judgment of
conviction and upheld the County Court’s denial of Petitioner’s motion pursuant to N.Y. Crim.
Proc. L. § 440.10. (SR. at 397-403.) The Appellate Division held that (1) Petitioner’s waiver of
his right to appeal was valid; (2) Petitioner’s argument that the trial court erred in denying his
pre-plea request for substitute counsel is unpreserved for review absent a motion to withdraw his
plea and, in any event, Petitioner’s generalized disagreements with trial counsel regarding
matters of strategy did not rise to the level of “serious complaints about counsel” and thus, were
insufficient to warrant substitution; (3) Petitioner’s claims that his plea was involuntary due to
the trial court’s failure to apprise him of the potential maximum period of incarceration, inquire
as to his mental health status, place him under oath before accepting his plea, or sufficiently
advise him of his Boykin rights, are unpreserved for review in the absence of a post-allocution
motion and, in any event, are without merit because (a) there is nothing on the face of the plea
colloquy that suggests Petitioner’s claimed mental health issues hampered his ability to enter a
knowing, intelligent, and voluntary plea of guilty, (b) there is nothing on the face of the plea
colloquy that suggests that the purported lack of information regarding Petitioner’s maximum
sentencing exposure influenced his decision to plead guilty, (c) Petitioner was not required to
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recite the facts underlying his crime and N.Y. Crim. Proc. L. § 220.50 does not require a plea to
be made under oath, and (d) although it would have been preferable for the trial court to engage
in a more detailed explanation of the trial-related rights that Petitioner would forfeit by pleading
guilty, there is no basis upon which to invalidate his plea where he had ample opportunity to
move to withdraw his plea before sentencing and did not do so; (5) to the extent that Petitioner’s
motion pursuant to N.Y. Crim. Proc. L. § 440 is predicated on his claim of actual innocence, his
plea of guilty forecloses a vacatur of judgment of conviction on this ground; (6) Petitioner’s
claim that counsel pressured him to plead guilty and assured him that he would be protected in
prison due to his mental infirmities are (a) supported only by his self-serving affidavit, and (b)
belied by the record, which reveals that there is no reasonable probability that such allegations
are true; and (7) trial counsel cannot be deemed ineffective for failing to pursue a strategy or
defense that had little or no chance of success and Petitioner’s claim that he had a lengthy history
of sexually transmitted infections which would have rendered it impossible for him to have
engaged in sexual intercourse with the victim without infecting her is flawed and unsupported by
his submissions. (Id.)
Petitioner filed a counseled motion seeking leave to appeal to the New York Court of
Appeals. (SR. at 404-417.) Petitioner’s application argued that (1) the lower court improperly
directed trial counsel to submit a response to Petitioner’s pro se motion pursuant to N.Y. Crim.
Proc. L. § 440, instead of holding a fact-finding hearing and the Third Department erred in
dismissing this as a mere procedural irregularity, (2) the Third Department erred in holding that
Petitioner’s appeal waiver was valid, (3) the Third Department erred in holding that Petitioner
received effective assistance of counsel, (4) the Third Department erred in holding that
Petitioner’s plea was knowing and voluntary, (5) the Third Department incorrectly held that there
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was no error in the trial court’s refusal to grant Petitioner’s request for substitute counsel due to
counsel’s inadequate representation, and (6) the Third Department erred in holding that
Petitioner’s claim of factual innocence was foreclosed by his guilty plea. (Id.) The People
opposed Petitioner’s application for leave to appeal to the Court of Appeals. (SR. at 418.)
On January 27, 2022, the New York Court of Appeals denied Petitioner’s application for
leave to appeal to the Court of Appeals. (SR. at 419.)
III. 	GROUNDS RAISED
A. 	Petition
On February 8, 2023, Petitioner commenced this action by the filing of a verified Petition
for writ of habeas corpus. (Dkt. No. 1.) Petitioner asserts that he is entitled to habeas relief
because his right to effective assistance of trial counsel pursuant to the Sixth Amendment was
violated. (Id.) Petitioner argues that (1) his trial counsel would not investigate Petitioner’s
defenses, (2) trial counsel did not obtain or provide Petitioner with discovery, (3) Petitioner
sought reassignment of trial counsel and was denied, and (4) Petitioner was intimidated and
coerced into taking a plea. (Id. at 5.)
B. 	Respondent’s Answer and Memorandum of Law
Generally, Respondent makes the following two arguments in support of her answer: (1)
Petitioner’s claim that his Sixth Amendment right to counsel was violated is procedurally
defaulted and entirely meritless; and (2) the State Court reasonably rejected Petitioner’s claim
that he was denied effective assistance of counsel. (See generally Dkt. No. 20.)
More specifically, with respect to her first argument, Respondent asserts that Petitioner’s
claim that the trial court erred in denying his pre-plea request for new counsel is procedurally
defaulted because Petitioner failed to file a motion pursuant to N.Y. Crim. Proc. L. § 220.60(3)
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before sentencing, which, the Appellate Division determined, rendered this issue unpreserved for
appellate review. (Dkt. No. 20 at 13-14.) Further, Respondent asserts that Petitioner fails to (a)
demonstrate cause for the default and prejudice from a violation of his federal constitutional
rights, or (b) show that this Court’s refusal to consider his claim will result in a fundamental
miscarriage of justice owing to his actual innocence claim. (Id. at 15-16.) Respondent asserts
that, in any event, Petitioner’s claim that the trial court erred by denying his pre-plea request for
new counsel is meritless because Petitioner made no showing of good cause. (Id. at 16-19.)
With respect to her second argument, Respondent asserts that the Appellate Division
reasonably determined that Petitioner’s trial counsel was not ineffective. (Dkt. No. 20 at 19-26.)
Respondent argues that this reasonable conclusion is entitled to doubly deferential review set
forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Id. at 19-23.)
Respondent asserts that the Appellate Division reasonably rejected Petitioner’s claim that trial
counsel intimidated and coerced him into pleading guilty given that (a) trial counsel denied
coercing Petitioner to accept the plea offer, (b) during the plea allocution Petitioner stated that he
was not being coerced or promised anything other than the terms of the plea agreement, and (c)
Petitioner addressed a letter to the prosecution expressing an interest in pleading guilty. (Id. at
23-24.) Respondent asserts that the Appellate Division reasonably rejected Petitioner’s claim
that trial counsel failed to investigate potential defenses given that (a) trial counsel informed
Petitioner that the defense was unable to obtain the victim’s medical records to prove Petitioner’s
suspicion that she did not have any STDs, (b) trial counsel identified that obtaining the victim’s
medical records posed a risk to the defense because the records could be used against Petitioner
at trial, and (c) Petitioner would not necessarily have infected the victim any time he had sex
with her and hence, the victim’s potential absence of an STD would not disprove a sexual
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assault. (Id. at 25-26.) Respondent asserts that the Appellate Division reasonably rejected
Petitioner’s claim that trial counsel failed to disclose discovery material where trial counsel
visited Petitioner on ten separate dates and, in deference to Petitioner’s learning disability, read
the entirety of discovery to Petitioner. (Id. at 26.) Thus, Respondent asserts that Petitioner failed
to demonstrate that trial counsel provided deficient representation or that any such deficiency
resulted in a reasonable probability that the result of the state proceeding would have been
different. (Id. at 19-26.)
To date, Petitioner has not filed a Traverse. (See generally docket sheet.)
IV. 	RELEVANT LEGAL STANDARDS
A. 	Legal Standard Governing Review of Habeas Petition
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214 (1996) a federal court may grant habeas corpus relief with respect to
a claim adjudicated on the merits in state court only if, based upon the record before the state
court, the adjudication of the claim (1) was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) was based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. §
2254(d)); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Thibodeau v. Portuondo, 486 F.3d 61,
65 (2d Cir. 2007) (Sotomayor, J.).
The AEDPA “imposes a highly deferential standard for evaluating state-court rulings’
and ‘demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson,
562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010));
accord, Cullen, 563 U.S. at 181. Federal habeas courts must presume that the state court’s
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factual findings are correct “unless applicants rebut this presumption with ‘clear and convincing
evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting 28 U.S.C. §
2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). “The question under
AEDPA is not whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially higher threshold.” Schriro, 550
U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
As required by section 2254, on federal habeas review, a court may only consider claims
that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 563
U.S. at 181; Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has
held that, when a state court adjudicates a claim on the merits, “a federal habeas court must defer
in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court’s decision on the federal
claim—even if the state court does not explicitly refer to either the federal claim or to relevant
federal case law.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see Willson v. Sellars,
138 S. Ct. 1188, 1192 (2018) (holding that a federal habeas court reviewing an unexplained
state-court decision on the merits “should ‘look through’ the unexplained decision to the last
related state-court decision that does provide a relevant rationale” and “presume that the
unexplained decision adopted the same reasoning,” but that “the State may rebut the presumption
by showing that the unexplained affirmance relied or most likely did rely on different grounds
than the lower state court’s decision”).
B. 	Legal Standard Governing Procedural Default
Procedurally defaulted claims are not subject to habeas review unless a petitioner shows
cause for the default and that actual prejudice results, or that the denial of habeas relief would
result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536-539, 126 S. Ct.
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2064, 165 L. Ed. 2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d
808 (1995). To meet the “cause” requirement, a petitioner must show that some objective
external factor impeded his ability to comply with the relevant procedural rule. Maples v.
Thomas, 565 U.S. 266, 280, 132 S. Ct. 912, 181 L. Ed. 2d 807 (2012); Coleman v. Thompson,
501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Prejudice requires a petitioner to
show “not merely that the errors at . . . trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494, 106 S. Ct. 2639, 91 L. Ed. 2d
397 (1986) (quoting United States v. Frady, 456 U.S. 154, 170 (1982)).
Additionally, there is an exception to the procedural bar in cases where a petitioner can
prove actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S. Ct. 1924, 185 L. Ed.
2d 1019 (2013) (“[A] credible showing of actual innocence may allow a prisoner to pursue his
constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to
relief.”). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Dunham
v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623,
118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). “To be credible, such a claim requires petitioner to
support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence—
that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. 851; see also Whitley v.
Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addition, “prisoners asserting innocence as a
gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”
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House, 547 U.S. at 536-37, 126 S. Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. 851);
see also Doe v. Menafee, 391 F.3d 147, 160-62 (2d Cir. 2004).
C. 	Legal Standard Governing Ineffective Assistance of Trial Counsel Claims
For ineffective assistance of counsel claims, federal habeas “review is ‘doubly
deferential’ because counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment[.]” Woods v.
Etherton, 578 U.S. 113, 117 (2016) (internal quotation marks and citation omitted).
To prove ineffective assistance of counsel, petitioner must meet the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong requires petitioner to
show that counsel’s performance fell below “an objective standard of reasonableness” under
“prevailing professional norms.” Strickland, 466 U.S. at 688. The Court must apply a “strong
presumption of competence” and “affirmatively entertain the range of possible reasons
[petitioner’s] counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S.
170, 196 (2011) (citation and internal quotation marks omitted). The second prong requires
petitioner to demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 669. “The likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
V. 	ANALYSIS
A. 	Petitioner’s Claim That His Sixth Amendment Right to Counsel Was
Violated in Denying His Pre-Plea Request for New Counsel Is Procedurally
Defaulted
After carefully considering the matter, I recommend that Petitioner’s claim that his Sixth
Amendment right to counsel was violated by the trial court’s denial of his pre-plea request for
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new counsel, be denied for the reasons set forth in Respondent’s memorandum of law. (Dkt. No.
20 at 13-19.) The following is intended to supplement—not supplant—those reasons.
As set forth by Respondent, the Appellate Division properly held that Petitioner’s claim
that his Sixth Amendment right to counsel was violated by the trial court’s denial of his pre-plea
request for new counsel, is procedurally defaulted. (Id. at 13-16.) More specifically, the
Appellate Division held that “this argument is unpreserved for our review absent a motion to
withdraw [Petitioner’s] plea.” (SR. at 399.)
To preserve this claim, Petitioner was required to make a contemporaneous objection by
filing a motion pursuant to N.Y. Crim. Proc. L. § 220.60(3) to withdraw his guilty plea before
sentencing. See People v. Morehouse, 140 A.D.3d 1202, 1203 (N.Y. App. Div. 3d Dep’t 2016)
(citing N.Y. Crim. Proc. L. § 220.60(3)) (“defendant failed to preserve [his] claim [that the
county court failed to make an adequate inquiry before denying his request for substitute
counsel] by moving to withdraw his plea.”). Petitioner’s failure to file such a motion rendered
the issue unpreserved for appellate review. N.Y. Crim. Proc. L. § 470.05(2).
The Appellate Division’s reliance on the contemporaneous objection rule to deny
Petitioner’s claim constitutes an adequate and independent state law ground for its decision. See
Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (noting that “we have held repeatedly that the
contemporaneous objection rule is a firmly established and regularly followed New York
procedural rule” and collecting cases); Whitley v. Ercole, 642 F.3d 278, 286-87 (2d Cir. 2011)
(“Our case law has long made clear that New York’s contemporaneous objection rule is just such
a ‘firmly established and regularly followed’ rule.”).
Hence, this Court cannot review Petitioner’s defaulted claim unless Petitioner (1)
demonstrates cause for the default and prejudice from a violation of his constitutional rights, or
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(2) shows that this Court’s refusal to consider his claim will result in a fundamental miscarriage
of justice owing to his actual innocence. House v. Bell, 547 U.S. 518, 536-539, 126 S. Ct. 2064,
165 L. Ed. 2d 1 (2006).
Petitioner has failed to offer any reason why he failed to move to withdraw his guilty plea
and thus, has not shown cause for his default. See Levine v. Comm’r of Corr. Servs., 44 F.3d
121, 127 (2d Cir. 1995) (“Since [the petitioner] has failed to show cause [for his default], there is
no need to address the prejudice requirement”). Moreover, Petitioner has failed to establish
actual innocence to circumvent his procedural default. The medical records provided by
Petitioner are insufficient to prove that he did not have sexual intercourse with the victim and he
has not provided this Court with any new evidence to establish that he is actually innocent of
first-degree rape. (See SR. at 402-403 [Appellate Division decision holding that the medical
records provided by Petitioner do not support his contention that he necessarily did not have
sexual intercourse with the victim].)
Moreover, as set forth by Respondent, even if Petitioner’s claim was not subject to a
procedural default, the Appellate Division reasonably concluded that the claim was meritless.
(Dkt. No. 20 at 16-19; SR. at 399.) More specifically, the Appellate Division held that even if it
were to hold that Petitioner’s claim was preserved, “we would find that [his] generalized
disagreements with counsel regarding matters of strategy did not rise to the level of ‘serious
complaints about counsel’ and, thus, were ‘insufficient to warrant substitution.’” (SR. at 399.)
An indigent criminal defendant has the right to counsel but does not have the right to
counsel of his choice. See Pizarro v. Bartlett, 776 F. Supp. 815, 819 (S.D.N.Y. 1991). The
focus of the Sixth Amendment’s protection is “the adversarial process, not . . . the accused’s
relationship with his lawyer.” United States v. Cronic, 466 U.S. 648, 657 n.21 (1984).
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Notwithstanding, “[i]t is settled that where a [criminal] defendant voices a seemingly
substantial complaint about [assigned] counsel, the court should inquire into the reasons for
dissatisfaction.” McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981) (internal quotation marks
omitted). “To succeed on a substitution claim, a defendant must ‘demonstrate good cause for the
substitution of assigned counsel.’” Burns v. Capra, 22-CV-0381, 2025 WL 624952, at *4
(N.D.N.Y. Feb. 26, 2025) (Suddaby, J.) (quoting Nelson v. Smith, 04-CV-0564, 2008 WL
2357098, at *4 (N.D.N.Y. June 4, 2008)).
Before pleading guilty, Petitioner requested new counsel, accusing trial counsel of not
representing Petitioner’s “best interest.” (SR. at 323.) After this request, the trial court held a
hearing inquiring about Petitioner’s relationship with counsel. (SR. at 276-281.) The Third
Department found such efforts satisfied the minimum inquiry standard and, further—as set forth
above—Petitioner’s “generalized disagreements with counsel regarding strategy did not rise to
the level of ‘serious complaints about counsel’ and, thus, were ‘insufficient to warrant
substitution.’” (SR. at 399.) Therefore, “to rule for [P]etitioner on [this ground], this Court must
find the state courts’ decision to be ‘objectively unreasonable.’” Burns, 2025 WL 624952, at *4
(quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)).
Given that Petitioner’s allegation regarding his discontentment with trial counsel was
supported with little to no evidence, the undersigned finds that the trial court went above and
beyond its duty in holding a hearing inquiring about Petitioner’s relationship with counsel.
Burns, 2025 WL 624952, at *5. Further, Petitioner has not demonstrated any “good cause” to
replace trial counsel. Petitioner’s dissatisfaction with his trial counsel’s advice about the
likelihood of success at trial did not establish good cause warranting the appointment of new
counsel. An examination of the record reveals that trial counsel went to great lengths to
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17
communicate with Petitioner and met with him on ten separate dates. (SR. at 202-204.) Thus,
the undersigned refuses to find that the trial court acted unreasonably.
B. 	Petitioner’s Claim That His Sixth Amendment Right to Effective Assistance
of Counsel Was Violated Is Meritless
After carefully considering the matter, I recommend that Petitioner’s claim that his Sixth
Amendment right to effective assistance of counsel was violated, be denied for the reasons set
forth in Respondent’s memorandum of law. (Dkt. No. 20 at 19-26.) The following is intended
to supplement—not supplant—those reasons.
First, as set forth by Respondent, the Appellate Division reasonably found that Petitioner
failed to establish that his trial counsel coerced him to plead guilty. (SR. at 402.) More
specifically, the record reflects that (a) defense counsel denied coercing Petitioner to accept the
plea offer (SR. at 204), (b) during the plea allocution, Petitioner expressly denied being coerced
into pleading guilty (SR. at 166), and (c) Petitioner expressed a desire to plead guilty with the
most favorable plea terms available (SR. at 372). Hence, it was reasonable to conclude that
Petitioner was not coerced into pleading guilty.
Second, the Appellate Division reasonably found that trial counsel did not fail to
investigate potential defenses. (SR. at 402-403.) Indeed, trial counsel provided a sworn
statement explaining that he advised Petitioner regarding his proposed defense and expressed
that it was not viable because (a) the defense could not obtain the victim’s medical records to
prove that she did not have any STDs, (b) if the defense was able to obtain the victim’s medical
records, the records posed a risk to the defense if the victim did have a history of STDs, and (c)
after conducting research, herpes does not always transfer during sexual contact when the carrier
is not experiencing a current outbreak. (SR. 203-204, 208.) Thus, it was reasonable to conclude
that trial counsel thoroughly investigated Petitioner’s potential defenses.
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Third, defense counsel provided a sworn statement indicating that he visited Petitioner on
ten separate dates before Petitioner entered a guilty plea and, in deference to Petitioner’s learning
disability, read the entirety of discovery to Petitioner. (SR. at 202.)
Hence, Petitioner has not demonstrated that his trial counsel provided deficient
representation or that any such deficiency resulted in a reasonable probability that the result of
the state proceeding would have been different. Strickland, 466 U.S. at 694.
For each of these reasons, I recommend that the Petition be denied and dismissed.
VI. 	CERTIFICATE OF APPEALABILITY
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner
must obtain from the court a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A);
see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal unless a circuit justice
or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In
the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the
denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may
issue only “if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a
“substantial showing” if “the issues are debatable among jurists of reason; . . . a court could
resolve the issues in a different manner; or . . . the questions are adequate to deserve
encouragement to proceed further.”1 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(quotation marks omitted).
1 	A similar standard applies when a COA is sought to challenge the denial of a habeas
petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[A] COA
should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.”).
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19
In this instance, I find that jurists of reason would not find it debatable as to whether the
petition in this matter is meritorious. Accordingly, I recommend against the issuance of a COA.
ACCORDINGLY, it is
RECOMMENDED that the Petition (Dkt. No. 1) be DENIED and DISMISSED, and
that a certificate of appealability not be issued to Petitioner; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the parties, along with copies of the unpublished decisions cited herein in
accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.2 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: February ___, 2026
Binghamton, New York
2 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
5
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2025 WL 624952
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Thomas BURNS, Petitioner,
v.
Michael CAPRA, Respondent.
9:22-CV-0381 (GTS)
|
Signed February 26, 2025
Attorneys and Law Firms
THOMAS BURNS, Petitioner, pro se, 16-A-1856, Sing Sing
Correctional Facility, 354 Hunter Street, Ossining, NY 10562.
HON. LETITIA JAMES, Attorney for Respondents, Michelle
Elaine Maerov, ESQ., Ass't Attorney General, Attorney
General of New York, 28 Liberty Street, New York, NY
10005.
DECISION and ORDER
Glenn T. Suddaby, Senior United States District Judge
I. INTRODUCTION
*1 Petitioner pro se Thomas Burns seeks federal habeas
corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No.
1, Petition (“Pet.”); Dkt. No. 1-1, Supporting Exhibits.
Respondent opposed the Petition. Dkt. No. 17, Answer; Dkt.
No. 17-1, Response Memorandum (“Resp.”); Dkt. No. 17-2–
17-10, Supporting Exhibits. Petitioner replied. Dkt. No. 23,
Traverse (“Trav.”). 1 For the reasons below, the Petition is
dismissed and denied in its entirety.
II. RELEVANT BACKGROUND
Petitioner's 2016 conviction arose out of two separate
incidents in late 2013 and early 2014. Dkt. No. 17-3 at 19-29.
Each incident is discussed below.
A. Hellijas Assault
Throughout 2013, Joseph Hellijas and petitioner became
acquainted from “being on the street[s]” in Schenectady
County. Dkt. No. 17-7 at 154-55. On December 29, 2013,
Hellijas encountered petitioner while picking up beer in his
neighborhood. Id. at 159-60; Dkt. No. 17-3 at 19. Petitioner
confronted Hellijas, accusing Hellijas of spreading a rumor
that petitioner snitched to the police in an unrelated matter.
Dkt. No. 17-3 at 427. Petitioner demanded an apology and
Hellijas, confused, asked “[s]orry for what[?]” Dkt. No. 17-7
at 162. Petitioner then punched Hellijas in the face. Dkt. No.
17-3 at 19-20, 428. Hellijas stumbled and did not attempt
to fight back but instead walked away from petitioner. Id.
at 20, 428. Sufficiently inebriated to dull the immediate
pain, Hellijas did not seek medical attention. Id. at 428. As
Hellijas sobered up, he felt intense pain in his jaw and sought
medical attention early the following morning. Id. After an
examination, doctors informed Hellijas that petitioner broke
his jaw in two places. Id. The next day, petitioner underwent
surgery to repair the fractures. Id. After surgery, the surgeon
informed Hellijas that the punch also broke several of his teeth
which required dental attention. Id. Hellijas eventually had
multiple teeth removed as a result of petitioner's punch. Id.
B. Bingham Shooting
Petitioner and Mervin Bingham met in late 2013. Dkt. No.
17-3 at 428; Dkt. No.17-7 at 613. After a fire destroyed
Bingham's rental apartment in January 2014, Bingham and
his girlfriend, Ashante Ayala, moved into petitioner's house.
Dkt. No. 17-3 at 428. The cohabitation lasted less than a
month before petitioner evicted Bingham following various
disagreements. Dkt. No. 17-7 at 625; Dkt. No. 17-3 at 428.
After Bingham's eviction, petitioner and Bingham saw each
other a few times but the meetings were not cordial, both
clearly upset with how their relationship broke down. Dkt.
No. 17-7 at 624.
On the night of April 19, 2014, Bingham exited a store to see
petitioner walking down the street. Dkt. No. 17-3 at 429; Dkt.
No. 17-7 at 638-39. Upon making eye contact with each other,
petitioner flashed a .45 caliber pistol at Bingham and began
to berate Bingham about their past disagreements. Dkt. No.
17-3 at 429. The argument escalated and petitioner pointed the
pistol in Bingham's face. Id.; Dkt. No. 17-7 at 642. Bingham
then tried to grab the gun, and, after a brief scuffle, petitioner
freed himself, took a step back from Bingham, and fired a
shot at Bingham's torso. Dkt. No. 17-3 at 429. The bullet
struck Bingham, knocking him to the ground, after which
petitioner walked away from the scene. Id.; Dkt. No. 17-7 at
646. Bingham survived the gunshot but remained paralyzed
below the waist. Dkt. No. 17-3 at 429.
C. Arrest and Indictment
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*2 On July 2, 2014, police arrested petitioner in connection
with the Bingham shooting. Dkt. No. 17-3 at 429. Following
a further investigation, police also tied petitioner to Hellijas’
assault. Id. at 22, 429-30. On July 30, 2014, in connection
with both the Bingham and Hellijas incidents, a Schenectady
County grand jury indicted petitioner on: (1) one count of
Attempted Murder in the Second Degree (Bingham incident);
(2) one count of Assault in the First Degree (Bingham
incident); (3-4) two counts of Criminal Possession of a
Weapon in the Second Degree; (5) one count of Reckless
Endangerment in the First Degree; (6) one count of Assault
in the Second Degree (Hellijas incident); and (7) one count of
Criminal Possession of a Weapon in the Third Degree. 2 Id.
at 464-68. Petitioner's case proceeded through discovery and
motion practice without a request for severance of the Hellijas
and Bingham charges. Id. at 430.
Petitioner elected for a jury trial. Dkt. No. 17-3 at 430. At
trial, Hellijas testified about the incident with petitioner and
his injuries. Id.; Dkt. No. 17-7 at 160-174. Petitioner testified
and admitted to striking Hellijas on December 29, 2013. Dkt.
No. 17-3 at 430; Dkt. No. 17-7 at 1172-73.
Bingham also testified, identifying petitioner as his shooter.
Dkt. No. 17-7 at 639-50. Ayala, Bingham's girlfriend, testified
that Bingham called her immediately after the shooting and
identified petitioner as the culprit and that, a few weeks
after the incident, petitioner apologized to Ayala for shooting
Bingham. Dkt. No. 17-3 at 430, 500; Dkt. No. 17-7 at 983.
A neighborhood witness of the shooting also testified that
she heard the gunshot and saw a man matching petitioner's
description walking away from the scene. Dkt. No. 17-3 at
430. Further, petitioner's daughter testified that petitioner sent
her an article about the shooting and stated that he faced
prison in connection with the shooting. Id. In his defense,
petitioner offered convoluted, and at times conflicting, alibis
as to his whereabouts on the day of the Bingham shooting.
Dkt. No. 17-7 at 1140-48, 1325-48. Petitioner also introduced
a witness who testified that the stippling 3 on Bingham's
clothing indicated that Bingham was shot at a distance of less
than one-foot, conflicting Bingham's testimony that petitioner
took a large step back before firing at Bingham. Dkt. No. 17-8
at 60-91.
Following closing arguments, a New York Supreme Court,
County of Schenectady jury ruled petitioner not guilty of
count 1, Attempted Murder in the Second Degree, but found
petitioner guilty of the lesser included charge of Assault in the
Second Degree. Dkt. No. 17-9 at 54. The jury then convicted
petitioner of all the remaining charges. 4 Dkt. No. 17-9 at
54-56. On May 2, 2016, the court imposed an aggregate
sentence of 27 years, followed by 5 years of post-release
supervision. Dkt. No. 17-10 at 22-26.
D. Direct Appeal
Petitioner timely appealed his conviction to the New York
Appellate Division, Third Department (“Third Department”).
Dkt. No. 17-3 at 1-70. Between petitioner's counseled brief
and his pro se reply brief, petitioner raised inter alia the
following claims: (1) the Hellijas and Bingham assaults were
improperly joined; (2) the trial court failed to give a lesser
included offense instructions on the counts 1 and 2, and counts
1 and 2 were multiplicitous; (3) the prosecutor engaged in
16 incidents of misconduct throughout the trial; and (4) trial
counsel's cumulative errors deprived petitioner of his right to
effective counsel. Dkt. No. 17-3 at 1-70, 327-57.
*3 On November 25, 2020, the Third Department denied
petitioner's appeal. Dkt. No. 17-3 at 760-67. The Third
Department first held petitioner received effective assistance
of counsel. Id. at 761-63. The court found that trial counsel
was not ineffective for failing to sever the Hellijas and
Bingham counts, noting that petitioner “failed to establish that
a motion for severance would have been granted or that he
suffered any prejudice from the lack of severance[.]” Id. at
762. Next, the Third Department found petitioner's claim that
counsel failed to request lesser included offense charges for
count 1 and count 2 of the indictment factually inaccurate as
the record reflected that counsel did request these charges.
Id. at 763. The Third Department also noted that “we [are
not] persuaded that counsel's decision to obtain an expert
witness, whom [the trial court] ultimately deemed unqualified
to testify on a specific issue, was anything other than a trial
tactic that proved to be unsuccessful and does not, in and of
itself, constitute ineffective assistance of counsel[.]” Id.
The Third Department next turned to petitioner's
prosecutorial misconduct claims. Dkt. No. 17-3 at 763-64.
The court first found that petitioner failed to object to the
prosecutor's comments on petitioner's religion and parenting
at trial, and, therefore, found the two claims unpreserved for
appellate review. Id. at 763. The Third Department noted that
even if the “issues [were] properly before us, we would find
[no fault with] the challenged questions” as defense counsel
raised the issues during petitioner's direct testimony. Id. The
Third Department then found all of petitioner's remaining
preserved contentions meritless, noting that a review of
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“the record as a whole fails to disclose that the prosecutor
engaged in a flagrant and pervasive pattern of prosecutorial
misconduct so as to deprive defendant of a fair trial.” Id. at
764 (internal quotation marks and citations omitted).
The Third Department also found that the trial court did
not err in refusing a jury charge on the lesser included
offense of assault in the third degree as to count 6 (the
Hellijas assault charge). Dkt. No. 17-3 at 764-65. The Third
Department explained that Hellijas suffered a fractured jaw
and lost numerous teeth, and “[b]ased upon this evidence,
no reasonable view of the evidence could support a finding
[of the lesser included charge as] the victim sustained ... a
serious physical injury.” Id. at 765 (internal quotation marks
and citations omitted).
The Third Department then rejected petitioner's claim that the
trial court did not conduct the necessary minimum inquiry
into petitioner's request for a new counsel. Dkt. No. 17-3 at
765-66. Examining the record, the Third Department noted
that the trial court held two in camera hearings inquiring about
petitioner's relationship with counsel, and the court found that
such efforts satisfied the minimum inquiry standard. Id.
Lastly, the Third Department found petitioner's remaining
contentions unpreserved for appellate review and affirmed
petitioner's guilty verdict. Dkt. No. 17-3 at 766.
Petitioner sought leave to appeal to the New York State Court
of Appeals. Dkt. No. 17-3 at 768-78. The Court of Appeals
denied leave on March 21, 2022. Id. at 783.
Petitioner then filed the instant Petition on April 13, 2022.
Pet. at 1.
III. PETITION
Petitioner challenges his 2016 judgment of conviction in New
York Supreme Court. Pet. 1-12. Petitioner argues he is entitled
to federal habeas corpus relief because: (1) his grand jury
proceedings were defective, id. at 5-7; (2) the trial court failed
to conduct a minimal inquiry into petitioner's request for new
counsel, id. at 7; (3) the trial court improperly joined the
Hellijas and Bingham assaults, id. at 8; (4) counts 1 and 2
of the indictment were multiplicitous, id. at 8-9; (5) rampant
prosecutorial misconduct violated his right to a fair trial, id. at
9; and (6) of ineffective assistance of trial counsel, id. at 9-10.
Petitioner does not specify the relief he seeks.
IV. DISCUSSION
A. Standard of Review
*4 Prior to reviewing petitioner's claims, the Court notes the
heightened standard of review under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA
requires a federal court sitting in habeas review to defer to a
state court's adjudication of claims made on the merits unless
the “decision [ ] was contrary to, or involved an unreasonable
application of, clearly established federal law[ ] ... or ... 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). Thus, a federal court may not grant
relief “simply because that court concludes in its independent
judgment that the relevant state-court decision applied ...
federal law erroneously or incorrectly.” Williams v. Taylor,
529 U.S. 362, 411 (2000). Rather, a federal court may only
grant relief if it finds the state court's application of federal
law or fact “objectively unreasonable.” Id. at 409.
Thus, to find for petitioner on claims that the state courts
found meritless, this Court must hold the state court's
application of fact or federal law objectively unreasonable.
Williams, 529 U.S. at 409.
B. Claim 1: Defective Grand Jury
Petitioner's seeks review of his state grand jury proceedings.
Pet. at 5-7. However, the Constitution does not guarantee
a right to a grand jury in a state criminal prosecution. See
LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002)
(finding that the Fifth Amendment right to a grand jury
indictment is not incorporated by the Due Process Clause of
the Fourteenth Amendment, and, therefore, does not apply to
the states); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.
1989) (“[D]eficiencies in the state grand jury proceedings are
[not] cognizable in a habeas corpus proceeding.”); Davis v.
Mantello, 42 F. App'x 488, 490 (2d Cir. 2002) (“Claims of
deficiencies in state grand jury proceedings are not cognizable
in a habeas corpus proceeding in federal court.”). Under
28 U.S.C. § 2254(a), this Court may only “entertain an
application for a writ of habeas corpus ... on the ground that
[a petitioner] is in custody in violation of the Constitution
or laws or treaties of the United States.” § 2254(a); see also
Thomas v. Larkin, No. 1:12–CV–2899, 2013 WL 5963133, at
*13 (E.D.N.Y. Nov. 7, 2013) (“[F]ederal courts may not issue
the writ of habeas corpus on the basis of a perceived error
of state law[.]”) (cleaned up). Accordingly, the Court finds
petitioner's claim non-cognizable. Count I is denied.
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C. Claim 2: Minimal Inquiry
Petitioner claims that the trial court failed to make a minimum
inquiry into his requests for substitute counsel, infringing on
his right to effective counsel under the Sixth Amendment. Pet.
at 7.
“It is settled that where a defendant voices a seemingly
substantial complaint about [assigned] counsel, the court
should inquire into the reasons for dissatisfaction.” McKee v.
Harris, 649 F.2d 927, 933 (2d Cir. 1981) (internal quotation
marks omitted). To succeed on a substitution claim, a
defendant must “demonstrate good cause for the substitution
of assigned counsel.” Nelson v. Smith, No. 9:04-CV-0564
(LEK/RFT), 2008 WL 2357098, at *4 (N.D.N.Y. June 4,
2008).
Once prior to trial and once during his trial petitioner
requested new counsel, accusing trial counsel of being
ineffective. Trav. at 32. Specifically, petitioner stated that
counsel refused to communicate with petitioner. Id. After
both requests for new counsel, the trial court held two in
camera hearings inquiring about petitioner's relationship with
counsel. Dkt. No. 17-3 at 765. The Third Department found
such efforts satisfied the minimum inquiry standard and,
further, petitioner's complaints “did not create good cause for
the substitution of trial counsel[.]” Id. at 765-66. Therefore,
to rule for petitioner on Claim 2, this Court must find the state
courts’ decision to be “objectively unreasonable.” Williams,
529 U.S. at 409.
*5 Considering petitioner's two allegations were supported
with little to no evidence, this Court finds the trial court went
above and beyond its duty in holding two in camera hearings
inquiring about petitioner's relationship with counsel. Further,
petitioner has not demonstrated any “good cause” to replace
trial counsel. An examination of the record reveals that
trial counsel went to extreme lengths to communicate with
petitioner, even meeting with petitioner privately after cross-
examining each witness to ensure all of petitioner's questions
were asked. Dkt. No. 17-3 at 450-51; see e.g. Dkt. No. 17-7 at
280. Thus, this Court refuses to find that the trial court acted
unreasonably.
Even if this Court found the trial court did not make a
sufficient inquiry into petitioner's requests, petitioner suffered
no prejudice from the trial court's alleged failure to inquire
into the attorney/client relationship. Where “the failure to
inquire causes the [petitioner] no harm, that [failure] cannot
of itself be a basis for granting the writ [of habeas corpus].”
McKee, 649 F.2d at 933. Indeed, if the “proffered reasons
[for dissatisfaction with counsel] are insubstantial and the
defendant receives competent representation from counsel,
the court's failure to inquire further constitutes harmless
error.” Carpenter v. Conway, No. 2:07–CV–3602, 2011 WL
795860, at *5 (E.D.N.Y. Feb. 25, 2011) (citing McKee, 649
F.2d at 933). Here, the proffered reasons for petitioner's
dissatisfaction were conclusory and not supported by the
record. Moreover, as discussed in Section IV.G below and
evident from a review of the record, trial counsel provided
competent representation, and, therefore, this Court considers
any alleged failure by the trial court to constitute harmless
error.
Accordingly, the alleged failure of the trial court to make
a minimal inquiry did not result in a violation of the Sixth
Amendment.
D. Claim 3: Improper Joinder
Petitioner asserts that the trial court erred when it did not
sever the Hellijas assault (Count 6 of the indictment) from
the Bingham shooting (Counts 1-5, 7). Pet. at 8. Petitioner
claims the failure to sever resulted in a violation of his Sixth
Amendment right to a fair trial. Id. Respondent argues that the
claim is: (1) procedurally barred; and (2) meritless. 5 Resp.
at 41-45.
1. Procedural Bar
Respondent first argues that Claim 3 is procedurally barred
under the adequate and independent doctrine. 6 Resp. at
41-43. A procedural default in a federal habeas case occurs
“if the state court's rejection of a federal claim rests on a state
law ground – such as the operation of a state procedural rule –
that is both independent of the federal question and adequate
to support the judgment.” Jackson v. Conway, 763 F.3d
115, 133 (2d Cir. 2014) (internal quotation marks omitted);
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (holding
that “when a state court declined to address a prisoner's
federal claims because the prisoner had failed to meet a state
procedural requirement[,]” federal habeas review is barred
by the independent and adequate state ground doctrine).
Procedural default precluding federal habeas review applies
only “if the last state court rendering a judgment in the case
rests its judgment on the procedural default.” Harris v. Reed,
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489 U.S. 255, 262 (1989); see also Green v. Travis, 414 F.3d
288, 294 (2d Cir. 2005).
*6 Respondent correctly contends that the Third Department
rejected the improper joinder claim on the contemporaneous
objection rule, an independent and adequate state ground
under Jackson. Resp. at 41. “New York's contemporaneous
objection rule provides that a party seeking to preserve a claim
of error at trial must lodge a protest to the objectionable ruling
‘at the time of such ruling ... or at any subsequent time when
the [trial] court had an opportunity of effectively changing the
same.’ ” Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)
(quoting C.P.L § 470.05(2)). “The rule has been interpreted by
New York courts to require, ‘at the very least, that any matter
which a party wishes’ ” to preserve for appellate review be
“ ‘brought to the attention of the trial court at a time and in
a way that gave [the trial court] the opportunity to remedy
the problem and thereby avert reversible error.’ ” Id. (quoting
People v. Luperon, 623 N.Y.S.2d 735, 738-39 (1995)).
Here, petitioner did raise an objection to the failure to
sever but not until after petitioner's sentencing, too late
for the trial court to have “the opportunity to remedy the
problem.” Dkt. No. 17-3 at 118-120; Whitley, 642 F.3d
at 286 (internal quotation marks omitted). Thus, the Third
Department held the issue unpreserved for its review based
on the contemporaneous objection rule. 7 Dkt. No. 17-3 at
766. Such a holding constitutes an adequate and independent
state law ground for dismissal, and, thus, precludes this
Court from habeas review. See Rutigliano v. Lamanna,
No. 9:19-CV-0745 (GLS/ML), 2022 WL 4348580, at *7
(N.D.N.Y. July 20, 2022) (“The Third Department's holding
that Petitioner's argument was unpreserved, constitutes an
adequate and independent state law ground, which generally
precludes habeas review.”).
Therefore, this Court finds petitioner's improper joinder
claim procedurally barred. We may only review the claim
if petitioner can establish either cause for noncompliance
and resulting prejudice or actual innocence. Rutigliano, 2022
WL 4348580, at *7 (finding a “narrow exception to the
preservation rule” where a petitioner can “demonstrate[ ]
cause for [ ] procedural default and actual prejudice”);
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (finding
an exception to the preservation rule where a petitioner can
demonstrate “a fundamental miscarriage of justice, i.e., that
he is actually innocent of the crime for which he has been
convicted”).
Here, petitioner does not contend, nor does the record reflect,
petitioner's actual innocence or any cause for petitioner's
noncompliance. 8 Thus, the Court see no reason to lift the
procedural bar to Claim 3. As such, the Court dismisses
the claim as procedurally barred under the independent and
adequate state ground doctrine.
2. Claim 3 Dismissed on the Merits
Even if not procedurally barred, the Court finds Claim
3 meritless. An erroneous “[j]oinder of offenses rises to
the level of a constitutional violation only if it ‘actually
render[s] petitioner's state trial fundamentally unfair and
hence, violative of due process.’ ” Herring v. Meachum, 11
F.3d 374, 377 (2d Cir. 1993) (quoting Tribbitt v. Wainwright,
540 F.2d 840, 841 (5th Cir. 1976)). “[W]here a defendant
is claiming a due process violation based upon joinder of
offenses, he must, to succeed, go beyond the potential for
prejudice and prove that actual prejudice resulted from the
events as they unfolded during the joint trial.” Id. at 377-78.
Habeas courts generally have refused to find actual prejudice
when the crimes are “distinct and easily compartmentalized.”
Id. at 378; Burrows v. Herbert, No. 6:02-CV-6314, 2009
WL 1514917, at *5 (W.D.N.Y. June 1, 2009) (finding the
proof, “as presented at trial, was such that it was able to be
easily considered separate in the minds of the jury[,]” and,
thus, avoid confusion and prejudice); see also United States
v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir. 1988) (finding
that defendants were not substantially prejudiced by joint trial
where “the evidence with respect to each of the defendants
was adequately straightforward that the jury could consider it
without any significant spillover effect.”).
*7 Here, the Hellijas assault and the Bingham shooting
were distinct and easily compartmentalized. The incidents
were four months apart and involved different victims;
further, one involved a punch, the other involved a gun.
Based on the vast differences, the jury could easily keep
the crimes “separate in the[ir] minds[.]” Burrows, 2009 WL
1514917, at *5. Further, for both crimes, the evidence was
“adequately straightforward.” Chang An-Lo, 851 F.2d at 556.
In fact, petitioner admitted to punching Hellijas at trial,
thus negating the risk that the jury relied on any Bingham
shooting evidence when convicting petitioner of the Hellijas
assault. Dkt. No. 17-7 at 1172-73. The prosecution also
introduced overwhelming evidence of petitioner's guilt in
the Bingham shooting, including testimony from the victim's
girlfriend and petitioner's daughter that petitioner admitted
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to shooting Bingham. Dkt. No. 17-6 at 983; Dkt. No.
17-3 at 430. Accordingly, the easily compartmentalized and
straightforward evidence for both crimes convince the Court
that petitioner suffered no actual prejudice from the joinder.
Therefore, the Court holds that petitioner's due process rights
were not violated, and, as such, petitioner's Claim 3 is
dismissed.
E. Claim 4: Multiplicitous Counts
Petitioner alleges that his convictions of first- and second-
degree assault arising out of the Bingham shooting rendered
the indictment multiplicitous, violating the double jeopardy
clause of the Fifth Amendment. Pet. at 8-9; Trav. at 22-24.
Respondent counters, stating that the claim is procedurally
barred. Resp. at 45-46.
Respondent argues that the adequate and independent state
law ground bars Claim 4. Resp. at 46. As discussed in Section
IV.D.1 above, a procedural default in federal habeas cases
occurs “if the state court's rejection of a federal claim rests on
a state law ground – such as the operation of a state procedural
rule – that is both independent of the federal question and
adequate to support the judgment.” Jackson v. Conway,
763 F.3d 115, 133 (2d Cir. 2014) (internal quotation marks
omitted). Respondent contends that the Third Department
rejected petitioner's multiplicitous claim on an independent
and adequate state ground; specifically, the contemporaneous
objection rule. Resp. at 46. Respondent is correct. Petitioner
never raised an objection in trial court, and, therefore, the
Third Department held the issue unpreserved. Dkt. No.
17-3 at 439, 766. Such a holding constitutes an adequate
and independent state law ground for dismissal, and, thus,
precludes this Court from habeas review. See Rutigliano,
2022 WL 4348580, at *7 (“The Third Department's holding
that Petitioner's argument was unpreserved, constitutes an
adequate and independent state law ground, which generally
precludes habeas review.”).
Accordingly, this Court finds petitioner's multiplicitous claim
procedurally barred and may only review the claim if
petitioner can establish either cause for noncompliance and
resulting prejudice or actual innocence. Rutigliano, 2022
WL 4348580, at *7 (finding a “narrow exception to the
preservation rule” where a petitioner can “demonstrate[ ]
cause for [ ] procedural default and actual prejudice”);
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (finding
an exception to the preservation rule where a petitioner can
demonstrate “a fundamental miscarriage of justice, i.e., that
he is actually innocent of the crime for which he has been
convicted”).
Here, petitioner does not contend, nor does the record reflect,
petitioner's actual innocence or any cause for petitioner's
noncompliance. Thus, this Court see no reason to lift the
procedural bar to Claim 4. As such, the Court dismisses
the claim as procedurally barred under the independent and
adequate state ground doctrine.
F. Claim 5: Prosecutorial Misconduct
Petitioner challenges the prosecution's conduct during
the direct examination of Bingham, petitioner's cross-
examination, and the prosecution's summation. Pet. at 9; Dkt.
No. 17-3 at 57-66. In total, petitioner brings 16 prosecutorial
misconduct claims.
*8 As to the questioning of Bingham, petitioner alleges the
prosecution:
(1) improperly asked Bingham to speculate about
petitioner's state of mind during the shooting, Dkt. No.
17-3 at 63; and
(2) improperly questioned Bingham about his grand
jury testimony, including reading leading grand jury
questions into the trial record, id. at 63-64.
During the cross-examination of petitioner, petitioner claims
that the prosecution improperly:
(3) questioned petitioner's religious faith, Dkt. No. 17-3 at
58-59;
(4) asked petitioner about his parenting, id.;
(5) asked petitioner if he thought he was “pretty much
smarter than everyone else[,]” id. at 60;
(6) questioned petitioner about the number of judges who
previously presided over the case, id.;
(7) commented on petitioner's need for assigned counsel,
id. at 64;
Lastly, petitioner alleges that the prosecution erred in its
summation when it improperly:
(8) referred to statements that had not been admitted into
evidence or produced to the defense, Dkt. No. 17-3 at 60;
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(9) implied that defense counsel thought petitioner guilty
of shooting Bingham, id. at 61;
(10) stated that petitioner committed the crimes, id. at
61-62;
(11) described Bingham and his testimony as “candid[,]”
id. at 62;
(12) described two other witnesses as those “who respect
the oath and respect the truth[,]” id. at 62;
(13) described witnesses who testified for the prosecution
pursuant to plea deals as “candid[,]” id.;
(14) stated that the prosecution's cross-examination of
petitioner “maybe overdid it[,]” id.;
(15) claimed petitioner's proposed expert witness was a
“hired gun[,]” id. at 62-63;
(16) attempted to explain law to the jury, id. at 63.
All 16 of petitioner's claims fail. Misconduct claims 3 and 4
are procedurally barred and meritless. Claims 1-2, 5-16 are
meritless.
1. Procedurally Barred
Misconduct claims 3 and 4 are barred by the adequate and
independent state law ground. 9 As discussed in Section
IV.D.1 above, a procedural default in a federal habeas case
occurs “if the state court's rejection of a federal claim rests on
a state law ground – such as the operation of a state procedural
rule – that is both independent of the federal question and
adequate to support the judgment.” Jackson v. Conway,
763 F.3d 115, 133 (2d Cir. 2014) (internal quotation marks
omitted). Respondent contends that the Third Department
rejected misconduct claims 3 and 4 on an independent and
adequate state ground; specifically, the contemporaneous
objection rule. Resp. at 51. Respondent is correct. Petitioner
never raised objections on either point during his trial, and,
therefore, the Third Department held the issues unpreserved.
Dkt. No. 17-3 at 763. Such a holding constitutes an adequate
and independent state law ground for dismissal, and, thus,
precludes this Court from habeas review. See Rutigliano,
2022 WL 4348580, at *7 (“The Third Department's holding
that Petitioner's argument was unpreserved, constitutes an
adequate and independent state law ground, which generally
precludes habeas review.”).
*9 Nor can petitioner find an exception to avoid the
procedural bar as petitioner cannot prove, and, in fact, does
not contend, that he is actually innocence or has any cause for
his noncompliance. As such, the Court dismisses misconduct
claims 3 and 4 as procedurally barred under the independent
and adequate state ground doctrine.
2. Meritless Claims
“[P]rosecutorial misconduct cannot give rise to a
constitutional claim unless the prosecutor's acts constitute
egregious misconduct.” Miranda v. Bennett, 322 F.3d 171,
180 (2d Cir. 2003) (internal quotation marks omitted). To
assess if misconduct rises to an egregious level, a reviewing
court must assess the alleged misconduct “in the context of
the entire trial.” Donnelly v. DeChristoforo, 416 U.S. 637,
639 (1974). “The relevant inquiry, therefore, is whether the
prosecutor's conduct ‘so infected the trial with unfairness as
to make the resulting conviction a denial of due process.’ ”
Sheard v. Lee, No. 1:18-CV-2125, 2019 WL 5847151, at *6
(S.D.N.Y. Oct. 7, 2019) (quoting Darden v. Wainwright, 477
U.S. 168, 181 (1986)). To amount to a constitutional violation,
a prosecutor's conduct must be more than improper; rather,
the misconduct must be “so prejudicial that [it] rendered the
trial fundamentally unfair.” Id. (cleaned up).
The Third Department found all 16 of petitioner's misconduct
claims meritless, stating “given the overwhelming proof of
defendant's guilt, the cumulative effect of the challenged
comments was not so prejudicial as to deny defendant his
fundamental right to a fair trial[.]” Dkt. No. 17-3 at 763-64
(internal quotations and citations omitted). Thus, this Court
owes the Third Department's decision AEDPA deference and
may only rule for petitioner on Claim 5 if this Court finds
the Third Department's decision “objectively unreasonable.”
Williams, 529 U.S. at 409.
Considering the overwhelming proof of petitioner's guilt, this
Court cannot find the prosecutor's actions “so prejudicial”
as to render petitioner's trial “fundamentally unfair.” Sheard,
2019 WL 5847151, at *6. First, petitioner admitted to the
Hellijas assault in open court. Dkt. No. 17-7 at 1172-73.
Second, Bingham identified petitioner as the man who shot
him, Dkt. No. 17-7 at 639-50, and Bingham's girlfriend,
Ashante Ayala, testified that Bingham called her immediately
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after the shooting and identified petitioner as the culprit. Dkt.
No. 17-7 at 983; Dkt. No. 17-3 at 430. A neighborhood
witness also testified that she heard the gunshot and, saw
a man matching petitioner's description walking away from
the scene. Dkt. No. 17-6 at 844-851. Further, petitioner's
daughter testified that petitioner sent her an article about
the shooting and insinuated that he was the shooter. Dkt.
No. 17-3 at 430. Thus, reviewing the prosecution's alleged
misconduct in context of the entire trial, this Court agrees with
the Third Department's assessment that the overwhelming
proof of defendant's guilt rendered any alleged prosecutorial
misconduct harmless. Accordingly, petitioner's Claim 5 and
its 16 subparts are dismissed as meritless.
G. Claim 6: Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel,
a petitioner must show that: “(1) counsel's performance
was objectively deficient, and (2) petitioner was actually
prejudiced as a result.” Harrington v. U.S., 689 F.3d 124, 129
(2d Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668,
688, 694 (1984)).
*10 To satisfy the first Strickland prong, a petitioner must
establish that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed [to] the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. “Such errors include omissions that cannot be explained
convincingly as resulting from a sound trial strategy, but
instead arose from oversight, carelessness, ineptitude, or
laziness.” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009)
(cleaned up). When reviewing an ineffective assistance claim,
courts must be “highly deferential” and approach the analysis
with a “strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance[.]”
Strickland, 466 U.S. at 689.
The second Strickland prong requires a petitioner to “show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. Courts must look
to the “cumulative weight of error” to determine whether any
potential prejudice “reache[s] the constitutional threshold.”
Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001).
Petitioner must meet both “the performance prong [and]
the prejudice prong[ ]” to demonstrate a Sixth Amendment
violation. Bennett v. U.S., 663 F.3d 71, 85 (2d Cir. 2011).
Petitioner alleges that trial counsel was ineffective because
counsel failed to: (1) sever Count 6 (the Hellijas assault
charge) from the remaining counts, Dkt. No. 17-3 at 66-67; (2)
request lesser included charges for count 1 (attempted murder
in the second degree) and count 2 of the indictment (assault
in the first degree), id. at 67; (3) obtain an expert witness to
testify about the stippling on Bingham's clothing, id. at 67-68;
(4) communicate and consult with petitioner about the case,
id. at 68-69; and (5) investigate the case thoroughly and locate
exculpatory witnesses, id. at 350-51. For the reasons below,
the Court finds all five claims meritless.
1. Improper Joinder
Petitioner argues that counsel's failure to move to sever Count
6 (the Hellijas assault) from the rest of the indictment was a
“miscarriage of justice” that amounts to ineffective assistance
of counsel. Trav. at 28. The Third Department rejected this
exact argument when deciding petitioner's direct appeal,
finding that the Hellijas and Bingham incidents were properly
joined and the proof for “each crime was separately presented,
uncomplicated, and easily segregable in the jury's mind[.]”
Dkt. No. 17-3 at 762 (internal quotation marks and citations
omitted). The Third Department concluded petitioner failed
to “establish that a motion for severance would have been
granted or that he suffered any prejudice from the lack of
severance[,]” and, therefore, ruled counsel's failure to move to
sever amounted to a “strategic ... decision” and did not violate
the Sixth Amendment. Id.
As the Third Department ruled on the merits of the issue,
this Court can only find for petitioner if it finds the Third
Department's ruling unreasonable. Williams, 529 U.S. at 409.
The Court refuses to do so. As discussed in Section IV.D.2
above, and in the Third Department's opinion, any motion to
sever the indictment would likely have failed. 10 “Counsel
cannot ... be deemed ineffective for failing to make an
argument or objection that stood little chance of success.”
Cochran v. Griffin, No. 9:18-CV-0175 (LEK/TWD), 2021
WL 1223848, at *9 (N.D.N.Y. Mar. 31, 2021); Mayo v.
Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (“[C]ounsel does
not have a duty to advance every nonfrivolous argument
that could be made.”); United States v. Kirsh, 54 F.3d 1062,
1071 (2d Cir. 1995) (“[T]he failure to make a meritless
argument does not rise to the level of ineffective assistance”
and “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable[.]”) (internal quotation marks and citations
omitted); Jones v. Spitzer, 1:01-CV-9754, 2003 WL 1563780,
at *18 (S.D.N.Y. Mar. 26, 2003) (“Obviously, the failure to
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make a meritless ... motion does not amount to ineffective
assistance.”). As the severance issue had little chance of
success, counsel appropriately chose to focus on other issues.
This Court finds such choice a sound trial decision and refuses
to find counsel ineffective for failing to make a meritless
motion.
*11 Further, petitioner also offers no legitimate argument
on how the combined indictment prejudiced him, and, from
a review of the record, the Court cannot find any prejudice.
Therefore, this Court concludes that the Third Department
acted reasonably in rejecting petitioner's argument, and, thus,
dismisses petitioner's claim.
2. Lesser and Included Charges
Petitioner alleges that counsel's failure to request lesser
included charges for count 1 (attempted murder in the second
degree) and count 2 of the indictment (assault in the first
degree) amounted to ineffective assistance of counsel. Dkt.
No. 17-3 at 67. However, as the Third Department noted, id.
at 763, counsel did in fact request lesser and included charges.
Id. at 580-84. As counsel did request lesser included charges,
the Court refuses to find counsel deficient based on inaccurate
claims.
3. Expert Witness
Petitioner next claims that counsel's “failure to obtain
a qualified expert on the issue of stippling deprived
[petitioner] of meaningful representation.” Dkt. No. 17-3 at
67. Addressing the same argument, the Third Department
ruled that “counsel's decision to obtain an expert witness,
whom [the trial court] ultimately deemed unqualified to
testify on [the stippling issue], was ... a trial tactic that proved
to be unsuccessful and does not, in and of itself, constitute
ineffective assistance of counsel[.]” Id. at 763. As the Third
Department ruled on the merits of the issue, this Court can
only find for petitioner if it finds the Third Department's
ruling unreasonable. Williams, 529 U.S. at 409. The Court
refuses to do so.
An adverse ruling is not enough to prove ineffective
assistance of counsel; instead, petitioner must demonstrate
counsel's “performance fell below an objective standard
of reasonableness.” Strickland, 466 U.S. at 688. Petitioner
provides no evidence, nor does anything in the record reflect,
that the attempt to certify the stippling expert by counsel fell
below an objective standard of reasonableness. The Court
refuses to find counsel's performance deficient based only
on an unsuccessful motion. Accordingly, the Court dismisses
petitioner's expert witness claim.
4. Communication
Petitioner next attempts to satisfy Strickland by arguing that
counsel failed to communicate with him. Dkt. No. 17-3 at
68-69. The Third Department rejected an identical argument,
stating “it is exceedingly clear from the record that counsel
went to great lengths to attempt to effectively communicate
with defendant.” Id. at 763. As the Third Department ruled on
the merits of the issue, this Court can only find for petitioner if
it finds the Third Department's ruling unreasonable. Williams,
529 U.S. at 409. The Court refuses to do so.
Petitioner argues that counsel continuously failed to meet
with him and such failure rendered counsel's performance
deficient. Dkt. No. 17-3 at 68-69. However, a “failure
to communicate, by itself, does not render the attorney's
performance deficient.” United States v. Amirouche, No.
1:24-CV-2596, 2024 WL 4181842, at *11 (E.D.N.Y. Sept. 13,
2024). Further, from an examination of the record, besides
a failure to communicate with petitioner prior to sentencing,
it appears counsel went above and beyond expectations to
communicate with client. For instance, counsel met with
petitioner privately after cross-examining each witness to
ensure all of petitioner's questions were asked. Dkt. No. 17-3
at 450-51; see e.g. Dkt. No. 17-7 at 280. Considering such
efforts to communicate with petitioner, and trial counsel's
otherwise competent representation, the Court cannot find
the Third Department's holding unreasonable. Accordingly,
petitioner's communication claim is dismissed.
5. Failure to Investigate
*12 Lastly, petitioner asserts that counsel's failure to
investigate and locate potential exculpatory witnesses
amounted to a Sixth Amendment violation. Dkt. No. 17-3
at 350-51; Trav. at 29. A petitioner “ ‘does not show
that he was prejudiced by trial counsel's alleged deficient
performance merely by asserting that certain witnesses might
have supplied relevant testimony; rather, he must state exactly
what testimony [the potential witnesses] would have supplied
and how such testimony would have changed the result.’
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” Santana v. United States, No. 2:15-CR-0457, 2022 WL
1527269, at *8 (E.D.N.Y. May 13, 2022) (internal quotation
marks omitted). “Courts have viewed claims of ineffective
assistance of counsel skeptically when the only evidence
of the import of a missing witness’ testimony is from [a
petitioner].” Id. (cleaned up). Petitioner states that Norman
Chavis could have provided exculpatory evidence in the
Bingham shooting but counsel did not try to locate Chavis.
Trav. at 29. Petitioner claims that he and Chavis were on
the phone immediately before the Bingham shooting, and,
based on what Chavis heard, Chavis could have testified that
petitioner accidentally shot Bingham. Id.
Petitioner can establish petitioner was on the phone a few
minutes after the incident, see Dkt. No. 17-7 at 1182, but a
review of the record indicates that petitioner was not on the
phone prior to the Bingham incident nor immediately after
the incident. See Dkt. No. 17-7 at 639-40; Dkt. No. 17-6
at 868-878, 883-84. Viewing petitioner's claim skeptically,
as urged by Santana, the Court concludes that there was
no evidence of petitioner being on the phone prior to the
incident, and, therefore, Chavis could not testify about the
nature of the shooting incident. Thus, it seems highly unlikely
petitioner's additional witness “would have changed the
result[,]” Santana, 2022 WL 1527269, at *8 (cleaned up), and,
therefore, the Court rejects petitioner's failure to investigate
claim.
Petitioner failed to demonstrate that trial counsel acted
deficiently, and, therefore, petitioner's Claim 5 is dismissed.
V. CONCLUSION
WHEREFORE, it is
ORDERED that the Petition, Dkt. No. 1, is DENIED AND
DISMISSED in its entirety;
ORDERED that the Court declines to issue a Certificate
of Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke,
540 U.S. 668, 705 (2004) (“To obtain a certificate of
appealability, a prisoner must ‘demonstrat[e] that jurists of
reason could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.’ ”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327
(2003)). Any further request for a Certificate of Appealability
must be addressed to the Court of Appeals. See FED. R. APP.
P. 22(d); 2d Cir. R. 22.1.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 624952
Footnotes
1 For the sake of clarity, citations to parties’ submissions refer to the pagination generated by CM/ECF, the
Court's electronic filing system.
2 A Schenectady County grand jury also filed a charge of animal abuse based on a third separate incident.
Dkt. No. 17-3 at 467. The prosecution dropped the charge before trial.
3 The witness defined stippling as the visible “impact of powder burning or unburnt powder that are going to
show up on a surface around [a] bullet hole.” Dkt. No. 17-8 at 80.
4 After his conviction, petitioner filed a § 330.30 motion to set aside the judgement that the court denied. Dkt.
No. 17-3 at 431.
5 Respondent also argues that the claim is non-cognizable. Resp. at 43. The respondent is correct that
petitioner's Claim 3 includes an argument that the trial court violated C.P.L § 200.20 which is non-cognizable.
However, petitioner also ties his improper joinder claim to his Sixth Amendment right to a fair trial, creating
a federal question properly before this Court. Pet. at 8.
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6 Respondent also argues that the claim is procedurally barred because “petitioner failed to present it as a
violation of the United States Constitution when he raised [the claim] on appeal.” Resp. at 41. Respondent is
factually incorrect, as petitioner raised the constitutional claim in his appellate brief. See Dkt. No. 17-3 at 37.
7 The Third Department did discuss the merits of the improper joinder issue but in the context of petitioner's
ineffective assistance of counsel claim. Dkt. No. 17-3 at 762.
8 Petitioner does argue that his trial counsel was ineffective for failing to move to separate the Hellijas and
Bingham charges. However, the claim is meritless, see infra Section IV.G.1, and, therefore, cannot be used
to demonstrate “cause” to overcome the procedural bar petitioner faces in Claim 3.
9 Respondent argues that the adequate and independent state law ground bars misconduct claims 3-6 and
9-14. Resp. at 51. However, a closer examination of the Third Department's decision finds that the Third
Department only rejected misconduct claims 3 and 4 as unpreserved. Dkt. No. 17-3 at 763.
10 As discussed in Section IV.D.2, the two crimes joined in the indictment, the Hellijas assault and the Bingham
shooting, were distinct and easily compartmentalized. The incidents were four months apart and involved
different victims; further, one involved a punch, the other involved a gun. Based on the vast differences, the
jury could easily keep the crimes “separate in the[ir] minds.” Burrows, 2009 WL 1514917, at *5. Further, for
both crimes, the evidence was “adequately straightforward.” Chang An-Lo, 851 F.2d at 556. In fact, petitioner
admitted to punching Hellijas at trial, thus negating the risk that the jury relied on any Bingham shooting
evidence when convicting petitioner of the Hellijas assault. Dkt. No. 17-7 at 1172-73.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Nelson v. Smith, Not Reported in F.Supp.2d (2008)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 2357098
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
James Trey NELSON, Petitioner,
v.
Joseph SMITH, Warden; New York
State Attorney General, Respondents.
No. 9:04–CV–564 (LEK/RFT).
|
June 4, 2008.
Attorneys and Law Firms
James Trey Nelson, USP Victorville, U.S. Penitentiary,
Adelanto, CA, pro se.
Andrew M. Cuomo, Attorney General for the State of
New York, Michael G. McCartin, Esq., Assistant Attorney
General, of Counsel, Albany, N.Y., for Respondents.
DECISION AND ORDER
LAWRENCE E. KAHN, District Judge.
*1 This matter comes before the Court following a Report–
Recommendation filed on March 26, 2008 by the Honorable
Randolph F. Treece, United States Magistrate Judge, pursuant
to 28 U .S.C. § 636(b) and L.R. 72.3 of the Northern District
of New York. Report–Rec. (Dkt. No. 20). After ten days
from the service thereof, the Clerk has sent the entire file to
the undersigned, including the objections by Petitioner James
Trey Nelson (“Petitioner”), which were filed on April 11,
2008. Objections (Dkt. No. 22). Petitioner also filed a Motion
to amend/correct his Petition for Writ of Habeas Corpus.
Dkt. No. 21. This is Petitioner's second Motion to amend
his Petition, as the first was stricken for failure to attach a
proposed Amended Petition. See Dkt. No. 19.
I. Report and Recommendation
It is the duty of this Court to “make a de novo determination
of those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28 U.S.C.
§ 636(b). “A [district] judge ... may accept, reject, or modify,
in whole or in part, the findings or recommendations made
by the magistrate judge.” Id. This Court has considered the
objections and has undertaken a de novo review of the record
and has determined that the Report–Recommendation should
be approved for the reasons stated therein.
II. Motion to Amend
Petitioner's Motion to Amend includes two attachments:
Exhibit A, which is his previously filed Petition, and Exhibit
B, which is a “supplemental proffer” of legal arguments
in support of his Petition and which requests that an
unspecified motion be held in abeyance and for leave to
file a memorandum establishing his claims for relief under
United States v. Gonzalez–Lopez, 548 U.S. 140 (2006). Dkt.
No. 21, Exh. B. Construing Exhibit B liberally to constitute,
with Exhibit A, a proposed Amended Petition, the Court will
consider the Motion to Amend.
By statute, a writ of habeas corpus “may be amended or
supplemented as provided in the rules of procedure applicable
to civil actions.” 28 U.S.C. § 2242. Rule 15 of the Federal
Rules of Civil Procedure governs motions to amend petitions
for habeas corpus. See Littlejohn v. Artuz, 271 F.3d 360, 363
(2d Cir.2001); Ching v. United States, 298 F.3d 174, 180–
81 (2d Cir.2002). Even though Rule 15 provides that “leave
shall be freely given when justice so requires,” Fed.R.Civ.P.
15(a), the district court may deny that leave on the grounds of
futility. Jones v. N.Y. State Div. of Military & Naval Affairs,
166 F.3d 45, 50 (2d Cir.1999).
Petitioner bases his request to amend his Petition on
United States v. Gonzalez–Lopez, 548 U.S. 140 (2006). That
case, however, was considered and even cited by Judge
Treece in the Report and Recommendation. See Report–
Recommendation at 4 (“the Supreme Court has held that trial
courts retain ‘wide latitude in balancing the right to counsel of
choice ... against the demands of its calendar.”) (Dkt. No. 20).
Unlike the present case, the defendant in Gonzalez–Lopez was
not seeking to replace assigned counsel, and the Government
in that case conceded that there was an erroneous deprivation
of the defendant's choice of counsel. 548 U.S. at 141–42,
144. In contrast, the record in this case indicates that there
was no breakdown of communication or an irreconcilable
conflict between the Petitioner and his counsel, as would be
needed to substitute new counsel on the eve of trial. United
States v. Schmidt, 105 F.3d 82, 89 (2d Cir.1997). Because the
proposed Amended Petition would not change this Court's
ruling, Petitioner's Motion to amend is denied.
*2 Accordingly, it is hereby
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ORDERED, that the Report–Recommendation (Dkt. No. 20)
is APPROVED and ADOPTED in its ENTIRETY; and it
is further
ORDERED, that Petitioner's Motion to Amend (Dkt. No. 21)
is DENIED; and it is further
ORDERED, that the Petition for a Writ of Habeas Corpus
(Dkt. No. 1) is DENIED; and it is further
ORDERED, that no Certificate of Appealability shall issue
with respect to any of Petitioner's claims; and it is further
ORDERED, that the Clerk serve a copy of this Order on all
parties.
IT IS SO ORDERED.
REPORT–RECOMMENDATION and ORDER
RANDOLPH F. TREECE, United States Magistrate Judge.
On August 15, 2001, pro se Petitioner James Trey Nelson was
convicted of assault in the first degree, assault in the second
degree, criminal possession of a weapon in the third degree,
and promoting prison contraband. Trial Tr., Aug. 15, 2001 at
pp. 683–85. On October 10, 2001, Petitioner was sentenced
to twenty years incarceration for the first degree assault
conviction and lesser concurrent terms for the remaining
convictions. Sentencing Tr., Oct. 10, 2001 at p 13. Petitioner
now bring a Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 on the grounds that he was denied both
the right to counsel of his choice and effective assistance
of counsel under the Sixth Amendment to the United States
Constitution. Dkt. No. 1, Pet. at ¶ 12. For the reasons that
follow, it is recommended that the Petition be denied.
I. BACKGROUND
The following facts were found by the New York State
appellate court:
In January 2001, defendant was
an inmate at the Albany County
Correctional Facility. During an
altercation involving several inmates,
defendant allegedly cut the victim's
arm with a razor blade. Correction
officers arriving at the scene saw
defendant with his hands in the back
of his pants. The facility's body orifice
security system subsequently detected
that defendant had a piece of metal
in the area of his buttocks and a
strip search revealed grease on his
underwear. After obtaining a search
warrant, police officers transported
defendant to the hospital, where
X rays were taken revealing that
defendant had a razor blade concealed
in his rectum. Defendant eventually
removed the razor blade and turned it
over to authorities.
People v. Nelson, 1 A.D.3d 796 (N.Y.App. Div.3d Dep't
2003).
Upon the commencement of his trial, Petitioner asked the
court to adjourn the proceeding so that he could retain a
different attorney. Trial Tr. at pp. 6–8. In support of his
request, Petitioner stated that he was not notified of the
trial until a week before it began, and that he had just
received discovery materials. Id. In addition, he stated that
due to the restrictions imposed at the federal prison in which
he resided, he was not allowed to communicate by phone
with his appointed trial counsel unless his counsel initiated
the call. Id. Finally, Petitioner told the trial court that his
family was present in the courtroom and was prepared to
immediately retain an attorney on his behalf. Id. The court
denied Petitioner's request for a postponement and the trial
commenced. Id. at p. 9.
*3 At trial, Sergeant (Sgt.) Gecewiz testified that following
the altercation, he asked Petitioner what the altercation was
about; Petitioner responded that “they went after one of
my dogs.” Id. at pp. 517–18. On cross-examination, Sgt.
Gecewiz testified that he made a written report of Petitioner's
alleged oral admission and provided it to the investigators
of Albany County Correctional Facility. Id. at pp. 517–18.
Petitioner's trial counsel requested production of Gecewiz's
written report, but the prosecution stated that they did not have
the report. Id. at pp. 518–19. After an off the record discussion
between both attorneys and the judge, the trial continued. Id.
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After his conviction, Petitioner appealed to the New York
State Appellate Division, Third Department, on the grounds
that, inter alia, he was denied his constitutional right to
the counsel of his choice and he was also denied his
constitutional right to effective representation of counsel
inasmuch as his trial attorney failed to object to the admission
of Sgt. Gecewiz's testimony concerning Petitioner's alleged
confession on the grounds that Petitioner was given no
notice of such evidence as required by New York Criminal
Procedure Law § 710.30. Def.-App.'s State Ct. Br. &
Appendix at pp. 4–10.
II. DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act
of 1996, Pub.L. No. 104–132, 110 Stat. 1214 (1996)
(“AEDPA”), a federal court may not grant habeas relief to a
state prisoner on a claim unless the state court adjudicated the
merits of the claim and such adjudication either
1) resulted in a decision that was contrary to, or involved
an unreasonable application, of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d); see also DeBerry v. Portuondo, 403
F.3d 57, 66 (2d Cir.2005); Miranda v. Bennett, 322 F.3d 171,
177–78 (2d Cir.2003); Boyette v. Lefevre, 246 F.3d 76, 88
(2d Cir.2001). The petitioner bears the burden of proving by
a preponderance of the evidence that he is “in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408,
415 (2d Cir.1997); Rivera v. New York, 2003 WL 22234679, at
*3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that
“a determination of a factual issue made by a State court shall
be presumed to be correct [and t]he applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U .S.C. § 2254(e)(1); see also
DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre,
246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations
omitted).
The Second Circuit has provided additional guidance
concerning application of this test, noting that:
*4 [u]nder AEDPA, we ask three
questions to determine whether a
federal court may grant habeas relief:
1) Was the principle of Supreme
Court case law relied upon in the
habeas petition “clearly established”
when the state court ruled? 2) If
so, was the state court's decision
“contrary to” that established Supreme
Court precedent? 3) If not, did the
state court's decision constitute an
“unreasonable application” of that
principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir.2001) (citing
Williams and Francis S. v. Stone, 221 F.3d 100, 108–09 (2d
Cir.2000)).
B. Right to Counsel of Choice
The Constitution guarantees a criminal defendant the right to
retain counsel of his choice. Chandler v. Fretag, 348 U.S. 3,
9 (1954). However, that right is not absolute. For example,
an indigent defendant cannot “insist on representation by an
attorney he cannot afford[.]” Wheat v. United States, 486
U.S. 153, 159 (1988). Furthermore, the Supreme Court has
held that trial courts retain “wide latitude in balancing the
right to counsel of choice ... against the demands of its
calendar.” United States v. Gonzalez–Lopez, 126 S.Ct. 2557,
2565–66 (2006); see also Morris v. Slappy, 461 U.S. 1, 11
(1983) (stating that “broad discretion must be granted trial
courts on matters of continuances; only an unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a
justifiable request for delay’ violates the right to the assistance
of counsel.”) (quoting Ungar v. Sarafite, 376 U.S. 575, 598
(1964)).
In the Second Circuit, it is settled law that “[o]n the eve
of trial, just as during trial, a defendant can only substitute
new counsel when unusual circumstances are found to exist,
such as a complete breakdown of communication or an
irreconcilable conflict.” United States v. Schmidt, 105 F.3d
82, 89 (2d Cir.1997) (citing United States v. Calabro, 467
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F.2d 973, 986 (2d Cir.1972)). Petitioner must therefore
demonstrate good cause for the substitution of assigned
counsel. However, it is incumbent upon the trial court,
upon receipt of a “seemingly substantial” complaint from a
defendant about his counsel, to inquire into the reasons for
the dissatisfaction. McKee v. Harris, 649 F.2d 927, 933 (2d
Cir.1981).
In favor of his motion to adjourn the proceeding in order
to retain new counsel, Petitioner stated that he had only
received discovery materials a week earlier and he was
not able to maintain meaningful contact with his assigned
counsel because he was housed in a federal prison located a
considerable distance from the trial location. Trial Tr. at pp.
6–8. The trial court did not make any further formal inquiry
into Petitioner's complaints. Id. Rather, the trial court asked
appointed counsel if he was ready to proceed, to which he
responded that aside from his inability to locate a certain
witness, he was ready to proceed to trial. Id. at p. 8.
The record indicates that there was no actual breakdown
of the communication between the appointed attorney and
Petitioner. The appointed counsel indicated he consulted with
Petitioner about the trial a week before the trial began. Id.
at p. 13. At trial, Petitioner cooperated during his direct
examination and conferred with his counsel on numerous
occasions. See, e.g., id. at pp. 11, 15, 35, 36, 38. For his
part, the appointed attorney was intimately familiar with both
the facts and the law of the case. See generally Trial Tr.
In addition, appointed counsel's willingness to continue to
represent Petitioner after his motion to retain new counsel
was denied undermines any assertion that there was an
irreconcilable breakdown in communication. Thus, beyond
Petitioner's conclusory allegations, there is no evidence of any
significant breakdown in communication between Petitioner
and his counsel.
*5 Although the trial court did not inquire further into the
reasons for Petitioner's dissatisfaction, when the “reasons [an
accused complains about his counsel] are made known to the
court, the court may rule without more.” McKee v. Harris, 649
F.2d at 934 (quoting Brown v. United States, 264 F.2d 363,
369 (2d Cir.1959) (Burger, J. concurring in part)). In this case,
Petitioner stated plainly why he desired to retain different
counsel, and after consulting Petitioner's counsel, the trial
court rejected his request. We note that beyond the alleged
difficulties in communication caused by his remote location,
Plaintiff did not express any concern about his counsel's
ability to present an adequate defense nor any other conflict
that might have stymied an effective defense.
Furthermore, because Petitioner suffered no harm, the trial
court's failure to make a formal inquiry does not constitute a
sufficient basis for granting a writ. McKee v. Harris, 649 F.2d
at 933 (“Where the failure to inquire causes the defendant no
harm, that procedural irregularity cannot of itself be a basis
for granting the writ.”).
In sum, since good cause did not exist for the substitution of
new counsel, we cannot find that the trial court's rejection of
Petitioner's request constituted an unreasonable application of
Federal law. It is therefore recommended that the Petition be
denied as to this claim.
C. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, a habeas
petitioner must show 1) that counsel's representation fell
below an objective standard of reasonableness measured
by the prevailing professional norms; and 2) prejudice,
i.e., that there is a reasonable probability that, but for
counsel's unprofessional performance, the outcome of the
proceeding would have been different. Bell v. Cone, 535
U.S. 685, 695 (2002) (citing Strickland v. Washington, 466
U.S. 668, 688 & 694 (1984)); see also Aeid v. Bennett, 296
F.3d 58, 62–63 (2d Cir.2002); Brown v. Artuz, 124 F.3d
73, 79–80 (2d Cir.1997); Rattray v. Brown, 261 F.Supp.2d
149, 157 (E.D.N.Y.2003). 1 Moreover, to establish that his
counsel's conduct was objectively unreasonable, a petitioner
must demonstrate that his counsel “omitted significant and
obvious issues while pursuing issues that were clearly and
significantly weaker.” Clark v. Stinson, 214 F.3d 315, 322 (2d
Cir.2000).
Although the test for ineffective assistance of counsel
contains two prongs, the Supreme Court has held that
federal district courts need not address both components
if a petitioner fails to establish either one. Strickland v.
Washington, 466 U.S. at 697. In particular, “a court need
not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies.” Id.
In the case at bar, Petitioner claims he was denied effective
assistance of counsel when his appointed counsel failed to
object to the admission of Sgt. Gecewiz's testimony regarding
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Petitioner's alleged confession in the absence of prior notice
that such evidence would be proffered. Pet. at ¶ 12. Sgt.
Gecewiz testified that following the altercation, he asked
Petitioner what the altercation was about, to which Petitioner
responded, “they went after one of my dogs.” Trial Tr.
at pp. 517–18. Under New York Criminal Procedure Law,
“[w]henever the people intend to offer at a trial [ ] evidence
of a statement made by a defendant to a public servant, which
statement if involuntarily made would render the evidence
thereof suppressible upon motion ... they must serve upon the
defendant a notice of such intention, specifying the evidence
intended to be offered.” N.Y. CRIM. PROC. L. § 710.30(1)
(“CPL”). Thus, Petitioner's attorney had a colorable basis on
which to object to the prosecution's failure to give notice as
required by CPL § 710.30.
*6 Notwithstanding counsel's failure to object, Petitioner did
not suffer any prejudice as a consequence. At trial, there was
overwhelming evidence presented of Petitioner's guilt. The
testimony adduced revealed that the victim was severely cut
with a razor blade. A correctional officer arriving at the scene
of the altercation in the prison library observed Petitioner with
his hands in the back of his pants. Trial Tr. at pp. 404–06. After
Petitioner was apprehended, a strip search revealed grease
in his underwear. Id. An x-ray later revealed that Petitioner
had secreted a razor blade in his anus, which he eventually
removed himself. Id. at pp. 439–44. Finally, the victim of
the crime positively identified Petitioner as the person who
slashed his arm. Id. at pp. 356–57.
Even if Petitioner's statement “they went after one of my
dogs” had not been introduced, there is not a reasonable
probability that the outcome of the proceeding would have
been any different. Petitioner's claim must therefore fail under
the second prong of the Strickland test, and for that reason we
recommend that his Petition on this claim be denied.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that the Petition for a Writ of Habeas
Corpus be DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report–Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten
(10) days within which to file written objections to the
foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir.1993) (citing Small v. Sec'y of Health and Human
Servs ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. §
636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).
All Citations
Not Reported in F.Supp.2d, 2008 WL 2357098
Footnotes
1 In Williams v. Taylor, the Supreme Court declared that “the rule set forth in Strickland qualifies as ‘clearly
established Federal law [.]’ “ 529 U.S. 362, 391 (2000); see also Sellan v. Kuhlman, 261 F.3d 303, 309 (2d
Cir.2001).
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