Muhammad v. Lamanna

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
9:23-CV-0440
(MAD/MJK)
Ali Muhammad,
Petitioner,
v.
Amy Lamanna,
Superintendent, Five Points Correctional Facility,
Respondent.
Ali Muhammad, Plaintiff pro se
Priscilla I. Steward, Esq., Asst. Attorney General for Respondent
Mithcell J. Katz, U.S. Magistrate Judge
To the Honorable Mae A. D’Agostino, U.S. District Court Judge:
REPORT-RECOMMENDATION and ORDER
I. 	INTRODUCTION
Muhmmad seeks federal habeas relief pursuant to 28 U.S.C. §
2254. (Dkt. 1, Petition (“Pet.”)).1 	The Court noted that Muhammad’s
claims appeared to be unexhausted and, as to some claims, procedurally
defaulted. (Dkt. 7, Decision and Order (requesting Muhammad file an
affirmation)). Muhammad timely filed an affirmation explaining why
his claims should not be procedurally barred from review. (Dkt. 10,
1 For the sake of clarity, citations to all parties' filings refer to the pagination
generated by CM/ECF, the Court's electronic filing system.
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Affirmation (“Aff.”)). Respondent filed an answer in opposition. Dkt.
11, Decision and Order (directing the answer); Dkt. 18, Answer; Dkt.
18-1, Answer Memorandum of Law; Dkts. 19 & 19-1, State Court
Record (“SCR”); Dkts. 19-2, 19-3, State Court Transcripts (“Tr.”)).2
Muhammad filed a reply. (Dkt. 30, Reply.)
For the reasons which follow, the undersigned recommends that
the petition be denied and dismissed as procedurally barred.
II. 	RELEVANT BACKGROUND
A. 	State Court Criminal Proceedings
On February 16, 2018, Muhammad was indicted in Onondaga
County Court for murder in the second degree, and two counts of
criminal possession of a weapon in the second degree. SCR at 15. The
case was then transferred to the Onondaga County division of the New
York State Supreme Court “[i]n the interest of justice and for the
purpose of expediting the trials or other disposition thereof . . . . ” SCR
2 For the sake of clarity, with one limited exception, citations to all parties' filings
refer to the pagination generated by CM/ECF, the Court's electronic filing system.
However, citations to the State Court Record (“SCR”), Dkt. Nos. 19 & 19-1,
reference the Bates-stamp at the bottom-right of each page as each exhibit is
separately and consecutively paginated.
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at 19.3
Muhammad filed, through counsel, an omnibus motion addressing
several pre-trial issues. SCR at 46-59. Muhammad moved to dismiss
the indictment on the grounds that the evidence submitted to the grand
jury was legally insufficient. SCR at 46-48. The motion was denied by
the trial court. SCR at 18-26. Muhammad also moved to suppress
evidence seized as a result of his arrest, arguing his arrest was not
supported by probable cause because no witnesses were able to identify
Muhammad as the perpetrator. SCR at 50. Muhammad contested not
only the witnesses’ credibility but also concluded that the only
connection he had to the perpetrator was that they were wearing
similar clothing. 	Id. 	The omnibus motion also requested that
statements that Muhammad made to the police be suppressed due to
“improper conduct on the part of law enforcement officials.” SCR at 52-
53. Finally, the prosecution was asked to be ordered to turn over Brady
and Rosario evidence to the defense, as well as impeachment material,
including the details of any agreements reached between the
3 In New York, “[a]n indictment pending in a County Court may . . . be removed to
the Supreme Court at a term held or to be held in the same county.” N.Y. Comp.
Codes R. & Regs. tit. 22, § 200.14
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prosecution and any witness. SCR at 55-56.
The trial court ruled on Muhammad’s suppression motions
following an evidentiary hearing. SCR at 19. The court’s factual
findings and legal conclusions were contained in a written decision and
are as follows. SCR at 19-28.
While investigating the murder of Dunier Chestnut, in the city of
Syracuse, police reviewed surveillance footage from a market and pizza
shop, which captured the homicide. SCR at 20. The suspect depicted in
the footage was “a black male of average build, approximately 5’9” or
5’10” tall, and wearing a ‘distinct clothing outfit’ consisting of a red,
white and blue sweatshirt, blue sweat pants and red, white and blue
sneakers.” Id. 	Authorities also obtained additional footage from a Tops
Supermarket, recorded a few hours before the murder, depicting a black
male wearing the same distinctive clothing as the homicide suspect, and
making a purchase using a shopper’s club card. SCR at 20-21. Police
were able to determine that the card belonged to Muhammad’s mother.
SCR at 21. They obtained a booking photo of Muhammad from a
previous incident and multiple officers who were familiar with
Muhammad determined that he was the individual who was recorded in
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the Tops Supermarket. 	Id.
As a result of this investigation, Muhammad was located and
transported to a police interview room where detectives spoke to
Muhammad after he was read his Miranda rights and agreed to talk.
SCR at 21-23. The detectives asked Muhammad about his whereabouts
on the date of the homicide and Muhammad stated that he was at an
outpatient facility to obtain medication. SCR at 22. Ultimately, the
detectives informed Muhammad that they believed he was responsible
for the homicide and Muhammad stated that he no longer wished to
speak to them. SCR at 22-23. Muhammad was told that he would be
charged with second degree murder and the interview ended. 	Id.
Muhammad moved to suppress the statements which he made
when he was brought to the police interview, on the ground that his
arrest was not supported by probable cause. SCR at 23. The court
denied this motion, finding that based on the aforementioned
investigative steps, the police had probable cause to bring Muhammad
to the station for a custodial interview. SCR at 23-24. Muhammad’s
request to suppress the statements on the grounds that they were
involuntary or obtained in violation of his Fifth Amendment rights was
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also denied by the trial court. SCR at 24-26.
Muhammad also challenged an identification procedure used by
law enforcement. A witness, who was believed to have given
Muhammad a ride on the day of the homicide, was asked by detectives
to review a series of photo arrays to see whether they recognized the
individual they had driven. SCR at 26-27. The witness identified
Muhammad from one of the photos in an array. SCR at 27. The trial
court concluded that the procedure used by police was not unduly
suggestive and denied Muhammad’s motion to suppress the witness’s
identification of him. SCR at 27-29.
The case proceeded to a jury trial, and, on September 14, 2018,
Muhammad was convicted of Second Degree Murder and two counts of
Second Degree Possession of a Criminal Weapon. SCR at 12. 	On
October 30, 2018, Muhammad was sentenced across the three counts to
a total of 35 years of imprisonment followed by five years of post-release
supervision. SCR at 13.
B. 	Direct Appeal
Muhammad filed a counseled appeal arguing that (1) the trial
court erred in admitting an incriminatory letter into evidence; (2) the
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police lacked probable cause to seize and question Muhammad; (3)
Muhammad’s conviction was against the weight of the evidence; and (4)
the sentence was harsh and excessive. SCR at 675-707. The Fourth
Appellate Department of the New York Supreme Court affirmed the
conviction. 	People v. Muhammad, 204 A.D. 3d 1402 (4th Dep’t 2022).
On June 8, 2022, the New York Court of Appeals denied Muhammad’s
application for leave to appeal. 	People v. Muhammad, 38 N.Y.3d 1073
(2022).
III. 	THE INSTANT PETITION
Muhammad argues that he is entitled to federal habeas relief
because (1) the trial court erred in not giving a missing witness charge
to the jury, Pet. at 5; (2) Muhammad was subjected to an illegal search
and seizure by police and his parole officer, Id. at 7; (3) the trial court
erred in allowing two police witnesses to identify Muhammad from a
surveillance video, Id. at 8-9; and (4) a government witness testified
that he was not receiving a benefit for his testimony but
“Brady/Rosario” information allegedly indicated that was not true. Id.
at 10.
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IV. 	DISCUSSION
A. 	Exhaustion
An application for a writ of habeas corpus may not be granted
until a Muhammad has exhausted all remedies available in state court
unless "there is an absence of available State corrective process" or
"circumstances exist that render such process ineffective to protect the
rights of the applicant." 28 U.S.C. § 2254(b)(1)(A), (B)(i), (ii); see also
Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). The exhaustion
doctrine recognizes “respect for our dual judicial system and concern for
harmonious relations between the two adjudicatory institutions.” Daye
v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982); see also
Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (“Comity concerns lie
at the core of the exhaustion requirement.”). The chief purposes of the
exhaustion doctrine would be frustrated if the federal habeas court were
to rule on a claim whose fundamental legal basis was substantially
different from that asserted in state court.” 	Daye, 696 F.2d at 192
(footnote omitted).
To satisfy the exhaustion requirement, a petitioner must do so
both procedurally and substantively. Procedural exhaustion requires
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that a petitioner raise all claims in state court prior to raising them in a
federal habeas corpus petition. 	See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Substantive exhaustion requires that a petitioner
“fairly present” each claim for habeas relief in “each appropriate state
court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim.”1
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations omitted). A claim
has been “fairly presented” if the state court was apprised of “both the
factual and the legal premises of the claim [the petitioner] asserts in
federal court.” 	Daye, 696 F.2d at 191. In other words, petitioner “must
give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established
appellate review process.” 	O’Sullivan, 526 U.S. at 845; see also Fielding
v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977) (“In order to meet the
exhaustion requirement, a petitioner must have presented his claim to
the state courts at least once, on direct or collateral review.”).
“Therefore, even if a claim is not raised at trial or on direct appeal, a
claim pursued throughout a full round of state post-conviction
proceedings is exhausted.” 	Salahuddin v. Strack, No. 1:97-CV-5789,
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1998 WL 812648, at *5 (S.D.N.Y. Aug. 12, 1998) (citing inter alia
Castille v. Peoples, 489 U.S. 346, 350-51 (1989)).
Unexhausted claims are generally barred from habeas corpus
review by the rules concerning procedural default. 	See Aparicio, 269
F.3d at 90 (citing Coleman v. Thompson, 501 722, 735 n.1 (1991)).
Here, Muhammad failed to assert any of the claims on direct
appeal that he presently raises in his habeas proceeding. Muhammad’s
first claim is that the trial court should have given a missing witness
charge for witnesses Shaquille Stokes and Jihad Ryan. Pet. at 5.
According to Muhammad, this issue was the subject of a pretrial motion
filed by counsel in the state court. 	Id. 	Indeed, prior to the start of trial,
Muhammad’s counsel moved for a jury instruction attributing an
adverse inference to the prosecution if it failed to call those two
witnesses. Dkt. No. 19-2 at 105-109. The court initially reserved
decision on the matter. Dkt. No. 19-2 at 109. Thereafter, the People
supplemented their opposition to the request for the missing witness
charge. Dkt. No. 19-2 at 354-357. The court again reserved on making
its motion. Dkt. No. 19-2 at 357. Ultimately, the trial court denied
Muhammad’s request and the jury did not receive a missing witness
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instruction. Dkt. No. 19-3 at 996-998. While the missing witness claim
was developed and presented in the trial record, that is not sufficient to
exhaust the claim for habeas purposes. Muhammad was required to
present the claim on appellate review, first to the Supreme Court
Appellate Division and then to the Court of Appeals. 	See infra, Campos
v. Smith, No. 1:15-CV-6580, 2017 WL 1025850, at *2. Muhammad
acknowledges that this was not done, in fact explicitly saying that the
claim was only heard by the trial court. Pet. at 5.
Muhammad argues that his second claim, that he was subjected to
an unlawful search by his parole officer, was not argued on appeal
because Muhammad’s appellate counsel believed the issue was
meritless. Pet. at 7. However, there was a Fourth Amendment claim
proffered during Muhammad’s direct appeal. It is just that the
underlying facts of that claim are different than those alleged in the
instant pleading. 	Compare SCR at 692-96 (arguing that the police
lacked probable cause to arrest Muhammad because neither the
description provided by the eyewitness of the shooter nor the
surveillance videos were sufficient to establish Muhammad’s identity as
the shooter), with Pet. at 7 (arguing that his Fourth Amendment rights
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were violated when parole officers arrested Muhammad without an
arrest warrant for a parole violation that was later lifted).
Muhammad’s third claim, which was that witnesses were allowed
to identify Muhammad based on surveillance video was similarly not
litigated by Muhammad on appeal. Finally, Muhammad’s fourth claim,
that state witnesses were permitted to lie about their cooperation with
the government, was not advanced on direct appeal because
Muhammad’s trial counsel allegedly believed the issue to be meritless
and thus did not raise an objection. Pet. at 10.
Accordingly, all four of Muhammad’s claims are unexhausted
because he failed to provide the state courts with an opportunity to
resolve these constitutional issues. 	O’Sullivan, 526 U.S. at 845;
Fielding, 548 F.2d at 1106.
B. 	Procedural Default
“[W]hen a ‘petitioner fail[s] to exhaust state remedies and the
court to which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims
procedurally barred,’ the federal habeas court should consider the claim
to be procedurally defaulted.” 	Clark v. Perez, 510 F.3d 382, 390 (2d Cir.
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2008) (quoting Coleman v. Thompson, 510 U.S. 722, 735 n.1 (1991)).
“Procedurally defaulted claims must be dismissed unless the petitioner
can show cause for the default and prejudice, or demonstrate that
failure to consider the claim will result in a miscarriage of justice (i.e.,
that the petitioner is actually innocent.)” 	Gahsi v. Montagari, No. 9:22-
CV-1323 (LEK/ML), 2023 WL 3624773, at *3 (N.D.N.Y. May 24, 2023)
(internal quotation marks, modifications, and citations omitted); see
also House v. Bell, 547 U.S. 518, 536-539 (2006); Schlup v. Delo, 513
U.S. 298, 327 (1995).
Here, Muhammad’s claims are procedurally defaulted. First, all
four of the claims in the present petition are based on the record.
However, none of them were included in Muhammad’s direct appeal.
Because Muhammad has already completed the one round of appellate
review to which he is entitled, further state review of Muhammad’s
federal habeas claims through that avenue is not available. 	See Grey v.
Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Furthermore, Muhammad is
unable to exhaust said claims through a subsequent collateral attack,
because such post-judgment motions cannot serve as a substitute for a
direct appeal. 	Id. (citing N.Y. CRIM. PRO . LAW § 440.10(2)(b) (explaining
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that a motion to vacate must be denied when “sufficient facts appear on
the record with respect to the . . . issue raised . . . to permit adequate
review thereof upon such an appeal unless the issue raised . . . is
ineffective assistance of counsel.”)). Therefore, Muhammad’s claims will
be barred unless they can be saved by the cause and prejudice or actual
innocence exceptions.
1. 	Cause and Prejudice
To meet the “cause” requirement, a petitioner must show that
some objective external factor impeded his ability to comply with the
relevant procedural rule. 	See Maples v. Thomas, 565 U.S. 266, 280
(2012); see also Coleman, 501 U.S. at 753. 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 (1986)
(quoting United States v. Frady, 456 U.S. 154, 170 (1982)).
Muhammad states at multiple points in his petition and
affirmation that the reason he did not raise his habeas claims on appeal
is because his counsel refused to do so. The Supreme Court has
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recognized that constitutionally ineffective assistance of counsel, as
defined by Strickland v. Washington, 466 U.S. 668, (1984), can establish
sufficient cause to overcome a procedural default. See Murray v.
Carrier, 477 U.S. 478, 488, (1986) (“Ineffective assistance of counsel,
then, is cause for a procedural default.”); see also Edwards v. Carpenter,
529 U.S. 446, 451 (2000) (“[W]e have acknowledged that in certain
circumstances counsel's ineffectiveness in failing properly to preserve
the claim for review in state court will suffice [to establish cause to
overcome a procedural default].”). However, such claims of ineffective
assistance must be presented in state court for them to be used as cause
to excuse a procedural default. 	See Edwards, 529 U.S. at 451 (“the
principles of comity and federalism that underlie our longstanding
exhaustion doctrine ... require that constitutional claim, like others, to
be first raised in state court.”) (emphasis in original).
In this case, Muhammad has not ever alleged that his counsel was
ineffective. Furthermore, Muhammad has not raised ineffective
assistance of counsel claims in state court. Therefore, the Court may
not use ineffective assistance of counsel as grounds to excuse
Muhammad’s procedural default. Muhammad does not provide any
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additional arguments as to why his procedural default should be
excused for cause, nor has the court identified any cause in the record.
Muhammad has thus not shown cause and prejudice to get around the
procedural default and the claim is barred.
2. 	Actual Innocence
Additionally, there is an exception to the procedural bar in cases
where a Muhammad can prove actual innocence. 	See McQuiggin v.
Perkins, 569 U.S. 383, 392 (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 (1998)). “To be
credible, such a claim requires Muhammad 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; see also Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir.
2003). In addition, “prisoners asserting innocence as a gateway to
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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.’” 	House, 547 U.S. at 536-
37 (quoting Schlup, 513 U.S. at 327; see also Doe v. Menafee, 391 F.3d
147, 160-62 (2d Cir. 2004).
Here, Muhammad cannot meet this high burden. Muhammad
does not point to any new evidence that would tend to exculpate him.
Indeed, Muhammad merely states that he is innocent without an
elaboration as to why the Court should accept his contention. Such
entirely conclusory statements cannot excuse Muhammad’s procedural
defaulted claim based on actual innocence, as they “do not provide
actual evidence that would compel any reasonable juror to acquit
[Muhammad], particularly in view of the substantial evidence of his
guilt.” 	Mitchell v. Murphy, 359 F. App'x 22, 25 (10th Cir. 2009). (citing
Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“[A]ffidavits
must be based upon personal knowledge and set forth facts that would
be admissible in evidence; conclusory and self-serving affidavits are not
sufficient.”).
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In conclusion, Muhammad has failed to satisfactorily allege a
miscarriage of justice that would excuse his procedurally defaulted
claims.4
V. 	CONCLUSION
WHEREFORE, it is
RECOMMENDED that the petition, Dkt. No. 1, be DENIED
and DISMISSED in its entirety; and it is further
RECOMMENDED that no Certificate of Appealability ("COA")
shall issue because Muhammad has failed to make a “substantial
showing of the denial of a constitutional right” as 28 U.S.C. § 2253(c)(2)
requires;5 and it is further
RECOMMENDED that any further request for a Certificate of
Appealability must be addressed to the Court of Appeals (Fed. R. App.
P. 22(b)); and it is further
4 Because all of petitioner’s claims are unexhausted and procedurally defaulted,
they are barred from further habeas review. Accordingly, the Court need not
further consider the other arguments that respondent included about the
cognizability or merits of petitioner’s claims.
5 	Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d
212, 217 (2d Cir. 2007) (holding that if the court denies a habeas petition on
procedural grounds, "the certificate of appealability must show that jurists of reason
would find debatable two issues: (1) that the district court was correct in its
procedural ruling, and (2) that the applicant has established a valid constitutional
violation" (emphasis in original)).
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ORDERED that the Clerk of the Court respectfully provide
Muhammad with copies of the unpublished decisions cited herein in
accordance with the Second Circuit decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Decision
upon the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)
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 FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW.6 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).
Dated: February 27, 2026.
6 	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).
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Salahuddin v. Strack, Not Reported in F.Supp.2d (1998)
1998 WL 812648
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 812648
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Abdullah Y. SALAHUDDIN, Petitioner,
v.
Wayne L. STRACK, Superintendent,
Fishkill Correctional Facility, Respondent.
No. 97–CV–5789.
|
Aug. 12, 1998.
Attorneys and Law Firms
Abdullah V. Salahuddin, Fishkill Correctional Facility,
Beacon, for Petitioner Pro Se.
Charles J. Hynes, District Attorney, Kings County, Brooklyn,
By Camille O'Hara Gillespie, Assistant District Attorney, for
Respondent.
MEMORANDUM AND ORDER
GLEESON, District J.
*1 Abdullah Y. Salahuddin, also known as James Murph,
petitions this Court for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. For the reasons set forth below, the petition
is denied.
FACTS
On July 4, 1976, at approximately 9:30 p.m., Victoria Sostre
and Celiano Perez were working at a grocery store owned
by Rudolfo Montoya at 99 Fourth Avenue in Brooklyn when
petitioner and a male companion entered the store. Petitioner
placed a gun at the back of Perez's head and announced
a holdup. When Montoya entered the store from the back
room, petitioner pointed the gun at him, at which point Perez
attempted to seize the gun from petitioner. The two men
struggled, moving out of the store and into the street. When
Montoya came out of the store, petitioner fired the gun and
fatally shot Montoya in the head.
Petitioner was charged with two counts of Murder in the
Second Degree (New York Penal Law 125.25[1],[3] ),
and one count of Criminal Possession of a Weapon in
the Second Degree (New York Penal Law 265.03). On
September 19, 1977, pursuant to petitioner's motion to
suppress identification testimony, a Wade hearing was held in
the New York Supreme Court, Kings County, before Justice
Rinaldi. Perez, Sostre, and two others testified as prosecution
witnesses. On or about September 30, 1977, at the conclusion
of the hearing, the court denied the motion to suppress the
identification testimony of Perez and Sostre, ruling that the
lineup from which Perez had identified petitioner was proper
and that Perez and Sostre had an independent source for their
in-court identifications of petitioner.
At petitioner's trial, on October 3, 1977, the third count
of the indictment, Criminal Possession of a Weapon, was
dismissed by Justice Rinaldi shortly before the jury was
charged. On October 24, 1977, the jury began deliberations.
On the following day, the jury requested a readback of various
portions of the testimony. As the requested material was
being located, the jury informed a court officer that it no
longer wanted the information and soon thereafter sent a note
stating that it was divided. The court gave the jury an Allen
charge and the jury retired for further deliberations. Shortly
thereafter, the forelady announced that the jury remained
irreconcilably divided and that further deliberations would
be fruitless. Thereafter, over defense objection, the court
declared a mistrial.
On October 27, 1977, petitioner instituted an “Article 78”
proceeding in the Appellate Division, Second Department for
a writ of prohibition forbidding a retrial on double jeopardy
grounds. In the same application, petitioner sought a writ
of habeas corpus. On November 23, 1977, the Appellate
Division denied both applications. Matter of Murph v. Justices
of the Supreme Court, Kings County, No. 5725 (2d Dep't
1977).
A second jury trial was held on January 12, 1978, before
Justice Kooper. In addition to Perez and Sostre, the
prosecution presented the testimony of Robert Akers. Akers
testified that on the night of the shooting, petitioner confessed
to him that he had just held up a store and shot a person. Also
testifying as a prosecution witness was Jose Perez, to whom
petitioner made various incriminating statements, including
an account of the crime, while he and Perez both prisoners
at the Brooklyn House of Detention. 1 On January 26, 1978,
the jury returned a verdict acquitting petitioner of intentional
murder and First Degree Manslaughter and finding him
guilty of Murder in the Second Degree (felony murder)
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Salahuddin v. Strack, Not Reported in F.Supp.2d (1998)
1998 WL 812648
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and Manslaughter in the Second Degree. On March 21,
1978, Justice Kooper sentenced petitioner as a second felony
offender to concurrent terms of imprisonment of twenty-
five years to life for the felony murder count and seven and
one-half to fifteen years for the second degree manslaughter
count. Petitioner is presently incarcerated pursuant to these
convictions.
1 Jose Perez also apparently testified against
petitioner in the first trial. No transcripts of the first
trial have been found.
Procedural History
*2 On March 23, 1978, petitioner filed a notice of appeal. On
October 17, 1978, petitioner moved pro se, pursuant to New
York Criminal Procedure Law (N.Y.C.P.L.) §§ 440.10 and
440.20, to vacate his judgement of conviction and sentence
on the grounds that (1) misconduct by Justice Rinaldi during
the Wade hearing tainted the identification of him at trial; (2)
misconduct by Justice Kooper during the second trial denied
him a fair trial; (3) the People procured his conviction by
duress, misrepresentation, and fraud; (4) newly discovered
evidence would have resulted in a more favorable verdict had
it been presented; and (5) his sentence was illegal.
On or about December 4, 1978, petitioner's motion was
denied. On March 7, 1979, the Appellate Division, Second
Department, denied petitioner's application for leave to appeal
the order denying his motion. On March 26, 1979, the Court
of Appeals denied petitioner's application for leave to appeal
from the Appellate Division's order.
On June 25, 1982, petitioner appealed his conviction to the
Appellate Division, Second Judicial Department, presenting
the following six claims: (1) the court acted without manifest
necessity and in derogation of New York law when it declared
a mistrial; (2) Victoria Sostre's in-court identification of
petitioner should have been suppressed because her prior
viewing of two photographs of him was impermissibly
suggestive; (3) the court deprived petitioner of a fair trial
and his right to confront witnesses when it undermined and
denigrated defense counsel's efforts to cross-examine the
prosecution witnesses; (4) the prosecutor deprived petitioner
of due process and a fair trial when he argued on summation
that the defense was an illusion created by defense counsel;
(5) the case should be remanded for a hearing to determine
whether introduction of the testimony of his fellow inmate,
Jose Perez, violated petitioner's right to counsel under the
New York Constitution; and (6) his sentence was excessive.
On October 4, 1982, the Appellate Division unanimously
affirmed the judgment of conviction without opinion. People
v. Murph, 90 A.D.2d 695, 454 N.Y.S.2d 567 (2d Dep't 1982).
By letters dated October 18, 1982 and January 14, 1983,
petitioner applied for permission to appeal to the New York
Court of Appeals. In his application, petitioner raised four
issues: (1) the trial court acted without manifest necessity and
in derogation of New York law when it declared a mistrial;
(2) Sostre's in-court identification of petitioner should have
been suppressed; (3) the trial court deprived petitioner of a fair
trial and his right to confront witnesses when it undermined
and denigrated defense counsel's efforts to cross-examine
prosecution witnesses; and (4) the case should be remanded
for a hearing to determine whether admission of Jose Perez's
testimony violated petitioner's state constitutional right to
counsel. By certificate dated April 8, 1983, petitioner was
denied permission to further appeal. People v. Murph, 59
N.Y.2d 678, 463 N.Y.S.2d 1037, 450 N.E.2d 261 (1983).
*3 Twelve years later, on February 1, 1995, petitioner filed
a pro se motion pursuant to N.Y.C.P.L. § 440.20 in New
York Supreme Court, Kings County, seeking to set aside his
sentence on the ground that it was imposed in violation of his
state and federal constitutional rights because the sentencing
court allegedly relied upon false and inaccurate information
contained in the pre-sentence report. By order dated May
15, 1995, the New York Supreme Court, Kings County,
denied petitioner's motion. People v. Salahudder [sic], Ind.
No. 597/77. Petitioner's application for leave to appeal to the
Appellate Division was denied on July 6, 1995. People v.
Salahuddin, Ind. No. 95–05234.
By petition dated August 22, 1995, petitioner sought a
writ of habeas corpus in the United States District Court
for the Southern District of New York. By order dated
November 20, 1995, the Honorable Chief Judge Thomas
P. Griesa transferred the petition to this Court. Petitioner
alleged that he was entitled to habeas relief because (1)
his conviction violated Fifth and Fourteenth Amendment
protections against double jeopardy when the court, without
manifest necessity, declared a mistrial over defense objection
and without honoring five outstanding jury requests; (2)
Victoria Sostre's in-court identification of petitioner was
tainted by a suggestive pre-trial photo display in violation of
the Fourteenth Amendment; (3) his conviction violated the
Sixth and Fourteenth Amendments because the state court
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deprived him of a fair trial and the right to confront witnesses
when it undermined and denigrated defense counsel's efforts
to cross-examine prosecution witnesses; (4) his conviction
violated due process under the Fourteenth Amendment in that
the prosecutor argued on summation that the defense was an
illusion; (5) his conviction was obtained in violation of his
right to counsel under the Sixth and Fourteenth Amendments
because at trial the prosecution introduced testimony of Jose
Perez in violation of that right; and (6) his sentence violated
the Fourteenth Amendment in that the sentencing court
imposed a maximum sentence based upon false, fabricated
and inaccurate information contained in his pre-sentence
report. By order dated July 17, 1996, this Court, adopting the
report and recommendation dated May 8, 1996 by Magistrate
Judge John L. Caden, dismissed petitioner's application for
writ of habeas corpus without prejudice because it included
unexhausted claims. Salahuddin v. Keane, No. 95–CV–4978.
On September 30, 1996, petitioner moved pro se in the
New York Supreme Court, Kings County, to vacate his
conviction and set aside his sentence pursuant to N.Y.C.P.L.
§ 440.10 on the grounds that (1) the introduction of Jose
Perez's testimony concerning petitioner's statements made
to Perez violated petitioner's federal and state constitutional
right to counsel; and (2) the prosecutor's statements on
summation deprived petitioner of due process and a fair
trial. By a supplemental motion made on January 19, 1997,
petitioner sought to include the additional claim that he was
denied effective representation at trial. By decision and order
dated May 15, 1997, the New York Supreme Court, Kings
County, denied defendant's motion as amended, finding all
claims procedurally barred and the latter claim unsupported
by the record, presenting no reasonable possibility that the
allegations were true. People v. Salahuddin, Ind. No. 597/77.
*4 On June 5, 1997, petitioner submitted an application
for certificate granting leave to appeal to the Appellate
Division from the denial of his motion to vacate the judgment.
Petitioner's application was denied on September 10, 1997.
People v. Salahuddin, No. 97–07379.
The present petition for writ of habeas corpus was filed
on October 6, 1997. Petitioner advances the following
seven claims for habeas review: (1) his conviction violated
the Fifth and Fourteenth Amendment protections against
double jeopardy in that the trial court, without manifest
necessity, declared a mistrial over defense objection and
without honoring five outstanding jury requests; (2) Victoria
Sostre's in-court identification of petitioner should have been
suppressed; (3) he was deprived of a fair trial and the right to
confront witnesses when the court undermined and denigrated
defense counsel's attempts to cross-examine prosecution
witnesses; (4) the prosecutor deprived him of due process
by arguing on summation that the jury should disregard
the defense because it was an illusion created by defense
counsel, who did not believe in petitioner's innocence; (5)
he was denied his right to counsel by the introduction of
the testimony of Jose Perez; (6) he was denied a fair trial
under the Fifth, Sixth and Fourteenth Amendments because
the trial court failed to disclose a cooperation agreement made
with Jose Perez for his testimony against defendant; and
(7) his sentence violated the Fourteenth Amendment in that
the sentencing court imposed a sentence based upon false,
fabricated, and inaccurate information.
DISCUSSION
A. The Exhaustion Requirement
Before a federal court may consider a petitioner's application
for a writ of habeas corpus, the petitioner must have exhausted
all available state judicial remedies. 28 U.S.C. § 2254(b);
Picard v. Conner, 404 U.S. 270, 275, 92 S.Ct. 509, 30
L.Ed.2d 438 (1971); Taylor v. Mitchell, 939 F.Supp. 249,
253 (S.D.N.Y.1996). The Second Circuit has established
a two-pronged test to determine whether a petitioner has
exhausted all available state remedies. First, he must have
“fairly presented” his federal constitutional claims to the
highest state court. Reid v. Senkowski, 961 F.2d 374, 376 (2d
Cir.1992); Daye v. Attorney General, 696 F.2d 186, 191 (2d
Cir.1982), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79
L.Ed.2d 184 (1984). A petitioner fairly presents a claim when
he informs the state court of both “the factual and the legal
premise of the claim he asserts in federal court.” Lebron v.
Mann, 40 F.3d 561, 567 (2d Cir.1994) (quoting Daye, 696
F.2d at 191).
The second prong generally requires the petitioner to utilize
all avenues of appellate review within the state court system
before proceeding to federal court. Daye. 696 F.2d at 190;
Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994) (quoting
Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990), cert.
denied, 514 U.S. 1054 (1995)); Levine v. Commissioner of
Correctional Services, 44 F.3d 121, 124 (2d Cir.1995).
*5 The exhaustion doctrine “requires only that a petitioner
present his claim once on direct or collateral review.” Sanford
v. Senkowski, 791 F.Supp. 66, 69 (E.D.N.Y.1992) (citing
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Udzinski v. Kelly, 734 F.Supp. 76, 81 n. 4 (E.D.N.Y.1990));
Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir.1977).
Therefore, even if a claim is not raised at trial or on direct
appeal, a claim pursued throughout a full round of state
post-conviction proceedings is exhausted. 2 J. Liebman &
R. Hertz, Federal Habeas Corpus Practice and Procedure §
23.3b, at 671 (1994) (citing Castille v. Peoples, 489 U.S. 346,
350–51, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989)).
Previously, if a petition contained both exhausted and
unexhausted claims the petition was dismissed. Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
a federal district court now has discretion to deny a petition
that contains both exhausted and unexhausted claims on the
merits. 28 U.S.C. § 2254(b)(2).
B. The Procedural Default Jurisprudence
Apart from the exhaustion requirement, a federal court
generally will be precluded from reviewing any claim for
which “a state court rests its judgment on an adequate and
independent state ground, including a state procedural bar.”
Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir.1992). A
petitioner's failure to meet the state's procedural requirements
for presenting his federal claims “deprives the state courts of
an opportunity to address those claims in the first instance.”
Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991). However, when a petitioner defaults
his federal claims in state court, he meets the technical
requirements for exhaustion because there are no longer any
state remedies “available” to him. Id. at 732; 28 U.S.C. §
2254(b). Therefore, a federal court does not need to require
that a federal claim be presented in state court if it is clear
that the state court would hold the claim to be procedurally
barred. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (citing
Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989)).
If a claim is procedurally barred, a federal court may review
the claim only if the petitioner can show “cause for the default
and prejudice attributable thereto, or demonstrate that failure
to consider the claim will result in a fundamental miscarriage
of justice.” Coleman, 501 U.S. at 749–50 (quoting Murray
v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986)); Keeney v. Tamayo–Reyes, 504 U.S. 1, 2, 112
S.Ct. 1715, 118 L.Ed.2d 318 (1992). Cause exists if “the
prisoner can show that some objective factor external to
the defense impeded counsel's efforts to comply with the
State's procedural rule.” Murray, 477 U.S. at 488 (1986);
see Armadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771,
100 L.Ed.2d 249 (1988). For example, cause may be
demonstrated by showing that (1) “the factual or legal basis
for a claim was not reasonably available to counsel”; or that
(2) “some interference by state officials made compliance
impracticable”; or that (3) “the procedural default is the result
of ineffective assistance of counsel.” Bossett, 41 F.3d at 829
(quoting Murray, 477 U.S. at 488 (1986)). Prejudice exists
if the outcome of the case would likely have been different
absent the complained of constitutional violation. See Reed v.
Ross, 468 U.S. 1, 12, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
*6 Respondent does not dispute that petitioner has exhausted
his claims with respect to grounds one, two, and three or
five. However, respondent contends that petitioner's (1) fourth
claim that the prosecutor deprived him of his rights by arguing
on summation that the defense was an illusion; (2) his fifth
claim that the admission of Perez's testimony violated his
right to counsel; (3) sixth claim that the prosecutor's failure
to disclose a cooperation agreement with Perez deprived
him of a fair trial; and (4) seventh claim that he was
improperly sentenced because of false information in his
presentence report are procedurally barred. Furthermore,
respondent argues that petitioner has not and cannot show
cause or prejudice for his default.
C. The Declaration of a Mistrial
Petitioner asserts that a mistrial was declared in his first trial
without manifest necessity, and this his second trial violated
his double jeopardy rights. 2 A retrial following a mistrial
violates double jeopardy protections only if the mistrial was
declared without “manifest necessity.” Illinois v. Somerville,
410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).
However, nothing in the record suggests that the mistrial was
declared improperly, and so habeas relief is not warranted on
this ground.
2 To the extent that petitioner alleges a breach of state
law, he has not presented a federal issue capable of
habeas review.
The jury in petitioner's first trial reported, without prompting
from the court, that it was deadlocked in its deliberations.
The trial court then issued an Allen charge, which the jury
considered before reiterating its inability to arrive at a verdict.
It thus appears that the trial court had little choice but to
declare a mistrial. A jury's declaration that it cannot arrive at
a verdict is the “prototypical example” of a situation in which
the declaration of a mistrial becomes a manifest necessity.
Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72
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L.Ed.2d 416 (1982). The trial court's declaration of a mistrial
was justified by the circumstances, and the retrial did not
constitute a double jeopardy violation.
Petitioner's claim is based in part on the fact that the
jury made requests for readbacks prior to reporting its
deadlock. However, the unanswered requests do not compel
the conclusion that the mistrial, and subsequent second trial,
occurred in violation of petitioner's constitutional rights. See
United States v. Young, 140 F.3d 453, 456 (2d Cir.1998). The
jury's outstanding requests for testimony do not suggest that
further deliberations should have been forced by the court; the
record indicates that those requests had been withdrawn and
that the members of the jury felt that no amount of discussion
or information would have resolved the deadlock.
Likewise, the fact that the defense objected to the declaration
of a mistrial does not render the decision improper. A trial
court may declare a mistrial if “the ends of justice cannot be
attained” otherwise. Gori v. United States, 367 U.S. 364, 368,
81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); U.S. v. Millan, 17 F.3d
14, 19 (2d Cir.1993); United States v.. Pavloyianis, 996 F.2d
1467, 1472 (2d Cir.1993). Petitioner has failed to establish
that the mistrial declaration was not manifestly necessary,
given the jury's impasse. Habeas relief on this ground is thus
denied.
D. The Suppression of Sostre's Testimony
*7 Petitioner's second ground for habeas relief is that
Victoria Sostre's testimony was admitted in violation of the
Fifth and Fourteenth Amendments. Petitioner contends that
the pre-trial display of two photographs of him to Sostre
rendered her later in-court identification unreliable.
Prior to the first trial, a Wade hearing was conducted with
respect to this issue, and the court determined that Sostre's
testimony would be allowed because she had an independent
source for her identification. The federal habeas statute
precludes federal courts from granting habeas relief on a claim
that has been considered in the state system unless the state's
rulings were contrary to or an unreasonable application of
federal law or involved an unreasonable finding of fact. 28
U.S.C. § 2254(d). Without such a showing, I cannot grant
habeas relief on this ground.
Even where a witness has been subjected to a suggestive
pre-trial photographic identification procedure, federal
law maintains that convictions based on eyewitness
identifications at trial “will be set aside on that ground
only if the photographic identification procedure was
so impermissibly suggestive as to give rise to a ‘very
substantial likelihood of irreparable misidentification.” ’
Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243,
53 L.Ed.2d 140 (1977) (quoting Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)).
Whether a due process violation has occurred is determined
after a consideration of the entirety of the circumstances
surrounding the identification. Thus, even if Sostre had been
shown photographs in a suggestive manner, her in-court
identification of petitioner would still be admissible under
federal law provided that the totality of the circumstances
could establish the reliability of her testimony. Neil v. Biggers,
409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
The evidence before the trial court 3 established that Sostre's
in-court identification rested on her observations during the
crime and not on any suggestive pre-trial identification.
During the trial Sostre testified that she was working in the
store on July 4, 1976, when, between seven and seven-thirty
p.m., two men, one light-skinned man and the other dark-
skinned, entered the front door of the store. She identified
the darker-skinned man as the petitioner. The two men passed
Sostre, who was standing at a “very short distance” from the
front door. Both men walked down an aisle, approximately
five or six feet from Sostre to a refrigerator in the rear of the
store. The petitioner argued with Celiano Perez over the price
of frankfurters. Then the petitioner and the other man walked
to the other side of the store, and the other man took a bag
of potato chips and threw it down. The two men then left the
store. The incident took approximately five minutes.
3 As stated earlier, respondent has been unable to
obtain the transcript from petitioner's first trial,
including the transcript of the Wade hearing.
Respondent, therefore, relies on citations to the
Wade hearing transcript contained in the People's
brief to the Appellate Division. Respondent states
that Sostre testified that she was working behind the
counter at Rudolfo Montoya's store when two men
entered the premises and she observed the men in
the store from a distance of fourteen to fifteen feet
while they attempted to rob the store.
Later that same evening, around nine p.m., Sostre observed
the two men re-enter the store. From a distance of
approximately six feet away, Sostre observed the petitioner
display a revolver, place it against Celiano Perez's back,
and heard petitioner announce a hold-up. Sostre saw Perez
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struggle with petitioner, and Rudolfo Montoya join the
struggle. The struggle then moved outside, and Sostre heard
what sounded like several shots. Sostre saw Perez return to
the store and observed Montoya on the ground.
*8 Sostre's testimony was sufficient to permit the court to
conclude reasonably that an independent source existed for
her in-court identification of the petitioner, even assuming,
arguendo, that she was improperly shown two isolated
photographs of the petitioner. See Neil v. Biggers, 409 U.S.
at 199. Certainly such a finding is not an unreasonable
determination in view of the facts available to the lower court,
and was not contrary to or an unreasonable application of
federal law.
Finally, even if Sostre's testimony were irreparably tainted
by the allegedly suggestive photograph display, inclusion of
her testimony was harmless in light of the overwhelming
evidence of petitioner's guilt. See Brecht v. Abrahamson, 507
U.S. 619, 637–638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993);
Meadows v. Kuhlman, 812 F.2d 72, 76–77 (2d Cir.), cert.
denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987).
Sostre was not the only eyewitness who identified petitioner;
the prosecution also presented the testimony of Celiano Perez,
who grappled with petitioner moments before the shooting
observing Montoya's. Accordingly, even if the admission of
Sostre's testimony was error, there is no basis for federal
habeas relief.
E. Right to Cross Examine Witnesses
Petitioner contends that the trial court violated his Sixth
and Fourteenth Amendment rights when it undermined
and denigrated defense counsel's attempts to cross-examine
witnesses. The Sixth Amendment provides, in relevant part,
that “[i]n all criminal prosecutions, the accused shall enjoy the
right ... to be confronted with the witnesses against him ....”
This right applies to state as well as federal prosecutions
via the due process clause of the Fourteenth Amendment,
and federal law holds that “the right of cross-examination
is included in the right of an accused in a criminal case
to confront the witnesses against him.” Pointer v.. Texas,
380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
Both the Appellate Division and Court of Appeals concluded
that petitioner's contention that he was denied a fair trial
was meritless, and I find that neither decision presents either
an unreasonable application of Federal law or unreasonable
determination of the facts available.
Defendants are entitled to a fair trial, not a perfect one. Only
judicial misconduct that renders the trial so fundamentally
unfair as to violate federal due process under the Constitution
requires habeas relief. United States v. Robinson, 635 F.2d
981, 984 (2d Cir.1980), cert. denied 451 U.S. 992, 101 S.Ct.
2333, 68 L.Ed.2d 852 (1981); Gayle v. Scully, 779 F.2d 802,
806 (2d Cir.1985), cert. denied, 479 U.S. 838, 107 S.Ct.
139, 93 L.Ed.2d 82 (1986). More specifically, habeas relief
on the ground of judicial misconduct at the state trial level
is warranted only if the federal court determines that the
alleged improprieties, taken in the context of the total trial,
undermined fundamental fairness to the defendant. Daye, 712
F.2d at 1572.
A review of the trial record indicates that the court's
conduct never approached the level of impropriety that would
constitute a deprivation of petitioner's right to fundamental
fairness. The court's commentary presented nothing other
than ordinary attempts to guide the course of the proceedings
and keep them moving at an acceptable pace. Rulings did not
disproportionally advantage one side over the other, but were
routinely made in favor of either side, often over the objection
of the other, and represented perfectly acceptable exercises of
judicial discretion. Even if viewed in a highly critical light,
none of the court's conduct would have tainted the trial to
such an extent that petitioner's right to a fair trial was denied.
Accordingly, this claim is insufficient to support habeas relief
for the petitioner.
F. The Prosecutor's Summation
*9 Petitioner's fourth ground for habeas relief is that the
prosecutor's summation, arguing that the defense counsel
did not believe in petitioner's innocence, deprived petitioner
of his rights to a fair trial under the Sixth and Fourteenth
Amendments. Specifically, the portions of the closing that
petitioner points to include: 4 (1) Mr. Scotto [the defense
attorney] “turne[ed] the evidence in a way that did not really
reflect what occurred in this trial [or] on the 4th of July ....”
Tr. 1113; (2) “I submit to you that Mr. Scotto was trying, in
the course of his summation, to create for you an illusion,
faced with the overwhelming evidence against his client ....”
Tr. 1113; (3) “So, you see, again we have an illusion trying
to be created in front of you.” Tr. 1115; (4) “But this is
just something that Mr. Scotto is throwing in here, smoke to
distract your attention and take your attention away from what
the real issues are in this case.” Tr. 1116; (5) “Render a verdict
which speaks the truth in this case—- not based upon any
illusions ....” Tr. 1146.
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4 Petitioner does not make reference to specific
portions of the transcript, however, his brief to the
Appellate Division, with the assistance of counsel,
referred to the following portions.
Unlike the first three claims of the petition, this ground was
not raised in petitioner's application to the Court of Appeals.
Accordingly, the claim is deemed exhausted but procedurally
barred, and may only be reviewed on the merits if petitioner
can show cause and prejudice for his procedural default.
Coleman, 501 U.S. at 749–50; Bossett, 41 F.3d at 829.
The fact that this claim was included in petitioner's
application for leave to appeal to the Appellate Division,
but not in the application for leave to appeal to the Court
of Appeals, suggests that no factor external to the defense
prevented the claim from being properly exhausted. Petitioner
offers no explanation for, and alleges no prejudice resulting
from his default. I conclude, therefore, that there was no
“objective factor external to the defense” which impaired
petitioner's “efforts to comply with the State's procedural
rule.” Murray v. Carrier, 477 U.S. at 488.
Furthermore, petitioner's claim is meritless. While the state
court standards for determining prosecutorial misconduct
may differ, a prosecutor's remarks on summation raise a
federal question only if they so infect the trial proceedings
with unfairness that they deprive a defendant of due process.
Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986); Donnelly v. DeChristophoro, 416 U.S.
637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Garofolo
v. Coomb, 804 F.2d 201, 206 (2d Cir.1986). In this case, the
prosecutor's comments constituted a permissible rebuttal to a
defense argument which impugns the government's integrity
or the integrity of its case. United States v. Rivera, 22 F.3d
430, 438 (2d Cir.1994) (prosecutor's comments evaluated in
context of trial as a whole because government is allowed to
respond to argument which impugns the integrity of its case);
United States v. Thai, 29 F.3d 785, 807 (2d Cir.), cert. denied,
513 U.S. 977, 115 S.Ct. 456, 130 L.Ed.2d 364, and cert.
denied, 513 U.S. 993, 115 S.Ct. 496, 130 L.Ed.2d 406 (1994).
In his summation, defense counsel labeled the prosecution
“not really the whole truth,” but rather a fabrication, prepared
in the course of several prior proceedings. He claimed that
the prosecution witness, Celiano Perez's story was incredible
and that prosecution witnesses Akers and Jose Perez were
both liars. In short, the defense summation constituted an
attack on the prosecution's case to which the government was
entitled to respond. See United States v. Perry, 643 F.2d 38,
51 (2d Cir.) (in light of defense counsel's attack on credibility
and honesty of government's case in closing arguments,
government's statements describing defendant's attack as a
desperate, struggling tactic were permissible), cert. denied,
454 U.S. 835 (1981). Viewed in this context, the prosecutor's
closing arguments did not so infect the proceedings with
unfairness that petitioner was denied a constitutional right.
*10 Finally, any error occasioned by the prosecutor's
summation was harmless in light of the overwhelming
evidence of defendant's guilt. The weight of the evidence
presented to the jury would have compelled a verdict of guilty
even absent the prosecutor's comments to which petitioner
objects. Accordingly, habeas relief on this ground is denied.
G. Right to Counsel
Petitioner's fifth claim is that the introduction at trial
of testimony of petitioner's fellow inmate, Jose Perez,
concerning statements made by petitioner in the absence of
counsel, violated his right to counsel afforded by the Fifth,
Sixth, and Fourteenth Amendments. 5
5 Respondent argues that this claim is partially
unexhausted because petitioner advances the Fifth
Amendment as legal support for his claim for the
first time in this petition. Petitioner's presentation
of this claim to the state courts relied on the
New York state constitutional right to counsel
and the federal right to counsel under the Sixth
and Fourteenth Amendments. For habeas purposes,
a petitioner has fairly presented his claims in
state court when he sets forth “the factual and
legal premise of the claim he asserts in federal
court.” Dave, 696 F.2d at 191. The fair presentation
requirement is satisfied “if the legal basis of the
claim made in state court was the ‘substantial
equivalent’ of the habeas claim.” Id. at 192.
I conclude that petitioner sufficiently alerted
the New York Supreme Court of the federal
constitutional nature of his claim.
1. Procedural Default
Petitioner's right to counsel claim, as advanced in his
September 1996 motion to vacate, was denied on the basis
of a procedural default, which constitutes an independent and
adequate state ground. This procedural default acts as a bar to
federal habeas review unless petitioner can show cause and
prejudice for his default, or that a failure to consider his claims
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now would result in a fundamental miscarriage of justice.
Again, petitioner has been unable to satisfy these conditions
to permit review of the merits his claim.
2. The Merits
In any event, the claim is meritless. The statements petitioner
made to Perez in jail were not protected by the federal
constitution. The Sixth Amendment right to counsel attaches
only after adversary judicial criminal proceedings have
commenced. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991);
Neighbor v. Covert, 68 F.3d 1508, 1511 (2d Cir.1995), cert.
denied, 516 U.S. 1174 (1996). Perez testified to statements
made to him by petitioner in the latter part of 1976, before
petitioner was charged or even arrested in connection with
Montoya's murder. Thus, his federal right to counsel had not
yet attached with respect to those statements.
Furthermore, conversations between suspects and undercover
agents, when the suspect is unaware of the other's status
as a police agent, do not implicate the concerns underlying
Miranda. Illinois v. Perkins, 496 U.S. 294, 296 (1990).
The Court in Perkins held that “[t]he essential ingredients
of ‘police-dominated atmosphere’ and compulsion are not
present when an incarcerated person speaks freely to someone
whom he believes to be a fellow inmate .... Miranda forbids
coercion, not mere strategic deception by taking advantage
of a suspect's misplaced trust in one he supposes to be a
fellow prisoner.” Id. at 296–97. Therefore, even if Perez
is seen as an undercover government agent, a proposition
in support of which petitioner has only been able to offer
mere allegations, and petitioner did not receive Miranda
warnings before making statements to Perez, the statements
were admissible under federal constitutional law. See also
Alexander v. Connecticut, 917 F.2d 747, 751 (2d Cir.1990),
cert. denied, 501 U.S. 1219, 111 S.Ct. 2831, 115 L.Ed.2d 1000
(1991).
Because petitioner's incriminating statements were not
collected in violation of petitioner's right to counsel, Perez's
testimony was properly admitted at trial. Thus, even if
petitioner's fifth claim were not barred from habeas review
on the merits, it advances insufficient grounds upon which to
provide habeas relief.
H. The Alleged Violation Of Brady v. Maryland
Petitioner next claims that the prosecutor failed to disclose
a cooperation agreement between Jose Perez and the state,
thereby depriving petitioner a fair trial. Petitioner contends
that had such an agreement been presented to the jury, the trial
would have had a more favorable outcome for him.
Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1983), the prosecution has the duty to
disclose to a defendant any information in its possession
which is favorable to the accused and material either to
guilt or punishment. This obligation is ongoing and extends
to impeachment evidence as well. United States v. Wong,
78 F.3d 73, 79 (2d Cir.1996). The state court found in its
January 1997 ruling on petitioner's N.Y.C.P.L. § 440 motion
that prosecutors had fulfilled their Brady obligations in this
matter, and I find no reason to disturb that determination
today. Petitioner points to the trial record, in which Perez's
criminal history and the effect of his cooperative testimony
on the disposition of other criminal matters pending against
him at the time were discussed at length, both in and
outside of the jury's presence. 6 Petitioner sought an order for
“discovery” of additional documents which would reveal a
formal cooperation agreement between Perez and the State,
if any existed, in connection with his 1996 motion to vacate.
In dismissing the melange of motions, amendments, and a
reply submitted by petitioner, the court rejected the discovery
motion on procedural grounds, citing petitioner's failure to
raise the issue in the previous nineteen years and holding the
claim barred by N.Y.C.P.L. § 440.10(3)(a). 7
6 Transcripts reveal that the consideration Perez
was shown in exchange for his testimony was
discussed prior to the retrial, with counsel for
both the petitioner and the witness present. The
prosecutor offered a detailed description of the
plea adjustments and sentencing promises made
to Perez (on unrelated pending charges) for his
testimony. Furthermore, the trial court permitted
defense counsel to examine Perez at length before
the jury concerning his criminal history, pending
sentences, and any arrangement made between him
and the state concerning his cooperative testimony
against petitioner. Perez's answers corroborated the
prosecutor's earlier statements to the court. Defense
counsel was even permitted to question Perez at
trial about consideration for his testimony of which
he may not have been aware.
7 Petitioner has advanced an explanation for his
failure to have raised this issue previously.
His application to the Appellate Division for
leave to appeal asserted that petitioner had been
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unaware of evidence (all contained within the
trial transcripts) which he thought bolstered his
claims of an undisclosed cooperation agreement.
He happened to have found in a stack of papers
which had been left in the corner of his cell
portions of the trial transcript which prompted
him to amend his pending motion to vacate
and seek further documentation from the state
regarding Perez's testimony. However, this amount
of bad housekeeping does not constitute cause for
procedural default of a claim in the New York state
criminal justice system. Merely being unaware that
portions of the trial transcript (which sow the seeds
of suspicion concerning a prosecution witness) are
lying in the corner of the room, does not excuse
failure to properly raise a claim in state court. Nor
does it constitute “an objective factor external to the
defense” which impeded petitioner or his counsel
from complying with the state's procedural rules.
Murray v. Carrier, 477 U.S. at 488.
*11 Petitioner is now seeking habeas relief on the basis of
the very transcript which was at his disposal in lodging his
initial appeal, and has been unable to demonstrate cause for
his default.
Furthermore, any prejudice which petitioner contends he
suffered as a result of this default is negligible. The cause
and prejudice standard requires more than just the “possibility
of prejudice;” as noted above, it requires actual disadvantage
to the petitioner. United States v. Frady, 456 U.S. 152,
170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in
original). The jury was well aware of the consideration Perez
received as a result of his testimony, and there is no reason to
believe that, if petitioner had been made aware of and been
allowed to present additional evidence concerning a more
elaborate cooperation agreement between Perez and the state,
the verdict would have been affected. Without a showing of
cause for the default and actual prejudice suffered as a result,
this court is precluded from considering the claim on the
merits.
In any event, petitioner's claim is meritless. Petitioner has
not demonstrated that the state has withheld any information
which details an arrangement other than the promises
disclosed prior to and during trial. The decision dismissing
petitioner's 1996 motion to vacate noted that there was no
basis on which to assume such a cooperation agreement
existed. There is no basis for disturbing that finding.
I. The Challenge To The Pre–Sentence Report
Petitioner's final ground for habeas relief is that his sentence
was determined on the basis of false, fabricated, erroneous,
and inaccurate information, in violation of the Fifth and
Fourteenth Amendments. He presented this issue to the state
court in February of 1995 in a motion to vacate his sentence
pursuant to N.Y.C.P.L. § 440.20.
Petitioner has not articulated what, precisely, in the pre-
sentence report in this case constituted false, fabricated,
erroneous, and inaccurate information. It is not even clear that
petitioner is referring to the pre-sentence report used in this
case . 8 In any event, none of the information in the challenged
pre-sentence report is erroneous. Petitioner appears to claim
that the reference to a 1969 incident should not have appeared
on the report because he was given a youthful offender
adjudication instead of criminal conviction. 9 Inasmuch as the
pre-sentence report reflected the disposition of that matter,
and all other criminal incidents (even when charges were
later dropped or dismissed), it reflects information which is
entirely truthful and accurate. Because the pre-sentence report
did not contain any false, fabricated, erroneous, or inaccurate
information, and because petitioner's criminal record played
little role in the sentencing decision, petitioner's final claim
does not warrant habeas relief.
8 Exhibit 1 to petitioner's February 1995 motion to
vacate, described as the pre-sentence report used
by the sentencing court in this matter, appears in
fact to be a report prepared in connection with
petitioner's indictment for an August 1975 armed
robbery, a charge which was later dismissed. The
pre-sentence report prepared for this case notes
both that indictment and its later dismissal for lack
of prosecution.
9 Petitioner argued in support of his February 1995
motion to vacate that he had believed the records
were sealed with respect to the 1969 incident. He
notes that at the time of sentencing for this matter,
the court stated it was “looking at his criminal
history dating back to 1969,” and concludes that
information about that incident was available to the
sentencing court.
CONCLUSION
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For the foregoing reasons, Salahuddin's petition for writ of
habeas corpus is denied. In addition, I hereby refuse to issue a
certificate of appealability, since petitioner has not presented
a “substantial showing of the denial of a constitutional right.”
See Reyes v. Keane, 90 F.3d 676, 680 (2d. Cir.1996) (quoting
Section 102 of the Antiterrorism and Effective Death Penalty
Act).
*12 So Ordered.
All Citations
Not Reported in F.Supp.2d, 1998 WL 812648
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Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 29 of 42

Salahuddin v. Strack
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:97cv05789
SALAHUDDIN v. STRACK
— E.D.N.Y. Oct. 06, 1997 Docket
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Salahuddin v. Strack
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History (4)
Direct History (2)
1. People v. Murph
90 A.D.2d 695 , N.Y.A.D. 2 Dept. , Oct. 04, 1982
Habeas Corpus Denied by
2. Salahuddin v. Strack
1998 WL 812648 , E.D.N.Y. , Aug. 12, 1998
Related References (2)
3. Salahuddin v. Unger
2005 WL 2122594 , E.D.N.Y. , Sep. 02, 2005
4. Salahuddin v. Dennison
2005 WL 3018695 , E.D.N.Y. , Nov. 09, 2005
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Campos v. Smith, Not Reported in Fed. Supp. (2017)
2017 WL 1025850
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 1025850
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court, E.D. New York.
John S. CAMPOS, Petitioner,
v.
Brandon SMITH, Greene C.F.,
Superintendent, Respondent.
15-CV-6580 (CBA)
|
Signed 03/13/2017
|
Filed 03/15/2017
Attorneys and Law Firms
John S. Campos, Malone, NY, pro se.
New York State Attorney Generals Office, Richmond
County District Attorneys Office, Anne Elizabeth Grady,
Staten Island, NY, Thomas Benjamin Litsky, Lisa Ellen
Fleischmann, State of New York Office of the Attorney
General Divison of Appeals & Enforcement, New York, NY,
for Respondent.
MEMORANDUM & ORDER
Carol Bagley Amon, United States District Judge
*1 On April 7, 2015, petitioner John S. Campos was
convicted in New York Supreme Court, Richmond County,
of aggravated criminal contempt, aggravated family offense,
and criminal contempt in the first degree. On November 6,
2015, petitioner commenced the instant action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (D.E. # 1. (“Petition”).) On March 10, 2016, respondent
filed a motion to dismiss the petition without prejudice due to
petitioner's failure to exhaust his claims in state court. (D.E. #
8-3 (“Resp. Mem.”).) For the following reasons, the petition
for a writ of habeas corpus is denied without prejudice.
BACKGROUND
A jury found defendant guilty on November 7, 2014, after a
trial held in New York Supreme Court, Richmond County. On
November 24, 2014, petitioner filed a counseled motion to set
aside the verdict pursuant to New York Criminal Procedure
Law (“C.P.L.”) § 330.30(1). 1 The trial court denied the
motion on December 22, 2014. (See D.E. # 8-2 (“Resp. Ex.”)
B.) On April 7, 2015, the trial court sentenced petitioner, as
a second felony offender, to an indeterminate prison term of
3 to 6 years for aggravated criminal contempt, to be served
concurrently with indeterminate prison terms of 2 to 4 years
for aggravated family offense and criminal contempt in the
first degree. (D.E. # 8-1, Declaration of Thomas B. Litsky
(“Litsky Decl.”) ¶ 3; Resp. Ex. C.)
1 In his § 330.30(1) motion, petitioner claimed
that (1) the trial court delivered erroneous jury
instructions by not instructing the jury that
petitioner's “prior conviction ... and the application
of an order [of] protection CANNOT be proven
by the name alone”; and (2) there was insufficient
evidence because the complaining witness was not
credible and her testimony should not have been
given any weight. (See D.E. # 8-2 (“Resp. Ex.”) A.)
Petitioner filed a notice of appeal on April 7, 2015. (Litsky
Decl. ¶ 12.) On July 17, 2015, he filed a pro se motion—
along with another pro se notice of appeal—in the New York
Appellate Division, Second Department, seeking leave to
prosecute the appeal as a poor person and for the assignment
of counsel, and for relief pursuant to C.P.L. § 440.10. (Id.
¶ 13; Resp. Ex. C.) On August 19, 2015, the Appellate
Division denied petitioner's pro se motion. (Resp. Ex. D.) To
the extent that petitioner sought relief under C.P.L. § 440.10,
the Appellate Division denied petitioner's motion without
prejudice to petitioner making a C.P.L. § 440.10 motion in
the Supreme Court, Richmond County. (Id.) The Appellate
Division also denied petitioner's motion for leave to prosecute
his direct appeal as a poor person and for the appointment of
counsel with leave to renew upon proper papers, including
an affidavit from petitioner setting forth: (1) whether he was
represented by assigned or retained counsel in the trial court
and, if retained, the amount and source of counsel fees paid to
retained counsel; and (2) if he was on bail before conviction,
the amount and source of the bail money, and if bail was his
own money, what happened to the money after conviction.
(Id.) As of the filing of the papers on the instant motion,
petitioner has not renewed his motion and petitioner's direct
appeal remains pending and unperfected. (See Litsky Decl. ¶
15.)
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Campos v. Smith, Not Reported in Fed. Supp. (2017)
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*2 On June 29, 2015, during the pendency of his direct
appeal, petitioner filed a pro se motion to vacate his judgment
of conviction pursuant to C.P.L. § 440.10. 2 (See Resp. Ex.
E.) On February 24, 2016, the court hearing petitioner's §
440 request (the “§ 440 court”) denied the motion. To the
extent that petitioner raised the same claims he asserted in his
prior counseled C P.L. § 330.30 motion, the court denied the
motion for the reasons stated in its decision dated December
22, 2014. (Resp. Ex. G; see also Resp. Ex. B.) The court
considered petitioner's remaining claims and rejected them.
(Resp. Ex. G.) On March 2, 2016, the Richmond County
District Attorney's Office served petitioner with a copy of that
order and notice of entry. (Resp. Ex. H.) As of the filing of
respondent's motion to dismiss in the instant action, petitioner
had not yet sought leave to appeal that order to the Appellate
Division, Second Department. (Litsky Decl. ¶ 18.)
2 Petitioner contended that: (1) “the complaining
witness was severely compromised”; (2) the trial
court erred by not instructing the jury in accordance
with People v. Van Buren, 82 N.Y.2d 878 (1993);
(3) his case should be dismissed on state speedy
trial grounds under C.P.L. § 30.30; and (4) his
attorney “was negligent in violating [his] 180.80
motion [sic] and was in cohoots [sic] with the
prosecution.” (Resp. Ex. E ¶¶ 2, 5.)
On November 6, 2015, petitioner filed the instant pro se
petition for a writ of habeas corpus. Petitioner raises the
following claims: (1) the trial court erred by not instructing
the jury that the presence of his name on certain records was
insufficient to establish that he had a prior conviction and
that he was the subject of an order of protection; (2) there
was not sufficient evidence to establish that he was previously
convicted of criminal contempt and the subject of an order
of protection; (3) his prosecution was untimely under New
York's speedy trial statute, C.P.L. § 30.30; (4) his trial counsel
was ineffective because he: (a) failed to file a motion to
dismiss under C.P.L. § 30.30, (b) did not seek his release from
custody pursuant to C.P.L. § 180.80, and (c) was in “cahoots”
with the prosecutor; (5) the indictment was: (a) duplicitous
and (b) defective because it referred to him as “John Campos”
or “the defendant,” rather than “John S. Campos;” (6) there
was prosecutorial misconduct because the People falsified
evidence and engaged in coercion; and (7) there was judicial
misconduct of an unelaborated nature. (See Petition.)
STANDARD OF REVIEW
Before a federal court may entertain a habeas corpus petition
on behalf of a state prisoner, the petitioner must first exhaust
his available state remedies. See 28 U.S.C. § 2254(b);
Woodford v. Ngo, 548 U.S. 81, 92 (2006) (explaining that
“[a] state prisoner is generally barred from obtaining federal
habeas relief unless the prisoner has properly presented his
or her c aims through one complete round of the State's
established appellate review process”) (internal quotation
marks and citation omitted). A petitioner has exhausted
his state remedies when he has: “(i) presented the federal
constitutional claim asserted in the petition to the highest
state court (after preserving it as required by state law in
lower courts) and (ii) informed that court (and lower courts)
about both the factual and legal bases for the federal claim.”
Ramirez v. Attorney General of State of New York, 280 F.3d
87, 94 (2d Cir. 2001). A petitioner may not introduce new
claims for the first time in his federal habeas petition, but
“[must] present the state courts with the same claim he urges
upon the federal courts.” Picard v. Connor, 404 U.S. 270, 276
(1971).
“In New York, to invoke one complete round of the State's
established appellate review process,” for claims that are on
the record, “a criminal defendant must first appeal his or
her conviction to the Appellate Division, and then must seek
further review of that conviction by applying to the Court of
Appeals for a certificate granting leave to appeal.” Galdamez
v. Keane, 394 F.3d 68, 74 (2d Cir. 2005) (internal quotation
marks and citation omitted). If a petitioner's claims are outside
the record, then he may exhaust them by bringing a motion to
vacate the judgment in the trial court under C.P.L. § 440.10,
and then by seeking leave to appeal to the Appellate Division
if the petitioner receives an adverse ruling. See C.P.L. §
450.15(1); People v. Schrock, 900 N.Y.S.2d 804, 807 (2010).
There is no time limit within which an individual must bring
a § 440.10 motion. See C.P.L. § 440.10(1).
DISCUSSION
I. On the Record Claims
*3 To the extent that petitioner's claims were “on the
record,” petitioner has failed to exhaust them because he has
not attempted to perfect his direct appeal. Appellate Division
rules provide that an unperfected criminal appeal is “deemed
abandoned in all cases where no application has been made by
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the defendant for the assignment of counsel to prosecute the
appeal within nine months of the date of the notice of appeal
unless the time to perfect shall have been extended pursuant
to [§ 670.8(d) ].” See 22 N.Y.C.R.R. § 670.8(f). In this case,
however, petitioner made such an application, but simply
failed to renew that application by providing the Appellate
Division with the information it requested in its order dated
August 19, 2015. Nothing prevents petitioner from now
providing the Appellate Division with that information or
for moving for an extension of time to perfect his appeal.
See 22 N.Y.C.R.R. § 670.8(d)(2) (“Where a party shall
establish a reasonable ground why there cannot or could not
be compliance with the time limits prescribed by this section,
or such time limits as extended by stipulation pursuant to
paragraph (1) of this subdivision, the clerk or a justice
may grant reasonable enlargements of time to comply.”).
Moreover, even if petitioner does not perfect his direct appeal,
petitioner's judgment will only be considered final thirty
days after the Appellate Division dismisses the appeal as
abandoned and if petitioner does not seek leave to appeal to
the New York Court of Appeals. See Perez v. Haynes, No. 10-
CV-713 (MKB), 2012 WL 4738997, at *3 (E.D.N.Y. Oct. 3,
2012).
Petitioner's claim for improper jury instructions was found
to be “on the record” by the § 440 court, but petitioner has
not raised it as a claim on direct appeal to the Appellate
Division. 3 See (Resp. Exs. B, E.) Instead, petitioner included
the claim in his § 440.10 motion. Because this claim was
made “on the record,” it should have been brought on direct
appeal, which petitioner has failed to perfect. Failing to raise
his claim in the proper procedural vehicle does not exhaust
petitioner's claim. See Dean v. Smith, 753 F.2d 239, 241 n.4
(2d Cir. 1985) (“The exhaustion doctrine does not require
that all avenues of state review have been exhausted ... but,
at a minimum, the petitioner is required to present his claim
to a state court vested with the proper authority to hear the
claim and grant the relief sought.”). Moreover, petitioner's
improper jury instructions claim was only raised on state law
grounds. (Resp. Ex. E.) In his motion, he stated that “the most
egregious error was not to instruct the jury,” citing to People
v. Van Buren, 82 N.Y. 878 (1993), which does not actually
address any federal claims. “The exhaustion doctrine requires
that a prisoner seeking to upset his conviction on federal
grounds must have given the state courts a fair opportunity to
review his federal claim and correct the alleged error.” Dean,
753 F.2d at 241. For these reasons, as with the rest of his
on the record claims, petitioner has failed to exhaust his jury
instructions claim through a perfected appeal to the Appellate
Division.
3 The § 440 court rejected this claim in its order
because it found that the claim was decided “on the
record” and “require[d] no further exposition.”
II. Outside the Record Claims
To the extent petitioner now brings claims that were “outside
the record,” they are unexhausted either because they have not
yet been raised in a § 440.10 motion, they were only raised
previously on state law grounds, or petitioner has failed to
seek leave to appeal the trial court's § 440 order. In his §
440.10 motion, petitioner asserted that his trial counsel was
ineffective because he (1) did not seek petitioner's release
pursuant to C.P.L. § 180.80 and (2) was in “cahoots” with the
prosecutor. 4 Petitioner did not make it clear to the state court
whether he was asserting his claim, at least in part, on federal
grounds. “A litigant wishing to raise a federal issue can easily
indicate the federal law basis for his claim in a state-court
petition or brief, for example, by citing in conjunction with
the claim the federal source of law on which he relies or a
case deciding such a claim on federal grounds, or by simply
labeling the claim ‘federal.’ ” See Baldwin v. Reese, 541 U.S.
27, 32 (2004). Petitioner failed to make any such indication
in his § 440.10 motion. Moreover, petitioner has not sought
leave to appeal the trial courts § 440 order, which would
be the next step toward exhaustion. See C.P.L. § 450.15(1);
Grant v. Hopkins, 681 F. Supp. 224, 225 (S.D.N.Y. 1988).
Similarly, petitioner also asserted in his § 440.10 motion that
the prosecution was untimely under New York's speedy trial
statute, C.P.L. § 30.30, a claim which he failed to exhaust
because he did not raise it under federal grounds and did not
seek leave to appeal the claim's denial.
4 To the extent that petitioner seeks to assert, as
a federal claim, an “on the record” ineffective
assistance of trial counsel claim, he may exhaust
that claim by raising it on direct appeal, given that
his direct appeal remains pending and unperfected.
*4 Petitioner's current outside the record claims that were
not brought in his original § 440.10 motion also remain
unexhausted because petitioner may pursue a second § 440.10
motion, as there is no time limit to filing such a motion
under New York law. See Burnett v. Lee, No. 13-CV-4425
(KAM), 2015 WL 4389888, at *10 (E.D.N.Y. July 15, 2015).
Furthermore, even if petitioner had brought any of his claims
under federal law in his § 440.10 motion, his claims would
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still not be exhausted because he has not sought leave to
appeal the § 440 court's order. (Litsky Decl. ¶ 18)
III. This Denial of the Petition Will Not Bar Future
Federal Habeas Claims as Outside the Limitations
Period or as Second or Successive Petitions
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) establishes a one-year statute of limitations in
habeas corpus proceedings, which, absent Supreme Court
review, generally begins to run on “the date on which the
judgment [becomes] final by the conclusion of direct review
or the expiration of the time for seeking such review.”
See 28 U.S.C. § 2244(d)(1)(A). Denial of a petition does
not foreclose future federal habeas review of petitioner's
claims here, however, because the one-year AEDPA statute of
limitations period has not yet begun to run, as none of the state
court judgments have become final. The claims that petitioner
raised on his direct appeal to the Appellate Division will not
become final until petitioner perfects his direct appeal and
a judgment is reached, or once thirty-days have passed after
the Appellate Division dismisses the appeal as abandoned
and petitioner fails to seek leave to appeal to the New York
Court of Appeals. The one year statute of limitations may also
be tolled for an additional period of time as to petitioner's
claims raised in his § 440.10 motion if he seeks leave to
appeal the § 440 court's order. See Doyle v. Yelich, No. 05-
CV-2750 (JG), 2005 WL 2475727, at *1 (E.D.N.Y. Oct. 7,
2005), at * 1 (“The filing of a § 440 motion tolls the limitations
period until the Appellate Division either decides the motion
on appeal or denies an application for leave to appeal from
the denial of the motion.” (citing Carey v. Saffold, 536 U.S.
214 (2002))). Moreover, dismissal based solely on exhaustion
grounds does not bar a future federal habeas petition as
“second or successive.” See James v. Walsh, 308 F.3d 162,
167-68 (2d Cir. 2002).
CONCLUSION
For the reasons stated above, the Court dismisses the habeas
petition without prejudice. As petitioner has not made a
substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. 28 U.S.C. § 2253.
The Clerk of Court is directed to enter judgment accordingly
and close the case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 1025850
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 35 of 42

Campos v. Smith
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:15-CV-06580
Campos v. Smith et al
— E.D.N.Y. Nov. 12, 2015 Docket
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 36 of 42

Campos v. Smith
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Campos v. Smith
2017 WL 1025850 , E.D.N.Y. , Mar. 15, 2017
Related References (1)
2. The People, etc., respondent, v. John Campos, appellant.
2015 WL 4937228 , N.Y.A.D. 2 Dept. , Aug. 19, 2015
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 37 of 42

Gashi v. Montagari, Not Reported in Fed. Supp. (2023)
2023 WL 3624773
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 3624773
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Liridon GASHI, Petitioner,
v.
A. MONTAGARI, Respondent.
9:22-CV-01323 (LEK/ML)
|
Signed May 23, 2023
|
Filed May 24, 2023
Attorneys and Law Firms
Liridon Gashi, Rome, NY, Pro Se.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Petitioner Liridon Gashi seeks federal habeas relief
pursuant to 28 U.S.C. § 2254. Dkt. No. 1. (“Petition”). On
March 8, 2023, the Court issued an Order granting Petitioner
thirty days to file an amended pleading to cure the deficiencies
in his prior Petition. Dkt. No. 5 (“March 2023 Order”).
Petitioner failed to comply with the March 2023 Order,
and instead filed a motion to stay this action. Dkt. No. 6.
The Court denied the stay and provided Petitioner with a
second, and final, chance to file an amended petition outlining
(1) the conviction he is challenging, (2) the specific facts
supporting each alleged constitutional violation, and (3) how
Petitioner has exhausted, or been precluded from exhausting,
his administrative remedies. Dkt. No. 7 (“April 2023 Order”)
at 3–4.
Petitioner timely filed an amended petition in compliance
with the April 2023 Order. Dkt. No. 8 (“Amended Petition”).
For the reasons that follow, the Amended Petition is dismissed
without prejudice as premature and unexhausted.
II. PETITION
Petitioner challenges a 2022 conviction from Albany County
based upon a guilty plea of third-degree attempted burglary.
Am. Pet. at 1–2. Petitioner has not directly or collaterally
challenged his criminal conviction in state court. Id. at 2–10,
12.
Petitioner provides several reasons for his failure to exhaust.
See id. at 6, 7, 9, 12. Specifically, Petitioner asserts that (1)
“it is an oximoron [sic] to appeal to a court that is corrupt
in nature [that does] as [it] please[s] and do[es] not abide
by any [state criminal procedural] law, legislative order, or
[the] US Constitution,” id. at 6; (2) “[t]he court is corrupt
and ... lawless [so] there is no appeal for a crime committed
by the same court,” id. at 7; and (3) “a federal investigation
[is required] ... to expose the facts [of the court's corruptness]
and press federal charges,” id. at 9.
Petitioner alleges that he is entitled to federal habeas relief
because (1) his Due Process Rights were violated by the
purportedly fraudulent crime committed by the state court
when it failed to present Petitioner's criminal case to a grand
jury, id. at 5–7; (2) his trial counsel was constitutionally
ineffective for “conspir[ing] with [the] court to commit
a federal crime,” id. at 7–8; (3) the county court lacked
jurisdiction over the case because “no grand jury indictment ...
waiver [was] signed,” id. at 8–10; and (4) Petitioner is
incarcerated in “violation of [the] Anti-Terrorist Act of the
United States,” id. at 10–11.
III. DISCUSSION
An application for a writ of habeas corpus may not be granted
until a state inmate “has exhausted the remedies available in
the courts of the State” unless “there is an absence of available
State corrective process” or “circumstances exist that render
such process ineffective to protect the rights of the applicant.”
28 U.S.C. § 2254 (b)(1)(A), (B)(i), (ii).
To satisfy the exhaustion requirement under § 2254, a state
inmate must “rais[e] his federal claim before the state courts
in accordance with state procedures.” Shinn v. Ramirez, 142
S. Ct. 1718, 1732 (2022) (citing O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999)). Additionally, a state inmate must also
“ ‘fairly present’ his claim in each appropriate state court
(including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations
omitted). In other words, a state inmate “must give the state
courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State's established
appellate review process.” O'Sullivan, 526 U.S. at 845.
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Gashi v. Montagari, Not Reported in Fed. Supp. (2023)
2023 WL 3624773
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 There is no basis on the record before this Court to
conclude that there is an absence of available State corrective
process (e.g., where there is no further state proceeding for
a Petitioner to pursue) or circumstances exist that render that
state court process ineffective to protect Petitioner's rights
(e.g., where further pursuit would be futile). See 28 U.S.C. §
2254(b) (1)(B)(i), (ii); Lurie v. Wittner, 228 F.3d 113, 124 (2d
Cir. 2000).
“In New York, to invoke one complete round of the State's
established appellate review process, a criminal defendant
must first appeal his or her conviction to the Appellate
Division, and then must seek further review of that conviction
by applying to the Court of Appeals for a certificate granting
leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d
Cir. 2005). “New York permits only one application for direct
review[.]” Spence v. Superintendent, Great Meadow Corr.
Facility, 219 F.3d 162, 170 (2d Cir. 2000); see also Roa v.
Portuondo, 548 F. Supp. 2d 56, 78 (S.D.N.Y. 2008) (“[A]
criminal defendant is entitled to only one direct appeal and
one application for leave to appeal to the Court of Appeals.”)
(citing N.Y. Crim. Pro. § 450.10(1)).
Here, Petitioner concedes that he has failed to file a direct
appeal challenging his conviction. However, New York
Criminal Procedure Law provides for a thirty (30) day
deadline to directly appeal a criminal sentence. See N.Y.
Crim. Pro. Law § 460.30(1). At the same time, this statutory
provision also allows for an extension, up to one year, if
the applicant demonstrates cause for the delay including
“improper conduct of a public servant or improper conduct ...
of the [Petitioner's] attorney[.]” Id.; see also Cano v. Walsh,
170 Fed. App'x 749, 750 (2d Cir. 2006) (explaining that
“[t]he time afforded by New York law for filing a leave
application ... [includes] 30 days from service of the order
plus a one-year grace period.”) (internal quotation marks and
citations omitted).
Petitioner's sentence was entered on September 9, 2022;
therefore, he has approximately four months, or until
September 11, 2023, to timely file his application for a late
notice of appeal. Further, given Petitioner's allegations of
corruption, misconduct, and collusion between the judicial
system and his attorney, it appears that Petitioner raises issues
that would permit a late notice being granted. Accordingly,
Petitioner has state court corrective processes available to
him.
Furthermore, Petitioner's assertion that the statutory
exhaustion prerequisite does not apply to him because he
does not trust the state courts is unpersuasive. There are
limited instances where the exhaustion requirement can be
waived. See 28 U.S.C. § 2254(b)(1)(A), (B)(i), (ii). But
“conclusory allegations of systematic corruption ... do not
warrant excusing § 2254’s exhaustion requirement.” Burke v.
Pallito, No. 12-CV-0197, 2013 WL 496150, at *4 (D. Vt. Jan.
18, 2013) (internal quotation marks omitted) (citing cases).
“It is well established that a Petitioner may not bypass state
courts merely because they may be unreceptive to the claim.”
Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003) (citing
Bousley v. United States, 523 U.S. 614, 623 (1998)).
In sum, Petitioner has state court remedies available to him
and there is no reason to believe he does not know how
to pursue them. Therefore, it is not futile to require him
to complete exhaustion of his state court remedies before
pursuing a federal habeas petition. Accordingly, if Petitioner
wishes to move forward with all the claims presently included
in his petition, he may not do so until he has properly
exhausted them. 28 U.S.C. § 2254(b)(1)(A), (B)(i), (ii);
O'Sullivan, 526 U.S. at 845.
*3 Additionally, it does not appear that a subsequent
habeas petition, if necessary and if filed promptly after
Petitioner's claims are exhausted in state court, will be
jeopardized by AEDPA's statute of limitations. AEDPA's one-
year limitations period generally begins to run from the date
on which a state criminal conviction became final by the
conclusion of direct review or by the expiration of the time to
seek direct review. See 28 U.S.C. § 2244(d)(1)(A). Properly
filed state court applications for relief operate to toll the
limitations period if those applications are filed before the
one-year limitations period expires. 28 U.S.C. § 2244(d)(2);
Saunders, 587 F.3d at 548. The tolling provision excludes
from the limitations period only the time that the state relief
application remains undecided, including the time during
which an appeal from the denial of the application was taken.
Saunders, 587 F.3d at 548.
If Petitioner successfully applies for, and receives, a late
notice of appeal, Petitioner's limitation period would not
begin running until his conviction was final, which would
occur at the conclusion of Petitioner's direct appeal and any
properly filed appeal therefrom. See 28 U.S.C. § 2244(d)
(1)(A). Moreover, if the late notice for the direct appeal is
denied, any properly filed collateral challenge to the criminal
conviction would toll the statutory limitations period. Finally,
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 39 of 42

Gashi v. Montagari, Not Reported in Fed. Supp. (2023)
2023 WL 3624773
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
if Petitioner's late notice to appeal is denied and he fails to
collaterally challenge his conviction, any subsequently filed
habeas petition must be filed on or before October 10, 2023,
which still leaves nearly five months in the presently running
limitations period.
Petitioner is advised that in the event he continues to assert
unexhausted claims in a subsequent petition, this Court must
consider such claims procedurally defaulted. See Aparicio
v. Artus, 269 F.3d 78, 90 (2d Cir. 2001) (explaining that a
futile claim must be deemed both exhausted and procedurally
barred, leaving them classified as procedurally defaulted)
(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991)). Procedurally defaulted claims must be dismissed
unless “the petitioner [can] show cause for the default and
prejudice, or demonstrate that failure to consider the claim
will result in a miscarriage of justice (i.e., that the Petitioner
is actually innocent).” Id. (citing Coleman, 501 U.S. at 748–
50). If Petitioner were to assert such claims, along with
arguments of cause and prejudice, and the Court did not find
those arguments meritorious, the dismissal due to procedural
default would be considered a “disposition ... on the merits ...
mean[ing] that any future presentation of the claim would be a
second or successive habeas petition, requiring authorization
by [the appropriate federal] Court [of Appeals] pursuant to 28
U.S.C. § 2244(b)(3)(A).” Id. (citations omitted).
IV. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Amended Petition, (Dkt. No. 8), is
DISMISSED without prejudice as premature for failure to
exhaust available state court remedies; and it is further
ORDERED, that no certificate of appealability (“COA”)
shall issue in this case because Petitioner has failed to make
a “substantial showing of the denial of a constitutional right”
pursuant to 28 U.S.C. § 2253(c)(2). Any further request for a
COA must be addressed to the U.S. Court of Appeals for the
Second Circuit (Fed. R. App. P. 22(b)); and it is further
ORDERED, that the Clerk is directed to serve a copy of this
Order on Petitioner in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 3624773
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 40 of 42

Gashi v. Montagari
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:22-CV-01323
Gashi v. Montagari
— N.D.N.Y. Dec. 09, 2022 Docket
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 41 of 42

Gashi v. Montagari
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
Case 9:23-cv-00440-MAD-MJK Document 37 Filed 02/27/26 Page 42 of 42