LaDuke v. Miller

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Robert LaDuke,
Petitioner,
v. 9:24-CV-748
(AJB/MJK)
Mark Miller,
Respondent.
_____________________________________________________________________
Robert LaDuke, Petitioner pro se
James Foster Gibbons Esq., N.Y.S. Atty. General’s Office, for Respondent
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Judge:
ORDER & REPORT- RECOMMENDATION
The Honorable Anthony J. Brindisi, U.S. District Judge, referred
this habeas petition to the Court for a Report and Recommendation.1 In
his habeas petition, LaDuke argues that his conviction should be
reversed because he is being held in state custody in violation of the
federal constitution. In opposition, the New York Attorney General
argues that the state courts properly applied clearly established federal
law, when applicable, and properly applied New York State law, when
1 The District Court has the authority to refer dispositive motions to this Court for
report and recommendation under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule
72.3(c).
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applicable. The Court agrees with the State. For the reasons below, the
Court recommends denying LaDuke’s habeas petition in its entirety.
I. BACKGROUND
A. The Underlying Incident
On September 27, 2017, Ashley Wilson left her friend’s home after
dinner. (State Record, Dkt. 14-1, at pg. 591). After she pulled out of the
driveway in her Subaru sedan, Wilson noticed Robert LaDuke’s pickup
truck (a 2015 Ford F-350) racing toward her. (Id.); (Miller Memo of
Law, Dkt. 17, at pg. 14 n. 6). LaDuke quickly arrived behind Ashley.
(State Record, Dkt. 14-1, at pg. 591). Once he did, LaDuke rammed his
F-350 into the bumper of Ashley’s sedan. (Id.). Ashley, “desperate” to
flee, sped up. (Id.). LaDuke eventually navigated his truck to the left
side of Ashley’s car, placing the cars parallel to each other, and then he
slammed his F-350 into the driver’s side door of Ashley’s car. (Miller
Memo of Law, Dkt. 17, at pg. 14). Again, Ashley sped up. (State Record,
Dkt. 14-1, at pg. 591). LaDuke then accelerated and rammed his F-350
into the rear of Ashley’s sedan. (Id.). At this point, both Ashley and
LaDuke were whizzing through traffic, driving 30 miles over the speed
limit. (Id.). Finally, Ashley pulled into a gas station, but LaDuke—for a
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third time—rammed his F-350 into Ashley’s bumper. (Id. at pg. 592).
This blow pushed Ashley’s car out of the gas station parking lot and
back into the roadway. (Id.).
Thus the second part of the chase began. Ashely raced down the
street, but LaDuke was right behind her. (Id.). While behind her,
LaDuke—for the fourth time—rammed Ashley’s bumper. (Id.). This
strike propelled Ashley’s car into a drainage culvert. (Id. at 8, 592).
Uninjured, Ashley exited her car, ran from the scene, and screamed for
help. (Id. at 592). LaDuke also got out of his car and pursued Ashley on
foot. (Id.). While chasing her, LaDuke hollered “I’m going to kill you.”
(Id.).2 Ashley then lost her footing and fell to the ground. (Id.).
Before anything else could happen, Police Officer Ryan Johnson,
who was nearby, ran toward the scene and shouted at LaDuke to stop.
2 LaDuke’s appellate counsel noted that “there was conflicting testimony at
trial as to whether [LaDuke] even proclaimed an intent to kill; and the phrase ‘I’m
going to kill you’ is more often said without intent to kill than it is otherwise.”
(State Record, Dkt. 14-1, at pg. 8). While all of this may be true, LaDuke was
convicted for attempted first-degree assault. (Id. at pg. 17). To prove first-degree
assault, the state must prove that the accused intended to cause a serious physical
injury. N.Y. Penal Law § 120.10. New York defines serious physical injury “as
physical injury which creates a substantial risk of death, or which causes death or
serious and protracted disfigurement, protracted impairment of health or protracted
loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10.00.
Because of these definitions, this Court, and the District Court can reasonably infer
that the jury credited a version of events that included LaDuke yelling “I’m going to
kill you.”
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(Id. at pg. 8, 593). LaDuke stopped, sprinted back to his truck, and
drove away. (Id. at 593). Another Officer who was at the scene, Brian
Rinaldi, chased LaDuke in his police cruiser. (Id. at pg. 8, 593). But
within 5-10 minutes, the high-speed chase ended because Officer
Rinaldi’s car broke down. (Id. at pgs. 8, 593).
Later that evening, Officer Johnson went to Ashley’s home and
encouraged her to call LaDuke. (Id. at pgs. 9). She complied. (Id.).
During the call, Ashley repeatedly asked LaDuke why he tried to kill
her. (Id. at pg. 30). A crying LaDuke, who did not know he was being
recorded, denied intending to kill Ashley. (Id. at 9, 30); see also (Miller
Memo of Law, Dkt. 17, at pg. 16).
B. Pre-trial Proceedings
The day after the incident, LaDuke was arrested and charged, by
felony complaint, with: First-Degree Assault, First-Degree Reckless
Endangerment, Second-Degree Criminal Mischief, four counts of First-
Degree Criminal Contempt, Third-Degree Unlawful Fleeing a Police
Officer in a Motor Vehicle, and Second-Degree Attempted Criminal
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Contempt. (State Record, Dkt. 14-1, at pgs. 10, 594-95).3 The State
arraigned LaDuke on March 26, 2018. (Id. at pgs. 595).
On July 19, 2018, the New York State trial court held a
suppression hearing. See generally, (July 19, 2018, Tr.). At that hearing,
the prosecution argued that there was sufficient probable cause for
LaDuke’s arrest and that his truck was impounded as potential
evidence and was not searched until the police received a warrant. (July
19, 2018, Tr. at pg. 63). In opposition, LaDuke’s defense attorney (“Trial
Counsel”) argued “my issue is the seizure of that vehicle. There had
been almost a three-month gap between the incident and then when the
vehicle was subsequently stopped, taken, again, without a warrant.”
(Id.) (cleaned up). Trial Counsel concluded by arguing: “it’s my position
that that vehicle was taken illegally,” so “that vehicle as evidence
should be suppressed, and anything coming from it, specifically the
photographs and the paint scrapings should also be suppressed as fruit
of the poisonous tree.” (Id. at pg. 64). At the end of the hearing, Trial
Counsel noted that LaDuke “request[ed] that [Trial Counsel] adopt his
3 On January 3, 2019, the State dismissed two First-Degree Criminal Contempt
charges (counts four and seven). (January 3, 2019 Tr. at pg. 9-11); (State Record,
Dkt. 14-1, at pgs. 16, 557, 560).
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[Criminal Procedure Law §] 30.30. [speedy trial] motion.” (Id. at pg. 65).
Trial Counsel noted that he “will be adopting it” and then provided the
court and opposing counsel with copies of the motion. (Id.).
In separate writings, the trial court denied Trial Counsel’s
suppression argument and the C.P.L. §30.30 motion. (State Record,
Dkt. 14-1, at pgs. 303-305).
Nearly four months later, the trial court, consistent with its
decision on Trial Counsel’s omnibus motion, held a hearing to
determine whether, and what, prior bad act evidence is admissible at
trial under People v. Molineux, 168 N.Y. 264 (1901). (Id. at pgs. 288-90);
(Miller Memo of Law, Dkt. 17-1, at pgs. 11-12).
C. Trial
After trial, a jury found LaDuke guilty of: First-Degree Attempted
Assault, Second-Degree Reckless Endangerment, Second-Degree
Criminal Mischief, two counts of First-Degree Criminal Contempt,
Third-Degree Unlawful Fleeing a Police Officer in a Motor Vehicle, and
Second-Degree Attempted Criminal Contempt. (State Record, Dkt. 14-1,
at pgs. 17, 599). The trial court sentenced LaDuke to an aggregate term
of 17 to 19 years in prison. (Id. at 17). LaDuke appealed his conviction
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and sentence to the New York State Supreme Court Appellate Division,
Third Department. (Id. at pg. 599).
D. State Post Conviction Proceedings
On appeal, LaDuke’s appellate attorney argued six points: (1) the
prosecution failed to file the indictment before declaring readiness
rendering their declaration of readiness illusory thereby violating
LaDuke’s statutory right to a speedy trial; (2) the court permitted
Molineux evidence which deprived LaDuke of his constitutional right to
a fair trial; (3) LaDuke’s first-degree Attempted Assault conviction was
unsupported by legally sufficient evidence and was against the weight
of the evidence; (4) Trial Counsel’s decision not to seek a lesser included
offense of Attempted Assault constituted ineffective assistance of
counsel; (5) LaDuke’s sentence was excessive and should be reduced;
and (6) the order of protection as to LaDuke’s daughter was harsh,
excessive, and unnecessary under the circumstances. (Id. at pg. 2; 18-
42). The State contested all six arguments. (Id. at pgs. 585, 600-635).
LaDuke also submitted a pro se supplemental brief. In it, LaDuke
argued that Trial Counsel’s cumulative errors denied him the Sixth
Amendment right to the effective assistance of counsel. (Id. at pg. 492).
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In particular, LaDuke argued seven points: (1) Trial Counsel failed to
adequately oppose inadmissible uncharged crime evidence; (2) Trial
Counsel failed to adequately challenge the “I’ll kill you” statement;
(3) Trial Counsel’s consent to the admission of controlled calls violated
the appellant’s 5th and 14th Amendment rights; (4) Trial Counsel
consented to inadmissible photos and video that served no benefit to
defense; (5) Trial Counsel’s acquiescence in the trial court’s amendment
of the indictment and limited cross examination of police and witnesses
denied appellant of his right to confrontation; (6) Trial Counsel’s failure
to challenge the truck’s seizure violated LaDuke’s Fourth Amendment
rights; and (7) Trial Counsel failed to challenge the jurisdictional error
in count 5 of the indictment. (Id. at pgs. 497-515).
The Appellate Division considered the arguments and affirmed
the conviction. See People v. LaDuke, 204 A.D.3d 1083 (3d Dept. 2022).
LaDuke sought leave to appeal to the New York Court of Appeals, and
leave was denied. (State Record, Dkt. 14-1, at pgs. 733-42). LaDuke
then moved for reconsideration of his leave application. (Id. at pgs. 743-
50). That request was denied. (Id. at pg. 751).
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E. LaDuke’s Habeas Petition
Soon after his motion for reconsideration was denied, LaDuke
petitioned this Court for habeas relief. (Petition, Dkt. 1). LaDuke, in his
Petition, argues four points. First, the state prosecutor filed a forged
copy of the indictment, violating the Fifth and Fourteenth
Amendments. (Id. at pg. 5). Second, the state arraigned him before
stating readiness, which violated the Fifth and Fourteenth
Amendments and stripped the state trial court of jurisdiction. (Id. at pg.
7). Third, Trial Counsel was ineffective because: (1) he “failed to submit
a meritorious speedy trial motion and request a hearing,” (2) he “failed
to challenge facts during” the suppression “hearing so” the trial court’s
decision “would be made properly” instead of being based on “the
prosecution’s lies and alleged facts,” (3) he failed to challenge the
“warrantless seizure of [the] truck,” and (4) he failed to challenge the
trial court’s admission of the controlled calls. (Id. at pg. 8). Fourth, the
state trial court’s Molineux ruling deprived LaDuke of a fair trial (Id. at
pg. 10). Miller responded and LaDuke replied. (Dkts. 14, 17, 24).
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II. GENERALLY APPLICABLE LAW
A. Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)
AEDPA provides that, when a state court has adjudicated the
merits of a petitioner’s constitutional claim, a federal court may grant
an application for a writ of habeas corpus only if “the adjudication of the
claim (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). See also, e.g., Noble v. Kelly, 246 F.3d 93, 98 (2d
Cir. 2001); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008). This is
a “difficult to meet,” and “highly deferential standard for evaluating
state-court rulings, which demands that state court decisions be given
the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(citations omitted).
To determine whether a state-court decision is contrary to clearly
established Supreme Court precedent, the federal court must consider
whether the state court decision “applies a rule that contradicts such
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law and how the decision confronts the set of facts that were before the
state court.” Id. at 182 (cleaned up). A state court decision involves an
unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal principle but
unreasonably applies or unreasonably refuses to extend that principle
to the facts of a particular case. See Williams, 529 U.S. at 413; Ramdass
v. Angelone, 530 U.S. 156, 166 (2000).
Under AEDPA, a state court’s factual findings are presumed
correct, unless that presumption is rebutted by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). If the state court failed to decide a
claim “on the merits,” the pre-AEDPA standard of review applies, and
both questions of law and mixed questions of law and fact are reviewed
de novo. Washington v. Shriver, 255 F.3d 45, 55 (2d Cir. 2001). Finally,
the Supreme Court has held that circuit and district court decisions do
not constitute “clearly established Federal Law, as determined by the
Supreme Court.” Parker v. Matthews, 567 U.S. 37, 40 (2012). Instead,
circuit court decisions may illustrate the “possibility” of fair-minded
disagreement, sufficient to justify denying the writ. White v. Woodall,
572 U.S. 415, 422 fn.3 (2014).
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B. Exhaustion
“Before seeking a federal writ of habeas corpus, a state prisoner
must exhaust available state remedies, . . . thereby giving the State the
opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up));
28 U.S.C. § 2254(b)(1). The prisoner must “fairly present” his claim in
each appropriate state court, including the highest court with powers of
discretionary review, thereby alerting that court to the federal nature of
the claim. Id.; Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994).
“A habeas petitioner has a number of ways to fairly present a
claim in state court without citing ‘chapter and verse’ of the
Constitution, including ‘(a) reliance on pertinent federal cases
employing constitutional analysis, (b) reliance on state cases employing
constitutional analysis in like fact situations, (c) assertion of the claim
in terms so particular as to call to mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well within
the mainstream of constitutional litigation.’” Hernandez v. Conway, 485
F. Supp. 2d 266, 273 (W.D.N.Y. 2007) (quoting Daye v. Attorney
General, 696 F.2d 186, 194 (2d Cir. 1982)).
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Where a petitioner has failed to exhaust his claims, but he cannot
return to state court, petitioner’s claims are then “deemed” exhausted
but barred by procedural default. Bossett v. Walker, 41 F.3d 825, 828-29
(2d Cir. 1994). The merits of such a procedurally defaulted claim may
not be reviewed by a federal court unless the petitioner can show both
cause for the default and actual prejudice resulting from the alleged
violation of federal law, or if he can show that the constitutional
violation has resulted in the conviction of one who is “actually
innocent.” Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012); Clark v.
Perez, 510 F.3d 382, 393 (2d Cir. 2008) (internal quotation and citations
omitted). The actual innocence prong is referred to as the fundamental
miscarriage of justice exception. Rivas, supra. “Cause” exists if “the
prisoner can show that some objective factor external to the defense
impeded counsel’s effort to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice exists if there is
a “reasonable probability” that the result of the proceeding would have
been different absent the alleged constitutional violation. Stickler v.
Greene, 527 U.S. 263, 289 (1999).
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III. DISCUSSION
Analyzing the Petition, the Court recommends the District Court
deny LaDuke’s petition in its entirety. The Court, coming to this
conclusion, finds that LaDuke’s Molineux and C.P.L. §30.30 claims are
not cognizable on habeas. Similarly, the Court finds that LaDuke’s
ineffective assistance of counsel claims are meritless.
A. LaDuke’s Molineux and C.P.L. §30.30 claims not cognizable
on habeas.
The Court should reject LaDuke’s state law claims. Petitioners
cannot obtain habeas relief for pure state law claims. Yet here, LaDuke
seeks federal habeas relief for pure state law claims. So LaDuke cannot
obtain habeas relief on these claims.
LaDuke cannot obtain a remedy for his C.P.L. § 30.30 claim on
habeas review.4 In his petition, LaDuke argues that he is entitled to
habeas relief because the prosecution failed to file an indictment, which
4 The Court construes LaDuke’s first and second grounds as raising a C.P.L. §30.30
claim because the statement of readiness and whether it is illusory or not is a part
of the state’s C.P.L. §30.30 speedy trial analysis. See People v. Brown, 28 N.Y.3d
392, 407 (N.Y. 2016) (“[A] statement of readiness is presumed valid, and a
defendant who challenges such a statement must demonstrate that it is illusory by
showing that the People were not actually ready at the time they filed it.”)
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violated his “statutory right to speedy trial.” (Petition, Dkt. 1, at pgs. 2,
5, 7). LaDuke is wrong. “Federal habeas corpus relief does not lie for
errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (cleaned
up). And “because [C.P.L. §] 30.30 is purely a creature of state law and
does not protect a federal constitutional right,” LaDuke’s “speedy trial
claims under [C.P.L. §]30.30 are not cognizable on habeas review.”
Richardson v. Miller, No. 22-CV-6606, 2024 WL 763395, at *11
(S.D.N.Y. Feb. 23, 2024) (cleaned up) (collecting cases). In consequence,
the District Court cannot grant LaDuke habeas relief for his C.P.L.
§ 30.30 claim.5
This analysis equally applies to LaDuke’s Molineux claim.
LaDuke’s “Molineux argument only involves questions of state, not
federal, law.” Gopaul v. Racette, No. 15-CV-1781, 2021 WL 5163211, at
*6 (E.D.N.Y. Nov. 5, 2021) (rejecting the petitioner’s Molineux claim).
And because that’s so, LaDuke’s Molineux argument does not warrant
habeas relief. See, e.g., Granger v. Artus, No. 17-CV-888, 2022 WL
3228259, at *21 (E.D.N.Y. Aug. 10, 2022) (collecting cases).
5 If the Court does not construe LaDuke’s first and second grounds as raising a
C.P.L. §30.30 argument, then the District Court should dismiss grounds one and
two as defaulted because LaDuke never made those due process arguments in state
court. See Bossett v. Walker, 41 F.3d at 828-29.
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LaDuke’s claim that the state-trial court’s Molineux decision
violated the Due Process clause does not change the analysis. See
(Petition, Dkt. 1, at pg. 17-18). “It is not the province of a federal habeas
court to reexamine state court determinations on state law.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). So habeas courts can only grant the
petition on these issues if (1) “the alleged error violated an identifiable
constitutional right, and (2) the error was so extremely unfair that its
admission violates the conceptions of justice.” Nunes v. Superintendent,
20-CV-1516 (GTS/DJS), 2023 WL 10365081 (N.D.N.Y. Nov. 14, 2023)
(cleaned up). There is no clearly established law as to whether a New
York-state-trial court’s wrongful admission of Molineux evidence
violates the Due Process clause. See Estelle, 502 U.S. at 75, fn. 5
(expressing “no opinion on whether a state law would violate the due
process clause if it permitted the use of prior crimes evidence to show
propensity to commit a charged crime.”). As a result, the Court cannot
use LaDuke’s Molineux arguments as a basis to grant habeas relief. 6
6 The District Court should also reject LaDuke’s argument that he is entitled to
habeas relief because the state prosecutor failed to comply with the Federal Rules of
Civil Procedure. (Petition, Dkt. 1, at pg. 18). Those Rules do not apply to state
courts. See Fed. R. Civ. P. 1, 81; see also Wilks v. Wells Fargo Bank, N.A., No. 23-
CV-2768, 2024 WL 1531142, at *7 (E.D.N.Y. Feb. 26, 2024) (“The Federal Rules of
Civil Procedure do not apply to the conduct of parties in a state court proceeding.”)
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B. There is no evidence that Trial Counsel’s performance was
deficient or LaDuke was prejudiced by any alleged errors.
LaDuke’s conviction cannot be overturned on the ground that
Trial Counsel was ineffective. The principal question habeas courts
must answer when determining whether trial counsel was ineffective is
whether the state court unreasonably applied the ineffective assistance
of counsel standard. Here, the Appellate Division held that Trial
Counsel’s failure to make meritless arguments was not deficient
performance. This Court agrees.
To succeed on a claim of ineffective assistance of counsel, habeas
petitioners must show: (1) counsel’s performance was deficient, and (2)
“there is a reasonable probability, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To show
deficient performance, petitioners must prove “that in light of all the
circumstances,” counsel’s conduct was “outside the wide range of
professional competent assistance.” United States v. Nolan, 956 F.3d 71,
79 (2d. Cir. 2020). To show prejudice, petitioners must show that “the
likelihood of a different result” was “substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
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“Surmounting Strickland’s high bar is never an easy task,”
because “the standard for judging counsel’s representation is a most
deferential one.” Id. at 105. And the bar “is all the more difficult” to
hurdle in the habeas context. Id. In that context, the review is “doubly”
deferential. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). “The
question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether
that determination was unreasonable—a substantially higher
threshold.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010). “It is not
enough for the” petitioner “to show a constitutional violation.” They
“must also show that the state court’s application of Strickland was not
merely incorrect, but objectively unreasonable.” Gross v. Graham, 802
F. App’x 16 (2d Cir. 2020) (summary order)
1. The Appellate Division’s application of Strickland
was neither contrary to nor an unreasonable
application of federal law.
The Appellate Division’s decision was neither contrary to nor an
unreasonable application of Strickland. Federal Courts “may not
second-guess the decision of a state court on that state’s law.” Hobbs v.
McIntosh, No. 22-CV-2283, 2022 WL 17551853, at *4 (S.D.N.Y. Dec. 9,
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2022). Indeed, federal habeas courts do “not sit to correct a
misapplication of state law, unless such misapplication violates the
Constitution, laws, or treaties of the United States.” Ponnapula v.
Spitzer, 297 F.3d 172, 182 (2d Cir. 2002). “State courts are the ultimate
expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)
(cleaned up). So “failure[s] to include a meritless argument do[] not fall
outside the wide range of professionally competent assistance.” Hughes
v. Sheahan, 312 F. Supp. 3d 306, 324 (N.D.N.Y. 2018) (cleaned up).
Here, the Appellate Division, rejecting LaDuke’s ineffective assistance
of counsel claim on appeal—specifically LaDuke’s controlled call claim—
reasoned that LaDuke’s claims lacked merit and counsel was not
ineffective for failing to make a motion “that has little or no chance of
success.” People v. LaDuke, A.D.3d 1083, 1089 (3d Dept. 2022). “Given
the lack of merit to the motion, the Court cannot say that Trial Counsel
was unreasonable in not filing it.” Seda v. Conway, 774 F. Supp. 2d 534,
539 (W.D.N.Y. 2011) (cleaned up). In legalese, Trial Counsel’s
performance was not deficient, and LaDuke’s claim fails at Strickland’s
first step.
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2. LaDuke never argued that Trial Counsel failed to
challenge facts at his suppression hearing.
The District Court should reject LaDuke’s claim that Trial
Counsel was ineffective when he failed to challenge facts at the
suppression hearing because that claim is procedurally defaulted.
“When a habeas applicant fails to exhaust his federal constitutional
claim in state court—and there has been no showing of cause and
prejudice or actual innocence—[district] [c]ourt[s] will generally be
barred from granting habeas relief.” Carvajal v. Artus, 633 F.3d 95,
104–05 (2d Cir. 2011). Here, LaDuke never challenged Trial Counsel’s
failure to “challenge facts during” the “Huntley, Wade, Dunaway
hearings.” (Petition, Dkt. 1, at pg. 8); see (State Record, Dkt. 14-1, 1-42,
491-515, 743-50); see also LaDuke, 304 A.D.3d at 1083-90. So LaDuke’s
claim is procedurally defaulted. See generally (Petititon, Dkt. 1). Thus,
the District Court should deny this ineffective assistance of counsel
claim because it is unexhausted. See 28 U.S.C.A. §§ 2254(b)(1)(A) (“An
application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it
appears that the applicant has exhausted the remedies available in the
courts of the State”).
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3. Trial Counsel argued that the government’s truck
seizure violated the Fourth amendment, so LaDuke’s
claim that Trial Counsel was ineffective because he
did not make that argument fails.
Trial Counsel was not ineffective as to the truck seizure issue.
Reprising an argument from his supplemental brief, LaDuke argues
that Trial Counsel was ineffective because he did not challenge the
illegal seizure of the truck. See (State Record, Dkt. 14-1, at pg. 509-12).
The record belies this argument. Trial Counsel, at the suppression
hearing, argued that the vehicle should be suppressed because it was
stopped and taken without a warrant. (July 19, 2018 Tr. at pg. 63-4).
Trial Counsel also argued that “anything coming from” the vehicle
“specifically the photographs and paint scrapings should also be
suppressed as fruit of the poisonous tree.” (Id. at pg. 64). Surely, Trial
Counsel cannot be ineffective for failing to argue that the truck should
have been suppressed, when Trial Counsel argued the truck should
have been suppressed. Compare (State Record, Dkt. 14-1, at pg. 509-12)
(arguing that Trial Counsel did not argue that the truck should be
suppressed) with (July 19, 2018 Tr. at pg. 63-4) (Trial Counsel arguing
that the truck should be suppressed). In capsule form, Trial Counsel
was not ineffective for failing to challenge the truck’s seizure. Cf.
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22
Chrysler v. Guiney, 806 F.3d 104, 123 (2d Cir. 2015) (“The challenger’s
burden is to show that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”) (cleaned up).
4. Trial Counsel’s performance was not deficient
because he raised a C.P.L. §30.30 challenge contrary
to LaDuke’s Petition.
The Court recommends the District Court reject LaDuke’s
ineffective assistance of counsel argument because Trial Counsel made
a C.P.L. §30.30 challenge.
The District Court should construe LaDuke’s Petition to argue
that the Appellate Division’s decision was contrary to or involved an
unreasonable application of federal law. To start, LaDuke implicitly
concedes this is his argument. Although he wrote counsel “failed to
submit a meritorious speedy trial motion and request a hearing” in his
petition, LaDuke argued that “the state court [decision] was contrary to
or involved an unreasonable application of established Federal law as
determined by the Supreme Court of the United States[.]” Compare
(Petition, Dkt. 1, at pg. 8) with (id. at pg. 16) (cleaned up).
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23
Construing LaDuke’s Petition to argue that the Appellate
Division’s decision was contrary to or an unreasonable application of
federal law raises the strongest possible argument. Viewing his petition
as arguing that Trial Counsel was ineffective because he failed to file a
meritorious C.P.L. §30.30 motion, LaDuke would be arguing that the
District Court should extend the meritorious standard from the Fourth
Amendment context to state statutory cases. See Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986) (finding that defendants “must also
prove that [their] Fourth Amendment claim is meritorious and that
there is a reasonable probability that the verdict would have been
different absent the excludable evidence in order to demonstrate actual
prejudice.”). The Supreme Court has done no such thing. There is no
clearly established law extending the meritorious standard from the
Fourth Amendment context to habeas review of state statutory claims.
So the question here should not be whether Trial Counsel needed to file
a meritorious C.P.L. §30.30 motion. The question should be whether the
Appellate Division’s decision was contrary to Strickland.
This makes the Appellate Division reasoning curious. Seeming to
reject LaDuke’s ineffectiveness claim, on the C.P.L. §30.30 issue, the
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Appellate Division reasoned that LaDuke’s claims lacked merit and
counsel was not ineffective for failing to make a motion “that has little
or no chance of success.” People v. LaDuke, A.D.3d 1083, 1089 (3d Dept.
2022). But this is factually incorrect. At the suppression hearing, Trial
Counsel noted LaDuke drafted a C.P.L. §30.30 motion and was going to
file it. (July 19, 2018 Tr. at pg. 65). Trial Counsel further noted “again,
he’s filing it. He’s not pro se. I will be adopting it.” (Id.). Trial Counsel
did adopt it, and the state trial court later denied the motion. (State
Record, Dkt. 14-1, at pgs. 304-305).
The Appellate Division’s reasoning was an unreasonable
determination of the facts. A “state court’s findings might represent an
unreasonable determination of the facts where, for example, reasonable
minds could not disagree that the trial court misapprehended or
misstated material aspects of the record in making its finding or where
the court ignored highly probative and material evidence.” Cardoza v.
Rock, 731 F.3d 169, 178 (2d Cir. 2013) (cleaned up). Here, it is clear that
the Appellate Division supported its decision to affirm petitioner’s
conviction with a set of facts that did not apply. Compare People v.
LaDuke, A.D.3d at 1089 with (July 19, 2018 Tr. at pg. 65); (State
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Record, Dkt. 14-1, at pgs. 304-305). Therefore, the standard under
Section 2254(d)(2) has been met because the Appellate Division
misstated the material facts it relied upon in affirming LaDuke’s
conviction. But the inquiry does not end there. LaDuke still must
demonstrate that his constitutional rights were violated. They were not.
LaDuke’s claim fails at both Strickland steps. First, there is no
error for failing to file a C.P.L. §30.30 motion because Trial Counsel
filed a C.P.L. §30.30 motion. See (State Record, Dkt. 14-1, at pg. 304)
(“At the conclusion of the July 19, 2018 suppression hearing, counsel for
the defendant indicated he was adopting the pro se motion seeking
dismissal of the indictment on speedy trial grounds.”). Second, LaDuke’s
claim would also fail at Strickland’s second step. Here, Trial Counsel
filed a C.P.L. §30.30 motion—one with little chance of success—and it
failed. That is sufficient to find that LaDuke was not prejudiced. Cf.
Lawrence v. Graham, No. 1:12-CV-0814, 2014 WL 585301, at *10
(W.D.N.Y. Feb. 13, 2014) (“Trial counsel was not professionally
unreasonable in failing to make a motion that did not have a colorable
basis in the law. Likewise, Petitioner was not prejudiced by counsel's
failure to make such a motion, as it had no likelihood of success.”).
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* * *
To quickly conclude: the District Court should deny LaDuke’s
petition in its entirety. First, LaDuke’s first, second, and fourth grounds
for habeas are not cognizable on habeas. Second, LaDuke’s four
ineffective assistance of counsel arguments are meritless. Because none
of the arguments in LaDuke’s petition have merit, this Court
recommends the District Court deny LaDuke’s petition.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the petition be DENIED and
DISMISSED, and it is further;
RECOMMENDED, that a certificate of appealability be
DENIED, and it is
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam), and it is further
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties
have fourteen days within which to file written objections to the
foregoing report. These objections shall be filed with the Clerk of the
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Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: May 19, 2026
_____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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2021 WL 5163211
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Harold GOPAUL, Plaintiff,
v.
Steven RACETTE, Defendant.
15-CV-1781 (NGG), 15-CV-1782 (NGG)
|
Signed 11/05/2021
Attorneys and Law Firms
Harold Gopaul, Ray Brook, NY, Pro Se.
Johnnette Traill, Queens County District Attorney's, Kew Gardens, NY, New York State Attorney Generals Office, Queens
County District Attorneys Office, for Defendant.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
*1 Petitioner Harold Gopaul has filed two pro se petitions for writs of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging
his New York State court convictions in Nassau County and Queens County for sexual abuse of his minor stepdaughter. (See
Queens Cnty. Pet. for Writ of Habeas Corpus (“Queens Pet.”) (15-cv-1781) (Dkt. 1); Nassau Cnty. Pet. for Writ of Habeas
Corpus (“Nassau Pet.”) (15-cv-1782) (Dkt. 1).) For the reasons stated below, the petitions are DENIED.
I. BACKGROUND
The court assumes familiarity with the underlying facts and procedural history of this case and summarizes that information
only to the extent necessary to decide the instant petitions.
A. The Queens County Convictions
Petitioner was charged in New York Supreme Court, Queens County, with thirteen counts of Criminal Sexual Act in the First
Degree (N.Y. Penal Law § 130.50[1]), thirty counts of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65[1]), two
counts of Criminal Sexual Act in the Second Degree (N.Y. Penal Law § 130.45[1]), seven counts of Criminal Sexual Act in
the Third Degree (N.Y. Penal Law § 130.40[2]), Assault in the Third Degree (N.Y. Penal Law § 120.00[1]), and Endangering
the Welfare of a Child (N.Y. Penal Law § 260.10[1]). (See Queens Cnty. Opp. to Pet. (“Queen's Opp.”) (15-cv-1781) (Dkt.
9) at 3-4.); see also People v. Gopaul, 112 A.D.3d 966, 966 (2013). He was convicted by the jury of six counts of Criminal
Sexual Act in the First Degree, six counts of Sexual Abuse in the First Degree, Criminal Sexual Act in the Second Degree,
two counts of Criminal Sexual Act in the Third Degree, Assault in the Third Degree, and Endangering the Welfare of a Child.
Gopaul, 112 A.D.3d at 966. He was sentenced to 18 years of incarceration to be followed by 10 years of supervised release.
(Queens Pet. at 4-5.)
Petitioner appealed his conviction to the Appellate Division, Second Department. Gopaul, 112 A.D.3d 966. There, he argued
that the trial court wrongfully admitted expert testimony; allowed the prosecutor to make impermissible arguments during his
opening and closing statements; improperly denied his request for a missing witness jury instruction in connection with the
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arresting officer; and erroneously admitted testimony from the victim and her friend concerning the abuse. Id. Petitioner's direct
appeal was unsuccessful. Id. On March 21, 2014, his application to the New York Court of Appeals was denied. People v.
Gopaul, 22 N.Y.3d 1156 (2014).
B. The Nassau County Convictions
Petitioner was also charged in New York Supreme Court, Nassau County, for crimes arising from the same conduct. (See Nassau
Cnty. Opp. to Pet. (“Nassau Opp.”) (15-cv-1782) (Dkt. 8) at ECF p. 6.) On July 15, 2009, he was convicted, following a jury
trial, of 14 counts of Sexual Abuse in the First Degree, pursuant to N.Y. Penal Law § 130.65. (Affidavit of Nassau Cnty. Dist.
Atty. (“Nassau Affidavit”) (15-cv-1782) (Dkt. 8) at ECF p. 4 ¶ 6.) He was sentenced to 12 years in custody and 5 years of
supervised release. (Nassau Pet. at 1.)
*2 Petitioner appealed his Nassau County conviction to the Appellate Division, Second Department. People v. Gopaul, 112
A.D.3d 964 (2013). In his direct appeal, he argued that the trial court improperly denied his motion to suppress statements and
physical evidence; that his Fourth Amendment rights were violated; that the court improperly admitted testimony in violation
of the New York State Molineux doctrine; that he was convicted on legally insufficient evidence; and that the court imposed an
excessive and vindictive sentence. Id. On December 26, 2013, the Appellate Division affirmed the conviction. Id. On March
21, 2014, the Court of Appeals denied leave to appeal. People v. Gopaul, 22 N.Y.3d 1156 (2014).
C. The Habeas Petitions
Petitioner submitted timely petitions for habeas relief challenging his Queens County and Nassau County convictions. (Queens
Pet.; Nassau Pet.) His petitions present some of the same arguments that he raised in each of his direct appeals, and they are
opposed by Queens County and Nassau County, respectively. (Id.; Queens Opp.; Nassau Opp.)
The applicable law and parties’ arguments are addressed below.
II. LEGAL STANDARD
A district court may review an application for a writ of habeas corpus submitted by a person in state custody if the petition
asserts violations of the United States Constitution or other federal law. 28 U.S.C. § 2254(a). To obtain relief, petitioners must
also demonstrate that they have met three requirements: (1) exhaustion and timeliness; (2) lack of a procedural bar; and (3)
satisfaction of the deferential standard of review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214 (1996).
A. Exhaustion and Timeliness
A petitioner must have exhausted all available state court remedies to be eligible for federal habeas relief. 28 U.S.C. § 2254(b)
(1). The purpose of the exhaustion doctrine is to ensure that a petitioner “first ha[s] given the state courts a fair opportunity to
pass upon his federal claim.” Daye v. Att'y Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc); see also Wilwording
v. Swenson, 404 U.S. 249, 250 (1971) (per curiam). 1 To satisfy this requirement, the petitioner must have “informed the state
court of both the factual and the legal premises of the [federal] claim [ ] assert[ed].” Daye, 696 F.2d at 191.
Habeas petitions are subject to a one-year statute of limitations, which begins to run when the state judgment becomes final. 28
U.S.C. § 2244(d)(1); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
B. Procedural Bar
A habeas petition is procedurally barred if it challenges a state court decision that “rests upon a state-law ground that is
independent of the federal question and adequate to support the judgment.” Cone v. Bell, 556 U.S. 449, 465 (2009); see also
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Coleman v. Thompson, 501 U.S. 722, 748 (1991) (“Because this Court has no power to review a state law determination that is
sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment
and would therefore be advisory.”) Failure to satisfy this requirement is commonly called “procedural default.”
Procedural default may be excused if “the prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750.
C. AEDPA Standard of Review
*3 Under AEDPA, the court applies a deferential standard of review to the merits of federal claims asserted in Section 2254
petitions. Habeas relief may only be granted if the state court's adjudication:
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.”
28 U.S.C. § 2254(d). The words “clearly established federal law” refer to “the holdings, as opposed to the dicta, of the Supreme
Court's decisions as of the time of the relevant state-court decision.” Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005).
The central question is “not whether the state court was incorrect or erroneous in rejecting petitioner's claim, but whether it
was objectively unreasonable in doing so.” Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002). With regard to the state court's
factual determinations, “a federal court is required to presume that a state court's factual findings are correct and to place on
the petitioner the burden of rebutting this presumption by clear and convincing evidence.” Fulton v. Graham, 802 F.3d 257,
262 (citing 28 U.S.C. § 2254(e)(1)).
III. DISCUSSION
A. Queens County Petition
Petitioner presents four grounds for challenging his Queens County convictions and sentencing. For the reasons stated below,
his Queens County Petition is denied.
1. State Evidentiary Rulings
Petitioner attacks two state evidentiary rulings from his Queens County convictions. He first argues that his due process rights
were violated because the trial court admitted expert testimony concerning patterns in sexual abuse victim behavior that were
not “beyond the ken” of a typical juror. (Queens Pet. at 6A-6D.) He additionally argues that the trial court erred, also in violation
of his due process rights, by admitting certain testimony of the victim and her friend. (Id. at 10A-10C.) In response, Queens
County contends, inter alia, that these claims should be rejected because Petitioner has not sufficiently raised a federal issue
and because he did not exhaust his claims in the state court system. (Queens Opp. at 13-14.)
Neither of Petitioner's evidentiary challenges presents a federal issue for this court's review. His first claim is that expert
testimony is inadmissible under New York State law unless its subject matter is beyond the understanding of the reasonable
juror. (Id.) However, evidentiary claims typically involve issues of state, not federal, law. See, e.g., Katowski v. Greiner, 212
F. Supp. 2d 78, 86 (E.D.N.Y. 2002) (rejecting habeas petitioner's challenge to state evidentiary ruling). And Petitioner almost
exclusively references New York State, not federal, law, in support of this claim. (Queens Pet. at 6A-6D.) The only invocation
of the federal constitution is found in the penultimate paragraph of his argument, where he asserts that the admission of expert
testimony was an error that “violated my constitutional right to due process of law.” (Id. at 6C.)
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Merely citing the right to due process, without more, does not convert errors of state law into constitutional violations. See
DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004); see also Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (To demonstrate
that “an evidentiary error deprived [Petitioner] of due process, he must show that the error was so pervasive as to have denied
him a fundamentally fair trial.”) Petitioner has not argued that the contested evidence, in light of the full record, “was sufficiently
material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.”
Collins, 755 F.2d at 18. To the contrary: he argues that the expert testimony was superfluous in light of the other evidence,
including lay testimony, that was offered during trial. (Queens Pet. at 6A-6D.) Accordingly, Petitioner has not demonstrated
that the introduction of expert testimony denied him due process of the law.
*4 Petitioner's second evidentiary claim fails for the same reason. He contends that the New York court erred by admitting
testimony of the victim and her friend describing the abuse because it was inadmissible hearsay not subject to an exception. In
support of this argument, his only reference to federal issues is a one-sentence assertion that the introduction of this evidence
“deprived petitioner of his due process right to a fair trial.” (Id. at 10A.) The remainder of his argument invokes New York law.
Thus, this claim also fails to present any federal questions that this court may resolve.
Even if he had presented federal questions in his Petition, his evidentiary claims would not be cognizable because he has not
argued that he alerted the state court to the purportedly constitutional dimension of his arguments. See Daye, 696 F.2d at 191.
As discussed above, his habeas briefing fails to reference any constitutional arguments, outside of the unsubstantiated claim
in each argument section that his constitutional rights were violated. 2 (Queens Pet.; Reply in Supp. of Queens Pet. (Dkt. 13)
at 3-6.) Nor does he assert that he raised any constitutional claims in his state court proceedings. Thus, Petitioner has failed to
demonstrate that he exhausted his state remedies.
Because Petitioner has not presented a federal question, or, alternatively, because he has failed to exhaust his remedies in state
court, his claims for relief on the grounds that the trial court wrongfully admitted expert and hearsay testimony is denied.
2. Prosecutor's Opening and Closing Statements
Petitioner next argues that the trial court erred, in violation of his due process rights, by allowing the prosecutor to improperly
address the jury in opening and closing statements. (Queens Pet. at 7A-7E.) Specifically, he contends that the prosecutor
impermissibly (1) elicited sympathy for the victim; (2) labeled defense “ridiculous” and “absurd;” (3) asserted that the victim
would have to be a “sick, despicable human being if she were to falsely accuse Petitioner; and (4) asked the jury to rely on the
grand jury vote to reach a guilty verdict. (Id.)
Queens County responds that Petitioner's claim is meritless because the state court relied on an adequate and independent state
law ground when it denied this claim on direct appeal. (Queens Opp. at 36.) The court agrees. The Appellate Division rejected
Petitioner's prosecutorial misconduct argument on the grounds that it was unpreserved for appellate review. People v. Gopaul,
112 A.D.3d 966, 967 (2013) (citing N.Y. Code Crim. Proc. 470.05[2]; People v. Thompson, 99 A.D.3d. 819, 819 (2012); People
v. Umoja, 70 AD3d 867, 868 (2010); People v. Tate, 275 AD2d 380, 381 (2000).) The Appellate Division found that Petitioner
failed to object to the purported violations contemporaneously, as required by New York State law. (Id.)
Because the reviewing state court set forth a plain statement explaining the well-established state law grounds for rejecting
Petitioner's argument, see Harris v. Reed, 489 U.S. 255, 263-65 (1989), Petitioner's prosecutorial misconduct claims are
procedurally barred.
*5 Petitioner has not argued that the default should be excused because of cause and prejudice. Thus, his prosecutorial
misconduct claim is denied. See Francis v. Henderson, 425 U.S. 536, 542 (1976) (requiring petitioner to show cause and
prejudice to excuse procedural default).
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3. Denial of Petitioner's Request for a Missing Witness Jury Instruction
Petitioner's final challenge to his Queens County conviction is that his due process rights were violated when the trial court
denied his application for a missing witness charge as to his arresting officer. (Queens Pet. at 9A-9D.) He asserts that, under
well-settled law, after a party has “established prima facie that an uncalled witness is knowledgeable about a pending material
issue and that such witness would be expected to testify favorably to the opposing party,” the burden shifts to the opponent to
“account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate.” (Id. at 9A.) He asserts
that he met this initial burden in the state court proceedings by alleging that the police officer who received his confession was
knowledgeable about the circumstances of his arrest, which, he contends, included use of excessive and coercive force. (Id. at
9B-9C.) He further asserts that the prosecution, by failing to show that the witness was unavailable or providing other reasons
that his testimony was not relevant, did not carry its burden. (Id. at 9C). Accordingly, he contends that the trial court erred by
summarily denying his request for a missing witness charge. 3 (Id.)
Petitioner's missing witness claim fails to raise an issue of federal law. See 28 U.S.C. § 2254(a); see also Pulley v. Harris, 465
U.S. 37, 41 (1984); Wright v. Marshall, No. 05-cv-2280, 2005 WL 1861633, at *4 (E.D.N.Y. Apr. 4, 2005) (“A state trial court's
jury instruction, such as a missing witness charge, is ordinarily a matter of state law.”). Here, as on his evidentiary claims,
Petitioner exclusively relies upon and analyzes state law, and fails to invoke a federal issue. Thus, this claim is also denied.
B. Nassau County Petition
Petitioner asserts five grounds for challenging his Nassau County convictions and sentencing, discussed below.
1. Miranda Rights
Petitioner contends that the trial court erred by admitting written and videotaped statements in violation of his Miranda rights.
(Nassau Pet. at 6A.) In response, Nassau County argues that this claim fails because he has not satisfied the AEDPA standard
of review. (Nassau Opp. at 4.)
A defendant's post-arrests statements may be admissible if there has been a knowing, voluntary, and intelligent waiver of
their Miranda rights. Miranda v. Arizona, 384 U.S. 436, 479 (1966); Miller v. Fenton, 474 U.S. 104, 112 (1985). The court
considers the totality of the circumstances in evaluating whether a waiver occurred; those circumstances may include the length
of detention, the conduct of law enforcement, and the use of coercive strategies. Schneckloth v. Bustamonte, 412 U.S. 218,
226 (1973).
*6 This court reviews legal findings de novo, and it must presume that the trial court's factual findings are correct; it is
Petitioner's burden to rebut this presumption by clear and convincing evidence. See Fulton, 802 F.3d at 262 (citing 28 U.S.C.
§ 2254(e)(1)).
The trial court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law. The trial
court determined that, over the course of approximately 4.5 hours in custody, Petitioner was read his Miranda rights from a pre-
printed form by Detective Shulman; that Detective Shulman noted “yes” next to each question on the form, as did Petitioner;
that he subsequently made two statements to the police; that his demeanor was calm throughout; and that he did not appear to
be injured or distressed. (Queens Cnty. App. Div. Br. [Dkt. 8-2] at 30-36.) These facts are adequate to support the trial court's
conclusion that Petitioner validly waived his Miranda rights. See Schneckloth, 412 U.S. at 226; Columbe v. Connecticut, 367
U.S. 568, 602 (1961); United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995). Thus, Petitioner's Miranda claim is denied.
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2. Sufficiency of the Evidence
Petitioner next claims that the evidence was legally insufficient to support his conviction. (Nassau Pet. at 9A-9C.) Petitioner did
not object to the sufficiency of the evidence in the trial court proceedings, instead raising it for the first time on direct appeal.
See Gopaul, 112 A.D.3d 964, at 965. Accordingly, the Appellate Division rejected this objection as unpreserved. Id. For the
reasons explained supra, (see Section III.A.2.), failure to preserve an argument for appeal constitutes waiver of those claims;
thus, Petitioner has procedurally defaulted on these claims. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 2009). Because he has
procedurally defaulted and has not argued any cause or prejudice for this default, this claim is denied.
3. Other Evidentiary Claims
Petitioner next contends that the trial court erred by denying his motion in limine to exclude evidence of his Queens County
charges. (Nassau Pet. at 7A-7E.) He contends that this evidence of prior bad acts constituted improper propensity evidence
under the New York State Molineux rule and that it violated his right against self-incrimination. (Id.)
Like the evidentiary claims in his Queens County Petition, Petitioner's Molineux argument only involves questions of state, not
federal, law. See Katowski, 212 F. Supp. 2d at 86; People v. Molineux, 168 N.Y. 264 (1901). As explained supra, (see Section
III.A.1.), to demonstrate that “an evidentiary error deprived [Petitioner] of due process, he must show that the error was so
pervasive as to have denied him a fundamentally fair trial.” Collins, 755 F.2d at 18. To satisfy this burden, Petitioner must show
that the contested evidence, in light of the full record, “was sufficiently material to provide the basis for conviction or to remove
reasonable doubt that would have existed on the record without it.” Id.
Petitioner has not shown that admission of the Queens charges denied him a fair trial. Under both federal and New York State
evidentiary rules, uncharged criminal conduct is inadmissible to establish propensity but may be admissible for other purposes,
including “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid.
404(b); Molineux, 168 N.Y. 264. It may also be admissible to provide context or background for the charges being litigated. See
United States v. Jackson, 2002 WL 31101718, at *2 (2d Cir. Sept. 20, 2002); People v. Haidara, 65 A.D. 3d. 974, 974 (N.Y.
App. Div. 2009). Even if that evidentiary ruling arguably denied him due process, the weight of the evidence supporting his
conviction undermines any claim that the violation was “so pervasive as to have denied him a fundamentally fair trial.” Collins,
755 F.2d at 18. Thus, admission of this evidence did not violate Petitioner's due process rights.
4. Fourth Amendment Claims
*7 Petitioner contends that the trial court erred by admitting into evidence massagers and a knife, which were obtained during
police searches of Petitioner's car and home, in violation of his Fourth Amendment rights. (Nassau Pet. at 6A-6F.) Fourth
Amendment claims that were fully and fairly litigated in the state court proceedings are not reviewable in a federal habeas
petition. See Stone v. Powell, 428 U.S. 465, 494 (1976); Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986). Here, Petitioner
challenges the conclusion of the trial court; he does not contend that he was denied the chance to fully and fairly litigate his claim.
(See Nassau Pet. at 6A-6F.) In any event, the record reflects that the trial court held a suppression hearing in which Petitioner
had the opportunity to cross-examine witnesses; present evidence; and advance legal arguments in support of his argument for
suppressing the evidence. (See Pre-Trial Suppression Hearing Minutes (Dkt. 8-11).) The trial court denied the claim, and the
Appellate Division upheld that decision. Gopaul, 112 A.D.3d 964, at 964-65. Thus, the Fourth Amendment claim is denied.
5. Imposition of an Excessive and Constitutionally Vindictive Sentence
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Lastly, Petitioner claims that the trial court violated his due process rights by imposing an excessive and unconstitutionally
vindictive sentence. (Nassau Pet. at 10A-10B.) Nassau County argues that he failed to exhaust his claim that the sentence was
unconstitutionally vindictive, and that his claim that it was excessive does not invoke a federal issue that this court may resolve.
(Nassau Opp. at 25-27.)
The court agrees that Petitioner failed to exhaust his vindictiveness claim because he did not raise it in his application for leave
to appeal to the New York Court of Appeals. Coleman v. Thompson, 501 U.S. 722, 732, 749-51 (1991). Nor has he argued cause
or prejudice, or actual innocence, to excuse the procedural default. See Jones v. Keane, 329 F.3d 290, 296 (2d Cir. 2003). Thus,
his claim that his sentence was unconstitutionally vindictive is denied.
The court also agrees that the excessive sentencing claim does not present a federal issue reviewable under Section 2254.
Petitioner does not dispute that he was sentenced within the applicable range prescribed by state law. Federal habeas review of
this claim is therefore unavailable. See Ross v. Gavin, 101 F.3d 687 (2d Cir. 1996) (summary order). Accordingly, his excessive
sentencing claim is also denied.
IV. CONCLUSION
For the reasons stated above, the Queens County Petition (15-cv-1781 [Dkt. 1]) and the Nassau County Petition (15-cv-1782
[Dkt. 1]) are DENIED.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 5163211
Footnotes
1 When quoting cases, and unless otherwise noted, all citations and quotation marks are omitted, and all alterations are
adopted.
2 Petitioner does not appear to have submitted the Appellate Division briefing for this court's review. Accordingly, the
court is unable to investigate the underlying arguments firsthand. Relying on the federal habeas briefing, however, the
court observes that Petitioner does not assert that he made any constitutional arguments in the state court litigation.
Accordingly, he has not shown that he presented a federal issue to the state court, and his claim is denied.
3 The Appellate Division held that the trial court erred by failing to advise the jury with a missing witness charge, but it
concluded that the error was harmless because the evidence of guilt was overwhelming. See Gopaul, 112 A.D.3d at 967.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2022 WL 3228259
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Elie GRANGER, Petitioner,
v.
Dale ARTUS, Respondent.
17 CV 888 (RJD)
|
Signed August 10, 2022
Attorneys and Law Firms
Elie Granger, Attica, NY, Pro Se.
Merri Turk Lasky, Ranjana C. Piplani, Queens Coutny District Attorney's Office, Kew Gardens, NY, New York State Attorney
Generals Office, Queens County District Attorneys Office, for Respondent.
MEMORANDUM & ORDER
DEARIE, District Judge.
*1 Before the Court is the application of petitioner Elie Granger for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
After a jury trial in Queens Supreme Court at which he represented himself, petitioner was convicted of assault in the first
degree, N.Y. Penal Law § 120.10[1], and endangering the welfare of a child, N.Y. Penal Law § 260.10[1], and sentenced as a
second violent felony offender to concurrent terms of twenty-five years and one year plus five years’ post-release supervision.
The jury acquitted petitioner of the more serious charge of attempted murder in the second degree.
The charges and conviction are the result of petitioner's stabbing of Eduarda Oliva (“Eduarda”). The trial evidence established
that at approximately 9:50 a.m. on June 22, 2008, as Eduarda and her then thirteen-year-old daughter Kayla were walking on
a sidewalk on Queens Plaza North in Long Island City, petitioner rode up to them on a bicycle, stopped in front of them, and
while straddling his bicycle and staring into Eduarda's eyes, stabbed her in the chest, causing a hole in the left ventricle of her
heart and in her pericardium that would have resulted in her death had she not received emergency medical treatment.
In a set of sprawling submissions, petitioner advances the following grounds for habeas relief: violation of his rights under
Brady v. Maryland, 373 U.S. 83 (1963); untimely disclosure of Rosario materials; insufficiency of the evidence of identification,
serious physical injury, and endangerment; ineffective assistance of pre-trial and standby trial counsel; ineffective assistance of
appellate counsel; judicial bias; improper admission of prior bad acts evidence under People v. Molineux, 168 N.Y. 264 (1901);
and improper adjudication as a second violent predicate felon.
As will be discussed, none of the claims warrants the extraordinary remedy of habeas relief. Accordingly, the application for
a writ of habeas corpus is denied and the petition is dismissed.
FACTUAL BACKGROUND
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A. The Trial
The focus of the trial was identification. The state's evidence included: Eduarda's in-court identification; Kayla's line-up and in-
court identification; surveillance video from three businesses in the crime scene vicinity (the “scene videos”) that corroborate
key segments of the victims’ narratives (but do not capture the crime itself or the face of the bicyclist-assailant); surveillance
video from the Greenpoint Hotel, where petitioner lived (“the Greenpoint video”), that shows petitioner leaving his home three
hours before the crime in the same clothing worn by the bicyclist-assailant in the scene videos—a distinctive black and white
horizontally-striped polo shirt and blue jeans; an ATM receipt and surveillance video that placed petitioner at a delicatessen
approximately 6/10 of a mile from the crime approximately 11 minutes after its commission; petitioner's statement that someone
who “had it in for him” arranged for another individual to purchase petitioner's bicycle and clothing; and prior crimes’ evidence
admitted pursuant to People v. Molineux, 168 N.Y. 264 (1901), demonstrating that on two prior occasions, petitioner rode up
to individuals and stabbed them in the chest in the same distinctive manner in which Eduarda was attacked. 1
*2 Eduarda. Eduarda testified that shortly before 10 a.m. on Sunday, June 22, 2008, she was walking with her daughter on
the sidewalk on Queens Plaza North, approximately two blocks from the Scandals night club where her husband worked as a
security guard, when she noticed a bicyclist coming from behind them on the sidewalk, nearer to Kayla. Eduarda pulled Kayla
toward her to create space for the bicyclist to pass. Approximately five or six feet in front of them, the bicyclist made a U-turn,
came “right towards” them and stopped, placing his feet on the ground and straddling his bike. He was approximately seven
or eight inches, or an arm's length, in front of Eduarda's face. 812, 830. 2 Then, with “something ... in [his] hand,” he punched
Eduarda in the left side of her chest. 812-13.
After the stabbing, the bicyclist “just stood there and looked directly into” Eduarda's eyes, with “like a devilish look” for “a
few seconds” while Eduarda “was looking right at him ... trying to process ... everything that was happening.” 814-15. It was
a sunny day and nothing was blocking her view.
As Eduarda began to bleed, she felt dizzy, told Kayla to go for help, and soon fell to the ground. From there, she saw the assailant
pedaling away under the bridge. 833. She recalled that she was soon in an ambulance, in pain, and struggling to breathe. 816.
Eduarda identified petitioner at trial as her assailant on the basis of “the face and then his eyes.” 857, 816. She confirmed that
he did not take anything from her and did not speak to her or to Kayla.
On cross-examination, petitioner elicited that when interviewed in her hospital approximately five days after the stabbing,
Eduarda did not remember what her assailant was wearing, but was sure that he was a bald, light-skinned black man, 830, 835, 3
and that she “just remember[ed] the eyes, the evil eyes that looked at [her] while [she] was dying.” 829, 830. Asked what was
special or distinctive about his eyes, Eduarda testified that they were brown 4 and wide-opened, that she “could not forget them,”
and that “[j]ust looking at [petitioner] right now, that's pretty much it.” 831. She further testified: “you had just stabbed me right
through my heart and you are looking into my eyes with that same face you have right now. This is what I remember.” 848.
Kayla. Kayla's narrative of the relevant events is materially the same as Eduarda's. 755-59. She testified that, “[w]hen we were
walking down the street, the sidewalk, someone came up to my mother and hit her in the chest.” 756. She had an opportunity
to view the person on the bicycle when, after pedaling up to them, he stopped in front of them. 757. The bicyclist looked “a bit
taller than [her] father, maybe six feet, black, light-skinned” with a wrinkle on his forehead. 758. She saw the man's hand in a
fist and heard “the thud” when he struck her mother. 759. After the attack, the bicyclist rode off under the bridge, and Kayla
ran back up the block toward the Scandals club and found someone with a cellphone who dialed 911.
Kayla also identified petitioner as the assailant at a line-up on June 24, 2008, two days after the crime. Petitioner's cross-
examination of Kayla thoroughly explored the line-up, including the fact that she was shown one of the crime-vicinity
surveillance videos at the police precinct shortly beforehand. 781, 797. 5 Petitioner also fully explored Kayla's capacity to
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observe him at the time of the crime, 766-777, eliciting that she was “sure” he was the man who attacked her mother.” 794.
Asked what “makes [her] sure, Kayla testified, “During the lineup I envisioned every person on a bike and when I saw you,
you were the person that I saw on the bike from when my mom was attacked.” 794.
*3 Kayla had given the police varying descriptions of the assailant's clothes and her recollection at trial of those accounts was
inexact. In his defense case, petitioner called an officer who testified that in her initial interview, Kayla did not mention the
black and white striped polo shirt and jeans, but said that the assailant wore tan pants and a green shirt. 1042-43. 6
Scene videos. Clips from the exterior surveillance video cameras of the Scandals club, Petrocelli Electric, and Michael Masseo
Electrical were introduced. Four clips from the Scandals footage, assembled chronologically, show (i) Eduarda and Kayla
walking on Queens Plaza North in front of the club at 9:48 a.m.; (ii) the pair walking further down the same street approximately
one block before the scene of the attack; (iii) a man, on a bicycle, wearing jeans and a horizontally striped shirt, turning onto
Queens Plaza from a side street Eduarda and Kayla had just crossed; and (iv) Kayla running back toward Scandals while the
bicyclist rode off toward the Queensborough Bridge. The Masseo Electric video showed the same man on a bicycle heading
towards Queens Plaza North at 9:47 a.m., and the Petrocelli clip showed the same man on a bicycle on Queens Plaza North
at 9:51 a.m. 7
The state conceded that this video evidence, which showed generally that Eduarda and Kayla did not invent the story of a
bicyclist, did not capture petitioner's face. 1208. Its probative value, the state urged, was the clothing worn by the bicyclist,
which the state asked the jury to compare with the clothing worn by petitioner in the Greenpoint Video (discussed here next).
See, e.g., 1208 (“Compare that clothing. That is the importance of the video evidence.”). With respect to the scene videos, the
state described their contents in summation, without objection, as follows:
All three of them show you the clothing that the perpetrator, the stabber is wearing: the light blue jeans
with the black and white striped polo shirt with the black sneakers. And if you look real close you will see
there's a white emblem on the black sneakers ... You know that this is the stabber because if you follow
the video evidence you know that at 9:47 the bicyclist comes down 24th Street, turns onto Queens Plaza
North and then follows Kayla and Eduarda to 22nd Street.... And you see this person come up behind
Kayla and Eduarda on the video. You see Eduarda fall into the street and you see the bicyclist ride off
underneath the bridge. 1209.
The Greenpoint video. It was undisputed that petitioner resided at the Greenpoint Hotel on Manhattan Avenue in Greenpoint,
Brooklyn, where he was arrested at approximately 5:00 p.m. the day after the crime. 937-38, 944, 946; 1108-09, 1111-12. The
hotel, a single room occupancy (“SRO”) residence of approximately 200 rooms, had several security cameras, including an
external camera at the main entrance on Manhattan Avenue. 624-26. Eduardo Suren, the building's fire safety director who
worked the front desk, testified that as of June 2008, petitioner had been a resident for approximately one year, and had a bicycle
that he kept with other residents’ bicycles around the corner. 633.
*4 The day after petitioner's arrest, Detective John Asam recovered surveillance video recorded by the hotel's external
surveillance camera that showed a man wearing blue jeans and a black and white horizontally-striped polo shirt leaving the
main entrance at 8:05 a.m. on June 22, 2008—i.e., approximately three hours before the crime occurred. 580-88, 597-98. Suren
identified petitioner as the man in two still photographs taken from the video. 634. On cross-examination, when petitioner
asked Suren whether it was “possible that the person in that photo is someone who looks like me instead of me,” Suren replied,
“No.” 637.
The subject of the time and date on the hotel footage was explored on direct and cross-examination. Detective Asam testified:
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When we go to a location to download video usually when we walk in it's showing a live shot and a lot
of times the store owner ... doesn't really take care of his video equipment and update the times and the
time will actually be off from real-time. So the first thing we do when we go into a location [is] look at
the live time on the live video and determine how real-time is off from the time-stamp of the video. 585.
The detective compared the hotel camera's “live” or “real” time to the time on his cellphone and concluded that the hotel's
equipment “was ahead one day and one hour, so actually 25 hours ahead.” 586. Thus, although the video of petitioner exiting
the hotel that was played at trial stated “June 23, 2008” (the day after the crime) and “8:05 a.m.,” Asam testified that the “real
time” of that recorded event was 25 hours earlier, or 7:05 a.m. on June 22, 2008, the day of the crime. 592-94.
Petitioner examined Detective Asam about a report, in petitioner's possession, that concerned the Greenpoint Hotel's surveillance
system's clock. 601-604. Detective Asam testified that he recalled having reviewed a report, prepared by a Detective Karl
Kratzer, that indicated that the hotel equipment's clock was one hour behind, not 25 hours ahead, but also that that document
was “an error report.” 602. Detective Kratzer did not testify and the court denied petitioner's request to admit the report. 604.
Asked on redirect, “How is it that you recall that the time stamp is one day and one hour off?” Detective Asam testified, “I just
remembered doing this job with Detective Reid. I knew it was way off and when I reviewed Detective Reid's DD5, I knew the
exact time, it was off, because Detective Reid made a real clear notification on his DD5. 610-11.
Greenpoint Hotel manager Hillel Porges, who also had access to the hotel's surveillance cameras, testified that to the best of his
knowledge, the cameras recorded accurately, that the timer was “usually” accurate but that there were also periods of time when
it was not. 627-28. Porges did not recall whether the system's timer was accurate in June 2008. Suren, too, was asked whether the
hotel's camera's clock was usually correct; he “couldn't answer that question” because “[t]he owners had control of that.” 637.
To corroborate Detective Asam's testimony that the hotel video clock was 25 hours ahead—and that the video showing petitioner
exiting the Greenpoint Hotel was, indeed, from Sunday, June 22nd, the morning of the crime, and not the equipment-indicated
time—the state introduced evidence of petitioner's whereabouts at the latter day and time (i.e., 8:05 a.m. on Monday, June
23rd). Akash Chabra, general manager of Shelter Express, testified that during June 2008 petitioner worked for that company
installing posters in New York City bus shelters. His regular shift was Monday to Friday, 5:00 a.m. to 1:00 p.m., and he did
not work weekends. The company's records confirmed that on June 23, 2008, petitioner reported to work in Long Island City
at 5:00 a.m. and was promptly assigned 36 posters to install in the Bronx. The records further confirmed that during his shift
on June 23, petitioner stopped at shelters in the Bronx every 20 to 30 minutes from 5:45 a.m. through at least 9:16 a.m., and
signed out at 1:05 p.m. 893-903, 1015-16. 8
*5 Evidence from the Oh So Good Deli. Police recovered from petitioner's wallet an ATM card and an ATM receipt from a
machine inside the Oh So Good Deli, located approximately 6/10 mile from the crime scene, reflecting a transaction conducted
on June 22, 2008 (the day of the crime) at 10:05:55 a.m. (approximately fifteen minutes after the crime). 9 Police then examined
the store's surveillance footage starting at approximately 9:30 or 9:45 a.m. Petitioner was first sighted on the video (inside the
deli) at 10:01 a.m. and seen leaving at 10:31 a.m. 1063-64. In this footage, petitioner is wearing shorts and a t-shirt, not the
horizontally striped shirt and blue jeans worn by the bicyclist-assailant in the scene videos.
The blue jeans, striped shirt, and bicycle in those videos were never recovered. Nor was a weapon. In summation, the prosecution
acknowledged that it did not know what happened to these items, suggesting to the jury that petitioner disposed of them
immediately after the crime in furtherance of his plan to create an apparent alibi. See, e.g., TT at 1216 (“You know that this is
what he's wearing at 7:00 and if you check out the video from the deli you know that he's wearing shorts and a t-shirt at 10:01.
Why is he changing his clothes after three hours? .. He knew that this outfit was evidence.”). The summation urged the jury to
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notice that in the Oh So Good Deli video petitioner was wearing the same black sneakers with the white emblem that the bicyclist
was wearing in the scene videos. 1209, 1216. The state also suggested that because petitioner lived in Brooklyn, far from the
crime scene, his proximity to the scene so close to the time of the crime was itself inculpatory. Petitioner, by contrast, argued in
his summation that he could not have been the bicyclist in the scene videos because he was in the Oh So Good Deli only minutes
later and in different clothing. See 1188 (“He would have to take off his shoes, take off his straight leg jeans and shirt and put on
a pair of shorts and a t-shirt and then put on his shoes again ... faster than humanly possible before appearing on videotape.”).
Petitioner's Statement. The day following petitioner's arrest, while Lieutenant Edward Keough was conducting a routine
inspection of the holding cells at the 114th precinct, petitioner “looked at [the detective] and made a statement.” 940. Keough
testified that petitioner “said, in sum and substance,” that he “had a problem with” a “bald guy in the building” who “had a
Chinese guy buy his bike and clothing.” 940, 983. Keough did not take notes of the statement.
The Molineux Evidence. 10 Kevin Scott Hall testified that just after midnight on October 7, 1994, as he was walking down West
45th Street in Manhattan, he noticed police cars blocking traffic. As Hall approached Tenth Avenue, petitioner rode up to him
on a bicycle, stopped beside him and, while straddling his bike, asked if Hall knew what the commotion was about. 914-15. As
Hall began to answer, he felt “like a punch” to his chest, and believes petitioner lunged at him a second time before riding off.
915, 916. Hall walked toward the nearby police cars and told an officer he thought someone had tried to stab him. The officer
told him he was bleeding and had him taken to the hospital, where he remained for three days for treatment of a three-inch-
deep wound. Hall identified petitioner at the time and, when testifying in the Queens County trial in 2011 Hall again identified
petitioner as his assailant because of “[his] eyes,” which had a certain “look” or “intensity.” 925, 928. When Hall offered that
“there's a kind of sincere look to your eyes that is very misleading,” petitioner asked Hall to explain what he meant, and Hall
added: “I think it has to do with the situation and the way you purposely looked at me and asked me a question and sincerely
wanting an answer and then stabbing me with the knife.” 929.
*6 Yehoram Uziel testified that on September 29, 1994, he was walking with two friends on Fifth Avenue in Manhattan,
heading toward 44th Street, when a man riding a bicycle came very close to him, stopped, straddled his bike, stabbed Uziel
in the chest with what Uziel assumed was a knife or ice pick, and then rode away. (1022-26, 1029, 1032). Uziel received five
stitches but suffered no internal organ damage. He identified petitioner in a 1994 lineup and in the 2011 Queens County trial
testified that, “I see it in your eyes seventeen years later,” and that, “[i]t's not that your eyes are different from anybody else's.
It's this look that I remember when I almost died.” 1027, 1029. 11
Medical Evidence. EMT Christopher Kagenaar received a call at 9:55 a.m. to respond to an emergency on Queens Plaza North
at 22nd Street and, upon arrival, observed Eduarda lying on the street, bleeding from a stab wound on the left side of her
chest. 561-67. By the time paramedic Christopher Lipkin arrived at 10:04 a.m., Eduarda had been moved into the ambulance,
was unconscious, her blood pressure was low, and her breathing was not “adequate enough to sustain life.” 545-55, 459-63,
465-69, 472-73. Because of Eduarda's struggles with breathing, Lipkin performed an examination and determined that there was
diminished activity in Eduarda's left lung, and that she had tracheal deviation (i.e., when, upon injury to one lung, the trachea
realigns with the working lung). 467-68. Upon Eduarda's arrival at New York Hospital, she was, according to cardiothoracic
surgeon Dr. Subroto Paul, “in an active state of trying to die” and, because she would have died before she could be moved, her
chest was opened in the emergency room to relieve the pressure on her heart. Dr. Paul diagnosed Eduarda as having a blood
clot in the pericardial sac of her heart and a hole in her left ventricle, which he then repaired. Eduarda remained hospitalized
for two weeks. 1076, 1079-84, 1088-89.
B. Appeal and State Post-Conviction Proceedings
The brief for petitioner prepared by appellate counsel argued that the trial court improperly denied his motion to present expert
testimony about factors affecting the reliability of eyewitness identification. Unanimously affirming petitioner's conviction and
sentence, the Appellate Division, Second Department rejected the claim, holding that:
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there was sufficient evidence connecting [petitioner] to the crimes to obviate the need for expert
testimony, including surveillance videos, physical evidence placing [petitioner] in the vicinity of the
crime shortly after the crime occurred, and evidence probative of [petitioner's] identity as the perpetrator
in this case admitted pursuant to People v. Molineux ... demonstrating that [petitioner] had committed
crimes in the past by using a distinctive and unique modus operandi that was nearly identical to the
manner in which the crime was committed in this case.
People v. Granger, 122 A.D.3d 940, 941 (2d Dep't 2014). 12 Petitioner also filed two supplemental pro se submissions in
support of his appeal—a 36-page brief advancing 22 numbered claims and several sub-claims (e.g., claim number 12 contains
14 sub-claims, while claim numbers 16 and 21 each advance 7 distinct claims), along with a 30-page “Dismissal with Prejudice
Worksheet” that includes his hand-drawn sketches of the lineup and the 114th precinct where he made his statement to Lt.
Keough. The principal theme of these submissions, like petitioner's arguments at trial and the gravamen of his habeas petition,
is that the identification evidence introduced at trial was either perjured, unreliable, or improperly obtained. A second principal
recurring claim in these materials, also readvanced here on habeas, is that the adverse rulings at the suppression hearing (on the
legality of his arrest, and admissibility of the physical evidence and Kayla's lineup identification) are the result of the alleged
ineffectiveness of pre-trial counsel.
*7 The Appellate Division's decision, referencing only petitioner's “pro se supplemental brief” but not the Dismissal with
Prejudice Worksheet, summarily ruled that all but one of these supplemental claims were “without merit.” Id. Treating the
ineffective assistance claim separately, the court ruled that the claim was “mixed” because it was based, in part, on matter
appearing on the record, and in part on matter outside the record. Id. at 942. The court rejected the on-the-record branch on the
merits, and advised petitioner to pursue the off-the-record branch in a CPL § 440.10 proceeding. Id. The New York Court of
Appeals later denied leave to appeal. People v. Granger, 25 N.Y.3d 989 (2015).
Petitioner then moved pro se to vacate his conviction pursuant to C.P.L. § 440 claiming he was denied the effective assistance
of pre-trial and standby counsel. He also raised approximately eight other grounds. The court denied the motion in an order
dated December 9, 2015, and set forth its findings of fact and conclusions of law in a 12-page Decision & Order dated February
22, 2016. The Second Department, by order dated July 28, 2016, denied leave to appeal the denial of Section 440 relief.
In June 2016, in a 57-page pro se submission, petitioner moved for a writ of error coram nobis, citing a host of allegedly
meritorious arguments that appellate counsel did not advance. The Appellate Division denied the motion by summary order.
People v. Granger, 147 A.D.3d 871 (2d Dep't 2017). The New York Court of Appeals denied leave to appeal. People v. Granger,
29 N.Y.3d 1080 (2017).
On or about April 6, 2021 (after the commencement of this habeas proceeding), petitioner filed a second motion to vacate
pursuant to CPL § 440 in which he advanced claims that are largely repetitive of those already advanced in his earlier state
submissions. The court denied the motion summarily by Decision & Order dated October 18, 2021, finding that the claims were
barred because they were or could have been raised on direct appeal or in his prior 440 motion. By application dated October 27,
2021, and supplemental affidavit dated December 29, 2021, petitioner moved for re-argument, asking the court to reconsider
at least twelve separate inquiries. The court denied the application by Decision & Order dated April 18, 2022, finding that the
claims denied in the October 2021 order were “largely duplicitous of his previous motions and other filings” and that the motion
to re-argue “merely reasserts many of the same claims and subclaims that were raised in other proceedings.” Id. at 3, 4. 13
C. The Federal Habeas Proceeding and Subsequent State Court Filings
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Petitioner filed his habeas application in this Court on or about February 13, 2017. Between June 15, 2017, when respondent
filed its answer to the petition, and today, petitioner has filed over fifty additional motions, letters, and demands in this Court,
including repeated requests for counsel, which have been denied, and for an evidentiary hearing, which have also been denied
more than once. See, e.g., ECF 47 (Order dated August 30, 2019, stating that “[t]he Court has examined the written submissions
and it is not evident that a hearing is necessary”) and ECF 84 (Order dated March 10, 2021, denying several motions for an
evidentiary hearing). By order issued April 29, 2022, the Court denied petitioner's motion for reconsideration of the denial of
his motions for an evidentiary hearing and for leave to take an interlocutory appeal of that denial.
*8 On or about September 2, 2020, petitioner filed a motion to amend, correct or supplement his petition. ECF 73. By order
issued June 24, 2021, the Court directed petitioner to file, by August 2, 2021, his proposed Amended Petition along with a letter
detailing which claims were new and how the new claims share a common core of operative facts with those in the original
petition. ECF 86. The Court then granted petitioner's request to extend the filing deadline to October 4, 2021, and, because it
was not clear whether petitioner had received all Court orders, the Court sua sponte extended petitioner's deadline to November
5, 2021. ECF 96. By letter filed November 11, 2021, however, petitioner stated, “I do not wish to amend the Petition for a Writ
of Habeas Corpus filed on or about February 13, 2017,” ECF 101, and to date has not offered an amended pleading. By letter
dated November 30, 2021, respondent asked that the petition be considered fully briefed.
In November 2016—several months before commencing this habeas proceeding—petitioner filed a separate application for a
writ of habeas corpus in the Southern District of New York. Those papers challenge his 1995 convictions for second-degree
assault obtained in New York Supreme Court upon his plea of guilty in connection with the Hall and Uziel attacks. Petitioner
challenges his 1995 conviction on the ground that (i) his trial counsel was ineffective when advising him to accept the plea; (ii)
he is actually innocent of second-degree assault because, based on the victims’ testimony at the 2011 Queens County trial, the
state could not have established that the victims suffered serious physical injury or that petitioner possessed the requisite deadly
weapon or dangerous instrument; and (iii) the use of the 1995 convictions as the basis for adjudicating him a second violent
felony offender in the 2011 Queens proceeding resulted in a total sentence that was cruel and unusual. A final claim, that the
admission of prior bad acts evidence under Molineux was erroneous, is addressed to the Queens County conviction.
By order dated March 2, 2017, then-Chief Judge Colleen McMahon of the Southern District held that petitioner “cannot obtain
habeas corpus relief in connection with his 1995 New York conviction.” Granger v. Artus, 16 CV 8862 (S.D.N.Y. Mar. 2, 2017).
Judge McMahon relied on the rule that “[w]here a prior conviction is later used to enhance a future sentence, the defendant
generally may not challenge the enhanced sentence ‘on the ground that the prior conviction was unconstitutionally obtained.’
” Id. at 3 (quoting Lackawanna Cnty. Dist. Atty. v. Coss, 532 U.S. 394, 403-404 (2001)). As stated by Judge McMahon, “[t]he
exception to this rule arises only if the defendant was denied his right to counsel, is actually innocent but could not have
uncovered evidence of this fact sooner, or he cannot be faulted for failing to obtain timely review of a constitutional claim.” Id.
(quotations omitted). Judge McMahon concluded that petitioner “is unable to satisfy” any of the three Lackawanna exceptions
because “he was represented by counsel [in the 1995 case], he does not assert any facts suggesting that evidence of his innocence
was previously unavailable, and he does not assert that government action prevented him from filing a timely constitutional
claim.” Id. at 3-4.
Judge McMahon further concluded, however, that the Southern District petition “could be construed as challenging [p]etitioner's
Queens County conviction,” and transferred the matter to this Court, id. at 7, where it was initially assigned a separate docket
number, 17 CV 1437, and then, by order dated April 28, 2017, was consolidated with the instant proceedings.
Since the reassignment of this matter to the undersigned in May 2022, petitioner has written five additional letters to three
different judges of this Court regarding his claims. ECF 108-112.
GENERAL HABEAS STANDARDS
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Federal habeas relief is authorized “only on the ground that [an individual] is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). See generally Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not
the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).
*9 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted in 1996:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication
of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.
Id. § 2254(d).
As recently summarized by the Second Circuit, citing the seminal Supreme Court constructions of the statute,
A claim is “adjudicated on the merits” if the state court ruled on the substance of the claim rather than on
a procedural ground. A decision is “contrary to” clearly established federal law if the state court arrives
at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court
decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. A
decision is an “unreasonable application” of clearly established federal law if the state court identifies
the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.
Jordan v. Lamanna, 33 F. 4th 144, 150 (2d Cir. 2022) (cleaned up).
What few habeas petitioners appreciate, however, is exactly how formidable this standard is. First, “[a] legal principle is ‘clearly
established within the meaning of this provision only when it is embodied in a holding of th[e Supreme] Court,’ ” Thayler v.
Haynes, 559 U.S. 43, 47 (2010) (emphasis added), “as opposed to the dicta,” Williams v. Taylor, 529 U.S. 362, 412 (2000), or
the holdings of federal appellate courts. Carey v. Musladin, 549 U.S. 70, 74 (2006). Second, the writ is not available “simply
because ... the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529
U.S. at 411. “Rather, the writ should be granted on grounds of unreasonableness only if ‘the state court's ruling on the claim ...
was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.’ ” Jordan, 33 F. 4th at 151 (quoting, Harrington v. Richter, 562 U.S. 86, 103(2011)). “[R]easonable
arguments on both sides” are “all [the state] needs to prevail [under] AEDPA.” White v. Woodall, 572 U.S. 415, 427 (2014).
The statute “erects [this] formidable barrier to federal habeas relief,” because it embodies “a foundational principle of our federal
system: State courts are adequate forums for the vindication of federal rights ... and are thus presumptively competent [ ] to
adjudicate claims arising under the laws of the United States.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Therefore, federal habeas
courts “will not lightly conclude that a State's criminal justice system has experienced the extreme malfunction for which federal
habeas relief is the remedy.” Id. at 16 (cleaned up).
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DISCUSSION
I. The Brady Claim
*10 Petitioner claims that he was denied his due process rights under Brady v. Maryland, 373 U.S. 83 (1963) by the state's
withholding of Detective Kratzer's report indicating that the Greenpoint Hotel's surveillance camera clock was one hour behind
real time. Petitioner presented this claim on direct appeal in his pro se supplemental brief and the Appellate Division rejected
it. Granger, 122 A.D.3d at 942 (“The [petitioner's] remaining contentions, raised in his pro se supplemental brief, are without
merit.”). He raised it again in his first CPL § 440.010 proceeding, where it was again rejected on the merits. Dec. & Order
dated Feb. 22, 2016 at 3 (“this Court summarily denies” as “previously determined” the claim “that the prosecution committed
a Brady violation when it failed to disclose Detective Kratzer's video authentication report”). These summary rulings are merits
adjudications to which AEDPA deference applies. Harrington v. Richter, 562 U.S. 86, 98 (2011); Jimenez v. Walker, 458 F.3d
130 (2d Cir. 2006). To prevail, therefore, petitioner must show that the state court's rejection of his claim was contrary to or an
unreasonable application of Brady or other Supreme Court holdings.
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to the accused upon request
violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87. The Court further held that,
“[f]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles
v. Whitley, 514 U.S. 491, 433 (1995) (cleaned up). See also Banks v. Dretke, 540 U.S. 668, 698 (2004) (“Our touchstone on
[Brady] materiality is Kyles.”). Kyles cautions that its materiality standard “does not require demonstration by a preponderance
that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.” 514 U.S. at 434. Rather,
a Brady violation is established “by showing that the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.” Id. at 435.
The Appellate Division's rejection of petitioner's Brady claim is unquestionably not an unreasonable application of these
Supreme Court holdings. Indeed, the extent to which Brady concerns are even implicated here is minimal because, without
reaching the issues of favorability and materiality, the evidence at issue was not suppressed. Although the record does not enable
this Court to determine when a demand was made and exactly when disclosure occurred, it is irrefutable that petitioner had
Kratzer's report in hand in time to cross-examine Detective Asam about it and to elicit the feature of it that petitioner apparently
considers to be favorable (presumably, that it could tend to support his assertion that he could not have been the man in the
Greenpoint video because he was at work in the Bronx on the morning the video depicts).
Petitioner also says that even if the report was disclosed before trial, his “constitutional rights were still denied because the
report was withheld from him until he was no longer able to implement his own trial strategy, i.e., suppress the critical video
before trial or before it was viewed by jurors.” ECF No. 1 at 12 (cleaned up). Brady is not offended because petitioner is simply
mistaken in his belief that the Kratzer report offered grounds to exclude the Greenpoint video. As reflected in the trial court's
ruling when the video was received into evidence upon a proper foundation, the report's assessment that the video's clock was
an hour behind—like Detective Asam's testimony that the clock was 25 hours ahead—would go to weight, not admissibility.
See 589-90 (when petitioner objected to the video's admission, stating, “I have conflicting information about the accuracy of
the time,” the court overruled the objection, admitted the video, and advised petitioner that that objection “is for you to cross-
examine about”). Additionally, whatever shadow petitioner hoped the report might cast on the Greenpoint video or Detective
Asam's testimony about the accuracy of the hotel equipment's clock was fully explored at trial. In short, there is no Brady
violation because nothing in the record suggests that disclosure of the report at some earlier point could have “put the whole case
in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435. Petitioner's Brady claim therefore
fails to state a basis for federal habeas relief.
II. The Rosario Claim
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*11 Petitioner claims that he was unfairly prejudiced by the late or non-disclosure of several witnesses’ prior statements as
required by People v. Rosario, 9 N.Y.2d 286 (1961), cert. denied, 368 U.S. 866 (1961). See Pet'n, ECF No. 1 at 13-16. See
Rosario, 9 N.Y.2d at 289 (announcing the rule that “entitles the defense to examine a witness's prior statement, whether or not
it varies from his testimony on the stand, as long as the statement relates to the subject matter of the witness's testimony and
contains nothing that must be kept confidential”). The rule “turns largely on policy considerations,” id. at 289, and was codified
by the state legislature. See CPL §§ 240.44(1) and 240.45(1)(a), eff. until Jan. 1, 2020, recodified at §§ 245.25 et seq.
Petitioner says the state failed to disclose Eduarda Oliva's grand jury testimony before the Molineux hearing, and failed to
disclose before trial the prior statements of Lt. Keough, Det. Asam, Shelter Express co-worker Virtudes Gonzalez, Molineux
witnesses Uziel and Hall, and Greenpoint Hotel fire safety director Eduardo Suren.
Copious as petitioner's state courts submissions are, it appears that, except for the branch addressing Oliva's grand jury testimony,
he did not exhaust his Rosario claim in state court and so cannot advance it here as a basis for federal habeas relief. See 28
U.S.C.§ 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears that [ ] the applicant has exhausted the remedies available in the courts of
the State”); Picard v. Connor, 404 U.S. 270, 275 (1971) (discussing exhaustion requirement); Daye v. Attorney Gen. of State of
New York, 696 F.2d 186, 191 (2d Cir. 1982) (same). 14 Even if the Rosario claim were properly before the Court, 15 it would
not present a basis for habeas relief because it arises wholly under state law. See, e.g., Ward. v. Lee, 2020 WL 6784195, at *12
(E.D.N.Y. Nov. 18, 2020) (collecting cases). As the collected cases further discuss, the similarity between the Rosario rule and
the federal rule announced in Jencks v. United States, 353 U.S. 657 (1957) does not change this analysis. See Ward, 2020 WL
6784195, at *12 (observing, inter alia, that even the Jencks rule “has not been construed as constitutional in nature”) (internal
citation and quotation omitted).
*12 Petitioner's Rosario claim is therefore not cognizable in this federal habeas proceeding.
In any event, although respondent asserts that “petitioner has failed to establish that there were, in fact, any prior statements of the
cited witnesses,” Resp. Mem. at 32, petitioner did cross-examine several of these witnesses at trial about their prior statements.
See, e.g., 824-56 (lengthy cross-examination of Eduarda Oliva including about statements made during her police interview,
829, and in the grand jury, 853); 941-990 (50-page cross-examination, following 4-page direct, of Lt. Keough, including about
his testimony at the suppression hearing); 1027 (cross-examination of Molineux witness Uziel about his grand jury testimony).
In sum, petitioner's Rosario claim fails to state a basis for federal habeas relief.
III. Sufficiency
Petitioner asserts that there was insufficient evidence (i) of his identity as the assailant, (ii) that Eduarda suffered the “serious
physical injury” required for first-degree assault; and (iii) that he “endangered” Kayla. Pet'n, ECF 1 at 18-20.
Identification. The principal themes driving this petition and petitioner's ensuing prolixity are that he did not commit the crime,
and, for all the myriad reasons explored and argued at trial and asserted in his lengthy pro-se submissions in state court, that the
extensive identification evidence against him was perjured, unreliable, or improperly obtained. Embedded in these arguments
are what he offered the jury as species of alibis, namely, that he could not have committed the crime and also been in the Oh So
Good Deli, more than .6 mile away, as soon as 8 minutes later in different clothes, and that he could not have been the man in the
Greenpoint video wearing the same clothes as the assailant the morning of the crime because, as reflected on the equipment's
clock, the event it captured (his departure from the hotel) occurred the day after the crime when he was at work in the Bronx.
Without reaching the claim's uncertain procedural status, 16 the Court rejects it on the merits, see 28 U.S.C. § 2254(b)(2)
(a federal court may deny a writ of habeas corpus on the merits even if the petitioner has failed to exhaust state remedies),
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concluding that the Supreme Court's standard in Jackson v. Virginia, 443 U.S. 307 (1979) is dispositive whether applied de
novo or with AEDPA's doubled deference. 17 Under Jackson,
the critical inquiry ... does not require a court to ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found
guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be considered in the light most favorable
to the prosecution.
*13 Id. at 318-319 (internal quotations and citations omitted) (emphases in original).
Despite petitioner's persistence, zeal, and prolixity, a federal habeas proceeding is not a second trial, and the habeas court's
role is not to redo the work of the jury that returned a guilty verdict. All of the quarrels petitioner has with the evidence were
raised at trial; the jury that convicted him was properly charged that his raising of an alibi did not shift the burden of proof,
1248, and was also instructed at length about what factors to consider in assessing the accuracy of identification testimony.
1249-51. It is sufficient, to defeat petitioner's challenge, that this Court is able to say that a rational jury so instructed could
readily conclude, on the basis of the compelling victim testimony and other identification evidence compiled above, that it was
petitioner who stabbed Eduarda. Accordingly, petitioner's challenge to the sufficiency of the evidence of identification does not
state a basis for federal habeas relief.
Serious physical injury. Under New York law, a person is guilty of the crime of assault in the first degree when “[w]ith intent to
cause serious physical injury to another person, he causes such injury to such person ... by means of ... a dangerous instrument.”
PL § 120.10(1). “Serious physical injury” is “physical injury which creates a substantial risk of death, or which causes death
or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of
any bodily organ.” PL§ 10.00(10). The trial court's charge to the jury, to which petitioner did not object, tracked the statutory
language almost verbatim. 1254.
In light of the medical evidence and controlling standards, this branch of petitioner's sufficiency claim is frivolous. His attack
rendered Eduarda unconscious and—in the opinion of both the first responders and her cardiothoracic surgeon, whom the jury
was entitled to credit—on the brink of death. Petitioner makes the reckless, speculative assertion that because a stab wound
penetrating the heart would have caused Eduarda's death within minutes, the life-threatening injury for which she received
surgical intervention must have occurred at the hospital rather than at the crime scene. The trial evidence plainly said otherwise.
Seizing on paramedic Lipkin's observation that Eduarda was struggling to breathe at the scene, and his ensuing opinion that
Eduarda suffered injury to her left lung, petitioner also argues that the prosecution impermissibly “permit[ed] some jurors to
convict based on a lung injury and others to convict based on a heart injury.” ECF 1 at 20, 19. But petitioner is mistaken. The
testimony of Eduarda's cardiothoracic surgeon and the New York Hospital medical records established that there was no lung
injury. As the prosecution argued in summation: “[Y]ou are going to have to decide whether or not Eduarda Oliva sustained a
serious physical injury ... you have her medical records” and “you have the testimony of her doctor who told her what he had to
do to repair her injury. What was her injury? A tear to her pericardium. A tear to her left ventricle in her heart.” 1220. In sum,
petitioner's challenge to the sufficiency of the evidence of serious personal injury fails to state a basis for federal habeas relief. 18
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*14 Endangerment. Petitioner asserts that “[t]here is a lack of evidence supporting mental, moral and physical endangerment,”
that Kayla was “not touched, not threatened, and not spoken to by the perpetrator,” and that she “did not see the actual stabbing.”
ECF 1 at 20. Petitioner presented this claim in his pro se supplemental appellate brief, so the Appellate Division's summary
rejection of all the claims in that brief, Granger, 122 A.D.3d at 942, is a merits adjudication subject to doubled AEDPA deference.
Cavazos, 565 U.S. at 2.
Under N.Y. Penal Law §§ 260.10[1], “[a] person is guilty of endangering the welfare of a child when,” relevant here, “[h]e or
she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen
years old.” As the New York Court of Appeals has held, “[a]ctual harm to the child need not result for liability under the statute
to attach, it being sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the
likelihood of such harm coming to the child.” People v. Simmons, 92 N.Y.2d 829, 830 (1998). See also Matthews v. Barr, 927
F.3d 606, 618 (2d Cir. 2019) (“ ‘The Legislature specifically recognized that behavior that was likely to produce harm to a
child's physical, mental or moral well-being fell within its sweep as long as the defendant was aware of its potential for harm
to a child’ ”) (quoting People v. Johnson, 95 N.Y.2d 368, 372 (2000) (emphasis in original)). The trial court's charge comports
with the statutory language and cited caselaw. 1259-60.
The Appellate Division did not unreasonably apply Supreme Court law, or make an unreasonable determination of the facts in
light of the evidence, when it rejected petitioner's sufficiency challenge to his endangerment conviction. Indeed, the claim is
frivolous in light of the controlling standards. Kayla testified that she was at her mother's side during the attack, and that she
heard the “thud” of petitioner's fist striking her mother's chest and then her mother screaming for help. The likelihood of injury
to the girl's mental welfare is self-evident and knowledge of its likelihood reasonably imputed to the attacker. But even without
Kayla's testimony, a rational juror could readily conclude that a man who stabs a woman accompanied by a minor knows that
harm to the minor's moral, mental, or physical welfare will likely ensue. In sum, petitioner's challenge to the sufficiency of the
evidence of endangerment does not present a basis for federal habeas relief.
IV. Ineffective Assistance of Pre-trial and Standby Counsel
After making “a thorough inquiry of [petitioner] regarding his constitutional right to counsel and the dangers and disadvantages
that flow from the waiver of that right,” Decision & Order dated October 15, 2010, the trial court granted petitioner's request to
represent himself at trial, and petitioner does not challenge that ruling here. Although the trial court appointed standby counsel,
petitioner tried the case, beginning with jury selection. He delivered the opening statement and summation, cross-examined
each of the state's witnesses, argued all evidentiary points and delivered the summation. (As will be discussed, upon petitioner's
consent, standby counsel conducted the brief direct examination of two defense witnesses.)
As the Supreme Court noted when recognizing the right of a criminal defendant to proceed without counsel, “whatever else
may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Faretta v. California. 422 U.S. 806, 834
n.46 (1975). Courts have recognized, however, that “[w]here a defendant is initially represented by counsel but subsequently
requests to proceed pro se, he may allege that counsel was ineffective at least up to the point where the defendant began to
represent himself.” Jelinek v. Costello, 247 F. Supp. 2d 212, 265 (E.D.N.Y. 2003) (Weinstein, J.) (collecting cases). This is what
petitioner has done here in claiming that two of the attorneys who represented him during the pre-trial proceedings (Gary Miret
and Henry Ramirez) were ineffective.
Controlling Standards
*15 To establish that counsel was ineffective, a petitioner must show, first, that “counsel's representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and second, that “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The
inquiry is “whether the [challenged actions or decisions] were outside the wide range of professionally competent assistance.”
Id. at 690.
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The “reasonable probability” of a different result required for Strickland prejudice is “a probability sufficient to undermine
confidence in the outcome.” Id. at 694. See also Harrington, 562 U.S. at 104 (“It is not enough to show that the errors had
some conceivable effect on the outcome of the proceeding.”) (cleaned up). Rather, “[c]ounsel's errors must be so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. (internal citation and quotation omitted). When the
alleged ineffectiveness involves a pre-trial suppression claim, to establish prejudice petitioner must show that the suppression
issue was meritorious. United States v. Jones, 2022 WL 2872515, at *6 (S.D.N.Y. July 20, 2022).
To prevail on an ineffectiveness claim that the state court has already rejected on the merits, a habeas petitioner must show that
“the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S.
19, 25 (2002). This is a formidable burden: “[s]urmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky, 559
U.S. 356 (2010), in part because the Strickland standard is “a general one” and, therefore, the “range of reasonable applications is
substantial.” Harrington v. Richter, 562 U.S. 86, 105 (2011). Further, “[e]stablishing that a state court's application of Strickland
was unreasonable under § 2254(d) is all the more difficult [because] [t]he standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation
and citation omitted); see also Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (“review of [state court]’s decision is ... doubly
deferential [because] [w]e take a highly deferential look at counsel's performance [under Strickland] through the deferential lens
of § 2254(d)”) (internal quotations and citations omitted) (emphasis added). For deficiency purposes, therefore, “the question is
not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standards.” Id. (emphasis added).
Finally, Strickland explains that:
there is no reason for a court deciding an ineffective assistance claim ... even to address both components
of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not
determine whether counsel's performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.
Id. at 697.
Allegations involving Mr. Miret
Turning to petitioner's allegations, those involving Mr. Miret hardly require discussion. The first of petitioner's four assigned
attorneys, Miret represented petitioner following his arraignment and was relieved upon petitioner's application only two weeks
later, on or about July 13, 2008. 19 Petitioner claims that Miret was ineffective for failing to investigate his alibi. This claim
does not appear to have been raised in any of petitioner's state court submissions and so is unexhausted. In any event, petitioner
could not conceivably show he was prejudiced by Miret's brief period of representation. See e.g., King v. Greiner, 2008 WL
4410109, at *47 (S.D.N.Y. Sept. 26, 2008) (no Strickland prejudice where allegedly ineffective counsel promptly replaced by
new attorney before trial) (collecting cases), adopted, 2009 WL 2001439, at *11 (S.D.N.Y. July 8, 2009).
Henry Ramirez
*16 To the extent the sprawling and rambling allegations involving Mr. Ramirez are decipherable, they principally claim
that the adverse rulings of the suppression court are the result of alleged deficiencies in Mr. Ramirez's performance. Liberally
construing these allegations, the Court assumes petitioner intends to advance all the allegations involving Ramirez that he
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previously advanced in state court, either on direct appeal or in one of his 440 motions. This construction of the allegations also
comports with respondent's position here, which is that this branch of petitioner's claim is exhausted.
Before addressing the allegations, the Court recounts the facts of Mr. Ramirez's representation as detailed in two decisions of
the trial court. Ramirez represented petitioner for approximately 18 months until petitioner again asked for and was appointed
another lawyer, Murray Singer, and only a few months into Singer's representation petitioner moved again for reassignment
or in the alternative to represent himself. The first of the decisions addressing Mr. Ramirez is the trial court's order on that
application. See Decision & Order dated Oct. 15, 2010. The court noted that upon Ramirez's appointment, petitioner asked him
to advise the 18B panel that petitioner “still wants a white male, non-hispanic attorney to represent him.” Id. at 2.
The trial court further wrote that, during the 18-months that Ramirez represented petitioner, he
made numerous pre-trial motions including an Omnibus motion, discovery motions and a motion to
introduce expert testimony on identification ... conducted a four day pre-trial suppression hearing ...
made twenty-two court appearances, numerous visits to the crime scene, had experts in the field of
identification, crime scene graphics, audio-visual forensics and investigations appointed to assist in the
preparation of the defense, had consultations with these experts, conducted research on the relevant law,
conducted twenty-five consultations with [petitioner], investigated a potential alibi defense, obtained
[petitioner's] work and bank records, reviewed extensive surveillance videos of the crime scene, reviewed
hospital records, had consultations with the district attorney's office and reviewed [petitioner's] weekly
correspondence.
Id.
The court also credited Ramirez's report that petitioner had “complemented his work in a manner that contradicted what
[petitioner] had alleged in his motion for reassignment.” Id. The court reiterated its on-the-record finding that although it was
granting petitioner's request for a fourth attorney, Ramirez and “all of [petitioner's] prior counsel were competent.” Id.
The second relevant trial court decision, issued at the 440 stage, rejects petitioner's allegations that Ramirez was ineffective.
See Decision & Order dated Feb. 22, 2016. The court reincorporated its earlier general findings as to the quality of Ramirez's
representation and also found that petitioner's contentions of ineffectiveness were—as this Court finds them to be here
—“speculative, muddled, vague, and conclusory.” Id. at 8. To the extent the allegations were discernibly specific, the court
rejected them as either belied by the record (and to that extent embraced by the Appellate Division's rejection of the on-the-
record portion of the claim), or otherwise procedurally barred. 20
*17 Having reviewed the record of the pre-trial proceedings in this case, the Court finds no basis to disturb the decisions of
the 440 court or the Appellate Division that, combined, rejected all of petitioner's ineffectiveness allegations. Viewing those
decisions through the doubly deferential lens applicable to ineffectiveness claims, the Court readily concludes that it was not
unreasonable for the state courts to have determined that, to the extent the allegations are not flatly belied by the record, they
fail for lack of Strickland prejudice. 21
In short, as the Supreme Court cautioned in Strickland,
Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind
that the principles we have stated do not establish mechanical rules. Although those principles should
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guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged. In every case the court should be concerned with whether,
despite the strong presumption of reliability, the result of the particular proceeding is unreliable because
of a breakdown in the adversarial process that our system counts on to produce just results.
466 U.S. at 686.
The transcript of the pre-trial proceedings in this case speaks for itself. No breakdown occurred. The many picayune grievances
voiced by petitioner about the issues litigated at those proceedings were fully aired at trial by petitioner himself during his own
zealous turn at the helm.
Murray Singer
Petitioner also claims that standby counsel Murray Singer was ineffective during the brief pre-trial period when he was appointed
as petitioner's fourth counsel of record (before the Faretta ruling and his conversion to standby counsel), and during his trial
examination of one defense witness. The cognizability of these allegations is questionable. As the Second Circuit has held, “a
defendant has no Sixth Amendment right to standby counsel after he knowingly and voluntarily waives his right to an attorney,”
and “absent [that right], a defendant generally cannot prove standby counsel was ineffective.” United States v. Archambault,
740 F. App'x 195, 199 (2d Cir. June 29, 2018) (cleaned up) (quoting binding precedential rulings in United States v. Morrison,
153 F.3d 34, 55 (2d Cir. 1998) and United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997)). See also United States v. Van
Hoesen, 636 F. Supp. 2d 155 (N.D.N.Y. 2009) (defendant who elected to proceed pro se at trial has no claim of ineffective
assistance against standby counsel).
*18 The Circuit has “has left open the possibility that a defendant could make an ineffective assistance of standby counsel claim
when his standby counsel held that title in name only and, in fact, acted as the defendant's lawyer throughout the proceedings.,”
Archambault, 740 F. App'x at 199 (cleaned up), but that is not what occurred here. As noted, petitioner plainly captained the
ship at trial, having delivered the opening statement and summation, argued evidentiary points, and cross-examined each of
the state's witnesses.
To the extent the claim that Singer was ineffective is even cognizable here, it is meritless. Petitioner advanced this branch of
his claim in the state court, where it was rejected. See Dec. & Order dated Feb. 22, 2016, at 11 (“Mr. Singer also provided
[petitioner] with effective representation”). Affording that rejection the double deference due ineffectiveness rulings, the Court
finds no unreasonable application of Strickland. Indeed, petitioner's complaints about Mr. Singer are frivolous.
Petitioner's complaint that Singer was ineffective for failing to produce a medical expert is belied by the record. Before jury
selection, it was petitioner who informed the court that he intended to call a medical expert to testify about the technical terms
used in the medical reports. At that time, the court advised petitioner that he would have to make a more specific offer of proof
to establish relevance but he never made the offer. In any event, to the extent petitioner's intention was to dispute the evidence
relating to the seriousness of Eduarda's injury, he has not shown what a medical expert would have offered to dilute the strength
of the state's medical evidence. Petitioner's additional allegation, that Singer failed to provide him with Detective Kratzer's
report about the Greenpoint hotel video's clock, is likewise belied by the record; as discussed, petitioner had the report when
he cross-examined Detective Asam about it. 22
In sum, petitioner's claim that pre-trial and standby counsel were ineffective does not state a basis for federal habeas relief.
V. Ineffective Assistance of Appellate Counsel
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Touching all the bases, petitioner next claims that appellate counsel was ineffective for failing to argue that he was improperly
adjudicated a second violent felony offender and for failing to argue that the prosecution's alleged late disclosure of certain
discovery materials implicated his speedy trial rights. To the extent the appellate ineffectiveness allegations advanced in his
coram nobis papers are fully discernible, petitioner raised only the latter allegation there. Thus, his claim that appellate counsel
failed to challenge the second violent felon adjudication is unexhausted and so cannot form the basis for a grant of habeas relief.
The other branch of his claim—advanced on coram nobis, rejected summarily by the Appellate Division, and subject to the
double-deference afforded ineffectiveness adjudications under AEDPA—likewise fails to state a basis for habeas relief. See
Smith v. Robbins, 528 U.S. 259, 295-86 (2000) (Strickland governs appellate ineffectiveness claims).
*19 In the appellate context, Strickland deference on the deficiency inquiry recognizes that attorneys “need not (and should
not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success
on appeal.” Smith, 528 U.S. at 288; see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (appellate counsel not required “to
press nonfrivolous points ... if counsel, as a matter of professional judgment, decides not to present [them]”). But see Mayo v.
Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (“omit[ing] significant and obvious issues while pursuing issues that were clearly
and significantly weaker” can be ineffective appellate assistance). To demonstrate Strickland prejudice in the appellate context,
a petitioner must show “a reasonable probability that, but for [the challenged deficiency of appellate counsel], he would have
prevailed on his appeal.” Smith, 528 U.S. at 285.
The Appellate Division did not unreasonably apply these standards when rejecting the claim that appellate counsel was
ineffective for failing to raise a speedy-trial claim relating to the timing of discovery. Given the several trial court orders finding
that the state complied with its discovery obligations (see note 21 supra), it was not unreasonable for the Appellate Division to
have concluded that counsel acted competently in foregoing the claim, and that the result of petitioner's appeal would not have
been different had the issue been raised. Indeed, petitioner himself raised a late discovery/speedy trial issue in his supplemental
pro se brief and the Appellate Division summarily rejected it on the merits. A fortiori counsel could not be deemed ineffective
for having failed to raise it.
By contrast, the brief that appellate counsel did submit evinces a high degree of competence. It presents, persuasively and with
full command of the pre-trial and trial record, petitioner's two strongest appellate claims—(1) that the trial court erred in denying
petitioner's request to present expert testimony about the reliability of eyewitness identifications, and (2) that petitioner's arrest
without a warrant and in the absence of exigent circumstances in the hallway of his SRO hotel was unlawful (and, therefore,
that the physical evidence subsequently recovered should have been suppressed).
Finally, the unexhausted branch of the claim (i.e., that appellate counsel was ineffective for failing to challenge petitioner's
adjudication as a second violent felon) in any event fails to state a basis for habeas relief. As discussed, in October 1995,
petitioner pled guilty in New York County Supreme Court to three counts of assault in the Second Degree, a class D felony
(see P.L. § 120.05), relating to the attacks on Kevin Hall, Yehoram Uziel and a third individual. He now claims that based upon
Hall's and Uziel's Molineux testimony at the trial in this case, the state could not prove one of the elements required for second-
degree assault—namely, either that Hall and Uziel suffered a “serious physical injury,” PL § 120.05[1], or that petitioner used
“a deadly weapon or dangerous instrument,” PL § 120.05[2]. In his view, therefore, he was guilty at most of third-degree assault
which, as a class A misdemeanor, would not have triggered the second violent felony adjudication. See PL § 120.00. Competent
appellate counsel could soundly conclude that a challenge to the 1995 convictions on the theory petitioner now advances would
have been meritless under New York law. Under that law, when a defendant is arraigned as a second violent felony offender,
he has the right to challenge the constitutionality of the prior conviction, C.P.L. § 400.15, but not factual sufficiency. See, e.g.,
People v. Perkins, 89 A.D.2d 956 (2d Dep't 1982) (rejecting claim that plea allocution to the predicate felony was deficient and
distinguishing such a challenge from one “based on constitutional grounds”); People v. Doceti, 175 A.D.2d 256 (2d Dep't 1991)
(same); People v. Nance, 110 A.D.2d 857 (2d Dep't 1985) (holding that court not required to hold a hearing under CPL § 400.15
“merely because defendant claimed the inadequacy of the factual recitation” of his guilty plea). Petitioner did not challenge the
constitutionality of his predicate conviction at his sentencing in this case—indeed, he had never sought to vacate the 1995 plea
on which it was based. Appellate counsel, therefore, had no basis to challenge that conviction in the appeal in this case.
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VI. Judicial Bias
*20 Petitioner claims that each of the three state Supreme Court justices who handled various aspects of his case were biased
against him. Even liberal construction of petitioner's prolix submissions to the state court and this Court does not squarely
resolve the question of whether every theory of bias asserted here is exhausted. But the Court need not resolve that issue in
order to deny the claim on the merits as frivolous.
The Supreme Court “identified the essential elements of a “ ‘claim of judicial bias’ ” in Bracy v. Gramley, 520 U.S. 899, 904
(1997). The Court explained that, “most questions concerning a judge's qualifications to hear a case are not constitutional ones,
because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard.” Id.
Instead, the Court instructed, “these questions are, in most cases, answered by common law, statute, or the professional standards
of the bench and bar.” Id. 23 The Court held that “the floor established by the Due Process Clause clearly requires a fair trial in
a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Id.
Petitioner's claim of judicial bias is a catalog of practically every pre-trial, trial, and sentencing ruling with which he disagrees
coupled with his speculative assertion that the adversity of the ruling must reflect judicial partiality. But a defendant's displeasure
with adverse rulings, standing alone, is not evidence of “actual bias against” petitioner or “interest in the outcome” of his case,
Bracy, 520 U.S. at 904, and nothing in the record gives rise to an inference of such bias or interest. The written decision of
the hearing court is supported by the record, and at trial, the court instructed the jury, in relevant part, that “Neither by these
instructions, nor by any ruling or remark that I have made, do I mean to indicate any opinion as to the facts or as to what your
verdict should be as triers of the facts.” 1232. Indeed, the pre-trial and trial transcripts reveal courts showing great patience with
petitioner and affording him significant latitude, particularly on the subject of choice of counsel and through the travails of his
self-representation. He unquestionably received the constitutionally required “fair trial in a fair tribunal.” Bracy, 520 U.S. at
904. His claim of judicial bias therefore fails to state a basis for habeas relief.
VII. The Molineux Claim
Petitioner argues that the trial court erred in admitting evidence of his prior crimes pursuant to People v. Molineux, 168 N.Y. 264
(1901). He specifically disputes the court's finding that his modus operandi was sufficiently distinct to make the prior crimes
probative of identity. He argued this position vigorously at trial and in his pro se supplemental brief to the Appellate Division,
which rejected the claim summarily on the merits. Additionally, the Appellate Division implicitly approved admission of the
Molineux evidence in its rejection of petitioner's expert witness claim. See Granger, 122 A.D.3d at 941 (evidence “obviating”
need for identification expert included, inter alia, “evidence probative of petitioner's identity as the perpetrator in this case
admitted pursuant to People v. Molineux ... demonstrating that [petitioner] had committed crimes in the past by using a distinctive
and unique modus operandi that was nearly identical to the manner in which the crime was committed in this case.”) (cleaned up).
*21 To the extent petitioner's claim is that the trial court simply misapplied Molineux, he advances a purely state-law claim,
which cannot form the basis for federal habeas relief. See, e.g., Gopaul v. Racette, 2021 WL 5163211, at *6 (E.D.N.Y. Nov. 5,
2021) (habeas petitioner's “Molineux argument only involves questions of state, not federal, law”); Katowski v. Greiner, 212
F. Supp. 2d 78, 86 (E.D.N.Y. 2002) (claim that trial court erroneously admitted evidence under Molineux not cognizable on
federal habeas). Necessarily, petitioner could not show that the Appellate Division's rejection of his challenge to the trial court's
Molineux ruling is an unreasonable application of Supreme Court law. To the extent petitioner is arguing that the Molineux
ruling denied him due process, he would have to show first, that it was error, and second, that the error “was so pervasive as to
have denied him a fundamentally fair trial.” Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985); Gopaul, 2021 WL 5163211, at *6
(same). The compelling nature of the other evidence supporting petitioner's conviction forecloses any showing of fundamental
trial unfairness. In sum, petitioner's challenge to the admission of evidence of his prior crimes does not state a basis for federal
habeas relief.
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VIII. Excessive Sentence
As noted, Southern District Judge McMahon determined that petitioner may not challenge the constitutionality of the 1995
conviction that served as the predicate felony for his adjudication and sentencing in Queens County as a second violent felony
offender. The transferred-in petition also challenges that second felon adjudication on the ground that the 40-year combined
sentence for his 1995 and 2011 convictions is cruel and unusual. It is not clear whether petitioner raised this claim in state
court but in any event it is meritless. Each of the sentences imposed upon petitioner falls within the range prescribed by New
York statutes. 24 That ends the § 2254 constitutional inquiry. See Desjardins v. Recette, 2021 WL 3634775, at *8 (E.D.N.Y.
Aug. 17, 2021) (“It is well settled that when a sentence is in accord with the range established by state statutory law there
is no constitutional issue presented for habeas review”) (cleaned up) (collecting cases). Petitioner's challenge to his sentence
therefore fails to state a basis for habeas relief.
CONCLUSION
For all the reasons discussed, the application of petitioner Elie Granger for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
is denied in its entirety. Because petitioner has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), a certificate of appealability will not issue. This order also closes the consolidated civil matter 17 CV 1437.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 3228259
Footnotes
1 Petitioner challenged the admissibility of much of this evidence at a four-day pre-trial hearing where he was represented
by counsel. Rejecting his claim that his arrest in the doorway of his SRO hotel room violated Payton v. New York,
444 U.S. 573 (1980), the hearing court held that the ATM receipt was recovered as part of a constitutionally proper
administrative procedure after petitioner's arrest, that his statement was voluntary, and that the lineup was not suggestive.
Decision & Order dated March 16, 2010, at 6-7.
2 All page references are to the trial transcript unless otherwise indicated.
3 Between the time of the crime and trial Granger had grown a beard. 836.
4 In his defense case, petitioner called a detective who participated in his arrest and asked if he could tell from the witness
stand whether petitioner's eyes were dark blue or brown; the detective stated that they were not dark blue. 1113. At the
close of the defense case, petitioner published his eyes to the jury for approximately 20 seconds, 1155, 1170, and argued
in summation that they were dark blue.
5 This fact was explored at the pre-trial suppression hearing. The court initially ruled that Kayla's viewing of the video
before the lineup was suggestive and then held an independent source hearing, where Kayla testified that she did not
see the face of the man on the bicycle in that video. The hearing court found that “Kayla made no real identification of
[petitioner] from the surveillance video she viewed before the lineup,” having identified him in the video “only from his
clothing.” Hearing Decision dated March 16, 2010, at 8. Therefore, the court ruled, “her viewing of the video could not
taint either the ... lineup or her prospective in-court identification, as [petitioner] was not, and will not be, wearing the
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identifying striped polo shirt.” Id. The hearing court granted petitioner's motion for reconsideration but took no further
evidence and upon reconsideration, adhered to its original decision. Hearing Decision, October 1, 2010.
6 A witness to the aftermath of the crime, Joel Lassiter, was driving on Queens Plaza North at approximately 10 am and
noticed someone on the sidewalk “collapsing” and someone else “of small stature” running “in a dead sprint” up the
street. 739, 741.
7 The detective who secured the Scandals video testified he routinely assesses the accuracy of the clock on any surveillance
footage by checking it against the time on his cellphone. The clock on the Scandals video was 22 minutes fast. 530-32;
1067-68. The owner of Petrocelli Electric testified that the clock on his footage was accurate, 888, while the owner of
Masseo Electric had no reason to doubt the accuracy of the time on his footage. 1001. The Court has been provided with
the Scandals footage but not the other scene videos.
8 In summation, petitioner affirmatively argued (although he had not testified) that “the man recorded at [the Greenpoint
Hotel] was not me,” 1177, and suggest that it could not have been him because—relying on his theory that the date
stamp of June 23 was correct (and at most an hour ahead)—he was at his job in the Bronx on June 23. See id. at 1177
(“The police went to my workplace to verify that I had been at work ... that should have been the end of it.”).
9 As discussed infra at note 22, petitioner called a graphic artist who testified that the shortest route for a bicyclist to take
between the crime scene and the Oh So Good Deli was .69 miles and the fastest route .723 miles. 1118-33.
10 “The familiar Molineux rule states that evidence of a defendant's uncharged crimes or prior misconduct is not admissible
if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the
defendant's propensity to commit the crime charged.” People v. Cass, 18 N.Y.3d 553, 559 (2012). Such evidence is
admissible, however, when it tends to establish motive, intent, the absence of mistake, a common scheme or plan, or
identity. Id. The court accepted the prosecution's argument that the modus operandi of the crimes was sufficiently unique
to make the evidence probative on the issue of identity, and gave the jurors the appropriate limiting instruction. 912, 1021.
11 Petitioner pled guilty in connection with the Hall and Uziel incidents, and was incarcerated from October 1995 to October
2004. (52, 57, 65-66, 69, 70). That conviction was also used as a basis to adjudicate petitioner a second violent felony
offender following his conviction for the Queens County crimes.
12 Appellate counsel also raised, unsuccessfully, the Payton claim and related suppression issues that were advanced before
trial. See Granger, 122 A.D.3d at 940-42.
13 The April 18, 2022 order notes that petitioner served a notice of appeal of the October 18, 2021 order denying 440
relief but did not seek leave to appeal from the Appellate Division, and that the Appellate Division ordered petitioner to
show cause why his appeal should not be dismissed because no appeal of right exists from the denial of post-conviction
relief, and that petitioner submitted an affidavit and brief to the Appellate Division on February 20, 2022. The matter
is believed to be still pending.
14 Petitioner's claim that “the district attorney withheld the victim's contradictory grand jury statements” from the Molineux
hearing appears at page 21 of his pro se supplemental brief. Petitioner also raised the claim regarding Eduarda Oliva's
statements and Lt. Keough's in his first CPL § 440 motion, where the court held that they were procedurally barred there
because they were record-based and should have been raised on appeal. Dec. & Order dated Feb. 22, 2016 at 4-5.
15 Because the Rosario claim is record-based and should have been raised on appeal, it is deemed exhausted but
procedurally barred. Guilifield v. Sup't Green Haven, 2022 WL 1486797, at *12 (S.D.N.Y. May 11, 2022) (cleaned up)
(collecting authorities). Petitioner advances a claim of ineffective assistance of appellate counsel as the requisite cause
to lift that procedural bar. He exhausted that claim through his state court coram nobis application, but because the
Appellate Division rejected that claim, that claim cannot excuse the default, and because petitioner has not alternatively
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shown that he is actually innocent, the unexhausted portions of the Rosario claim are barred. See generally Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986).
16 Respondent argues that this theory is unexhausted because petitioner did not present a claim labeled “insufficiency” to
the state courts. But, as noted, even without that label, the theme permeating petitioner's many state court submissions
—most notably his Dismissal With Prejudice Worksheet—is a challenge to the identification evidence in the principal
ways asserted here and at trial (i.e., as unreliable, perjured, or improperly obtained).
17 See Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“the deference to state court decisions required by § 2254(d)” is to be
“applied to the [ ] already deferential review” of Jackson).
18 Respondent argues that this branch of the sufficiency claim is also unexhausted and procedurally barred. But petitioner
did expressly advance this theory in the “Dismissal with Prejudice Worksheet” submitted on direct appeal. See ECF
13-1 at 69-70.
19 After petitioner expressed dissatisfaction with Mr. Miret, the court appointed John Scarpa. Approximately ten weeks
later, petitioner expressed dissatisfaction with Mr. Scarpa and asked that he be relieved. The court granted that application
and appointed Mr. Ramirez.
20 For example, petitioner claimed in his 440, as he does here, that Ramirez failed to press the point that Kayla's viewing
of a photo array and surveillance video tainted her viewing of the lineup, that Kayla could not have seen the assailant for
the length of time she claimed, and failed to make a coherent argument for suppression of his statement to Lt. Keough.
As the 440 court found, these allegations are belied by the hearing transcript.
21 For example, petitioner alleges that Ramirez failed to seek sanctions or dismissal of the charges as a remedy for the
prosecution's alleged late or incomplete discharge of its discovery obligations. The record, however, includes a trial court
order denying a motion filed by Ramirez for additional discovery in which the court “is satisfied that the People have
complied with the requirements of CPL § 240.20.” Further, petitioner himself later filed a motion seeking additional
discovery and sanctions for discovery non-compliance, which the court denied. Order dated Nov. 15, 2010.
Likewise, petitioner complains that when arguing that his arrest was illegal Ramirez failed to argue, in reliance on
People v. Garriga, 189 A.D.2d 236 (1st Dep't 1993), that the hallway of his SRO should be treated as part of his “home”
for Fourth Amendment purposes. Subsequent counsel Murray Singer, however, raised this argument in a motion for
reconsideration; the court agreed to revisit the matter and adhered to its original decision.
Additionally, in seeking to blame Ramirez, rather than the facts and the law, for the ultimate admission at trial of the
lineup identification, the physical evidence, petitioner's statement and the videotape evidence, petitioner fails to offer
a colorable factual or legal basis not advanced by Ramirez upon which these items should have been suppressed or
excluded.
22 A final frivolous allegation of ineffectiveness involves both Ramirez and Singer. Petitioner appears to be dissatisfied
with one portion of the testimony of defense witness Stuart Scherr, a graphic artist who measured the distance, by bicycle,
between the crime scene and the Oh So Good Deli. It was Ramirez who commissioned Scherr's work and Singer who
questioned him at trial. As noted, Scherr testified that “the shortest route” was .69 mile, and “the fastest route” was .793
mile. 1126. Petitioner believes one or both of these attorneys was ineffective because Scherr performed his measurements
on the assumption that the bicyclist would follow the rules of the road but, on cross-examination, acknowledged that
the route could be shorter if the bicyclist did not follow those rules. Petitioner is mistaken in asserting that this nugget
of testimony undermined his alibi claim that it was impossible to get from the crime to the deli in the available time and
in any event this feature of Scherr's testimony does not implicate the competence of either Ramirez or Singer.
23 Two of petitioner's allegations fall into this category. He asserts that Justice Kron, who ruled on some of his pre-trial
motions, and Justice Zayas, who presided over his trial and imposed sentence, lacked jurisdiction because they were not
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duly elected by the citizens of Queens County. Section 26 of Article VI of the New York State Constitution, however,
authorizes temporary assignment of New York City Criminal Court judges to the Supreme Court, and provides that,
while so assigned, they shall have “the powers, duties, and jurisdiction” of a Supreme Court justice.
24 New York statutory law authorizes a maximum sentence of 25 years for a second violent felon convicted of a class B
felony such as first-degree assault. See P.L. §§ 120.10, 70.04. The 25-year term imposed on petitioner in the Queens
County proceeding is therefore legal. Second-degree assault, the crime of conviction in the New York County case, is
a class D felony carrying a statutory sentencing range of 2 to 7 years. See P.L. §§ 120.05, 70.00. Petitioner's sentence
there of 2 to 6 years on each count was therefore legal.
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Gross v. Graham, 802 Fed.Appx. 16 (2020)
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802 Fed.Appx. 16
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Gordon B. GROSS, Petitioner–Appellant,
v.
Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent–Appellee.
No. 16-3220
|
February 11, 2020.
Synopsis
Background: Petitioner filed petition for federal habeas corpus. The United States District Court for the Northern District of
New York, Singleton, J., 2016 WL 11621787, denied petition. Petitioner appealed.
[Holding:] The Court of Appeals held that state court's decision was not unreasonable application of standard for ineffective
assistance of counsel.
Affirmed.
Procedural Posture(s): Appellate Review; Post-Conviction Review.
West Headnotes (2)
[1] Habeas Corpus Particular issues and problems
State court's decision, that trial counsel was thoroughly familiar with the underlying facts of the case, made sufficient
pretrial motions, delivered appropriate opening and closing statements, raised appropriate objections, cross-examined
the prosecution witnesses, and effectively presented a defense in furtherance of a reasonable trial strategy in the face
of strong opposing evidence was not unreasonable application of standard for ineffective assistance of counsel, and
thus petitioner was not entitled to federal habeas relief. U.S. Const. Amend. 6; 28 U.S.C.A. § 2254.
10 Cases that cite this headnote
[2] Habeas Corpus Criminal liability; innocence
New evidence offering additional support for habeas petitioner's claim at trial that victim’s description of the location
or timing of the sexual assault was inaccurate, including telephone records that further supported his claim at trial that
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victim’s visit, and her sexual assault, could not have occurred before her thirteenth birthday as required for conviction,
was insufficient to satisfy the high standard for a freestanding innocence claim. N.Y. Penal Law § 130.96.
3 Cases that cite this headnote
*17 Appeal from a judgment of the United States District Court for the Northern District of New York (Singleton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the
district court is AFFIRMED.
Attorneys and Law Firms
For Appellant: Richard M. Langone, Langone & Associates, Mineola, NY
For Appellee: Michelle Maerov, Assistant Attorney General (Nikki Kowalski, Deputy Solicitor General for Criminal Matters,
on the brief), for Letitia James, Attorney General for the State of New York, New York, NY
PRESENT: RALPH K. WINTER, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges.
SUMMARY ORDER
Petitioner–Appellant Gordon B. Gross appeals from the district court’s judgment denying his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Gross contends that he received constitutionally ineffective assistance of counsel and that he is
innocent. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
“Federal courts considering habeas corpus petitions are generally barred from reviewing the decisions of state courts insofar as
those decisions are predicated on adequate and independent state procedural grounds.” Messiah v. Duncan, 435 F.3d 186, 195
(2d Cir. 2006). Here, the state court reviewing Gross’s motion to vacate his conviction under New York Criminal Procedure Law
§ 440.10 held that Gross failed to properly raise his claims on direct appeal even though the issues regarding the performance
of defense counsel were “readily apparent on the face of the record.” App’x 189. In addition, the state court noted that “[e]ven
if [it] were to address defendant’s contentions, it would not find in his favor.” App’x 190. Now, on appeal the government
concedes that there is not an independent and adequate state *18 law ground for denying Gross’s claim because New York
courts do not consistently deny § 440.10 claims when the same counsel represented the defendant at trial and on appeal. See
e.g., People v. Hoffler, 74 A.D.3d 1632, 1634, 906 N.Y.S.2d 115 (2010). We agree that there was no adequate state law ground
and, therefore, our habeas review is not barred. Lewis v. Conn. Comm’r of Corr., 790 F.3d 109, 119–20 (2d Cir. 2015) (finding
federal habeas review is not precluded when the procedural bar is not a firmly established and regularly followed practice).
Having determined that there is no procedural bar to our review, we now turn to Gross’s ineffective assistance of counsel
claim. 1 “We review a district court’s legal conclusions in denying a habeas petition de novo and its factual findings for clear
error.” Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009). “Under the Antiterrorism and Effective Death Penalty Act of
1996 (‘AEDPA’), a federal habeas court must apply a deferential standard of review to ‘any claim that was adjudicated on the
merits in State court.’ ” Drake v. Portuondo, 321 F.3d 338, 343 (2d Cir. 2003) (quoting 28 U.S.C. § 2254(d)). AEDPA provides
for federal habeas relief when the state adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2)
“In a petition for habeas relief alleging ineffective counsel, the question as to whether the matter is governed by existing
Supreme Court precedent ‘is easily answered because the merits of such claims are squarely governed by the Supreme
Court’s holding in Strickland v. Washington.’ ” Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (alterations omitted)
(quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000)). Under Strickland, “[a]n ineffective
assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency
prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citations omitted). “To
establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective standard
of reasonableness.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[T]he
record must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the
Sixth Amendment.” Cornell v. Kirkpatrick, 665 F.3d 369, 377 (2d Cir. 2011) (internal quotation marks and ellipses omitted).
To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In assessing prejudice, we consider the cumulative
effect of the errors committed by counsel. Lindstadt, 239 F.3d at 199.
When applying AEDPA deference to ineffective assistance of counsel claims, *19 “[t]he question is not whether a federal
court believes the state court’s determination under the Strickland standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (internal citation omitted).
“[I]t is not enough for [the prisoner] to show a constitutional violation. He must also show that the state court’s application of
Strickland was not merely incorrect, but objectively unreasonable.” Palacios v. Burge, 589 F.3d 556, 561–62 (2d Cir. 2009)
(internal quotation marks omitted).
[1] Here, the Second Circuit granted a certificate of appealability for the following ineffective assistance of trial counsel claims:
failing to object to the admission and improper use of the prior consistent statement testimony of several witnesses, failing to
seek limiting instructions as to how such evidence may be considered, and failing to object to the use of such testimony in the
prosecutor’s opening and closing statements. Upon review of the record, we do not think that Gross has met the high standard
established by AEDPA for habeas relief on the basis of ineffective assistance of counsel.
In the last reasoned state court decision, the court examined Gross’s claims under New York’s constitutional standard for
ineffective assistance. As we have explained, “[t]he first prong of the New York test is the same as the federal test; a defendant
must show that his attorney’s performance fell below an objective standard of reasonableness.” See Rosario v. Ercole, 601 F.3d
118, 124 (2d Cir. 2010) (citing People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123 (2005)). 2 The state
court held that Gross failed to meet the New York test––and therefore the first prong of Strickland––for ineffective assistance.
Specifically, the court held that, “defendant’s trial counsel was thoroughly familiar with the underlying facts of the case, made
sufficient pretrial motions, delivered appropriate opening and closing statements, raised appropriate objections, cross-examined
the prosecution witnesses, and effectively presented a defense in furtherance of a reasonable trial strategy in the face of strong
opposing evidence.” App’x 192. We do not think that this conclusion is unreasonable.
Gross raises additional arguments regarding defense counsel’s failure to object to the admission or use of prior consistent
statements of various witnesses, but much of this testimony was in fact admissible under New York law. See People v. Honghirun,
29 N.Y.3d 284, 290, 56 N.Y.S.3d 275, 78 N.E.3d 804 (2017) (“While it is generally improper to introduce testimony that the
witness had previously made prior consistent statements to bolster the witness’s credibility, the use of prior consistent statements
is permitted to ... rebut a charge of recent fabrication, or to assist in explaining the investigative process and completing the
narrative of events leading to the defendant’s arrest.” (internal quotation marks and citations omitted)). Moreover, as the district
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court noted, the trial court struck the prior consistent statements of two witnesses after defense counsel objected and instructed
the jury to disregard them. Gross v. Graham, No. 9:14-CV-00768-JKS, 2016 WL 11621787, at *7 (N.D.N.Y. Aug. 26, 2016)
(“[C]ontrary to Gross’s contentions in his Petition, defense counsel was successful in having the statements struck from the
record.”). For *20 these reasons, we find that Gross is not entitled to relief on his ineffective assistance of counsel claim.
[2] Next, we turn to Gross’s freestanding innocence claim. “The Supreme Court has not finally resolved the issue of whether
there is a federal Constitutional right to be released upon proof of actual innocence.” Friedman v. Rehal, 618 F.3d 142, 159 (2d
Cir. 2010). Assuming for the sake of argument that there is a freestanding innocence claim, “the threshold showing for such an
assumed right would necessarily be extraordinarily high.” Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d
203 (1993). While the Supreme Court has not articulated the standard for a freestanding innocence claim, it has suggested that
it would require more convincing proof of innocence than the standard articulated in Schlup v. Delo, which requires a movant
to demonstrate 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 v. Bell, 547 U.S. 518, 536–37, 555, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (quoting
Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).
Here, Gross’s new evidence offers additional support for his claim at trial that S.W.’s description of the location or timing of
the sexual assault in 2003 was inaccurate. Gross also offers telephone records that further support his claim at trial that J.S.’s
visit, and her sexual assault, could not have occurred before her thirteenth birthday as required for conviction under N.Y. Penal
Law § 130.96. After reviewing the evidence as a whole, we conclude that Gross has not demonstrated that the newly discovered
evidence would be sufficient to satisfy the high standard for a freestanding innocence claim contemplated in Herrera. See
Herrera, 506 U.S. at 417, 113 S.Ct. 853 (finding affidavits from eyewitnesses to the crime and witnesses to a confession that
implicated another suspect did not meet the high standard for a freestanding innocence claim); House, 547 U.S. at 555, 126
S.Ct. 2064 (finding evidence that discredited the trial’s blood evidence and witness testimony that another suspect confessed
did not satisfy “whatever burden a hypothetical freestanding innocence claim would require”).
We have reviewed Gross’s remaining arguments and conclude that they either fall outside the scope of this court’s certificate
of appealability, which we decline to expand, or are without merit. The judgment of the district court is AFFIRMED.
All Citations
802 Fed.Appx. 16
Footnotes
1 Because we find that there is no procedural bar to federal habeas review, we need not reach the ineffective assistance of
appellate counsel and innocence claims that Gross raises to cure any procedural bar.
2 New York courts do not apply the second prong of Strickland, and “need not find that counsel’s inadequate efforts
resulted in a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Rosario, 601 F.3d at 123–24.
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2022 WL 17551853
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Martin HOBBS, Petitioner,
v.
Donita MCINTOSH, Respondent.
22-CV-2283 (JMF)
|
Signed December 9, 2022
Attorneys and Law Firms
Noam Korati Biale, Sher Tremonte LLP, New York, NY, for Petitioner.
Samuel Zachary Goldfine, New York County District Attorney's Office, Appeals Division, New York, NY, New York County
District Attorneys Office, New York State Attorney Generals Office, for Respondent.
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
*1 Petitioner Martin Hobbs was convicted in the New York Supreme Court of Robbery in the First Degree and sentenced
to an indeterminate term of twenty years to life in prison. He now petitions, pursuant to Title 28, United States Code, Section
2254, for the writ of habeas corpus, contending that his trial lawyer provided ineffective assistance in violation of the Sixth
Amendment. ECF No. 1 (“Pet.”), at 1-15. In particular, Hobbs claims that counsel was ineffective for failing to request a lesser-
included-offense instruction on Robbery in the Third Degree. Pet. 5. The state courts rejected that claim on the ground that
Hobbs was not entitled to a lesser-included-offense instruction under New York law. This Court's province on habeas review is
to determine whether these rulings were based on an unreasonable application of clearly established federal law. For the reasons
that follow, the Court concludes that they were not. Accordingly, Hobbs's petition must be and is DENIED.
BACKGROUND
On September 11, 2010, a man approached Emilia Brad in the vestibule of a Chase Bank branch in Manhattan as she withdrew
cash from an ATM. See ECF No. 2-6, Pet. Ex. F (“Trial Tr.”), at 35-37. 1 The man pushed into Brad from behind, poked
something into her back, stated that he had a gun, and stole her money. Id. at 36-39. Hobbs was later arrested for this incident
and indicted on a single count of Robbery in the First Degree. See id. at 164-65, 318-20; see also ECF No. 2-1, Pet. Ex. A
(“State Decision”), at 3-4. As relevant here, a person is guilty of Robbery in the First Degree “when he forcibly steals property
and when, in the course of the commission of the crime ... [d]isplays what appears to be a pistol, revolver ... or other firearm.”
N.Y. Penal Law § 160.15. Significantly, however, “the display requirement has been construed broadly to cover a wide range of
actions which might reasonably create the impression in the mind of the victim that the robber is armed with a firearm.” People
v. Lopez, 73 N.Y.2d 214, 220-21 (1989); see, e.g., People v. Baskerville, 60 N.Y.2d 374, 380 (1983) (“It is sufficient ... if the
victim is made to believe the object to be such a weapon or if the defendant holds or wraps the object in such a way as to create
the impression that he is holding a pistol, revolver, or other firearm.”).
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A. The Trial
Hobbs went to trial before Justice Thomas Farber of New York Supreme Court on August 13, 2015. At trial, the prosecution
presented surveillance video, photographs, and Brad's testimony, among other evidence. See, e.g., Trial Tr. 35-47, 68. Most
significant for present purposes, Brad testified: “I pulled out the cash, and then he came from behind and then I sort of got
pushed.” Id. at 38. Brad explained that, as the man pushed into her, she felt him poking something into her ribs and heard him
state: “Give me the money, I have a gun, I have a gun.” See id. at 37-38. She testified she could not see what the man was
poking into her, see id. at 38-39, and never said with certainty what she believed the object to be, see id. at 38-39, 47, 50. Her
only description of the object was that it was “blunt, not like knife sharp.” Id. at 39. She emphasized, however, that she “was
definitely feeling something poking me and [was feeling] fairly frightened.” Id.; see also id. at 50 (testifying that “[t]here was
something concealed with his arm and [she] felt something pointing in [her] side”). Justice Farber asked Brad whether the object
poking into her side could “have been a finger,” id. at 47, to which Brad responded: “It could have been. I chose not to chance
that,” id. Brad added: “It could have ... been anything, there was something pointing, he said he had a gun.” Id. at 50.
*2 Hobbs was represented at trial by Toni Messina. Id. at 2. Hobbs's defense at trial was misidentification. Id. at 12, 274, 276;
see also State Decision 5. Messina emphasized, for example, that when asked to identify the robber at a line-up, Brad “was not a
hundred percent” sure whether Hobbs was the man who had robbed her. Id. at 52-54; see also id. at 274 (arguing in summation
that Brad “didn't have a full view of [the perpetrator's] face or how he looked”). Messina also highlighted discrepancies between
Brad's contemporaneous description of the perpetrator and Hobbs's appearance when arrested on an unrelated charge two days
before the robbery. See id. at 242-43, 253 (introducing Brad's contemporaneous description of the man as “well dressed and
not homeless”); cf. id. at 94-95 (demonstrating that Hobbs's arresting officer believed him to be “homeless”). Messina did not
request an instruction to the jury on the lesser included charge of Robbery in the Third Degree, see ECF No. 2-8, Pet. Ex.
H (“Counsel Affidavit”), at 3; see also Trial Tr. 255-344, which is defined as forcibly stealing property and lacks the display
element required by Robbery in the First Degree, see N.Y. Penal Law § 160.05.
At the close of the evidence, Justice Farber instructed the jury on the elements of Robbery in the First Degree alone. See Trial
Tr. 318-26; see also N.Y. Penal Law § 160.15. On August 19, 2015, the jury found Hobbs guilty of that crime. Id. at 351. On
September 28, 2015, Hobbs was sentenced to the mandatory minimum sentence for Robbery in the First Degree for someone
with his criminal record (at least two prior violent felonies): twenty years to life imprisonment. See ECF No. 2-4, Pet. Ex. D
(“Sentencing”), at 11-13, 19-20.
B. Hobbs's Motion to Vacate the Judgment and Direct Appeal
On December 27, 2018, Hobbs, through counsel, also filed a motion pursuant to New York Criminal Procedure Law Section
440.10 to set aside his conviction on the ground that Messina had provided ineffective assistance of counsel. See Pet. 3; see also
ECF No. 2-7, Pet. Ex. G (“440 Mem.”), at 4. In particular, Hobbs argued that Messina's assistance was ineffective for “fail[ing]
to request that the Court charge the lesser included offense of third-degree robbery to the jury despite there being a factual and
legal basis entitling Mr. Hobbs to the charge.” Id. In support of the motion, Hobbs filed an affidavit from Messina, in which she
admitted that “she had no strategic reason for failing to request” an instruction on Robbery in the Third Degree. Id. at 5. Messina
averred that she had failed to request the charge because she “did not recognize that the law and facts entitled Mr. Hobbs” to
the submission of the charge. Counsel Affidavit 3. Hobbs contended that that the lesser charge was the only way for him “to
avoid being sentenced as a mandatory persistent felony offender if the jury rejected the identification defense,” 440 Mem. 5,
which Messina affirmed to have understood, see Counsel Affidavit 3.
By opinion dated June 11, 2019, Justice Farber denied Hobbs's motion to vacate his conviction. See State Decision at 1-11.
Messina's admissions notwithstanding, Justice Farber concluded that Hobbs did not receive ineffective assistance of counsel
because, as a matter of New York state law, he was not entitled to an instruction on the lesser-included offense of Robbery in
the Third Degree. See id. at 10. More specifically, citing various New York State cases — including People v. Grayson, 138
A.D.3d 1250 (3d Dep't 2016), People v. Desjardins, 113 A.D.3d 787 (2d Dep't 2014), People v. McNeil, 63 A.D.3d 551 (1st
Dep't 2009), and People v. Peaks, 297 A.D.2d 578 (1st Dep't 2002) — Justice Farber held that, even “considering the evidence
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in the light most favorable to defendant,” there was no “reasonable view of the evidence that defendant committed the lesser
charge but not the greater,” as required by New York law for Hobbs to be entitled to that lesser charge. See State Decision
6, 9-10 (citing People v. Johnson, 45 N.Y.2d 546, 549 (1978)). “[B]ut for the threat of the weapon,” Justice Farber reasoned,
“Ms. Brad could have easily called for help.” Id. at 9. He noted also that Brad's testimony that the object was “blunt, not like
knife sharp,” suggested that “there was no reason to give her property to defendant unless she in fact believed the object to be
a gun.” Id. And given the lack of “evidence to create an issue of fact that the victim did not believe the item to be a firearm,”
Brad's acknowledgement “that the object could have been anything [was] of no legal consequence.” Id. at 10 (citing People v.
Howard, 92 A.D.3d 176, 180 (1st Dept 2012)).
*3 In July 2019, Hobbs appealed the trial court's denial of his post-conviction motion to the Appellate Division. See ECF No.
2-10, Pet. Ex. J. The Appellate Division denied his motion without a written decision. See ECF No. 2-2, Pet. Ex. B. Meanwhile,
in 2018, Hobbs had filed a direct appeal raising the same issues that had been presented in the motion to vacate. See Pet. 2. On
September 29, 2020, the Appellate Division unanimously affirmed Hobbs's conviction. See People v. Hobbs, 186 A.D.3d 1167
(1st Dep't 2020) (“Appellate Decision”). Regarding the ineffective assistance claim, the Appellate Division stated only that it
had “considered and rejected [it].” Id. at 1168. On January 31, 2021, the New York Court of Appeals denied Hobbs's application
for leave to appeal. See People v. Hobbs, 36 N.Y.3d 1051 (2021); ECF No. 2-3, Pet. Ex. C (Order Denying Leave). Hobbs did
not file a petition for the writ of certiorari to the United States Supreme Court. Pet. 13.
APPLICABLE LAW
A. The AEDPA Standard of Review
The Court's authority to grant the writ of habeas corpus is limited by Title 28, United States Code, Section 2254, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Significantly, Section 2254(a) provides that habeas
relief is available “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of
the United States” — that is federal law. 28 U.S.C. § 2254(a) (emphasis added); see, e.g., Estelle v. McGuire, 502 U.S. 62,
68 (1991). As a result, it is “not the province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle, 502 U.S. at 67-68; see also Lewis v. Jeffers, 497 U.S. 764, 765 (1990) (“[F]ederal habeas corpus relief does
not lie for errors of state law....”). Section 2254(d), meanwhile, delimits a federal court's review even of federal legal issues.
It provides that, “with respect to any claim that was adjudicated on the merits in State court proceedings,” the writ cannot be
granted unless (1) the state court's denial of the claim “resulted in a decision that was contrary to ... clearly established Federal
law, as determined by the Supreme Court of the United States”; (2) the state court's denial of relief “resulted in a decision that ...
involved an unreasonable application of[ ] clearly established Federal law, as determined by the Supreme Court of the United
States”; or (3) the state court's denial of relief “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
It is well established that a state court decision can be “contrary to” Supreme Court precedent in either of two ways: first, “if
the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or, second, “if the
state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result
opposite to [the Court's].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court unreasonably applies clearly established
precedent “if the state court identifies the correct governing legal rule” from the Supreme Court's cases “but unreasonably
applies it to the facts of the particular state prisoner's case.” Id. at 407. Alternatively, “a state-court decision ... involves an
unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Id.; see generally Richard S. v. Carpinello, 589 F.3d 75 (2d Cir. 2009).
Notably, “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529
U.S. at 410. That is, the issue is not whether the state court committed error, or even clear error, in applying federal law, but
“whether the state court's application of clearly established federal law was objectively unreasonable.” Id. at 409; see also
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Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The gloss of clear error fails to give proper deference to state courts by conflating
error (even clear error) with unreasonableness.”). That threshold is “substantially higher” than incorrectness. Renico v. Lett, 559
U.S. 766, 773 (2010) (internal quotation marks omitted). Specifically, where AEDPA applies, federal habeas relief is precluded
“so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Put differently, “[a]s a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the [federal law] claim being
presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 103. “This is a ‘difficult to meet’ and ‘highly deferential standard
for evaluating state-court rulings.’ ” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).
B. The Strickland Standard
*4 As noted, Hobbs seeks habeas relief on the ground of ineffective assistance of counsel. Under Strickland v. Washington,
466 U.S. 668 (1984), a criminal defendant claiming ineffective assistance of counsel must establish, first, that counsel's
representation “fell below an objective standard of reasonableness,” id. at 687-88, and, second, that counsel's performance
resulted in prejudice, see id. at 687. In evaluating counsel's performance, a court must be “highly deferential” and “indulge a
strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To meet
the first prong of Strickland’s demanding test, a petitioner must show “that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Still, even a single “isolated error of
counsel” may pass this test “if that error is sufficiently egregious and prejudicial.” Murray v. Carrier, 477 U.S. 478, 496 (1986).
To satisfy the second prong, there must be “a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. This requires that the petitioner show that “[t]he likelihood
of a different result [was] substantial, not just conceivable.” Harrington, 562 U.S. at 112.
Significantly, where the Section 2254(d) standard of review applies to a claim of ineffective assistance, a federal court's review
is “doubly deferential” and habeas relief is especially hard to obtain. Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per
curiam) (internal quotation marks omitted). As the Supreme Court has explained:
The standards created by Strickland and § 2254(d) are both “highly deferential,” and when the two
apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of
reasonable applications is substantial. Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel's actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.
Harrington, 562 U.S. at 105 (citations omitted); see also, e.g., Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“The question
is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether
that determination was unreasonable — a substantially higher threshold.” (internal quotation marks omitted)). Put another way,
because “[t]he Strickland standard ... requires a substantial element of judgment on the part of the state court,” state courts are
granted “even more latitude to reasonably determine that a defendant has not satisfied that standard.” Rosario v. Ercole, 601
F.3d 118, 123 (2d Cir. 2010) (internal quotation marks omitted).
DISCUSSION
Applying the foregoing standards here, the Court is compelled to deny Hobbs's claim. For starters, the claim is arguably not
cognizable on federal habeas review at all. Yes, Hobbs nominally raises a claim under Strickland, which is “clearly established
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Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). But Hobbs makes no claim that
the state courts erroneously applied Strickland itself. Instead, his claim is that the state court was wrong in holding, as a matter
of New York state law, that he was not entitled to a lesser-included-offense instruction. See ECF No. 2 (“Pet'r's Mem.”), at
19-20. As many courts have held in similar circumstances, however, a federal court may “not second-guess the decision of a ...
state court on [that state's] law.” Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012); see, e.g., Nazario v. Allbaugh, 761 F.
App'x 858, 862 (10th Cir. 2019) (in nearly identical circumstances, rejecting the petitioner's invitation to “reexamine the [state
court's] determination on a matter of state law”); Davis v. Rewerts, No. 18-1822, 2018 WL 7050237, at *1-2 (6th Cir. Dec. 19,
2018) (stating, in nearly identical circumstances, that “a state court's interpretation of state law binds a federal court sitting in
habeas corpus ... because state courts are the ultimate expositors of state law” (cleaned up)); Soliz v. Davis, 750 F. App'x 282,
292-93 (5th Cir. 2018) (per curiam) (holding that federal courts must “defer to a state court's determination that an objection
would have been meritless under state law because in our role as a federal habeas court, we cannot review the correctness of the
state habeas court's interpretation of state law” (cleaned up)); Freeman v. Sloan, No. 16-3933, 2017 WL 3613849, at *3 (6th Cir.
May 23, 2017) (denying a certificate of appealability from a district court decision holding, in nearly identical circumstances,
that the petitioner's “argument regarding the trial court's instruction was a non-cognizable complaint concerning a state court's
application of state law”); see also, e.g., Cann v. Trierweiler, No. 20-CV-10163, 2020 WL 6393833, at *5 (E.D. Mich. Nov.
2, 2020); Johnson v. Colvin, No. 15-CV-5466 (PKC), 2018 WL 6250510, at *7-8 (E.D.N.Y. Nov. 29, 2018); Epps v. Emmons,
No. 18-CV-0115, 2018 WL 11251652, at *7 (N.D. Ga. May 9, 2018).
*5 Assuming that the Court can review the state court's decision as to state law at all, it would owe at least as much deference to
the decision as it would to a state court's decision on federal law (if not more). 2 That is, the question would not be whether this
Court would have reached the same conclusion as Justice Farber with respect to Hobbs's Section 440 motion, let alone whether
it would have granted a request for an instruction on Robbery in the Third Degree at trial in the first instance. Instead, Hobbs
would have to show, at a minimum, that the state court's ruling with respect to New York law was “objectively unreasonable.”
Williams, 529 U.S. at 409. That is, he would have to show that the state court's decision was “so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.”
Harrington, 562 U.S. at 103; see also, e.g., Upchurch v. Bruce, 333 F.3d 1158, 1166 (10th Cir. 2003) (holding that counsel was
not ineffective for failing to raise an argument on direct appeal because the argument “would not have been plainly meritorious”
given the unsettled nature of state law); Lucas v. Johnson, 132 F.3d 1069, 1079 (5th Cir. 1998) (holding that counsel's failure
to object did not constitute deficient performance where, at the time of trial, the relevant state law was unclear); cf. Aparicio
v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (noting, in the habeas context, that “counsel's failure to object to a jury instruction
(or to request an additional instruction) constitutes unreasonably deficient performance only when the trial court's instruction
contained clear and previously identified errors” (internal quotation marks omitted)).
Hobbs cannot do so. Indeed, that conclusion follows from the fact that Justice Farber relied on several New York state appellate
court decisions holding, on nearly identical facts to those in this case, that a trial court properly denied instructions on the lesser-
included offense of Robbery in the Third Degree. See State Decision 9-10 (citing, among others, McNeil, Desjardins, Peaks,
and Grayson). McNeil and Grayson are instructive. In the former, the Appellate Division upheld a refusal to instruct on Robbery
in the Third Degree where the victim had testified that the defendant “simulated a firearm by gesturing with his hand in his
pocket and threatened to shoot her.” 63 A.D.3d at 551. Similarly, in Grayson, the Appellate Division held that no reasonable
view of the evidence warranted a lesser included offense charge where the robber had handed a bank teller a note stating that
he had a gun and kept his hands “in his pocket[s] pushed forward.” 138 A.D.3d at 1251-52. Hobbs seeks to distinguish these
cases on the ground that he approached Brad from behind and, thus, she “never saw the object.” Pet'r's Mem 19. But the victims
in McNeil and Grayson never saw the objects at issue either. 3
*6 McNeil and Grayson, not to mention Peaks and Desjardins, are fatal to Hobbs's arguments for habeas relief. 4 It is
immaterial that Hobbs can cite some New York State cases that arguably support his arguments for the lesser-included-offense
instruction. See Pet'r's Mem. 17 (citing People v. Rivera, 77 A.D.3d 483 (1st Dep't 2010)); ECF No. 8, at 7 (citing People v.
Jenkins, 67 A.D.2d 932 (2d Dep't 1979)). For one thing, the cases are arguably distinguishable — and, in the case of Rivera,
was distinguished by Justice Farber — on the ground that there was, unlike here, evidence suggesting that the object displayed
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was not a firearm, see State Decision 7-8, or evidence that the physical force used to commit the robbery was not the weapon,
see Jenkins, 67 A.D.2d at 933. For another, at most, these cases would establish that New York courts have not been entirely
consistent in their approach to the relevant question. But that would not be enough for Hobbs to claim relief. See, e.g., Love
v. Smith, No. 08-CV-3746 (BMC), 2009 WL 2422384, at *7 (E.D.N.Y. Aug. 6, 2009) (“Because there is no clear state rule on
whether the stop-consideration language must be included, counsel's decision not to object to the justification charge did not
constitute ineffective assistance, and this Court therefore cannot hold that the [state court's] ineffective assistance determination
was either contrary to, or an unreasonable application of, the Strickland standard.”). So too, it is immaterial that Justice Farber
relied on some cases examining whether evidence was sufficient to support a charge of Robbery in the First Degree, in which
context courts draw all reasonable inferences in the government's favor, as well as cases examining whether a defendant was
wrongly denied a lesser-included-offense instruction, in which context courts draw all reasonable inferences in the defendant's
favor. Put simply, in light of McNeil, Grayson, and other such cases, the Court cannot say that Justice Farber's decision was “so
lacking in justification that there was an error ... beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at
103. That dooms Hobbs's request for relief under Section 2254.
CONCLUSION
For the reasons stated above, Hobbs's petition for the writ of habeas corpus is DENIED. At bottom, he asks the Court to second
guess the state courts’ decisions as to an issue of state law. Arguably, the Court may not do that. To the extent the Court can, it
owes deference to the state court and cannot say that the relevant state court's decision was objectively unreasonable.
As Hobbs has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.
See 28 U.S.C. § 2253(c); see also, e.g., Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). In addition, this Court
certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in
good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 17551853
Footnotes
1 Citations to page numbers in ECF Nos. 2, 2-1, 2-4, 2-6, 2-7, and 2-8 are to the page numbers automatically generated
by the Court's Electronic Case Filing system.
2 That conclusion is consistent with Davis v. Strack, 270 F.3d 111 (2d Cir. 2001), and Kimmelman v. Morrison, 477 U.S.
365 (1986), cited by Hobbs for the proposition that where the ground for habeas relief is the right to the effective
assistance of counsel, “federal courts may grant relief ‘regardless of the nature of the underlying attorney error.’ ” Pet'r's
Mem. 13 (quoting Kimmelman, 477 U.S. at 383). Kimmelman did not involve a state-law issue at all. And while the
Davis did consider the state courts’ decisions as to state law, it applied the AEDPA standard, see 270 F.3d at 132-33, and
explicitly reaffirmed that “federal courts must of course defer to state-court interpretations of the state's laws, so long as
those interpretations are themselves constitutional,” id. at 123 n.4. In fact, the court concluded that the writ could not be
justified “under the ‘contrary to’ clause of § 2254(d)(1) because there [was] no indication that the Appellate Division
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construed” the federal legal claim at issue, namely “the due process clause in a manner ‘opposite to’ the Supreme Court's
rulings.” Id. at 133.
3 It is well settled under New York law that the display requirement can “be satisfied in a wide array of situations in
which defendants did not actually show their victims firearms.” Bell v. Napoli, 08-CV-9900 (PGG)(MHD), 2010 WL
8039333, at *13 (S.D.N.Y. Aug. 24, 2010), report and recommendation adopted, 2011 WL 6097729 (S.D.N.Y. Dec. 7,
2011). Indeed, “the victim's perception need not [even] be visual” so long as the object is consciously displayed and that
display is “witnessed in some manner” — including by “touch or sound” — by the victim. People v. Lopez, 73 N.Y.2d
214, 220 (1989). Here, Brad testified unequivocally that she felt the robber press a blunt object against her side when he
announced that he had a gun and demanded her money. See Trial Tr. 38-39. Moreover, bank surveillance photographs
depicted the robber with his arm concealed within his shirt and pointing something toward Brad. See Trial Tr. 43.
4 Although not cited by Justice Farber, People v. Young, 119 A.D.3d 406 (2014), is also instructive. There, the Appellate
Division found that the trial court had “properly declined to charge third-degree robbery as a lesser included offense
of first-degree robbery” when “there was no reasonable view of the evidence ‘that defendant used any force other than
the display of what appeared to be a firearm.’ ” Id. at 406 (quoting People v. Santiago, 303 A.D.2d 321 (1st Dep't
2003)). Notably, this Court later denied Young's habeas petition contending that the trial court's denial of the lesser-
included-offense instruction violated his constitutional right to due process. See Young v. Great Meadow Corr. Facility
Superintendent, No. 16-CV-1420, 2019 WL 636952, at *8-9 (S.D.N.Y. Jan. 18, 2019) (noting that even if the lesser-
included offense claim were a cognizable Due Process claim, for petitioner to be entitled to the lesser charge, he “would
need to show that the jury could have found that he forcibly stole property ... but did not display what appeared to be a
pistol, revolver ... or other firearm while doing so” (cleaned up)), adopted, 2019 WL 632753 (S.D.N.Y. Feb. 14, 2019).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lawrence v. Graham, Not Reported in F.Supp.3d (2014)
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2014 WL 585301
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Robert LAWRENCE, Petitioner,
v.
Harold D. GRAHAM, Superintendent of Auburn Correctional Facility, Respondent.
No. 1:12–CV–0814 (MAT).
|
Feb. 13, 2014.
Attorneys and Law Firms
Robert Lawrence, Auburn, NY, pro se.
Michael J. Hillery, Buffalo, NY, for Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
I. Introduction
*1 Pro se petitioner Robert Lawrence (“Lawrence” or “Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254 on the basis that he is being held in Respondent's custody in violation of his federal constitutional rights. Lawrence is
incarcerated as the result of a judgment of conviction entered in New York State Supreme Court of Erie County (Michalski, J.)
on May 13, 2009, following a jury verdict convicting him of one count of predatory sexual assault against a child (N.Y. Penal
Law § 130.96) and one count of endangering the welfare of a child (id., § 260.10(1)).
II. Factual Background and Procedural History
In 2006, the victim, S.W., was ten-years-old and lived with her mother, Rose Knapp (“Knapp”), in the City of Buffalo. At some
point in 2006, Knapp became romantically involved with then thirtythree-year-old Petitioner, and invited him to move in with
them. S.W. testified that she liked Petitioner and even called him “dad”.
Once, S.W. stayed home sick from school. Knapp, a school bus aide, went to work; S.W.'s sisters went to school. Petitioner
stayed home to babysit S.W. Sometime after lunch, S.W. saw Petitioner in her mother's bedroom smoking pot. She returned to
her own room. Later on, Petitioner entered her room, pushed her onto the bed, removed her clothes, got on top of her, and “put
his private inside of her private.” T.41–45, 53, 82–83. 1
S.W. testified that she was scared and was unable to push Petitioner off of her. She recalled that it hurt when he penetrated
her. He moved back and forth for a while and when he was done, he got up and threatened to hurt her mother and sisters if
she told anyone. He then left her bedroom. S.W. went to the bathroom, in tears. It hurt between her legs, and she noticed her
urine was cloudy.
S.W. testified that she was too scared to tell her mother or sisters when they came home. Four days later, while at school, S.S.
revealed the incident to her best friend. The friend in turn told a classmate, who informed the school's social worker, Deanna
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DeAngelis (“DeAngelis”), about the incident on April 18, 2007. DeAngelis privately spoke to S.W., who at first was very
agitated that her friends had revealed her secret. As DeAngelis began to question her, however, S.W. put her head down and
“shut down”, crying quietly. DeAngelis eventually called Knapp and requested that she come to the school immediately.
S.W. was referred to the Child Advocacy Center, where she was examined by pediatric nurse practitioner Deborah Dee
(“N.P.Dee”) on April 23, 2007. S.W. said that “about a year ago”, Petitioner had “put his privates in her private”, and she pointed
to the area between her legs. S.W. told N.P. Dee that she had not told her mother immediately because she was afraid her mother
would not believe her and that she would get into trouble.
N.P. Dee conducted a physical examination which was negative for objective findings of sexual contact. N.P. testified that blunt
genital trauma usually does not leave medical evidence. N.P. Dee noted that S.W. had Turner Syndrome, a chromosomal disorder
often resulting in short stature, as well as kidney, thyroid, and heart issues. Persons with Turner's Syndrome typically do not
develop secondary sex characteristics; females with Turner Syndrome almost always experience amenorrhea and infertility.
*2 Knapp testified that, in retrospect, she was able to observe changes in her daughter following the incident in that S.W. was
“a lot more angry” and was wetting the bed almost every night. Prior to the incident, she had been more loving and only had
somewhat of a problem with bed-wetting. S.W. also began waking up during the middle of the night.
The prosecution called licensed social worker Stefan Perkowski to testify about Child Sexual Abuse Accommodation Syndrome
(“CSAAS”), which he explained assists clinicians in understanding patterns of behavior common to sexually-abused children.
The jury returned a verdict convicting Petitioner as charged in the indictment. Petitioner was sentenced to an indeterminate term
of 25 years to life on the predatory sexual assault conviction and a concurrent one-year definite term on his conviction for child
endangerment. Represented by new counsel, Petitioner appealed his conviction to the Appellate Division, Fourth Department,
of New York State Supreme Court. Petitioner filed a pro se supplemental appellate brief. On February 10, 2011, the Appellate
Division unanimously affirmed the conviction. People v. Lawrence, 81 A.D.3d 1326, 916 N.Y.S.2d 393 (4th Dep't 2011). Leave
to appeal was denied by the New York Court of Appeals on June 8, 2011. People v. Lawrence, 17 N.Y.3d 797, 929 N.Y.S.2d
105, 952 N.E.2d 1100 (2011).
This timely habeas petition followed in which Petitioner raises the same grounds for relief that he asserted on direct appeal.
Respondent answered the petition, interposing the affirmative defense of procedural default as to several of Petitioner's claims
and arguing that, in any event, all of his claims lack merit. Petitioner did not submit a reply brief.
For the reasons that follow, the petition is dismissed.
III. Merits of the Petition
A. Denial of Due Process and Equal Protection
1. Overview
Lawrence argues that he was denied his rights under the Due Process Clause and Equal Protection Clause because he was
prosecuted for predatory sexual assault against a child (a Class AI felony under New York law) instead of first degree rape (a
Class B felony under New York law). According to Lawrence, predatory sexual assault against a child and first degree rape
are identical statutes but are impermissibly subject to different sentencing parameters and plea bargain restrictions. 2 Since
the statutes are identical, Lawrence asserts, the prosecution could not opt to prosecute him for the greater offense in a manner
consistent with his due process and equal protection rights.
He also contends that the rationale of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was
violated by the prosecution's decision to charge him with, and his eventual conviction of, the class A–II felony of predatory
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sexual assault against a child instead of the class B felony of first degree rape. He notes that in cases where the degrees of an
offense overlap, the prosecution has the discretion to charge the higher degree based on its evaluation of the seriousness of the
conduct. Lawrence argues that the jury likewise should have been instructed that it needed to adjudicate the “seriousness of the
conduct” in order to convict him of predatory sexual assault against a child.
*3 On direct appeal, the Appellate Division held that these contentions were not preserved for review. Lawrence, 81 A.D.3d
at 1326, 916 N.Y.S.2d 393 (citing, inter alia, People v. Schaurer, 32 A.D.3d 1241, 1241, 820 N.Y.S.2d 827 (4th Dep't 2006)).
The Appellate Division alternatively held that they were without merit. Id. at 1326–27, 916 N.Y.S.2d 393. Respondent argues
that these claims are procedurally defaulted due to the Appellate Division's reliance upon an adequate and independent state
ground to dismiss them. For the reasons discussed below, the Court agrees.
2. Procedural Default
Federal habeas review is generally prohibited if a state court rests its judgment on a state law ground that is “ ‘independent
of the federal question and adequate to support the judgment.’ “ Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir.2003) (quoting
Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Even where “the state court has also ruled
in the alternative on the merits of the federal claim[,]” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990), “federal habeas
review is foreclosed” provided that the “state court has expressly relied on a procedural default as an independent and adequate
ground....” Id.; see also Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)). A state procedural
bar will generally be deemed “adequate” to preclude habeas review if it is “firmly established and regularly followed.” Lee v.
Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (quotation omitted)). In determining adequacy of a state
procedural bar, the Second Circuit has looked at (1) whether the alleged procedural violation was actually relied on in the
state court, and whether perfect compliance with the state rule would have changed the state court's decision; (2) whether
state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether
petitioner “substantially complied” with the rule and, therefore, whether demanding perfect compliance with the rule would
serve a legitimate governmental interest. Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 386–87).
Here, the Appellate Division relied upon the “contemporaneous objection rule” to dismiss Lawrence's claim. Codified at Section
470.05(2) of the New York Criminal Procedure Law (“C.P.L.”), the contemporaneous objection rule requires that a criminal
defendant make a timely and specific objection to the alleged error in order to preserve the error for appellate review. E.g.,
People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 (2008).
The New York courts have consistently applied C.P.L. § 470.05(2) to require criminal defendants who challenge the
constitutionality of penal statutes with which they are charged to raise such a challenge before the trial court in order to preserve
the issue for appellate review. E.g., People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457
(2006); People v. Davidson, 98 N.Y.2d 738, 739–40, 751 N.Y.S.2d 161, 780 N.E.2d 972 (2002); People v. Snyder, 91 A.D.3d
1206, 1207 n. 2, 937 N.Y.S.2d 429 (3d Dep't 2012) (“Defendant's challenge to the constitutionality of the depraved indifference
statute as impermissibly vague is unpreserved because she failed to raise such challenge before County Court[.]”) (citations
omitted); People v. Schaurer, 32 A.D.3d at 1241, 820 N.Y.S.2d 827; People v. Feris, 105 A.D.2d 1136, 1137, 482 N.Y.S.2d 400
(4th Dep't 1984) (“Defendant raises, for the first time on appeal, a constitutional challenge to CPL 300.10(subd 3). Inasmuch as
the challenge was not raised below and the Attorney–General was not notified, the issue has not been preserved for review[.]”)
(citation omitted). The Court's review of the pertinent caselaw confirms that it is a “firmly established and regularly followed
state practice” to hold constitutional challenges to statutes unpreserved based upon the failure to present the constitutional issue
to the trial court. After reviewing the Appellate Division's reliance on the contemporaneous objection rule in this case against
the Cotto factors, the Court finds that it was an “adequate” state ground precluding habeas review.
*4 Petitioner can overcome this procedural bar if he can show both “ ‘cause’ for noncompliance with the state rule and ‘actual
prejudice resulting from the alleged constitutional violation.’ “ Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d
434 (1986) (quoting Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477
U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). The Supreme Court has explained that “actual prejudice” requires the
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petitioner to show “not merely that the errors at his 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.” United States v. Frady, 456 U.S.
152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A habeas petitioner establishes “cause” if he can show that “some objective
factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. at
496. An alternative manner of overcoming a procedural default is for the petitioner to show that the “failure to consider [the
claim] ... will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750. However, this exception is
limited to the extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Petitioner did not submit a reply brief in response to Respondent's opposition memorandum of law, and thus has not addressed
Respondent's procedural default argument. It is Petitioner's burden to come forward with evidence of cause and resultant
prejudice, or of a fundamental miscarriage of justice. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d
517 (1991). Petitioner has not attempted to make the required showing, and no bases for excusing the default are apparent on
the record. The Court therefore dismisses this claim as procedurally defaulted and does not reach the claim's merits.
B. Legal Insufficiency of the Evidence
1. Overview
At the close of the prosecution's case, defense counsel made a motion for a trial order of dismissal with respect to both counts
of the indictment, asserting that the evidence was insufficient to establish that sexual intercourse had occurred, or that it had
occurred within the time frame alleged in the indictment. Petitioner argues that conflicting testimony concerning both the period
of time he actually was living with the family and the time the alleged encounter occurred created reasonable doubt that any
sexual contact between him and the victim ever took place, or took place between August 1, 2006, and September 25, 2006,
the dates charged in the indictment. Petitioner asserts that because the proof did not establish beyond a reasonable doubt that
he either was living in the victim's home or otherwise had access to the victim during the time-frame in question, there was
inadequate proof to establish that he had engaged in sexual intercourse with her.
*5 The Appellate Division “reject[ed] [Petitioner]'s contention that the evidence is legally insufficient because of the
uncertainty concerning the precise date on which the crime occurred[.]” Lawrence, 81 A.D.3d at 1327, 916 N.Y.S.2d 393 (citing
People v. Alteri, 49 A.D.3d 918, 919–20, 853 N.Y.S.2d 204 (3d Dep't 2008) (evidence was sufficient to establish that conduct
occurred on the first weekend of December 2005 as alleged in indictment; although defendant was at a party during part of the
evening of Saturday, December 3, 2005, victim and defendant's girlfriend recalled that the incident occurred during the first
weekend of December 2005); other citation omitted). Because the Appellate Division adjudicated Petitioner's legal insufficiency
claim on the merits, the Court must apply the deferential standard set forth in 28 U.S.C. § 2254(d)(1). See, e .g., Sellan v.
Kuhlman, 261 F.3d 303, 311 (2d Cir.2001) ((noting that “adjudicated on the merits” means “a decision finally resolving the
parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or
other, ground”).
2. Legal Principles
For a habeas court assessing the legal sufficiency of the evidence supporting a petitioner's conviction, “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979) (emphasis in original). Even when “faced with a record of historical facts that supports conflicting inferences [a
court] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.” Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.1994) (quoting Jackson, 443
U.S. at 326). Where, as here, the state court has adjudicated the merits of a petitioner's legal insufficiency claim, an additional
layer of deference is due. See Coleman v. Johnson, ––– U.S. ––––, ––––, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012) (per
curiam ) (noting that it has “made clear” that insufficient evidence claims “face a high bar in federal habeas proceedings because
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they are subject to two layers of judicial deference”). That is, a court may not grant habeas relief unless the state court applied
the Jackson standard in an “objectively unreasonable” manner. Cavazos v. Smith, ––– U.S. ––––, 132 S.Ct. 2, 7, 181 L.Ed.2d
311 (2011) (per curiam ) (reversing circuit court's decision granting habeas petition in light of finding that it was reasonable
for state court to determine that jury's verdict was rational; circuit court had improperly re-weighed evidence and credibility of
witnesses) (citing 28 U.S.C. 2254(d)(1)). Thus, the only question for this Court is whether the Appellate Division reasonably
determined that a rational trier of fact could have found, beyond a reasonable doubt, that Lawrence committed predatory sexual
assault against the victim during the time-frame alleged in the indictment.
*6 “A person is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits
the crime of rape in the first degree, ... as defined in this article, and the victim is less than thirteen years old.” N.Y. PENAL
LAW § 130.96. The indictment alleged that the assault occurred between August 1, 2006, and September 25, 2006. 3 The time-
frame alleged in the indictment thus covered part of summer recess and the start of the school year.
The victim testified that the abuse had occurred between mid-August 2006, and the end of September 2006, but she also testified
that the abuse had occurred a month after Petitioner had moved in with her family, which was approximately the end of July
2006. Petitioner additionally points to Knapp's comment to N.P. Dee that Petitioner had not been living in her house since
August 2006. T.130. However, Knapp testified that Petitioner had moved in with her family towards the “end of June” and lived
with them until sometime “towards the end of September” of 2006. T.81–83. The victim testified that the abuse occurred about
one month after Petitioner had moved in with her family.
With regard to times when Petitioner had access to the victim, Knapp and the victim testified that Petitioner babysat for her
once when the victim had stayed home sick from school. The victim recalled that the abuse occurred on a day that she was
supposed to have been in school. Admittedly, the victim expressed uncertainty about whether she had attended summer school
in 2006. However, it was for the jury to evaluate the witnesses' credibility and resolve any conflicting inferences to be drawn
from their testimony. E.g., Quartararo v. Hanslmaier, 186 F.3d 91, 96 (2d Cir.1999) (citing Herrera v. Collins, 506 U.S. 390,
401, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). Given the time-frame alleged in the indictment and the testimony by the victim
and her mother, the Appellate Division did not unreasonably determine, after viewing the evidence in the light most favorable
tot he prosecution, that the jury, drawing reasonable inferences from the evidence, fairly and logically concluded that Petitioner
sexually assaulted S.W. on the day that she had stayed home sick from summer-school. Petitioner's claim that he was deprived
of due process because the jury convicted him upon less than legally sufficient evidence must be denied.
C. Erroneous Admission of Expert Testimony
At trial, the prosecutor called an expert psychological witness to testify about CSAAS. Petitioner contends that the trial court's
erroneous receipt of this evidence deprived him of a fair trial.
On direct appeal, the Appellate Division held that Petitioner had failed to preserve for review his contention regarding the
admission of the expert testimony and that, in any event, it was without merit. Lawrence, 81 A.D.3d at 1326, 916 N.Y.S.2d 393
(citing People v. Martinez, 68 A.D.3d 1757, 157–58 (4th Dep't 2009) (finding identical claim unpreserved pursuant to C.P.L. §
470.05(2)). Although the Appellate Division did not identify the specific statutory basis for its decision, it presumably found that
the claim was procedurally barred due to trial counsel's failure to make a contemporaneous objection to the expert's testimony
during trial as required by C.P.L. § 470.05(2). Respondent argues that the claim is procedurally defaulted as the result of the
Appellate Division's reliance on an adequate and independent state ground to dismiss the claim.
*7 The Appellate Division's reliance on C.P.L. § 470.05(2) was certainly “independent” of the judgment, notwithstanding its
alternative ruling on the merits 4 of Petitioner's evidentiary claim. See Harris, 489 U.S. at 264 n. 10. The Court thus turns to the
question of whether it was “adequate”. See Lee, 534 U.S. at 375 (noting that “adequacy” of state procedural bars to the assertion
of federal rights “is itself a federal question”). Even though a rule generally is firmly established and regularly followed, it
still might be inadequate to preclude federal review if its application would be “exorbitant” under the circumstances of the
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particular case. Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir.2006) (quoting Lee, 534 U.S. at 376). The Court's survey of the
pertinent caselaw confirms that this rule has been regularly and consistently applied in circumstances akin to those presented by
Petitioner's case. Accord, e.g., Anderson v. Phillips, 03CV5192NGG, 2005 WL 1711157, at *4 (E.D.N.Y. July 20, 2005) (“New
York's preservation rule has also been regularly applied to claims challenging the admission of expert testimony.”) (citing People
v. Ray, 272 A.D.2d 203, 708 N.Y.S.2d 295 (1st Dep't 2000)). Since C.P.L. § 470.05(2) is “ ‘firmly established and regularly
followed’ in the specific circumstances presented in [Lawrence's] case,” Cotto, 331 F.3d at 240 (quotation omitted), the Court
deems the procedural bar to be “adequate” to foreclose habeas review.
The next question is whether the procedural default can be excused. As noted above, Petitioner has not responded to
Respondent's arguments concerning procedural default and has not attempted to the showing required to overcome the default.
The Court therefore dismisses this claim as procedurally barred and does not reach the claim's merits.
D. Erroneous Admission of Prior Bad Acts Testimony
Petitioner contends that the trial court erroneously allowed the victim to testify that she had seen Petitioner “smoking pot”
shortly before he sexually assaulted her. Also, the victim's mother was permitted to testify that she stopped seeing Petitioner
and kicked him out her house because of his temper and the “verbal violence” he directed towards her near the end of their
relationship. Petitioner argues that these evidentiary rulings violated People v. Molineux, 168 N.Y. 264, 291, 61 N.E. 286 (1901),
because the admitted items of evidence were unduly prejudicial and only probative of his alleged propensity towards violence
and criminality. The Appellate Division summarily rejected these contentions on the merits. Lawrence, 81 A.D.3d at 1328, 916
N.Y.S.2d 393 (“We have considered defendant's remaining contentions in the main brief and conclude that they are without
merit[.]”).
It is well-established that a federal habeas court “is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). “In general,
rulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue.” Roberts v.
Scully, 875 F.Supp. 182, 189 (S.D.N.Y.1995), aff'd mem., 71 F.3d 406 (2d Cir.1995). “A habeas claim asserting a right to relief
on Molineux grounds must rise to the level of constitutional violation ... because Molineux is a state law issue.” Roldan v. Artuz,
78 F.Supp.2d 260, 276–77 (S.D.N.Y.2000) (citations omitted).
*8 “The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the
proper application of a presumptively constitutional state evidentiary rule would not be unconstitutional.” Green v. Herbert, No.
01CIV.11881, 2002 WL 1587133, at *12 (S.D.N.Y. July 18, 2002) (citation omitted); see also Jones v. Stinson, 94 F.Supp.2d
370, 391–92 (E.D.N.Y.) (stating that once the habeas court has found that the state court ruling was not erroneous under state
law, there is no need to apply a constitutional analysis), rev'd on other grounds, 229 F.3d 112 (2d Cir.2000)). Under New York
law, evidence of prior bad acts is admissible to “prove the specific crime charged when it tends to establish (1) motive; (2) intent;
(3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so
related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of
the crime on trial.” Molineux, 168 N.Y. at 293, 61 N.E. 286. It does not appear in this case that the reference to Petitioner's drug
use tended to establish any of the foregoing elements enumerated in Molineux. Assuming, arguendo, that Petitioner's alleged
“verbal violence” constitutes the type of prior bad act or crime that would be encompassed by the Molineux rule, such evidence
likewise does not fall within any of the Molineux exceptions.
Assuming that there was error under the Molineux rule, however, Lawrence has not established an error of constitutional
dimension that warrants habeas relief. An erroneous evidentiary ruling warrants habeas relief “only where the petitioner can
show that the error deprived him of a fundamentally fair trial.” Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir.2004). “The
introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence ‘is
so extremely unfair that its admission violates fundamental conceptions of justice.’ “ Dunnigan v. Keane, 137 F.3d 117, 125
(2d Cir.1998) (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (internal quotation
marks omitted)). Demonstrating that erroneous admission of unfairly prejudicial evidence amounts to a denial of due process
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requires that the evidence, “viewed objectively in light of the entire record,” must have been “ ‘sufficiently material to provide
the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.’ “ Dunnigan, 137
F.3d at 125 (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir.1992) (in turn quoting Collins v. Scully, 755 F.2d 16, 19 (2d
Cir.1985) (holding that erroneously introduced evidence must be “crucial, critical, highly significant”) (quotation omitted))).
Viewing the entire record before the jury, the Court cannot say that the victim's fleeting reference to having seen Petitioner
using marijuana “remove [d] a reasonable doubt that would have existed on the record[,]” Collins, 755 F.2d at 19, had the prior
crimes evidence not been introduced. Likewise, Knapp's reference to Petitioner's alleged “verbal violence” did not remove a
reasonable doubt that would have existed on the record otherwise. Even if this testimony did come within the Molineux rule,
any prejudice was mitigated by Knapp's direct testimony that Petitioner had not shown a violent temper during the three months
he had lived with the family, and that she and Petitioner had never fought in front of the victim. T.83. In addition, the victim
testified that she had liked Petitioner and had called him “dad”.
*9 In sum, the Appellate Division did not unreasonably apply clearly established Supreme Court precedent in declining to
overturn Petitioner's conviction based upon alleged errors under Molineux. Habeas relief therefore is not warranted based upon
this claim.
E. Ineffective Assistance of Trial Counsel
1. Overview
Petitioner here repeats the arguments from his direct appeal that trial counsel erroneously raised no challenge to the
constitutionality of the new predatory sexual assault statute; failed to move for a trial order of dismissal on the ground that the
offense lacked “heinousness”; did not raise an ex post facto argument on the basis that the alleged incident may have taken
place prior to June 23, 2006, the effective date of the predatory sexual assault statute; and failed to request an instruction on the
lesser included offense of rape in the first degree. Petitioner also argues, as he did on direct appeal, that trial counsel committed
several evidentiary errors. The Appellate Division specifically addressed the claim regarding counsel's failure to request a lesser
included offense, finding that such a request would have had “little to no chance of success[.]” People v. Lawrence, 81 A.D.3d
at 1327, 916 N.Y.S.2d 393 (quotation omitted). The Appellate Division stated that it had “examined the remaining allegations
of ineffective assistance” raised in the main and supplemental briefs, and “conclude[d] that they lack merit[.]” Id. (citation
omitted). Because the Appellate Division adjudicated Lawrence's ineffective assistance claim on the merits, the standard set
forth in 28 U.S.C. § 2254(d)(1) applies.
2. Legal Principles
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court announced a two-part
test to evaluate whether counsel was ineffective: A defendant first must show “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and second, that “there is a reasonable
probability that, absent the errors [by counsel], the fact finder would have had a reasonable doubt respecting guilt.” Id. at 687,
695. As discussed further below, the Court finds that all of Lawrence's theories in support of his ineffective assistance of trial
counsel claim fail to satisfy Strickland on de novo review of the merits. Lawrence necessarily cannot show that the Appellate
Division unreasonably applied the Strickland standard for purposes of 28 U.S.C. § 2254(d)(1). See Bell v. Cone, 535 U.S. 685,
698–99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (“For respondent to succeed [under § 2254(d)(1), ... he must do more than
show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance....”).
3. Counsel's Alleged Errors
a. Failure to Preserve a Constitutional Challenge
With regard to trial counsel's failure to comply with the contemporaneous objection rule and raise a challenge before the
trial court to the constitutionality of the predatory sexual assault statute, Petitioner cannot demonstrate that he was prejudiced
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by counsel's omission. This is because the Appellate Division analyzed the merits of Petitioner's constitutional challenge,
notwithstanding the lack of preservation. Since Petitioner has not demonstrated prejudice, the Court need not address whether
trial counsel's failure to preserve the claim was objectively unreasonable under prevailing professional norms of practice. See
Strickland, 466 U.S. at 697.
b. Failure to Make a Trial Order of Dismissal
*10 Petitioner contends that trial counsel's performance was deficient because he failed to move for a trial order of dismissal on
the ground that the offense charged lacked “heinousness”. However, “heinousness” is not an element of the offense of predatory
sexual assault against a child. Trial counsel was not professionally unreasonable in failing to make a motion that did not have
a colorable basis in the law. Likewise, Petitioner was not prejudiced by counsel's failure to make such a motion, as it had no
likelihood of success.
c. Failure to Assert Ex Post Facto Challenge
Petitioner asserts that trial counsel erred in failing to challenge the predatory sexual assault statute as violative of the ex post
facto clause on the basis that the alleged incident may have taken place prior to the effective date of the predatory sexual assault
statute (June 23, 2006). As noted above, the Appellate Division concluded that the evidence was legally sufficient to establish
that the assault occurred during the time-frame alleged in the indictment, which was after the statute's effective date. Thus, an
ex post facto challenge had little to no chance of success on the merits, and Petitioner was not prejudiced by trial counsel's
failure to assert such a claim.
d. Failure to Request a Lesser Included Offense
According to Petitioner, trial counsel was ineffective in failing to request that the jury be instructed, in the alternative, on the
lesser included offense of rape in the first degree. On direct appeal, the Appellate Division specifically rejected this contention,
noting that “[w]here, as here, the statutes contain identical language, it is for the court to determine whether to charge the lesser
offense based on a reasonable view of the evidence [.]” Lawrence, 81 A.D.3d at 1327, 916 N.Y.S.2d 393. Such a charge, however,
“ ‘should be reserved for the “unusual factual situation[,” which is] not presented by the evidence here[.]’ ” Id. (quoting People
v. Discala, 45 N.Y.2d 38, 43, 407 N.Y.S.2d 660, 379 N.E.2d 187 (1978)). Thus, the Appellate Division concluded, Lawrence's
“defense counsel was not ineffective in failing to move for such a charge because any such motion would have had “ ‘little
or no chance of success[.]’ ” Id. at 1328, 916 N.Y.S.2d 393 (quoting People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70,
833 N.E.2d 213 (2005)).
In Discala, the New York Court of Appeals considered the issue of when to charge lesser included offenses in cases involving
violations of the coercion statutes. According to the Court of Appeals, a charge-down is warranted in those “unusual factual
circumstances” “where the method of coercion is by threat of personal physical injury which for some reason lacks a heinous
quality.” Discala, 45 N.Y.2d at 43, 407 N.Y.S.2d 660, 379 N.E.2d 187 (holding that denial of lesser included offense was not
abuse of discretion where the coercion used by defendant did not lack a heinous quality; rather, “the malevolent nature of the
threat [was] at once obvious in defendant's proposal to kill or have the victim killed”). Here, the victim testified that after
Petitioner raped her, he threatened that he would hurt her sisters or her mother if she told anyone. The victim was a child of
tender years, and Petitioner was an authority figure in whom she had reposed feelings trust and affection. Given the state of the
law in New York on this issue, the Court agrees with the Appellate Division that a request for a charge-down had no reasonable
probability of success, as the trial court in all likelihood would have determined that the coercion utilized by Petitioner did in fact
exhibit a quality of heinousness. Therefore, Petitioner is unable to demonstrate that he was prejudiced by counsel's omission.
e. Failure to Object to Hearsay Testimony
*11 Petitioner argues that trial counsel was ineffective in failing to object, on hearsay grounds, to the victim's testimony that
she told her friend about being raped. Petitioner asserts that in order for the testimony to be admissible under the “prompt
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outcry” exception, 5 it would have had to have been disclosed “at the first suitable opportunity.” McDaniel, 81 N.Y.2d at 17,
595 N.Y.S.2d 364, 611 N.E.2d 265 (citation omitted). The promptness of the complaint is not s measured in terms of time alone,
but depends also on the reasons for the delay. Id. Here, the conversation between the victim and her friend occurred four days
after the incident, and Petitioner argues that this was not a sufficiently “prompt outcry”. However, statements made days or even
weeks after the incident may still fall under the prompt outcry exception where, as here, the victim did not earlier disclose the
fact of abuse due to fear or embarrassment. See, e.g., People v. Rodriguez, 284 A.D.2d 952, 728 N.Y.S.2d 597 (4th Dep't 2001)
(complaint to school social worker made nine days after last sexual abuse incident was admissible where victim explained that
she feared retribution by defendant, her mother's live-in boyfriend); People v. Stuckey, 50 A.D.3d 447, 855 N.Y.S.2d 141 (1st
Dep't 2008) (child's report of sexual intercourse with her father, made approximately three days after last incident, came within
“prompt outcry” exception to hearsay rule, in prosecution for course of sexual conduct against a child in the first degree, in light
of child's young age and her expressed fear of retribution if she disclosed the abuse).
After reviewing the pertinent caselaw, the Court cannot say that there is any reasonable probability that the outcome of
Petitioner's trial would have been different had counsel objected to this testimony. The victim was young and was living with
her assailant, who was in a romantic relationship with her mother. Petitioner also had threatened to harm her sisters and her
mother if she revealed the abuse. The delay of four days in disclosing the rape, under these circumstances, most likely would
not have precluded the testimony from coming in under the “prompt outcry” exception. In other words, given the relative nature
of “prompt” as determined by the courts in New York, any objection in all likelihood would have been overruled and Petitioner
cannot show that he was prejudiced failure to object.
f. Failure to Object to Expert Testimony
Petitioner assigns fault to counsel for failing to object to the expert testimony provided on CSAAS. However, Petitioner cannot
demonstrate that he was prejudiced by counsel's omission because the Appellate Division analyzed the merits of his related
claim that the CSAAS testimony was improperly admitted, notwithstanding the lack of preservation. See Lawrence, 81 A.D.3d
at 1327, 916 N.Y.S.2d 393 (finding no merit to contention that CSAAS testimony was admitted in error, where expert described
specific behavior that might be unusual or beyond the ken of a jury but did not give an opinion concerning whether the abuse
actually occurred) (citations omitted).
g. Failure to Object to Bad Acts Testimony
*12 Petitioner contends that trial counsel was ineffective in failing to object to the victim's testimony that she observed
Petitioner smoking marijuana, and in failing to make a sufficiently detailed objection to the victim's mother's testimony
concerning Petitioner's temper. The Appellate Division summarily rejected these claims of ineffective assistance as without
merit. The Appellate Division also summarily rejected the underlying evidentiary contentions as without merit. Petitioner thus
cannot demonstrate that he was prejudiced by trial counsel's failure to preserve the claims by timely objections.
In the alternative, the Court finds that Petitioner has failed to demonstrate a reasonable probability existed of a more favorable
verdict had counsel successfully objected to these items of testimony. In evaluating an attorney's failure to object to unfavorable
evidence, courts have focused on the totality of the proof before the jury and extent of damage caused by the evidence to the
defense case. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 390, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (While evidence
admitted due to counsel's failures to object “may not have been as important as other components of the State's case, it may
have tipped the balance.”); Quartararo v. Fogg, 679 F.Supp. 212, 240 (E.D.N.Y.1988) (“Where petitioner's claim rests in part
upon the failure to object to the admission of evidence, it is necessary to determine whether the evidence was so damaging that
counsel's failure to object deprived petitioner of the ‘reasonably effective assistance’ to which he is entitled.”). As discussed
above, the Court has found that neither the testimony regarding Petitioner's marijuana use or his bad temper was so unduly
prejudicial that it removed a reasonable doubt that the jury would have had regarding his guilt, had the testimony not been
offered. Similarly, the Court cannot find that the challenged evidence “tipped the balance” in the prosecution's favor or was “so
damaging” that the failure to prevent its admission effectively deprived Petitioner of the assistance of counsel.
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V. Conclusion
The application for a writ of habeas corpus is denied, and the petition (Dkt # 1) is dismissed. Because Petitioner has not “made
a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. The Clerk of the Court is requested to close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 585301
Footnotes
1 Numerals preceded by “T.” refer to pages from the transcript of Lawrence's trial.
2 “Predatory sexual assault against a child is a class A–II felony, with a mandatory minimum sentence of ten years to life
and a maximum of twenty-five years to life. By contrast, rape in the first degree is a class B felony, with a mandatory
determinate sentence having a minimum of five years and a maximum of twenty-five years, followed by at least 5
years of post release supervision.” People v. LaPage, 25 Misc.3d 390, 885 N.Y.S.2d 566, 569 (N.Y.Co.Ct.2009) (citing
N.Y. PENAL LAW § 70.80(4)(a)(I), § 70.45(2–a) (f)). Furthermore, “[t]he two crimes also have different plea bargain
restrictions: with respect to the predatory sexual assault against a child charge, the plea must be at least to a class C
violent felony; whereas a defendant may plead guilty to a class D violent felony in satisfaction of a charge of rape in
the first degree.” Id.
3 Predatory sexual assault against a child “is a continuing offense to which ‘the usual requirements of specificity with
respect to time do not apply[.]’ ” People v. Muhina, 66 A.D.3d 1397, 1398, 885 N.Y.S.2d 809 (4th Dep't 2009) (quoting
People v. Green, 17 A.D.3d 1076, 1077, 793 N.Y.S.2d 790 (4th Dep't 2005); citations omitted)).
4 The Appellate Division concluded that “the expert described specific behavior that might be unusual or beyond the ken
of a jury but did not give an opinion concerning whether the abuse actually occurred [,]” id. (citing Martinez, 68 A.D.3d
at 1758, 891 N.Y.S.2d 811), and therefore was not improper.
5 “In [New York], evidence that a victim of sexual assault promptly complained about the incident is admissible to
corroborate the allegation that an assault took place[.]” People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611
N.E.2d 265 (1993).
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Nunes v. Superintendent, Not Reported in Fed. Supp. (2023)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 10365081
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Carlson NUNES, Petitioner,
v.
SUPERINTENDENT, Respondent.
9:20-CV-1516 (GTS/DJS)
|
Signed November 14, 2023
Attorneys and Law Firms
CARLSON NUNES, Petitioner Pro Se, 16-A-1722, Eastern NY Correctional Facility, Box 338, Napanoch, New York 12458.
HON. LETITIA JAMES, Attorney General for the State of New York, PRISCILLA STEWARD, ESQ., Assistant Attorney
General, Attorney for Respondent, 28 Liberty Street, New York, New York 10005.
REPORT-RECOMMENDATION and ORDER 1
DANIEL J. STEWART, United States Magistrate Judge
*1 Pro se Petitioner Carlson Nunes, presently incarcerated at Eastern New York Correctional Facility, was convicted following
a jury trial of murder in the second degree, manslaughter in the first degree, three counts of attempted robbery in the first
degree, attempted robbery in the second degree, two counts of criminal possession of a weapon in the second degree, aggravated
criminal possession of a weapon, two counts of criminal use of a firearm in the second degree, and assault in the second degree.
Dkt. No. 1, Petition (“Pet.”) at p. 1; People v. Nunes, 168 A.D.3d 1187 (3d Dep't 2019). He was sentenced to a prison term of
twenty-two years to life on the second-degree murder conviction, with lesser determinate sentences on all additional convictions
to run concurrently. People v. Nunes, 168 A.D.3d at 1187; Dkt. Nos. 17 & 17-1, State Court Record (“SR.”) at pp. 183-185. 2
Petitioner presently seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on multiple grounds. See Pet. He filed several
additional documents in support of the Petition, including a Memorandum of Law. Dkt. No. 1-1, Pet. Mem. Respondent has
filed a Memorandum of Law in Opposition to the Petition. Dkt. No. 18-1, Resp. Mem. For the reasons that follow, this Court
recommends that the Petition be denied.
I. BACKGROUND
On February 20, 2015, Petitioner was arrested by the Schenectady Police Department for second-degree murder. SR. at p.
24. After his arrest, a fourteen-count indictment was handed up by a Schenectady County grand jury, charging Petitioner
with second-degree murder, first-degree manslaughter, four counts of first-degree attempted robbery, second-degree attempted
robbery, two counts of second-degree criminal possession of a weapon, aggravated criminal possession of a weapon, two counts
of second-degree criminal use of a firearm, assault in the second degree, and tampering with physical evidence. SR. at pp. 28-35.
The facts underlying Petitioner's conviction, as relevant to this Petition, are briefly summarized as follows. On February 16,
2015, Petitioner received a phone call from his brother, Christopher Nunes. SR. at pp. 860-862 & 869. Christopher requested
that Petitioner participate in a plan concocted by Christopher and Rab Everitt to acquire marijuana from Justice Pulver. Id. Yunis
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Johnson, Petitioner's girlfriend and the mother of his child, testified at trial that she was with Petitioner when he received that
call from his brother. SR. at pp. 867, 869-871, & 986. Afterwards, Johnson went with Petitioner to his grandmother's home,
where he retrieved an object, later identified as a black handgun, and placed it into the front pocket of his sweatshirt. SR. at
pp. 872-876. Johnson testified that she recognized the gun and had seen it in Petitioner's possession on multiple occasions prior
to that day. SR. at pp. 874-876 & 886. Petitioner then called Sheiquan Parker to request his assistance and participation in the
planned transaction. SR. at pp. 877-879.
*2 Johnson, Christopher, Everitt, Parker, and Petitioner all piled into a vehicle - a grey Nissan Cube belonging to Petitioner's
grandmother - and drove to the City of Schenectady, where Everitt had arranged to meet Pulver. SR. at pp. 867, 879-882; Tr. at
pp. 1460-1461. Johnson, Everitt, Parker, and Petitioner all testified that they planned to steal the marijuana from Pulver, who,
for his part, intended to rob Everitt by disguising multiple wrapped plastic bags as a package of marijuana, which he could
throw in the car before grabbing Everitt's money and running away. SR. at pp. 863, 883, 894-896, & 936; Tr. at p. 1458.
When the group arrived in Schenectady, they circled the block where the meeting was to occur, driving past the agreed-upon
destination before dropping Petitioner, his brother, and Parker at a nearby convenience store, where the three hid in an alley.
SR. at pp. 864, 885-886, & 890-891; Tr. at p. 1459. Johnson testified at trial that as Petitioner exited the vehicle, he asked “is
everybody ready?” before pulling the black handgun out of his pocket. SR. at p. 886. Johnson and Everitt then proceeded to
the meeting location where Pulver approached the vehicle, accompanied by Carlos Figueroa. Tr. at pp. 1459 & 1478. Everitt,
seated in the passenger seat of the vehicle, rolled down the window and demanded to see the marijuana. Tr. at pp. 1478-1479.
After Figueroa displayed the package, Everitt requested to smell the contents, at which point Pulver began to have suspicions
about the deal and he and Figueroa turned to walk away. SR. at pp. 904 & 906; Tr. at pp. 1479-1483.
As Pulver and Figueroa walked away from the vehicle, Petitioner, Parker, and Christopher ran from the alley. Tr. at pp.
1485-1486. Petitioner jumped over a snowbank, running directly towards Pulver and Figueroa, demanding they “give us the
weed or give us everything you got.” SR. at p. 907; Tr. at p. 1494. Pulver, who testified that both he and Figueroa were unarmed,
observed an individual wearing a dark hoodie and holding a gun, and threw his hands in the air and ran. SR. at pp. 898-900;
Tr. at pp. 1488-1489. Petitioner struck Figueroa in the head with the gun, which discharged and fired a bullet into Figueroa's
neck, killing him. SR. at pp. 989-992; Tr. at pp. 2298-2304. Petitioner and his accomplices fled the scene, and as they drove
away, Petitioner stated that he “went to pistol whip him and the gun went off,” telling Everitt “you better not say nothing, white
boy.” Tr. at pp. 1495-1498 & 1501-1502. Johnson testified that she disposed of the gun the next day. Tr. at pp. 1766-1769.
Petitioner, for his part, testified at trial that he confronted Figueroa and Pulver after seeing them walk away from the deal. Tr.
at pp. 3031-3037. He further testified that he was unarmed, and that Figueroa displayed a gun, at which point he responded
by knocking the gun from Figueroa's hands and then picking it up. Tr. at pp. 3037-3040. He testified that he swung the gun at
Figueroa in self-defense when it discharged. SR. at pp. 987-990 & 992; Tr. at pp. 3040-3041.
The jury found Petitioner guilty of murder in the second degree, manslaughter in the first degree, three counts of attempted
robbery in the first degree, attempted robbery in the second degree, two counts of criminal possession of a weapon in the second
degree, aggravated criminal possession of a weapon, two counts of criminal use of a firearm in the second degree and assault
in the second degree. People v. Nunes, 168 A.D.3d at 1187; SR. at pp. 183-185. He was sentenced to twenty-two years to life
on the murder conviction, with lesser determinate sentences on all remaining convictions to run concurrently. People v. Nunes,
168 A.D.3d at 1187.
*3 Petitioner appealed to the New York Appellate Division, Third Department, in a counseled brief, asserting the following
arguments: (1) the trial court erred by permitting the prosecution to repeatedly impeach Sheiquan Parker, a prosecution witness;
(2) the court erred by denying a request by the defense to read a series of adverse inference charges to the jury; (3) prosecutorial
misconduct during summations resulted in a violation of his constitutional right to a fair trial; (4) the conviction was against
the weight of the evidence; (5) the trial court abused its discretion by allowing the prosecution to present prior bad act evidence
related to his possession of a handgun; and (6) the court erred by changing its ruling on justification instructions for the jury after
summations had been delivered. SR. at pp. 194-257. On January 10, 2019, the Appellate Division issued its decision affirming
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his conviction. People v. Nunes, 168 A.D.3d 1187. The New York Court of Appeals denied leave to appeal on April 2, 2019.
People v. Nunes, 33 N.Y.3d 979 (2019). Petitioner subsequently filed a pro se coram nobis motion in April of 2020. SR. at
pp. 1079-1107. On July 17, 2020, the Appellate Division denied the motion, and the Court of Appeals denied leave to appeal.
SR. at pp. 1228-1232 & 1236.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner bears the burden of proving by a
preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234697, at *3 (S.D.N.Y.
Aug. 28, 2003). A federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the
merits of the claim and such adjudication either:
1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
The Second Circuit has summarized the application of the standard of review under AEDPA as follows:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief:
1) Was the principle of Supreme Court case law relied upon in the habeas petition “clearly established”
when the state court ruled? 2) If so, was the state court's decision “contrary to” that established Supreme
Court precedent? 3) If not, did the state court's decision constitute an “unreasonable application” of that
principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362 (2000) and Francis S. v. Stone,
221 F.3d 100, 108-09 (2d Cir. 2000)). The standard of review under § 2254(d) is “highly deferential” and “demands that state-
court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). “[A] state prisoner must show that
the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562
U.S. 86, 103 (2011).
The phrase “clearly established Federal law” refers to “the holdings, as opposed to the dicta, of th[e] Court's decisions as of the
time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412. A state court decision is “contrary to” established
Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or
if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413. A state
court decision is an “unreasonable application” of established Supreme Court precedent “if the state court identifies the correct
governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.”
Id. AEDPA also requires that “a determination of a factual issue made by a State court shall be presumed to be correct [and
t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
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III. DISCUSSION
A. Procedural Issues
1. Claims not Cognizable in Federal Habeas Proceeding
*4 “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). “Simply put, ‘federal habeas corpus relief does
not lie for errors of state law.’ ” DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) (quoting Estelle v. McGuire, 502 U.S.
at 67). Certain claims present pure questions of New York law, which are not cognizable on federal habeas review and thus
are no basis for relief.
Petitioner's first claim is that the trial court erred by refusing to give an adverse inference instruction to the jury related to
missing evidence. Pet. at pp. 4-5; Pet. Mem. at pp. 27-30. Petitioner alleges that the investigating police agency failed to preserve
surveillance video evidence and certain text messages. Pet. Mem. at pp. 28-29 This claim derives from New York common law
cited in People v. Handy, 20 N.Y.3d 663 (2013), which examined when an adverse inference charge should be given to a jury
in response to the prosecution's failure to preserve evidence.
“The propriety of a state trial court's jury instructions is generally a matter of state law, and a claim raised on that basis is not
cognizable on habeas review unless the challenged instruction ‘violated some right which was guaranteed to the defendant by
the Fourteenth Amendment.’ ” Bowers v. Noeth, 2020 WL 6746829, at *7 (E.D.N.Y. Nov. 17, 2020) (quoting Cupp v. Naughten,
414 U.S. 141, 146 (1973)). “The entitlement to an adverse inference charge arises under ‘the New York law of evidence,’
not the federal constitution.” Id. (quoting People v. Handy, 20 N.Y.3d at 669). This state-law claim was already raised and
rejected in Petitioner's direct appeal. The Appellate Division found that Petitioner could not establish his entitlement to the
requested adverse inference charge since the investigating agency had no duty to preserve evidence over which it did not have
constructive possession. People v. Nunes, 168 A.D.3d at 1192-93. Petitioner does not argue that the state trial court's allegedly
erroneous refusal to give the charge, nor that the Appellate Division's affirmance of that decision, rises to the level of a federal
constitutional violation. Accordingly, his claim is a matter of state law that is not cognizable on habeas review.
Petitioner's fourth ground for relief alleges that the trial court improperly admitted prior bad act evidence, specifically related to
his previous possession of a handgun like the one used during the shooting. Pet. at pp. 7-8; Pet. Mem. at pp. 42-43. Respondent
argues that this claim has not been exhausted and is not cognizable on habeas review. Resp. Mem. at pp. 31-34. While Petitioner
raised this argument on direct appeal, he relied exclusively on state law with no reference to the federal constitution or law. This
claim was analyzed solely for state evidentiary error and is therefore unexhausted for purposes of federal habeas review. See
Rodriguez v. Superintendent, Collins Corr. Facility, 549 F. Supp. 2d 226, 243-45 (N.D.N.Y. 2008). However, even if Petitioner's
claim were not procedurally barred, no habeas relief would lie for this alleged error.
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” Estelle v.
McGuire, 502 U.S. at 67-68, including a state court's evidentiary rulings. Rodriguez v. Superintendent, 549 F. Supp. 2d at 244.
“Federal courts reviewing state evidentiary matters can issue a writ of habeas corpus only if the petitioner demonstrates that
the alleged error violated an identifiable constitutional right, and that the error ‘was so extremely unfair that its admission
violates fundamental conceptions of justice.’ ” Id. (quoting Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998)). To that end,
“Petitioner ‘bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude.’ ” Id. at 244
(quoting Sierra v. Burge, 2007 WL 4218926, at *5 (S.D.N.Y. Nov. 30, 2007)).
*5 Under New York law, “evidence of uncharged crimes or prior bad acts may be admitted where [it] fall[s] within the
recognized Molineux exceptions - motive, intent, absence of mistake, common plan or scheme and identity - or where such proof
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is inextricably interwoven with the charged crimes, provides necessary background or completes a witness's narrative.” People
v. Burnell, 89 A.D.3d 1118, 1120 (3d Dep't 2011). Here, the trial court determined that Yunis Johnson would be permitted to
testify that she had previously seen Petitioner in possession of the gun he possessed on the night of the shooting. SR. at p. 310.
Allowing this testimony gave context to Johnson's ability to recognize the weapon as belonging to Petitioner. The Appellate
Division held that “[t]he evidence regarding defendant's prior possession of a handgun was inextricably interwoven with the
charged crimes and tended to show that defendant had access to the weapon that was used in the shooting.” People v. Nunes, 168
A.D.3d at 1192. This was particularly true given Petitioner's claims at trial that he was unarmed on that day. The state court's
findings on this state law question was not an unreasonable one and certainly was not so unfair as to violate basic notions of
due process. See Rodriguez v. Superintendent, 549 F. Supp. 2d at 244. This claim, therefore, is not a basis for habeas relief.
2. Procedural Default
In Petitioner's fifth ground for relief, he alleges that the trial court improperly failed to discharge “grossly unqualified” sworn
jurors. Pet. at pp. 9-10; Pet. Mem. at pp. 52-58. During the trial, one of the alternate jurors reported to the court that she had
observed a member of the defendant's family video recording members of the jury with a cell phone. Tr. at pp. 1938 & 1975.
After some investigation, the individual recording was determined to be the Petitioner's sister. Tr. at pp. 1940-41. The trial court
judge questioned the sister under oath and found that the photos were actually taken of the Petitioner, rather than the jury. Tr. at
pp. 1941-44. The trial court discharged the juror who had brought the issue to the court's attention and questioned the remaining
jurors individually regarding whether they were aware of the issue and if so, whether it would impact their ability to remain
fair and impartial. Tr. at pp. 1955-57.
Respondent asserts that this claim is both unexhausted and meritless. Resp. Mem. at pp. 34-38. Petitioner did not assert the
claim in his direct appeal, but instead raised the issue solely in the context of a coram nobis motion, arguing that his appellate
counsel was ineffective for failing to argue the claim. SR. at pp. 1086-1107. However, the Second Circuit has clearly held that
asserting a claim of ineffective assistance of counsel in the context of a coram nobis motion does not exhaust the underlying
constitutional claim. Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001). Petitioner has not established cause for his failure to
exhaust this claim, nor has he offered any evidence of actual innocence that might suggest a fundamental miscarriage of justice.
The claim is therefore unexhausted and is not properly before this Court. See id. (“a petitioner cannot show exhaustion unless
he has ‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal
courts.’ ”) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Nevertheless, even if this claim had been exhausted and properly before the Court, it is meritless and would not provide a basis
for habeas relief. Under 28 U.S.C. § 2254(e)(1), a state court's conclusion that a jury was impartial is entitled to a “presumption
of correctness” which can only be overcome by “clear and convincing evidence” to the contrary. Analysis begins “with the
settled rule that this Court in a federal habeas proceeding presumes that the state court finding on juror bias is correct.” Shaw
v. Superintendent, E. Corr. Facility, 2012 WL 4854643, at *8 (N.D.N.Y. Oct. 11, 2012). “The Supreme Court has also held
that the identification of juror bias is a factual finding concerning the juror's state of mind that is decidedly within the province
of the trial judge.” Id. As discussed above, the trial court dismissed the alternate juror who initially reported the photos being
taken. Tr. at pp. 1955-57. When two jurors, questioned separately, expressed concerns about being photographed and fear of
potential retribution, the judge proceeded to question them specifically regarding their ability to remain fair and impartial. Tr.
at pp. 1961-62, 1988-89. Both jurors were questioned at length regarding this issue and confirmed that they would remain able
to be fair and impartial. Tr. at p. 1966 & 1990, 2014, 2035-2039.
*6 For example, in an exchange with one juror whom Petitioner alleges to have been grossly unqualified, the trial judge
asked: “Now, having said all that, and having received the reassurance that I've given you, are you sure you can remain fair and
impartial going forward?” Tr. at p. 1962. The juror initially responded “I think so. I would like to hope so, that I can.” Id.
The judge further inquired of this juror:
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Q: But I want to know if you think that it will impair or might impair your ability to be fair and impartial going forward. If
it is, you tell me that. If it's not, that's fine. I just want to know.
A: No, I can still be fair.
Q: You sure?
A: Yeah.
Q: And impartial?
A: Impartial, right.
Q: Okay, I asked you, or asked many people, here's the statement, A, B or C, I know I can be fair and impartial going forward,
A, I know I can't be fair and impartial going forward, B, C, I don't know if I can be fair and impartial going forward. A, B or C?
A: Still A.
Q: Still A?
A: Yes.
Tr. at pp. 2035-2036.
When speaking to the other contested juror, the trial judge inquired: “I just need to know if you're confident and can assure
me that you can be fair and impartial going forward, if you can assure me of that.” Tr. at p. 1993. The juror initially replied
“Yes. I think I can. Yes.” Tr. at p. 1993. In response to defense counsel's concerns about that juror, the trial judge brought him
back the following day and inquired further:
Q: [Juror], you've had the benefit of the evening to digest and think about what happened. Do you have anything you'd like
– anything further you want to talk to me about or add or any additional thoughts?
A: No, I thought about it and I'm okay with it.
Q: Okay. I'm going to ask you the question I went over with you yesterday. And the question I asked many of the jurors
during the voir dire. And the statement is I know I can be fair and impartial going forward, Judge, and the answers to that
is yes, Judge, A, yes, Judge I agree with that statement, B, Judge, no, I don't agree with that statement, or C, I'm not sure I
can agree with that statement. What's your answer, A, B or C?
A: It's still A. A, I can be fair and impartial.
Q: You're sure?
A: I'm sure.
Tr. at pp. 2038-2039.
Given the assurances by both jurors that they remained able to be fair and impartial, it was not unreasonable for the trial court
to conclude that the jurors were not grossly unqualified and refuse to discharge them.
B. Prosecutorial Misconduct
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Petitioner argues that he is entitled to habeas relief based upon prosecutorial misconduct during summation. Pet. at pp. 5-6; Pet.
Mem. at pp. 30-33. More specifically, he asserts that the prosecutor misstated both facts and the law, and improperly shifted
the burden of proof during his closing argument. Pet. Mem. at p. 30.
“The habeas court's scope of review as to claims of prosecutorial misconduct is quite limited.” Ogletree v. Graham, 559 F.
Supp. 2d 250, 259 (N.D.N.Y. 2008). “To prevail on a prosecutorial misconduct claim, a habeas petitioner must demonstrate
that the prosecutor engaged in ‘egregious misconduct.’ ” Williams v. Duncan, 2007 WL 2177075, at *26 (N.D.N.Y. July 27,
2007) (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)). It “is not enough that the prosecutors’ remarks were
undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Instead, the question on habeas
review is whether the misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A habeas petitioner raising a claim of prosecutorial
misconduct “must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a
substantial and injurious effect or influence in determining the jury's verdict.” Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).
The Second Circuit has held that habeas courts should consider the following factors in determining whether prosecutorial
misconduct caused actual prejudice: “[1] the severity of the misconduct; [2] the measures adopted to cure the misconduct; and
[3] the certainty of conviction absent the improper statements.” Floyd v. Meachum, 907 F.2d at 355.
*7 Viewing the record as a whole, the Appellate Division's determination on this issue was not objectively unreasonable.
Petitioner objects broadly that the “prosecutor repeatedly misstated the facts, misstated the law, and shifted the burden of
proof.” Pet. Mem. at p. 30. He also specifically objects to the prosecutor's characterizations of Petitioner's defense as having
a “glaring hole” and being a “theory.” Id. at pp. 30-31. However, “the Second Circuit and district courts in this Circuit have
allowed prosecutors much leeway in their closing arguments.” Moye v. Corcoran, 668 F. Supp. 2d 523, 545 (W.D.N.Y. 2009)
(citing cases). “A prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation.” United
States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992); see also United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995) (finding
no misconduct when prosecutor characterized the defendant's case as a “fairy tale.”). Here the few comments made by the
prosecutor, highlighting what he believed to be weaknesses in the defendant's case, clearly fall on the side of vigorous advocacy.
Nor did these comments shift the burden of proof. See Pet. Mem. at p. 30. First, the complained of comments spoke not to
which party bore the burden of proof, but the respective strength of the evidence on each side. Second, the record establishes
that the prosecutor understood and conveyed to the jury that the prosecution bore the burden in this case. See, e.g., Tr. at pp.
3375, 3761, 3420, 3422-3423. He specifically and directly told the jury “I have to prove each and every element of each and
every crime beyond a reasonable doubt.” Tr. at p. 3375. With respect to Petitioner's justification defense, one of the final things
the prosecutor told the jury was “the burden is on me.” Tr. at pp. 3422-23; see also Tr. at 3423 (“The burden is to disprove
justification.”). Despite the comments Petitioner now objects to, there is no basis for finding that there was any question about
who bore the burden of proof at trial. In addition to the prosecutor's own comments, defense counsel made that point abundantly
clear. Tr. at pp. 3248-49, 3253, & 3298-99. And the trial court also stated repeatedly that the prosecution bore that burden. See,
e.g., Tr. at pp. 3867-72.
Accordingly, the Court recommends that any prosecutorial misconduct as alleged by Petitioner does not warrant habeas relief
in this matter.
C. Sufficiency of the Evidence
Finally, Petitioner contends that there was legally insufficient evidence to support several of his convictions. Pet. at p. 6; Pet.
Mem. at pp. 33-42. This claim is not a basis for relief.
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In seeking habeas relief based on alleged insufficiency of the evidence, a petitioner “bears a ‘very heavy burden.’ ” Torres
v. O'Meara, 353 F.Supp.3d 180, 188 (N.D.N.Y. 2019) (quoting Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir.
2000)). The standard of review for a legal sufficiency claim is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Hogan v. West, 448 F.Supp.2d 496, 512 (W.D.N.Y. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in
original). Therefore, a habeas court may only overturn a conviction if, based upon the evidence presented at trial, “no rational
trier of fact could have found that the prosecution established the defendant's guilt beyond a reasonable doubt.” Id. (emphasis
in original). This is not the case here.
1. Attempted Robbery and Felony Murder Charges
*8 Petitioner first argues that there was insufficient evidence to support the attempted robbery charges which served as the
predicate for his felony murder conviction. Pet. Mem. at pp. 34-36. Specifically, he contends that the evidence established at
best that Petitioner and his associates were engaged in an attempt to commit larceny by trick. Id. at p. 35.
Under New York law, a person is guilty of robbery in the second degree:
when he forcibly steals property and when:
1. He is aided by another person actually present; or
2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.
N.Y. Penal Law § 160.10.
Meanwhile, a person is guilty of robbery in the first degree:
when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom,
he or another participant in the crime:
1. Causes serious physical injury to any person who is not a participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution
under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm
was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be
discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of,
robbery in the second degree, robbery in the third degree or any other crime.
N.Y. Penal Law § 160.15.
An individual is liable for attempt to commit either crime “when, with intent to commit a crime, he engages in conduct which
tends to effect the commission of such crime.” N.Y. Penal Law § 110.00.
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While Petitioner disputes the accuracy of much of the testimony presented by the prosecution, on a sufficiency challenge this
Court must view the evidence “in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. at 319; see also
Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Under that standard, the record clearly establishes that legally
sufficient evidence existed for each of the attempt charges for which he was convicted. 3
Petitioner maintains that there was insufficient evidence to establish he was in possession of a weapon before the shooting,
Pet. Mem. at pp. 35-36, but several people testified that he was. SR. at pp. 873-76. There was also testimony that the jury
credited, at least to some degree, that Petitioner and his associates had gone to the location with the intent to rob Pulver, SR. at
p. 883, who died as a result of injuries admittedly caused by Petitioner. This evidence was legally sufficient for each attempted
robbery charge since each is established upon proof of an attempt to forcibly steal when either a weapon is displayed or serious
physical injury results. N.Y. Penal Law §§ 110.00, 160.10, & 160.15. Given that there was legally sufficient evidence in support
of the attempted robbery charges that served as the predicate offenses for the felony murder conviction, there was also legally
sufficient evidence to support that claim. See N.Y. Penal Law § 125.25(3).
2. Weapons and Manslaughter Charges
*9 While arguments as to the legal sufficiency of evidence are cognizable in federal court under habeas corpus review, “weight
of the evidence” arguments are founded in New York Criminal Procedure Law § 470.15(5), and thus are not cognizable. Garbez
v. Greiner, 2002 WL 1760960, at *8 (S.D.N.Y. 2002); see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422
F. App'x 69, 75 (2d Cir. 2018) (“[T]he argument that a verdict is against the weight of the evidence states a claim under state
law, which is not cognizable on habeas corpus.”); Torres v. O'Meara, 353 F.Supp.3d 180, 187-88 (N.D.N.Y. 2019); Kimbrough
v. Bradt, 949 F.Supp.2d 341, 362 (N.D.N.Y. 2013). Petitioner arguments regarding the weapons and manslaughter charges go
to the weight, not the sufficiency, of the evidence and as a result those arguments should be rejected.
Petitioner contends generally that evidence presented to the jury was contradictory and overly reliant on cooperating witnesses.
Pet. Mem. at p. 33. Claims of this nature are not cognizable and should be dismissed. See, e.g., Jones v. Chappius, 2020 WL
1472907, at *5-6 (E.D.N.Y. Mar. 26, 2020); Romero v. Napoli, 2013 WL 3583724, at *9 (S.D.N.Y. July 15, 2013), report and
recommendation adopted, 2013 WL 6170636 (S.D.N.Y. Nov. 25, 2013).
Petitioner's more specific assertions also lack merit. He takes exception, for example, to the lack of corroborating witnesses
regarding the shooting itself. See Pet. Mem. at pp. 37-38. The “lack of corroboration is irrelevant because that speaks to the
weight and not the sufficiency of the evidence.” United States v. Burden, 600 F.3d 204, 214 (2d Cir. 2010); see also Jackson
v. Senkowski, 2007 WL 2275848, at *13 (E.D.N.Y. Aug. 7, 2007) (“lack of corroboration ... does not make that testimony
insufficient.”).
Petitioner's argument that the evidence that he possessed a weapon throughout this encounter was “wanting, and impossible to
believe,” Pet. Mem. at pp. 39-40, clearly goes to the weight of the evidence, not its sufficiency.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that the Petition (Dkt. No. 1) be DENIED and DISMISSED; and it is further
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RECOMMENDED, that no Certificate of Appealability be issued because Petitioner has failed to make “a substantial showing
of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2); 4 and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 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. 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).
All Citations
Not Reported in Fed. Supp., 2023 WL 10365081
Footnotes
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
2 Citations to the State Court Record are to the Bates stamped pages provided with the record. Also made a part of the
record is the trial transcript, Dkt. No. 17-2, which is cited as “Tr.”
3 And by extension for the felony murder conviction.
4 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also 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”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Richardson v. Miller, Not Reported in Fed. Supp. (2024)
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2024 WL 763395
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
James RICHARDSON, Petitioner,
v.
Mark MILLER, Superintendent, Green Haven Correctional Facility, Respondent.
22-CV-6606 (LTS) (JLC)
|
Signed February 23, 2024
Attorneys and Law Firms
James Richardson, Stormville, NY, Pro Se.
Daniel Paul Hughes, NYS Office of the Attorney General, New York, NY, New York County District Attorneys Office-Generic,
New York State Attorney Generals Office, for Respondent.
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
*1 To the Honorable Laura Taylor Swain, Chief United States District Judge:
Pro se petitioner James Richardson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction by a
jury of one count of attempted assault in the first degree, one count of assault in the second degree, two counts of attempted
robbery in the first degree, one count of attempted robbery in the second degree, and two counts of criminal possession of a
weapon in the second degree. The court sentenced him as a second violent felony offender to an aggregate total of 12 years’
imprisonment, followed by five years’ post-release supervision. Richardson claims that the state courts violated his right to a
speedy trial. For the reasons set forth below, the petition should be denied.
I. BACKGROUND
A. Overview of Charges and Pre-Trial Motion Practice
Richardson's conviction arises from a January 10, 2011 incident in which he was found to have shot his cousin, Isaac “Ike”
Coleman, in the leg during an altercation following a drug transaction. Richardson was arrested on January 12, 2011, two days
after the shooting. Jury Trial Transcript (“Tr.”) at 418–19. 1 He was arraigned on the felony complaint on January 13, 2011, and
indicted on January 14, 2011, for assault, attempt to commit robbery in the first degree, attempt to commit robbery in the second
degree, and criminal possession of a weapon. Indictment No. 211/11; State Record (“SR”) 264–67. 2 Following the indictment,
the case underwent a series of delays for various reasons, including motion practice initiated by Richardson and adjournments
granted at defense counsel's request or with defense counsel's alleged consent.
1. Preliminary Delays
On March 15, 2011, Richardson filed an omnibus motion raising claims about the stop and search at the time of his arrest, the
victim's identification of him, and the criminal record that might be used to impeach his testimony at trial. SR 408–14. On May
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3, 2011, the court granted a hearing on Richardson's stop and search claims, denied his motion as to the victim's identification,
and held in abeyance the motion regarding his past convictions. Id. at 407.
On June 8, 2011, defense counsel failed to appear for a scheduled suppression hearing, informing the court that he was appearing
in Bronx County on an unrelated matter. ECF 15-4, at 2. 3 The People stated that a witness for the hearing was unavailable
because the witness's father was required to have surgery that day and asked for an adjournment to June 20, 2011. Id. Defense
counsel, however, had provided a long list of dates when he was unavailable that included June 20, 2011. Id. at 2–3. After
conferring with the People and Richardson's stand-in counsel, the trial court adjourned the case to August 3, 2011. Id. at 4.
*2 On August 3, 2011, the case was again adjourned because defense counsel was on trial in an unrelated matter. Beginning on
November 1, 2011, a hearing to suppress Richardson's arrest, search, and post-arrest statements was held before the Honorable
Analisa Torres. On April 3, 2012, Judge Torres denied Richardson's motions. SR 424–30.
On April 25, 2012, Richardson filed a motion to sever his case from that of his co-defendant, Kevin McGregor. See SR 269. 4
On May 15, 2012, the trial court denied Richardson's motion to sever. Id. at 269-70.
2. Richardson's Motion for Release Under C.P.L § 30.30
On July 17, 2012, Richardson's counsel filed a motion for his release under C.P.L. § 30.30(2) on the ground that the People were
not ready for trial within 90 days after the prosecution commenced. Id. at 341–43. On August 13, 2012, the trial court held that
most of the delays were excludable from the 90-day calculation because they were attributable to motion practice and defense
counsel's unavailability. See Id. at 283–90. The court concluded that all but 56 days since commencement of the prosecution
were excludable, and therefore denied Richardson's motion. Id. at 290.
Richardson, who had been detained after his arrest, was ultimately released on the consent of the prosecution in September
2012. See ECF 15-6, at 3–6. 5
3. Additional Delays and Richardson's Motions to Dismiss under § 30.30
After a series of additional adjournments, Richardson's case was calendared for trial on October 22, 2012. However, defense
counsel filed an affirmation of engagement stating that he was on trial in an unrelated matter. ECF 15-6, at 8.
The People filed a certificate of readiness for trial on December 17, 2012. In a motion filed January 3, 2013, and a supplemental
motion filed January 7, 2013, Richardson moved to dismiss the indictment under C.P.L. § 30.30(1). Richardson argued that
the certificate of readiness was illusory because the People were not, in fact, ready for trial, and that more than 180 days had
passed since the commencement of the prosecution, not counting periods excludable under § 30.30(4). Richardson argued that
the People were not ready because the shooting victim, Coleman, was not cooperating with the prosecution and had not made
himself available to them as a witness as of December 17, 2012. SR 531–35, 555–56. The People responded that their readiness
did not depend on the victim's cooperation. The trial court agreed with the People and denied Richardson's C.P.L. § 30.30 motion
in a decision dated January 14, 2013. Id. at 558–61.
On January 14, 2013, the People filed a motion under People v. Sirois, 92 A.D.2d 618 (2d Dep't 1983), to admit out-of-court
statements from Coleman, whose unavailability for trial the People claimed was due to Richardson's own misconduct in the
form of threats against the victim. The People explained that Coleman was cooperative when he testified before the grand jury
in January 2011 shortly after the shooting, but he had subsequently disappeared. The People sent law enforcement officials
to several addresses both in New York and elsewhere to attempt to locate Coleman. The People also learned that in the days
following the grand jury proceedings, Richardson had made several recorded phone calls from jail wherein he spoke angrily
and threateningly about Coleman. SR 544–53.
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*3 In February 2013, both Richardson and the People sought reconsideration of the court's January 14, 2013 decision denying
Richardson's Section 30.30 dismissal motion. In March 2013, while both the Sirois motion and the motions for reconsideration
were pending, Coleman was arrested in North Carolina on a material witness warrant. The People withdrew the Sirois motion,
as well as their reconsideration motion. Richardson withdrew his reconsideration motion and, on March 20, 2013, filed a new
C.P.L. § 30.30 motion to dismiss. Seeid. at 563.
On April 4, 2013, the trial court denied Richardson's new Section 30.30 motion. The court ruled, among other things, that the
People's certificate of readiness was not illusory and that the period during the pendency of the People's Sirois motion was
excludable from the applicable six-month time period. Id. at 562–63.
On April 8, 2013, Richardson, who had been released from custody, failed to appear in court and the court issued a bench
warrant for his arrest. Seeid. at 109.
On May 6, 2013, the trial before the Honorable Arlene Goldberg began with jury selection. Richardson was subsequently tried
in absentia.
B. The Trial
The following facts are drawn from the record of proceedings before the state trial court. In view of Richardson's conviction,
the Court summarizes the evidence presented at trial in the light most favorable to the verdict. SeeGarbutt v. Conway, 668 F.3d
79, 80 (2d Cir. 2012) (citation omitted).
1. The People's Case
On January 9, 2011, Isaac “Ike” Coleman—the shooting victim and Richardson's cousin—met with a man named Davel Lee, also
known as “Tef” or “Drama,” whom he had known for approximately nine years. Tr. 69–70, 203–04, 238–40. Lee told Coleman
that he was looking for drugs to sell in Brooklyn. Id. at 69–70, 238–40, 243. Coleman and Lee went to 1430 Amsterdam Avenue
in Manhattan to obtain drugs, because Coleman knew that Richardson had previously received drugs there from a man referred
to as “Fever.” Id. at 69–70, 146, 238–43. When Coleman and Lee arrived, they visited Robert “Rob Lowe” (or “Rob Lo”)
DeFelice, who lived on the 16th floor of the building. Id. at 65, 69–70, 237, 248, 271, 282, 286–96, 319. DeFelice said that “his
man” was waiting for “half a brick,” meaning half a kilogram of cocaine. Id. at 69–70, 71, 238–39, 286–87. The “man” described
was Richardson's co-defendant Kevin “Fever” McGregor, whom Coleman had known for “close to a year.” Id. at 55–56.
DeFelice went to a different part of the building and came back with McGregor. McGregor explained that he was waiting for
a delivery of 500 grams of cocaine and would sell some of it to Lee the following day. Id. at 69–71, 77, 79, 203, 239–40, 244–
48, 281, 287–90, 298, 330–31.
On January 10, 2011, McGregor called Coleman and said that the delivery of cocaine had arrived and offered to sell some to Lee.
Id. at 67, 71–73, 77, 140, 281, 292–93, 330. At about 9:45 p.m., Coleman and Lee went to the 16th floor of 1430 Amsterdam
Avenue. When Coleman and Lee exited the elevator, McGregor and DeFelice were standing in the 16th floor hallway. Id. at
74, 78–79, 149, 248, 296. After the men had spoken for a few minutes, McGregor said he would “be right back” with the drugs
and entered one of the stairwells. Id. at 74, 81–82, 248–49. About 15 minutes later, McGregor returned and handed Lee drugs
in exchange for money. Id. at 74–75, 78-80, 82, 249, 298.
Soon thereafter, Coleman heard the door to one of the stairwells “pop open,” and saw Richardson emerge from one of the
stairwells. Id. at 75, 81, 90, 311, 315–16. Richardson was holding a small, chrome handgun, and Lee fled the area. Id. at 76,
83, 88, 107, 153, 237, 302–03, 311, 313–14. Richardson said, “[W]hat's up, what's up” to Coleman and cocked the gun. Id. at
75, 82–84, 311–12. Coleman ran toward Richardson. Id. at 76, 84. He grabbed Richardson by the wrist and “tussl[ed]” with
him in an attempt to take the gun away. Id. at 76, 84–85, 89, 154, 312–14, 317–18, 337–39. Richardson grabbed Coleman by
the collar of his jacket, which was a Pelle brand jacket worth $1,200, and pulled on it “real hard.” Id. at 84–87, 115, 156–59,
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312, 321–22. Richardson asked Coleman where “the bread” was, by which Coleman understood Richardson to mean money.
Id. at 76, 82, 87, 100.
*4 Richardson freed himself from Coleman and “jerked away.” Id. at 85–86, 318. Richardson then backed away a bit from
Coleman and pulled the trigger of the gun, shooting Coleman in the right leg, just above the knee. Id. at 84–86, 163, 331–
32. Richardson handed the gun to McGregor, and McGregor fled down the stairs of the building. Id. at 85–90, 92–94, 154–
56, 316–18, 320.
Following the shooting, Coleman went to the apartment of a friend, Davene Roseborough. Id. at 66–67, 96, 278–79. Coleman
was bleeding significantly, and Roseborough called an ambulance, which took Coleman to St. Barnabas Hospital. Id. at 98–
99, 213–14, 280. After being bandaged at the hospital, Coleman was still in pain and could not walk without the assistance
of crutches. Id. at 165–66, 268, 325–26. Coleman used the crutches for 6 to 8 weeks, and he walked with a limp for 10 to 11
months. Id. at 166–67. At the time of trial, the bullet remained in Coleman's leg, and he had a scar where it had entered his
body. Id. at 168–69.
NYPD Detective Vincent Signoretti and other detectives interviewed Coleman at the hospital and, once he was discharged, at
a precinct. Id. at 99–101, 214–16, 280, 294–95, 326, 664, 668–72. Initially, Coleman falsely claimed that he had been shot at
the Manhattanville Houses after going there to “hang out” with a woman. Id. at 99–101, 215–16, 269, 277–78, 280–81, 332.
Eventually, however, Coleman told the detectives that Richardson was the person who had shot him. Id. at 101, 215, 237, 533,
571.
After speaking with Coleman, NYPD Detective Jose Rojas arrested Richardson on January 12, 2011. Id. at 418–19, 435–36.
The jury heard recordings of various telephone calls Richardson made from jail after his arrest. During the calls, Richardson
acknowledged that he had shot Coleman and made angry and threatening statements about Coleman and what would happen
to him if he testified against him. The calls were played for the jury and transcripts were distributed for the jury to review. Id.
at 381–82; see SR 431–51.
2. The Defense Case
Richardson did not present any witnesses during the trial.
3. The Verdict, Post-Verdict Motion, and Sentence
On May 16, 2013, the jury found Richardson guilty of one count of attempted assault in the first degree; two counts of attempted
robbery in the first degree; two counts of criminal possession of a weapon in the second degree; one count of assault in the
second degree; and one count of attempted robbery in the second degree. ECF 15-12, at 103–08.
On June 19, 2013, Richardson filed a motion to set aside the jury verdict under C.P.L. § 330.30(1). SR 483–86. On July 11,
2013, the trial court denied the motion. Id. at 482.
On July 29, 2013, Richardson was sentenced in absentia to a term of 12 years’ imprisonment for the attempted first-degree
assault and second-degree weapons convictions, 10 years’ imprisonment for the attempted first-degree robbery convictions, and
7 years’ imprisonment for the second-degree assault and attempted second-degree robbery convictions. For each conviction,
there was also a term of 5 years’ post-release supervision. The sentences were to run concurrently. ECF 15-12, at 130–31.
On February 27, 2014, Richardson, who was at liberty at the time, was arrested after he encountered Coleman on the street and
fired a gun in his direction. 6 See ECF 15-12, at 146 (describing the incident). On March 6, 2014, he was returned on the bench
warrant and Justice Goldberg ordered that his sentence be executed. See ECF 15-12, at 135–48; SR 100.
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C. The Direct Appeal
*5 Richardson filed a direct appeal to the Appellate Division, First Department, in which he argued that: (1) the prosecution's
December 17, 2012 declaration of readiness was illusory and therefore insufficient to stop the speedy trial clock for purposes of
C.P.L § 30.30; (2) the trial court erred in excluding several time periods under C.P.L. § 30.30; (3) he was entitled to a missing
witness charge regarding the prosecution's failure to call Lee (a.k.a. “Tef”) and “Rob Lo” as witnesses; (4) the prosecution
violated its obligations under Brady v. Maryland when it failed to produce a detective's handwritten notes until the night before
jury selection; and (5) the trial court erred in refusing to give a justification charge. SR 17–18.
With respect to his speedy trial claim, Richardson argued that he was denied his speedy trial rights under C.P.L. § 30.30 “because
the prosecution was not ready for trial within the statutorily prescribed period of 181 days, minus periods that were properly
excluded.” Id. at 28. 7 Richardson was not tried for more than two years: the charges were brought on January 11, 2011, and
jury selection began on May 6, 2013. Id. at 29. Thus, a total of 791 days elapsed between the start of the speedy trial clock
and March 14, 2013, which is the “earliest date on which Mr. Richardson concedes the prosecution was ready for trial.” Id. at
30. Richardson stated that the trial court effectively determined that 165 days were chargeable to the prosecution, and of the
remaining 626 days, Richardson conceded for the purposes of appeal that 440 of those days were properly excluded. Id. at 31.
On appeal, Richardson challenged the exclusion of the remaining 186 days, which represent four time periods: June 22, 2011
to August 3, 2011 (42 days); May 15, 2012 to June 18, 2012 (34 days); October 22, 2012 to November 14, 2022 (23 days); and
December 17, 2012 to March 14, 2013 (87 days). Id. at 31. His arguments on appeal were based on the exceptions to chargeable
time under the state speedy trial statute, C.P.L. § 30.30.
With respect to the period from December 17, 2012 to March 14, 2013, Richardson argued that the prosecution's December
17, 2012 statement of readiness was illusory because the victim was missing and the People could not secure his attendance
at trial. 8 He argued that the trial court therefore should have charged the prosecution with the entirety of the period between
December 17, 2012 and March 14, 2013, which was when Coleman had been taken into custody pursuant to a material witness
warrant. Id. at 38.
With respect to the period from May 15, 2012 to June 18, 2012, Richardson argued that the prosecution was not entitled to 34
days of adjournment time, pursuant to C.P.L. § 30.30(4)(a), to prepare for trial following the trial court's denial of the defendants’
motion to sever. Id. at 49–52. He argued that the First Department's decision in People v. Green, 90 A.D.2d 705 (1st Dep't
1982), is inconsistent with the Court of Appeals’ “strict interpretation of the statute and with the legislative intent behind C.P.L.
§ 30.30.” Id. at 50.
*6 With respect to the periods from June 8, 2011 to August 3, 2011, and from October 22, 2012 to November 14, 2012,
Richardson argued that these were periods of time in which both the prosecutor and Richardson's counsel were unavailable on
a court date, “but where the defense only required a short adjournment and the prosecution requested additional time.” Id. at 53.
Richardson argued that any time “beyond the limited defense availability, which was solely caused by the prosecution's lack
of readiness, should have been charged to the prosecution.” Id.
In addition to his claims under C.P.L. § 30.30, Richardson also asserted claims in the Appellate Division that: (1) the trial court
improperly denied Richardson's motion for a missing witness charge as to “Tef” (a.k.a. Lee) and “Rob Lowe” (a.k.a. DeFelice),
id. at 50–62; (2) the prosecution violated Brady v. Maryland by failing to timely produce allegedly exculpatory handwritten
notes from a detective who interviewed Coleman, id. at 63–73; and (3) the trial court erred by refusing to give a justification
charge, Id. at 74–84.
By order and decision dated March 4, 2021, the Appellate Division, First Department, unanimously affirmed the conviction.
The Appellate Division held that the People's December 17, 2012 certificate of readiness was not illusory because, even though
the People could not locate the victim, the People would have established the requisite prima facie case required to answer
ready based on “defendant's recorded phone calls admitting to the shooting, a security videotape and medical records.” People
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v. Richardson, 192 A.D.3d 432, 432 (1st Dep't 2021). The Appellate Division further held that the time attributable to the
Sirois application was correctly excluded under C.P.L. § 30.30(4)(a) because the People had a good faith basis to believe that
Coleman was unavailable to testify as a result of Richardson's threats. Id. at 433. The same period of time was also independently
excludable under C.P.L. § 30.30(4)(d) because Richardson's co-defendant had a pending motion at the same time. Id. The
Appellate Division further held that the remaining adjournments challenged by Richardson were properly excluded under C.P.L.
§ 30.30 as either being attributable to consent of defense counsel or to “afford the People a reasonable period of time to prepare
for trial after the court's rulings on motions.” Id.
With respect to Richardson's other claims, the Appellate Division held that the trial court was within its proper discretion to deny
the missing witness charges because neither witness was “in the People's control for purposes of a missing witness charge.”
Id. With respect to Richardson's Brady claim, the Appellate Division held that Richardson was not prejudiced by the People's
belated disclosure of the detective's notes. Id. at 433–34. 9 Finally, the Appellate Division held that the trial court correctly
denied Richardson's request for a justification charge because “[t]here was no reasonable view of the evidence, viewed most
favorably to defendant, to support such a charge.” Id. at 434. 10
D. Application to the Court of Appeals
*7 On March 23, 2021, Richardson's counsel applied for leave to appeal to the New York State Court of Appeals. Id. at 250–
51. Along with the initial application, Richardson's counsel submitted a copy of the Appellate Division's order, and the briefs
submitted to the Appellate Division were electronically transmitted to the Clerk's Office.
On April 19, 2021, Richardson's counsel filed a supplemental letter in support of Richardson's application for leave to appeal.
Id. at 252–62. The body of the letter focused exclusively on two issues of law which Richardson's counsel argued the Court
of Appeals should address: (1) “whether the First Department's practice of automatically excluding from the speedy trial clock
periods following the decision of any pre-trial motion is consistent with New York's speedy trial statute,” id. at 252; 11 and
(2) “whether a statement of defense counsel's time-limited unavailability constitutes consent to an adjournment of any length,”
under C.P.L. § 30.30(4)(b). Id. at 259. 12
Finally, Richardson's supplemental letter noted that “[i]n addition to the issues highlighted above, Richardson also raised on
appeal to the First Department” additional claims including that specific time periods were improperly excluded from the speedy
trial clock under C.P.L. § 30.30; that the trial court violated Richardson's state and federal constitutional fair trial and due process
rights by denying his request for the missing witness charges, violating his rights under Brady; declining to give a justification
charge; and “instructing the jury in a misleading manner.” Id. at 261. Richardson's supplemental letter did not explicitly ask the
Court of Appeals to grant leave to consider these issues.
The People filed a letter in opposition to Richardson's application for leave to appeal to the Court of Appeals in which they
argued that the case does not involve an issue of law warranting Court of Appeals review because “[t]he two statutory speedy
trial issues that defendant raises are unreviewable by this Court and, furthermore, were unanimously rejected as meritless by
the Appellate Division.” Id. at 391. The People's opposition letter focused exclusively on Richardson's statutory claims under
C.P.L. § 30.30.
On May 4, 2021, the Court of Appeals denied Richardson's application for leave to appeal. People v. Richardson, 37 N.Y.3d
959 (2021).
E. Federal Habeas Petition
Richardson, proceeding pro se, timely filed this federal habeas petition when he placed it into the prison mailing system at
Green Haven Correctional Facility on July 21, 2022. 13 ECF 1. Along with the petition, Richardson also filed a memorandum
of law in support of his petition. ECF 2. Richardson asserts two grounds for habeas relief: (1) his “right to due process was
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violated when the state court automatically excluded post-motion delays even if those delays are not shown to result from the
mo[ ]tion or to be reasonable”; and (2) his “right to a fair trial was violated since the state court found that defense counsel's
time-limited unavailability constituted consent to an adjournment of any length.” ECF 1, at 4. Both of Richardson's claims arise
from alleged violations of New York's speedy trial statute, C.P.L. § 30.30. 14
*8 In a preliminary statement to his memorandum of law, Richardson argues that the Appellate Division, First Department's
rule allowing automatic exclusion of time after a decision on a pre-trial motion is “contrary to the strict requirements of New
York's CPL § 30.30 (speedy trial statute); which in turn contradicts clear federal law handed [sic] by the Supreme Court in
Barker v. Wingo, 407 U.S. 514 (1972); Doggett v. United States, 505 U.S. 647 (1992); and their progeny.” ECF 2, at 3. He further
argues that the trial court's exclusion from the speedy trial calculation of a 23-day adjournment based on defense counsel's
saying he had a trial in another case that he expected to last another week was “in direct contravention” of People v. Smith, 82
N.Y.2d 676, 678 (1993), and Barker. ECF 2, at 3–4.
While Richardson invokes his rights to due process and a fair trial and, as quoted above, makes passing reference to Barker and
Doggett, the arguments and case law cited throughout his memorandum of law are based entirely on state law.
On April 20, 2023, Respondent filed his opposition, which included a memorandum of law. ECF 15-1. Richardson filed a reply
on June 29, 2023. ECF 17.
II. DISCUSSION
A. Legal Standards for Habeas Relief Under Section 2254
1. Exhaustion
Under 28 U.S.C. § 2254, a federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state
court. See28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that—(A) the applicant has exhausted the remedies available
in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that
render such process ineffective to protect the rights of the applicant.”); § 2254(c) (“An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law
of the State to raise, by any available procedure, the question presented.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal
court in a habeas petition.”)
Exhaustion “requires that the prisoner ‘fairly present’ his constitutional claim to the state courts, which he accomplishes ‘by
presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of
reviewing it.’ ” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir.
2005)). “While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,’
he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.’ ” Id. (quoting Carvajal
v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
2. Procedural Bar to Claims Deemed Exhausted
If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to
return to state court to exhaust those claims. Id. An unexhausted claim for which the petitioner cannot obtain further review
in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in
a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred
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by the application of a state procedural rule, we must deem the claim procedurally defaulted.” (internal quotation marks and
citations omitted)).
*9 A petitioner may overcome the procedural bar if he demonstrates “cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see alsoMurray v. Carrier, 477 U.S. 478, 495–96 (1986). A petitioner
can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available,” (2)
“some interference by state officials made compliance [with the procedural rule] impracticable,” or (3) “the procedural default
is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). While the Supreme Court
has not given “precise content” to the term “prejudice,” seeWainwright v. Sykes, 433 U.S. 72, 91 (1977), the prejudice must
be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S.
152, 175 (1982).
A fundamental miscarriage of justice is “an extraordinary case where a constitutional violation has probably resulted in the
conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. “The petitioner's burden in making a gateway showing
of actual innocence is deliberately ‘demanding.’ ” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547
U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.’
” Id. at 657 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
3. Standards of Review Under the Antiterrorism and Effective Death Penalty Act
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “imposes a highly deferential standard for evaluating state-
court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234
(2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under the AEDPA, courts may only grant a habeas petition if
the challenged state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” at the time of the state court decision; or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)
(1)–(2).
Under the first prong, the “Supreme Court has instructed that section 2254(d)(1)’s ‘contrary to’ and ‘unreasonable application
of’ clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor,
529 U.S. 362, 404–05 (2000)). “A state court decision is ‘contrary to ... clearly established Federal law, as determined by the
Supreme Court’ when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of
law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.’
” Id. at 544 (quoting Williams, 529 U.S. at 412–13); see alsoParker v. Matthews, 567 U.S. 37, 48–49 (2012) (circuit precedent,
even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of
§ 2254(d)(1)).
A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies
that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application
of federal law must be “ ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” Id. at 419 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). “The state court decision must be ‘so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.’ ” Woods v.
Etherton, 136 S. Ct. 1149, 1151 (2016) (quoting White, 572 U.S. at 420). The standard “is difficult to meet,” and it was intended
to be. Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
*10 Under the second prong, a state court's determination of fact “may not [be] characterize[d] ... as unreasonable ‘merely
because [a reviewing court] would have reached a different conclusion in the first instance.’ ” Brumfield v. Cain, 576 U.S. 305,
313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the
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state trial court substantial deference. If ‘[r]easonable minds reviewing the record might disagree’ about the finding in question,
‘on habeas review that does not suffice to supersede the trial court's ... determination.’ ” Id. at 314.
4. Pro Se Status
A petitioner bears the burden to establish, by a preponderance of the evidence, that his constitutional rights have been violated.
See, e.g., Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). However, the submissions of a pro se petitioner are held to less
stringent standards than formal pleadings drafted by lawyers. See, e.g., Davis v. Walsh, No. 08-CV-4659 (PKC), 2015 WL
1809048, at *1 n.1 (E.D.N.Y. Apr. 21, 2015) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Courts must liberally construe
a “pro se petition ‘to raise the strongest arguments’ it suggests.” Id. (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
472 (2d Cir. 2006)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and
substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B. Analysis
As noted, Richardson asserts the following grounds for relief in his habeas petition: (1) his “right to due process” was violated
when the state court automatically excluded post-motion delays from C.P.L. § 30.30’s speedy trial clock because those delays
did not result from the motion and were unreasonable, and (2) his “right to a fair trial” was violated where the state court found
that “defense counsel's time-limited unavailability constituted consent to an adjournment of any length” for purposes of C.P.L.
§ 30.30’s speedy trial clock. ECF 1, at 4. Before addressing Richardson's claims, the Court will briefly summarize New York
state's speedy trial protections.
1. New York's Speedy Trial Protections
New York protects a criminal defendant's speedy trial rights in two ways. The first, codified in C.P.L. § 30.30, “addresses how
much time may elapse between the commencement of a criminal action and when the case is trial ready.” Parrish v. Lee, No.
10-CV-8708 (KMK), 2015 WL 7302762, at *11 (S.D.N.Y. Nov. 18, 2015). Section 30.30 provides that an indictment must be
dismissed if, after six months following the commencement of the criminal action, the prosecution is not ready for trial. N.Y.
Crim. Proc. Law § 30.30. When calculating the six-month time period, time is excluded for a number of reasons, including a
reasonable period of time for delays resulting from proceedings concerning the defendant, such as pre-trial motions and the
period during which such motions are under consideration by the court, § 30.30(4)(a); or a period of delay resulting from a
continuance granted by the court “at the request of, or with the consent of,” the defendant or his counsel, § 30.30(4)(b). “Section
30.30 is a statutory time frame in which the People of the State of New York must be ready for trial.” Gibriano v. Att'y Gen.,
965 F. Supp. 489, 492 (S.D.N.Y. 1997) (internal quotation marks omitted). Section 30.30 “is purely a creature of New York
state statute and does not protect a federal constitutional right.” Parrish, 2015 WL 7302762, at *11; seeCadilla v. Johnson, 119
F. Supp. 2d 366, 374 (S.D.N.Y. 2000) (“Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be
ready for trial, a § 30.30 claim does not raise a federal constitutional claim.”); see alsoSmith v. LaClair, No. 04-CV-4356, 2008
WL 728653, at *3 (S.D.N.Y. Mar. 17, 2008) (“Section 30.30 is not ... a statutory embodiment of the constitutional guarantee
to a speedy trial.” (internal quotation marks and citation omitted)).
*11 The other New York state speedy trial statute, C.P.L. § 30.20, is a general speedy trial provision which provides that
“[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial,” and that “[i]nsofar as is practicable, the trial
of a criminal action must be given preference over civil cases; and the trial of a criminal action where the defendant has been
committed to the custody of the sheriff during the pendency of the criminal action ... preference over other criminal actions.”
N.Y. Crim. Proc. Law § 30.20. Courts have held that, unlike Section 30.30, Section 30.20 “embod[ies] the federal constitutional
right to a speedy trial[.]” Gibriano, 965 F. Supp. at 492 (internal quotation marks omitted); accordSmith v. Maher, 468 F. Supp.
2d 466, 473 (W.D.N.Y. 2006); People v. Anderson, 488 N.E.2d 1231, 1234 (N.Y. 1985).
2. Richardson's Section 30.30 Claims Are Not Cognizable on Federal Habeas Review
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In both his grounds for relief, Richardson asks the Court to vacate his conviction based on the People's alleged failure to comply
with the requirements of C.P.L. § 30.30. In his first ground for relief, Richardson argues that the Appellate Division, First
Department, has misconstrued Section 30.30(4)(a), which provides for exclusion from the speedy trial clock “a reasonable
period of delay resulting from other proceedings concerning the defendant, including but not limited to ... pre-trial motions.”
N.Y. Crim. Proc. Law § 30.30(4)(a). In his petition, Richardson argues that the First Department has consistently interpreted
this provision to “automatically allow” for the exclusion of time following a court's decision of a pre-trial motion “without
any showing from the prosecution that the adjournment is reasonable or that the motion, or the court's decision on the motion,
resulted in any additional delay (other than the time during which the motion was actually pending).” ECF 2, at 7. The foundation
of Richardson's argument is that the First Department has impermissibly expanded its ruling in People v. Green, 90 A.D.2d
705 (1st Dep't 1982). Seeid. at 7–9. He specifically argues that the trial court and the First Department both erred by excluding
the 34-day adjournment following the trial court's denial of the defense's motion to sever without providing any analysis of the
relationship between the severance motion and length of the adjournment. Seeid. at 9–10.
In his second ground for relief, Richardson argues that the state courts misapplied Section 30.30(4)(b), which provides for
exclusion of time periods resulting from “a continuance granted by the court at the request of, or with the consent of, the
defendant or his counsel.” N.Y. Crim. Proc. Law § 30.30(4)(b). Richardson focuses on his counsel's statement on October 19,
2012, that he could not proceed to trial immediately because he had another trial that “would last for another week” but could
otherwise “appear on any date that this Court deems appropriate.” ECF 2, at 11–12. Richardson argues that, under the New
York Court of Appeals’ decision in People v. Barden, 27 N.Y.3d 550 (2016), his counsel's statement did not constitute a clear
expression of consent for the entire 23-day adjournment that was granted. Id. at 11–14.
A federal court may vacate a state law conviction only where the conviction violates a well-established federal law. 28 U.S.C. §
2254(d)(1); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Because Section 30.30 is purely a creature of state law and does not
protect a federal constitutional right, Richardson's speedy trial claims under Section 30.30 are not cognizable on habeas review.
See, e.g.,Parrish, 2015 WL 7302762, at *11 (“[A] § 30.30 claim is not cognizable in a federal habeas case.”); Dowling v. Fisher,
No. 11-CV-2025, 2014 WL 3611645, at *4 (E.D.N.Y. July 22, 2014) (“[T]o the extent Petitioner challenges his conviction
pursuant to CPL § 30.30, New York's speedy trial statute, this Court simply does not have the power to review that claim.”);
Wilson v. Goord, No. 00-CV-4849, 2004 WL 226149, at *4 (S.D.N.Y. Feb. 6, 2004) (“[E]ven if Petitioner's statutory speedy
trial right [under Section 30.30] was violated, Petitioner has failed to raise a constitutional claim that is cognizable on federal
habeas corpus review.”); Rodriguez v. Miller, No. 96-CV-4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] C.P.L.
§ 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition.”).
*12 In his habeas petition and his memorandum of law, Richardson attempts to recast his claims under Section 30.30 in
constitutional terms. He asserts that the state court's alleged misapplication of Section 30.30 violated his “right to due process
of law and his right to a fair trial” under the Fourth and Sixth Amendments of the United States Constitution. ECF 2, at 6. His
memorandum of law also asserts, without elaboration, that the decisions of the state court “are clearly contrary to federal law
found in Barker v. Wingo, 407 U.S. 514 (1972).” Id. at 14.
Richardson's minimal and passing reference to federal law does not change the fact that he is asking this Court to decide state
law claims. Courts have consistently held that simply couching habeas claims in constitutional terms does not transform them
into federal claims cognizable on habeas review. See, e.g., DiGuglielmo v. Smith, 366 F.3d 130 (2d Cir. 2004) (“ ‘[E]rrors of state
law cannot be repackaged as federal errors simply by citing the Due Process Clause.’ ”) (quoting Johnson v. Rosemeyer, 117
F.3d 194, 110 (3d Cir. 1997)); Lloyd v. Morton, No. 18-CV-6979, 2023 WL 1994666, at *6 (E.D.N.Y. Feb. 14, 2023) (“Claiming
deprivation of due process does not automatically convert a claim of alleged state law error into a constitutional violation.”);
Love v. Martuscello, No. 17-CV-6244, 2022 WL 2109244, at *12 (W.D.N.Y. June 10, 2022) (merely alleging a “lack of a fair
trial” or a violation of “due process rights” does not give rise to a specific federal constitutional claim); Gopaul v. Racette, No.
15-CV-1781, 2021 WL 5163211, at *3 (E.D.N.Y. Nov. 5, 2021) (“Merely citing the right to due process, without more, does
not convert errors of state law into constitutional violations.”).
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In his reply to Respondent's opposition (in which Respondent similarly argued that Richardson's claims are not cognizable
on habeas review), Richardson includes direct, although conclusory, references to federal constitutional law. For example,
Richardson asserts that the “right to speedy trial” is recognized by the Supreme Court and enshrined in the Sixth Amendment.
ECF 17, at 3. He also provided citations to Barker v. Wingo, 407 U.S. 514 (1972), and United States v. Loud Hawk, 474 U.S.
302 (1986), but he did not apply those cases to the specific issues he raises in his petition, except to assert that “[t]he argument
that no federal case law was presented in the petition is ... misplaced.” ECF 17, at 5.
In his reply, Richardson also cites Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982), for
the proposition that federal courts “consider that a defendant who cites state precedent that employs pertinent constitutional
analysis has adequately put the state courts on notice of the constitutional thrust of his claim.” ECF 17, at 5 (citing Daye, 696
F.2d at 194). However, both Daye and the principle on which it relies apply to whether a federal habeas petitioner has properly
exhausted his federal constitutional claims in the state courts before seeking federal habeas relief, an issue the Court will address
below. Daye and its implications for exhaustion of federal claims do not change the fact that Richardson asserted only claims
under C.P.L. § 30.30 in his petition and that such claims are not cognizable on habeas review.
Accordingly, despite Richardson's references to federal law, the substance of his claims that the trial court improperly calculated
excludable time for purposes of New York's state speedy trial statute, C.P.L. § 30.30 – as articulated in his petition, memorandum
of law, and his reply – arise under state law and are not cognizable in a federal habeas petition. Therefore, the petition should
be denied on the grounds that Richardson's claims arise under New York state law and are therefore not cognizable in a federal
habeas petition.
*13 Nonetheless, in light of Richardson's pro se status and for the sake of completeness, the Court will address below any
constitutional speedy trial claim Richardson may be asserting.
3. Constitutional Speedy Trial Claims
Even if the Court assumes that Richardson's petition presented a cognizable constitutional speedy trial claim, Richardson has not
properly exhausted any such claim in the state courts and thus any such claim is procedurally defaulted. Furthermore, Richardson
has not alleged facts demonstrating that he could overcome the procedural default. Finally, even if Richardson had exhausted
his claims or could overcome a procedural default, any constitutional speedy trial claim he could present would be meritless.
a. Any Constitutional Speedy Trial Claims Are Not Exhausted
Courts in the Second Circuit have generally held that raising a New York C.P.L § 30.30 claim in state court does not exhaust a
federal constitutional speedy trial claim. See, e.g., Smith v. LaClair, No. 04-CV-4356, 2008 WL 728653, at *3 (S.D.N.Y. Mar.
17, 2008) (“Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be ready for trial, a § 30.30
claim does not raise a federal constitutional claim.” (internal quotation marks omitted)); Edwards v. Mazzuca, No. 00-CV-2290,
2007 WL 2994449, at *13 (S.D.N.Y. Oct. 15, 2007) (“[A] CPL § 30.30 claim is not the equivalent of a federal constitutional
speedy trial claim made pursuant to the Sixth and Fourteenth Amendments; therefore, it cannot be reviewed in a federal habeas
corpus proceeding.”); Delvalle v. Sabourin, No. OO-CV-3302, 2002 WL 1000968, at *3 (S.D.N.Y. May 16, 2002) (“In his direct
appeal in state court, [the petitioner] asserted a speedy trial claim citing N.Y. Crim. Proc. Law § 30.30, but making no mention
whatsoever of the United States Constitution. It is well settled that a petitioner who raises only a statutory speedy trial claim
pursuant to N.Y, Crim, Proc. Law § 30.30 has not invoked the federal constitution and therefore has not exhausted a federal
claim.”); Gibriano v. Att'y Gen., 965 F. Supp. 489, 492 (S.D.N.Y. 1997) (“[W]hen the petitioner twice raised his statutory speedy
trial claim in the state court under Section 30.30, he did not effectively present to those courts the federal constitutional speedy
trial claim that he raises now in this court.” (internal quotation marks omitted)).
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By contrast, because New York C.P.L § 30.20 embodies a federal constitutional speedy trial right, raising a Section 30.20 claim
in state court can exhaust a federal constitutional speedy trial claim. Cf.Mills v. Lempke, No. 11-CV-440, 2013 WL 435477, at
*51 (W.D.N.Y. Feb. 4, 2013) (“[The petitioner] did not cite C.P.L. § 30.20, the section of the statute that embodies the Sixth
Amendment's constitutional guarantee to a speedy trial. Thus, [he] did not properly assert his constitutional right to a speedy
trial at that point.” (citation omitted)); Woodard v. Berry, No. 90-CV-1053, 1992 WL 106508, at *2 (E.D.N.Y. Apr. 24, 1992)
(“[B]ecause the petitioner presented his ‘speedy trial’ claim in the state courts only as a claim under Section 30.30—rather than
as a claim under the Sixth Amendment to the federal Constitution or as a claim under Section 30.20—he did not give the state
courts a ‘fair opportunity’ to consider the federal question he now presents to this court.”).
*14 There are several ways a petitioner can exhaust a federal constitutional speedy trial claim in his leave application to the
Court of Appeals. Most obviously, a petitioner can clearly assert the federal claim. A petitioner can also alert the Court of
Appeals to the federal claim, and therefore exhaust the claim, by including: “(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the
claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of
facts that is well within the mainstream of constitutional litigation.” Daye, 696 F.2d at 194; see alsoCarvajal v. Artus, 633 F.3d
95, 104 (2d Cir. 2011) (same); accordBabcock v. Heath, No. 11-CV-4631, 2014 WL 4979448, at *9 (S.D.N.Y. Oct. 3, 2014);
Stanley v. Smith, No. 12-CV-6362, 2014 WL 5039444, at * 10 (S.D.N.Y. Sept. 26, 2014).
The Court will first address whether Richardson, who at the time was represented by counsel, clearly asserted a federal claim in
his application to the Court of Appeals. 15 Richardson's leave application focused exclusively on his arguments that the lower
courts incorrectly applied Section 30.30 when excluding time under the speedy trial clock. See SR 250–62. 16 Nowhere in his
leave application did Richardson refer to the federal Constitution's speedy trial guarantee or New York C.P.L § 30.20. See id.
He instead referred only to Section 30.30 and to state law cases pertaining to various exclusions of time under that statute's
speedy trial clock.
Richardson did submit his briefs filed with the Appellate Division and the Appellate Division's decision to the Court of Appeals
as part of his leave application. Like his leave application, however, Richardson's brief to the Appellate Division was insufficient
to alert the Court of Appeals to any federal speedy trial claim. Richardson stated the questions presented solely in terms of C.P.L.
§ 30.30’s requirement that the prosecution be prepared to bring a defendant to trial within six months of arraignment. See, e.g.,
id. at 28 (“The Court erred in denying Mr. Richardson's C.P.L. § 30.30 motions because the prosecution's statement of readiness
was illusory, and other excluded periods lacked a statutory basis.”). In his appellate briefs, Richardson cited only Section 30.30
and state cases interpreting that statute to argue that certain periods of time should have been chargeable to the prosecution for
purposes of Section 30.30’s speedy trial clock and whether the prosecution's statement of readiness was “illusory” under state
law. See generallyid. at 28–58. 17 His appellate brief included no references to the constitutional speedy trial right or Section
30.20. Id. Like his initial appellate brief, Richardson's reply brief again only raised a claim under Section 30.30. Seeid. at 204
(“Point One ... Mr. Richardson's convictions must be vacated and the indictment dismissed because the prosecution violated
CPL § 30.30.”).
*15 Richardson therefore did not exhaust a constitutional speedy trial claim by directly presenting it to the Court of Appeals.
The second way Richardson could have exhausted his federal constitutional speedy trial claim is through relying on pertinent
cases employing constitutional analysis. See, e.g.,Daye, 696 F.2d at 194. As discussed above, however, nowhere in his
application to the Court of Appeals or in his briefs to the Appellate Division did Richardson cite any federal cases with respect
to his speedy trial claims. Since Richardson did not cite any federal cases, he cannot satisfy the exhaustion requirement through
his reliance on federal cases.
Richardson also could have exhausted his claims by relying on state cases that employ federal constitutional analysis in like
fact situations. See id. However, his leave application to the Court of Appeals framed the speedy trial issue solely in terms of
Section 30.30 and state case law interpreting that statute. For example, his primary argument was that the Court of Appeals
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“should grant Mr. Richardson leave to appeal because his appeal squarely presents an unresolved and important question of
New York criminal law: whether the First Department's practice of automatically excluding from the speedy trial clock periods
following the decision of any pre-trial motion is consistent with New York's speedy trial statute.” SR 252. He further argued
that his application was “leave-worthy” because it provided an “opportunity to clarify how courts should analyze whether
defense counsel consented to an adjournment” based on Richardson's claim that that the trial court improperly excluded a 23-
day adjournment requested by the prosecution based on defense counsel's statement that he had a trial that would last another
week. Id. at 253.
All of the cases cited by Richardson in support of his speedy trial claims in his leave application were state cases interpreting
various provisions of Section 30.30 regarding the periods of time that are excludable from the speedy trial clock. Seeid. at 253–
61. None of the cases cited by Richardson employed any federal constitutional analysis. Because Richardson relied only on
state law cases that employ state statutory analysis, he did not alert the Court of Appeals to his federal constitutional claim and
did not exhaust his claim under this prong of the Daye standard.
Next, Richardson could have exhausted his claim if it was asserted to the Court of Appeals “in terms so particular as to call
to mind a specific right protected by the Constitution.” Daye, 696 F.2d at 194. While a “speedy trial” is a right protected by
the Constitution, there is a distinction between the constitutional right to a speedy trial and the statutory speedy trial rights
created by New York state. Richardson's leave application used language and relied on cases addressing only his state statutory
speedy trial claim. He cannot claim, as he did in his reply to Respondent's opposition, that “his articulation of a speedy trial
issue and his citation of state court precedents implicated a federal question.” ECF 17, at 5; seeRobinson v. Cunningham, No.
09-CV-1904, 2011 WL 7046020, at *4 (E.D.N.Y. Jan. 4, 2011) (petitioner “failed to properly raise a constitutional claim for
state court review” where he “relied solely on state cases discussing the statutory requirements and burdens under N.Y.CP.L.
§ 30.30 and only presented facts regarding chargeable time against the prosecution under N.Y.CP.L. § 30.30”), adopted sub
nom.Robinson v. Superintendent, Green Haven Corr. Facility, 2012 WL 123263 (Jan. 17, 2012). As already noted, courts within
the Second Circuit have held that raising a § 30.30 state statutory speedy trial claim is insufficient to call to mind a federal
constitutional speedy trial right. See, e.g.,Davis v. Lee, No. 13-CV-3827, 2015 WL 1379024, at * 11 (S.D.N.Y. Mar. 25, 2015)
(leave application that asserted only a violation of New York's speedy trial statute “failed to alert the state courts that he was
seeking relief on federal grounds”); Kirk v. Burge, 646 F. Supp. 2d 534, 543–44 (S.D.N.Y. 2009) (“Although [petitioner's]
appellate brief raised a statutory speedy trial claim under New York State law, such a claim is insufficient to preserve a federal
constitutional speedy trial claim.”). As stated above, Richardson's leave application, and his briefs to the Appellate Division,
raised only his state statutory claims under C.P.L. § 30.30.
*16 Finally, Richardson could have exhausted his claims by “alleg[ing] ... a pattern of facts that is well within the mainstream
of constitutional litigation.” Daye, 696 F.2d at 194. A federal constitutional speedy trial claim is analyzed under the factors
set forth in Barker.
According to the Second Circuit,
The Supreme Court's decision in Barker ... sets forth the four factors that must be considered in analyzing whether a
defendant's constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay;
(3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the
failure to bring the case to trial more quickly. These factors “must be considered together with such other circumstances
as may be relevant,” and “have no talismanic qualities.” Rather, they require courts to “engage in a difficult and sensitive
balancing process.”
United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012) (citations omitted) (quoting Barker, 407 U.S. at 530, 533). The Section
30.20 analysis conducted by New York state courts is substantially similar to the Barker analysis described above. The New
York test, as enumerated in People v. Taranovich, 335 N.E.2d 303 (N.Y. 1975), requires consideration of (1) the extent of the
delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period
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of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the
delay. Id. at 306.
The factual allegations in Richardson's leave application concern two of the Taranovich factors – the extent of the delay and the
reason for the delay. 18 Nowhere in his leave application, however, did he allege facts describing the nature of the underlying
charges or the extent of pretrial incarceration as they relate to his speedy trial claim. Nor did he allege any facts regarding any
prejudice to his defense that occurred due to the delay. Because Richardson did not allege facts concerning several factors and
the constitutional test requires balancing of all factors, seeBarker, 407 U.S. at 530, 533, Richardson's leave application did not
allege a pattern of facts well within the mainstream of constitutional litigation. Richardson instead alleged a pattern of facts
“not theretofore commonly thought to involve constitutional constraints.” Daye, 696 F.2d at 193.
For these reasons, Richardson did not alert the Court of Appeals to the constitutional nature of his speedy trial claims, and those
claims are therefore unexhausted. SeePhillips v. Warden, Clinton Corr. Facility, No. 08-CV-1887, 2010 WL 1189381, at *7 n.5
(E.D.N.Y. Mar. 29, 2010) (“[T]he state speedy trial right under § 30.30 is distinct from the federal constitutional speedy trial
right and involves a different factual and legal analysis. For this reason, when [the] petitioner raised his statutory speedy trial
claim at the appellate level, he did not present a federal claim to those courts.”); Vasquez v. Warden of Facility, No. 06-CV-4366,
2008 WL 6653635, at *3 (S.D.N. Y, Sept. 4, 2008) (report and recommendation) (“Although [the petitioner's] appellate attorney
raised the speedy trial claim on direct appeal, the claim was based exclusively upon C.P.L. § 30.30 and New York State case
law. It did not implicate the United States Constitution, Supreme Court cases, or other federal cases.”), adopted by2009 WL
2432364 (Aug. 7, 2009); Smith v. Maher, 468 F. Supp. 2d 466, 470 (W.D.N.Y. 2006) (“[The petitioner's] brief ... referred only
to C.P.L. § 30.30, dealt only with state statutory ready-for-trial issues under C.P.L. § 30,30, and employed only state cases and
state law analysis; there is no reference in the table of authorities or in the rest of the brief of to any federal case law or to
the federal constitution. Clearly, the claim [the petitioner] raised in state court rested solely on state procedural grounds.”); see
alsoRodriguez v. Miller, No. 96-CV-4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] CPL section 30.30 claim
does not present the state court with the same factual and legal issues as a Sixth Amendment speedy trial claim. A Section 30.30
claim focuses on the calculation of certain time periods that should be excluded from the time within which the people must be
ready for trial, whereas a Sixth Amendment speedy trial claim focuses on different issues and requires a different presentation.”).
b. Richardson's Constitutional Speedy Trial Claims Are Procedurally Barred
*17 If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able
to return to state court to exhaust those claims. Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). An unexhausted claim for
which the petitioner cannot obtain further review in state court is deemed procedurally defaulted. Id. (“[I]f the state prisoner
fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those
courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”
(internal quotation marks and citations omitted)); seeSmith v. Capra, No. 13-CV-2104, 2013 WL 6501693, at *6 (S.D.N.Y. Dec.
11, 2013) (“If a petitioner with an unexhausted claim would not be permitted to return to state court to exhaust his claims because
no state corrective procedure remains available, a federal court may deem the unexhausted claim exhausted.” (alterations and
internal quotation marks omitted)).
Here, Richardson cannot return to the state courts to exhaust his constitutional speedy trial claims. First, he could not seek
leave to appeal to the New York Court of Appeals for a second time because New York law permits only one such application.
SeeN.Y. Ct. R. § 500.20(a)(2) (indicating that “only one application” for leave to appeal a criminal conviction “is available”).
Second, the timeframe in which Petitioner could have sought reargument or reconsideration of the Court of Appeals’ May 4,
2021 denial of his application for leave to amend has long since passed. Id. § 500.20(d) (“Unless otherwise permitted by the
assigned Judge, the reargument or reconsideration request shall be served not later than 30 days after the date of the certificate
determining the application of which reargument or reconsideration is sought.”)
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Third, Richardson cannot now collaterally attack the conviction on constitutional speedy trial grounds because these claims
could have been raised on direct appeal. See, e.g.,Garrett v. Superintendent of Bedford Hills Corr. Facility, No. 10-CV-3093,
2013 WL 6199971, at *2 (E.D.N.Y. Nov. 27, 2013) (“[A] C.P.L. § 440.10 motion may not be employed as a substitute for
direct appeal when defendant was in a position to raise an issue on appeal or could readily have raised it on appeal but
failed to do so” (ellipses and internal quotation marks omitted)); Newborn v. Smith, No. 09-CV-4844, 2013 WL 504391, at
*5 (E.D.N.Y. Feb. 7, 2013) (“New York law permits a defendant to collaterally attack a judgment of conviction obtained in
violation of his constitutional rights but requires that any such motion be denied where the defendant unjustifiably failed to
raise the constitutional violation on direct appeal, despite the availability of a sufficient record[.]” (citation omitted)); O'Kane
v. Kirkpatrick, No. 09-CV-5167, 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“Under New York law, all claims that
are record-based must be raised in a direct appeal .... It is only when a defendant's claim hinges upon facts outside the trial
record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10”), adopted by2011 WL 3918158
(S.D.N.Y. Aug. 25, 2011); Hogan v. West, 448 F. Supp. 2d 496, 506–07 (W.D.N.Y. 2006) (“[A] New York court must deny a
§ 440.10 motion where the movant unjustifiably failed to raise the constitutional violation on direct appeal despite a sufficient
record to have permitted such an appeal.”); Douglas v. Hollins, No. 00-CV-7928 (MBM), 2004 WL 187130, at *7 (S.D.N.Y.
Jan. 29, 2004) (because petitioner's speedy trial claim was matter of record that could have been raised on direct appeal, his
claim was waived under § 440.10(2)(c) and therefore procedurally defaulted for purposes of habeas review).
Richardson's constitutional speedy trial claim is therefore deemed exhausted, but procedurally barred. See, e.g.,Dowtin v. Cohen,
179 F. App'x 737, 739 (2d Cir. 2006) (“State-court remedies for this claimed violation are no longer available because [petitioner]
has already taken his one direct appeal and this claim is procedurally barred from consideration on collateral attack on his
conviction. [The petitioner's] claim is therefore procedurally defaulted ....” (citations omitted)); Calderon v. Perez, No. 10-
CV-2562, 2011 WL 293709, at * 19 (S.D.N.Y. Jan. 28, 2011) (“For exhaustion purposes, a federal habeas court need not require
that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred....
Consequently, such procedurally barred claims are deemed exhausted by the federal courts.”) (cleaned up) (citations omitted),
adopted by2011 WL 1405029 (Apr. 5, 2011); Maher, 468 F. Supp. 2d at 471 (“Because he failed to raise his claim in state
court and no longer may do so, his claim—although deemed exhausted—is procedurally defaulted.”); Walker v. Bennett, 262
F. Supp. 2d 25, 29 (W.D.N.Y. May 15, 2003) (“An unexhausted claim will be deemed exhausted if state procedural rules bar
the petitioner from raising the claim before the New York Court of Appeals.”).
c. Richardson Cannot Overcome The Procedural Bar
*18 A procedural default bars federal habeas review of a claim unless the petitioner shows either “cause for the default and
prejudice” from a violation of his federal rights, or that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 615
(1998) (internal quotation marks and citations omitted); see alsoColeman v. Thompson, 501 U.S. 722, 748–50 (1991).
To establish cause for a default, a petition must show circumstances “external to the petitioner, something that cannot fairly
be attributed to him.” Coleman, 501 U.S. at 753. Here, Richardson raised his state speedy trial claims under Section 30.30 in
his counseled appeal to the Appellate Division and his counseled application for leave to the Court of Appeals. He alleges no
facts explaining why he did not raise his constitutional claims on appeal, and nothing in the record suggests that his counsel
was ineffective or that there was any other external cause that prevented him from raising those claims.
Although the Supreme Court has not given “precise content” to the term “prejudice,” seeSykes, 433 U.S. at 91, the prejudice
must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456
U.S. 152, 175 (1982). Richardson alleges no facts establishing that he suffered prejudice as a result of any alleged constitutional
speedy trial violations. And in any event, as discussed below, the record does not show that his constitutional speedy trial rights
were violated.
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Finally, Richardson has not asserted – nor does the record support a finding – that he is actually innocent. An actual innocence
claim must be both “credible” and “compelling.” Hyman v. Brown, 927 F.3d 639, 655 (2d Cir. 2019) (quoting House v. Bell, 547
U.S. at 521, 538 (2006)). For a claim of actual innocence to be “credible,” it must be supported by new reliable evidence that was
not presented at trial. Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). For
a claim to be “compelling,” a petitioner must show that “more likely than not, in light of the new evidence, no reasonable juror
would find him guilty beyond a reasonable doubt – or to remove the double negative, that more likely than not any reasonable
juror would have reasonable doubt.” Id. (quoting House, 547 U.S. at 538). The standard of innocence in this context “references
‘factual innocence, not mere legal insufficiency.’ ” Hyman, 927 F.3d at 657 (citing Bousley, 523 U.S. at 623).
In his petition and accompanying documents, Richardson does not provide any new evidence – much less any credible and
compelling new evidence – demonstrating that he is actually innocent. Instead, as discussed above, Richardson's submissions
focus almost exclusively on his arguments that the state courts misapplied New York's speedy trial statute, C.P.L. § 30.30. He
alleges no facts that would cause a reasonable juror to doubt his guilt in light of the witness testimony, recorded phone calls,
and other evidence presented at trial. Nowhere in his submissions does Richardson even suggest that he is actually innocent
of the crimes of which he was convicted.
For these reasons, any constitutional speedy trial claim that Richardson seeks to assert is deemed exhausted and procedurally
barred from review in a federal habeas petition.
d. Any Constitutional Speedy Trial Claim Is Meritless
*19 Even if his Sixth Amendment speedy trial claims were properly exhausted or that Richardson could overcome the
procedural bar, and this Court could therefore consider those claims, such claims are meritless. 19
Unlike C.P.L. § 30.30, which requires the prosecution to be ready for trial within six months, the Supreme Court has “refused
to ‘quantif[y]’ the [Sixth Amendment] right ‘into a specified number of days or months.’ ” Vermont v. Brillon, 556 U.S. 81, 89–
90 (2009) (citing Barker, 407 U.S. at 530). To determine whether a pre-trial delay amounts to a constitutional violation, courts
weigh the four factors set forth by the Supreme Court in Barker, 407 U.S. at 530. These factors
must be considered in analyzing whether a defendant's constitutional right to a speedy trial has been violated: (1) the length of
the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether
the defendant was prejudiced by the failure to bring the case to trial more quickly. These factors “must be considered together
with such other circumstances as may be relevant,” and “have no talismanic qualities.” Rather, they require courts to “engage
in a difficult and sensitive balancing process.”
United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012) (citations omitted) (quoting Barker, 407 U.S. at 530, 533). The Court
will analyze each factor in turn.
i. The Length of the Delay
Under Barker, “[t]he length of the delay is to some extent a triggering mechanism.” 407 U.S. at 530. Courts “will only consider
the other Barker factors when the defendant makes a showing ... ‘that the interval between the accusation and trial has crossed
the threshold dividing ordinary from presumptively prejudicial delay.’ ” United States v. Ghailani, 733 F.3d 29, 43 (2d Cir.
2013) (quoting Doggett v. United States, 505 U.S. 647, 651-52 (1992)); seeBarker, 407 U.S. at 530 (“Until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”). 20
Although “the definition of ‘presumptively prejudicial remains less than precise[,]’ ” Ghailani, 733 F.3d at 43, there is a “general
consensus” in the Second Circuit that a delay of more than eight months is “presumptively prejudicial” and triggers further
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inquiry into the other Barker factors, seeUnited States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992); United States v. Ostroff,
340 F. Supp. 2d 362, 366 (S.D.N.Y. 2004) (“The Second Circuit has noted that there is a general consensus that a delay of over
eight months meets this standard, while a delay of less than five months does not[.]” (internal quotation marks omitted)); Fisher
v. Superintendent, No. 12-CV-6703, 2014 WL 128015, at * 15-16 (S.D.N.Y. Jan. 14, 2014) (ten month delay “was just beyond
[the Second] Circuit's outer boundary of eight months for presumptive prejudice”). The “relevant interval” for a defendant's
“Sixth Amendment speedy trial claim is from the first indictment or arrest to trial.” United States v. Black, 918 F.3d 243, 259
(2d Cir. 2019).
*20 Here, the relevant delay was between the filing of the felony complaint on January 13, 2011, through the start of trial on
May 6, 2013. Because this approximately 28-month period (845 days) exceeds the eight-month outer boundary for presumptive
prejudice, further inquiry of the remaining Barker factors is necessary. 21
ii. The Reason for the Delay
Under the second Barker factor – the reason for the delay – the relevant question is “whether the government or the criminal
defendant is more to blame for th[e] delay.” Doggett, 505 U.S. at 651. “Deliberate delay ‘to hamper the defense’ weighs heavily
against the prosecution.” Brillon, 556 U.S. at 90 (quoting Barker, 407 U.S. at 531). On the other hand, “delay caused by
the defense weighs against the defendant.” Id. (citing Barker, 407 U.S. at 529). Moreover, “[b]ecause ‘the attorney is the
[defendant's] agent when acting, or failing to act, in furtherance of the litigation,’ delay caused by defendant's counsel is also
charged against the defendant.” Id. at 90–91 (quoting Coleman, 501 U.S. at 753).
Much of the delay in bringing Richardson to trial was caused by litigation of his pre-trial motions, a cause which weighs in
favor of the government. SeeUnited States v. Reyes-Batista, 844 F. App'x 404, 407 (2d Cir. 2021) (“Reyes-Batista compounded
this self-inflected delay by engaging in extensive pre-trial motion practice.”); United States v. Swinton, 797 F. App'x 589, 595
(2d Cir. 2019) (adjudication of a complex omnibus motion “took much of the time between the issuance of the indictment
and the start of trial” and therefore “cuts in favor of the government”); United States v. Vasquez, 918 F.2d 329, 338 (2d Cir.
1990) (discounting much of a 26-month delay because “most of th[at] [time] ... was consumed by consideration of defendants’
various pretrial motions”); United States v. Arrington, No. 15-CR-33-A, 2022 WL 1784808, at *9 (W.D.N.Y. June 1, 2022)
(attributing to defendant delay caused by filing of “a multitude of non-dispositive and dispositive pretrial motions of varying
levels of complexity”); Rodriguez v. Superintendent, Collins Corr. Facil., 549 F. Supp. 2d 226, 240 (N.D.N.Y. 2008) (finding
delay did not violate Sixth Amendment where the reason for the delay “was, in large measure, due to the pretrial motions filed
by petitioner's counsel”).
Richardson's pretrial motions were under consideration by the trial court during the following time periods: (1) between March
15 and May 3, 2011 (49 days), the court considered his initial omnibus motion, see SR 407, 408–14; (2) between July 17 and
August 13, 2012 (27 days), the court considered his first C.P.L. § 30.30 motion, see SR 290, 341–43; (3) between November
1, 2011, and April 3, 2012 (154 days), the court conducted a hearing and considered Richardson's suppression motions, see SR
424–30; (4) between April 25 and May 15, 2012 (20 days), the court considered Richardson's motion to sever, seeid. at 269–
70; (5) between January 3 and January 14, 2013 (11 days), the court considered his second C.P.L. § 30.30 motion, seeid. at
385–90, 558–61; and (6) between March 20 and April 4, 2013 (16 days), the court considered his third C.P.L. § 30.30 motion,
seeid. at 562–63. This delay of approximately 277 days during which Richardson's pretrial motions were pending before the
trial court weighs in favor of the government.
*21 Delays attributable to defense counsel's unavailability are also attributable to Richardson and weigh in favor of the
government. SeeJames v. Keysor, No. 20-CV-3468, 2023 WL 137618, at *5 (S.D.N.Y. Jan. 9, 2023) (delay requested by defense
counsel due to unavailability was attributable to defendant); United States v. Foley, No. 3:18-CR-0333, 2020 WL 423342, at
*7 (D. Conn. Jan. 27, 2020) (defense counsel's unavailability attributable to defendant). Here, the trial court adjourned this case
for three periods because defense counsel was engaged in unrelated matters: between June 8 and August 3, 2011 (56 days),
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see ECF 15-4, at 2, 4; SR 285; between August 27 and September 5, 2012 (9 days), see SR 559; and between October 22 and
November 14, 2012 (23 days), see ECF 16-6, at 8; SR 560. 22 Therefore, approximately 88 additional days are attributable to
Richardson. 23 In sum, Richardson's pretrial motions and his defense counsel's unavailability account for a total of 365 days,
or approximately one year of the delay.
As Respondent points out, another reason for the delay was the People were unable to locate Coleman, the victim of the crime
and a witness before the grand jury. It was not until March 2013 that Coleman was arrested in North Carolina on a material
witness warrant and returned to New York. The Supreme Court has held that “a valid reason, such as a missing witness, should
serve to justify appropriate delay.” Barker, 407 U.S. at 531. The delay attributable to the prosecution's search for Coleman
should therefore not be held against the government. SeeUnited States v. Fasanaro, 471 F.2d 717, 717 (2d Cir. 1973) (per
curiam) (no violation where much of four-year delay was attributed to locating key witness); Taylor v. Rivera, 07-CV-8668,
2011 WL 4471919 at *22 (S.D.N.Y. Apr. 18, 2011) (no violation where much of two-year delay was attributed to locating a key
witness), adopted by2011 WL 4472146 (Sept. 27, 2011), aff'd, 509 F. App'x 51 (2d Cir. 2013); Mallet v. Miller, 432 F. Supp.
2d 366, 381–84 (S.D.N.Y. 2006) (no violation where much of 30-month delay was attributed to locating key witness).
Finally, Richardson offers no evidence demonstrating that the government engaged in deliberate delay. SeeCabral, 979 F.3d at
158 (“Delay caused by deliberate government misconduct for tactical reasons weighs strongly in favor of finding a speedy trial
violation, while government negligence ‘should be weighted less heavily.’ ” (quoting Barker, 407 U.S. at 531)); Fisher, 2014
WL 128015, at *16 (“[T]here is no evidence that the government was attempting to delay the trial as a strategy, and some of
the delay is attributable to [defendant][.]”). 24
iii. Richardson's Assertion of His Constitutional Speedy Trial Right
*22 The third Barker factor is the defendant's assertion of the right. The Second Circuit has observed that the inquiry under
this factor “is a fluid one that concerns itself with whether the government and court were ‘put on notice’ that a defendant has
asserted his right to a speedy trial.” United States v. Black, 918 F.3d 243, 263 (2d Cir. 2019) (quoting United States v. New
Buffalo Amusement Corp., 600 F.2d 368, 378 (2d Cir. 1979)). Here, Richardson filed multiple speedy trial motions in the state
court, beginning with his first such motion on July 17, 2012. See SR 341–43.
Respondent argues that this factor does not weigh in either party's favor because Richardson only moved to dismiss the
indictment under C.P.L. § 30.30 and did not raise the constitutional issue in state court. ECF 15-1, at 24; seeYampierre v. Phillips,
No. 05-CV-2249, 2010 WL 744526, at *11 (E.D.N.Y. Mar. 1, 2010) (petitioner's assertion of his speedy trial right “does not
weigh in either party's favor, since petition moved to dismiss the indictment on speedy trial grounds prior to trial, but failed
to bring up the constitutional issue”). While it is true that Richardson did not raise the constitutional issue in his direct appeal,
his second speedy trial motion in the trial court made at least passing mention of C.P.L § 30.20 and his constitutional right to a
speedy trial. See SR 535 (January 3, 2013 affirmation from Richardson's counsel asserting arguments exclusively under C.P.L. §
30.30, but concluding by asking the court to issue an order pursuant to C.P.L. §§ 30.20, 30.30(1)(a), “dismissing the indictment
on the ground that defendant has been denied his statutory and constitutional rights to a speedy trial”). In denying that motion,
the state court recognized Richardson's assertion of the constitutional claim, holding, “[i]n addition ... defendant's motion under
CPL 30.20, claiming a violation of his constitutional right to a speedy trial, is similarly denied.” Id. at 563.
The Supreme Court and Second Circuit have also considered a defendant's fugitivity under this prong. In Barker, the Supreme
Court determined that the defendant's speedy trial right had not been violated because the record established that the defendant
“did not want a speedy trial.” 407 U.S. at 534. The Second Circuit has held that “when it is manifestly apparent that a defendant
has no serious interest in the speedy prosecution of the charges against him, a court need not ignore the defendant's fugitivity
or recalcitrance in determining whether his [S]ixth [A]mendment rights have been violated.” Rayborn v. Scully, 858 F.2d 84,
92 (2d Cir. 1988) (“Rayborn's status as a bail jumper, absconder, and fugitive during much of the eighty-six months of delay
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weighs heavily against him in our analysis of his speedy trial claim.”). Here, Richardson was released from custody prior to trial
pursuant to the state speedy trial statute and with the consent of the prosecution. See ECF 15-6, at 3–6. That he subsequently
failed to return for trial, prompting the court to issue a bench warrant, and was only apprehended and returned for sentencing
nearly seven months after being convicted, weighs against Richardson in the analysis of his claim.
Because Richardson invoked his constitutional speedy trial right prior to trial, but also failed to appear for trial, this factor
weighs neither in favor of Richardson nor the government.
iv. Prejudice Caused by the Delay
*23 The final Barker factor is the prejudice to the petitioner caused by the delay. Barker, 407 U.S. at 530. In Doggett, the
Supreme Court identified three principal types of harm that potentially arise from the “unreasonable delay” between indictment
and trial: (1) “oppressive pretrial incarceration”; (2) “anxiety and concern of the accused”; and (3) “the possibility that the
accused's defense will be impaired by dimming memories and loss of exculpatory evidence.” 505 U.S. at 654 (quoting Barker,
407 U.S. at 532 (brackets omitted)). The Second Circuit has held that “if the government pursues a defendant with reasonable
diligence, the Sixth Amendment claim fails ‘however great the delay’ unless the defendant can show ‘specific prejudice to his
defense.’ ” Cabral, 979 F.3d at 163 (quoting Doggett, 505 U.S. at 655); seeCain, 671 F.3d at 297 (Second Circuit “generally
require[s] a showing of some significant trial-related disadvantage in order to establish a speedy-trial violation”).
In none of his submissions – either to the state courts or in his petition to this Court – does Richardson identify any prejudice to
him caused by the delay. His generalized assertions that he was denied due process or a fair trial are insufficient to demonstrate
that any pre-trial delay prejudiced his trial. SeeWilliams, 372 F.3d at 113 (district court did not abuse its discretion in weighing
prejudice under Barker where defendant “failed to articulate prejudice from the delay with any specificity, only to say that
‘[w]itnesses have disappeared; recollections are dim; and the investigation is impaired’ ”); United States v. Blanco, 861 F.2d
773, 780 (2d Cir. 1988) (“Blanco's general claim that the delay impaired her defense also lacks force.”); Parrish v. Lee, No.
10-CV-8708, 2013 WL 12366173, at *7 (S.D.N.Y. Aug. 20, 2013) (“[A]part from his conclusory allegations, petitioner fails to
demonstrate that his defense was impaired by the delay.”), adopted by2015 WL 7302762 (S.D.N.Y. Nov. 18, 2015).
Nor can this Court, in its independent review of the record, identify any prejudice to Richardson as a result of any delay in
bringing him to trial. He was not subject to “oppressive pretrial incarceration” or “anxiety or concern.” Doggett, 505 U.S. at
654. In fact, in September 2012, the People consented to Richardson's release from custody on these charges pursuant to C.P.L.
§ 30.30(2)(a). SR 130, 141 n.19; ECF 15-1, at 9. 25 He failed to return for trial and was tried in absentia. He was not returned to
custody until February 2014, approximately seven months after he was convicted and sentenced. See SR 110. Richardson's total
period of pretrial incarceration on these charges appears to be approximately 20 months, from January 2011 to September 2012.
Courts have repeatedly found no prejudice with respect to periods of pre-trial incarceration exceeding that to which Richardson
was subjected. See, e.g., United States v. Alvarez, 541 F. App'x 80, 84 (2d Cir. Oct. 21, 2013) (little, if any prejudice despite
“years of pre-trial incarceration”); Vasquez, 918 F.2d at 338 (26 months “incarceration in the pretrial period was a hardship
and must be included in the assessment of ‘prejudice.’ But, the circumstances here do not ‘approach the prejudice suffered
by defendants in cases where we have found a speedy trial violation.’ ”) (quoting Flowers v. Warden, 853 F.2d 131, 133–34
(2d Cir. 1988) (17 months of pretrial incarceration not enough for prejudice)); Smith v. LaClair, No. 04-CV-4356, 2008 WL
3058250 at *5 (S.D.N.Y. Aug. 5, 2008) (no constitutional violation despite pretrial incarceration of approximately two years),
aff'd, 353 F. App'x 486 (2d Cir. 2009); Thomas v. Phillips, No. 04–CV–0906, 2006 WL 39239 at *10 (E.D.N.Y. Jan. 5, 2006)
(no constitutional violation despite 22 months of pretrial incarceration).
*24 The final factor – impairment to the defense – is the “most serious” in the analysis of prejudice. Barker, 407 U.S. at 532.
Nothing in the record demonstrates that Richardson's defense was impaired by “dimming memories” or “loss of exculpatory
evidence.” The record instead demonstrates that Richardson was convicted on the basis of the testimony and other evidence
presented at trial.
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Because Richardson has not identified any prejudice due to the alleged delays and because the Court's review of the record
identifies no prejudice, the final Barker factor weighs in favor of the government. SeeUnited States v. Howard, 443 F. App'x 596,
599 (2d Cir. 2011) (“[t]he fourth and final Barker factor ... does not weigh in [defendant's] favor because other than incarceration,
[defendant] has neither alleged, nor established that he was prejudiced by the delay”).
v. Balancing of the Factors
As noted above, “none of the four factors ... [is] either a necessary or sufficient condition to the finding of a deprivation of the
right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may
be relevant.” Barker, 407 U.S. at 533.
A delay of approximately 28 months is significant and weighs in favor of Richardson. The reason for the delay, however, weighs
in favor of Respondent and the Court places greater weight on this factor. As the state courts determined, a significant amount
of the delay was attributable to Richardson's pre-trial motions, his defense counsel's unavailability, and the People's search for
Coleman – the victim and a key witness at trial. Furthermore, Richardson has put forth no allegations showing that the delay
was in any way attributable to government malfeasance or negligence.
The third factor – Richard's assertion of his speedy trial rights – is neutral; it weighs neither in favor of Richardson nor the
government. In any event, given the weight of the other factors, the Court assigns relatively little significance to this factor.
SeeCabral, 979 F.3d at 157 & n.3 (no error where district court assigned little weight to this factor).
The fourth factor – the prejudice to the defendant – weighs strongly in favor of the government. “Although a showing of
prejudice is not a prerequisite to finding a [S]ixth [A]mendment violation, courts generally have been reluctant to find a speedy
trial violation in the absence of genuine prejudice.” United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997) (internal quotation
marks omitted). Richardson has failed to allege any concrete prejudice to his defense that occurred as a result of the delay. Nor
could the Court, in its independent review of the record, identify any prejudice to Richardson's defense resulting from the delay.
When considering all the Barker factors, even with factor one weighing in his favor, Richardson has not established that his
Sixth Amendment right to a speedy trial was violated.
III. CONCLUSION
For the foregoing reasons, Richardson's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen
(14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections (plus three
days because the Report is being mailed to Petitioner). SeeFed. R. Civ. P. 6(a). A party may respond to any objections within
fourteen (14) days after being served. Subject objections, and any responses to objections, shall be filed with the Clerk of the
Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain at the United States District Court,
Southern District of New York, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at the
same address. Any requests for an extension of time for filing objections must be directed to Judge Swain.
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*25 FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. SeeThomas
v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596
F.3d 84, 92 (2d Cir. 2010).
If Richardson does not have access to cases cited herein that are reported on LexisNexis or Westlaw, he should request copies
from counsel for the Respondent. SeeLebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of
the United States District Courts for the Southern and Eastern Districts of New York.
All Citations
Not Reported in Fed. Supp., 2024 WL 763395
Footnotes
1 The jury trial transcript can be found on the docket at ECF 15-8, at 232, through ECF 15-12, at 113.
2 Pages SR 001 through SR 400 are available on the docket at ECF 15-2. Pages SR 401 through SR 594 are available
at ECF 15-3.
3 State court transcripts for hearings and proceedings other than the trial are referred to using the docket and page numbers
assigned by the court's electronic filing system (“ECF”).
4 McGregor was later acquitted at trial.
5 During a hearing on September 27, 2012, Richardson and McGregor were ordered to be released with the prosecution's
consent. Because Richardson had unspecified prior holds, the judge set his bail at $1. See ECF 15-6, at 5–6. The record
indicates that Richardson was released from Department of Correction custody on December 31, 2012, when a “parole
hold was lifted.” ECF 15-12, at 139, 141.
6 On November 18, 2015, Richardson was convicted of attempted assault of Coleman, criminal possession of a weapon,
attempted witness intimidation and bail jumping. Richardson was sentenced to an aggregate term of 23 years to life,
with the sentence to run consecutively to the sentence imposed in this case. See SR 27–28 n.3; id. at 110 n.2.
7 Under C.P.L. § 30.30, the prosecution was required to commence Richardson's trial within 181 days following the filing
of the felony complaint on January 13, 2011, not counting any periods that were excludable pursuant to specific statutory
exemptions. SeePeople v. Smith, 82 N.Y.2d 676, 677 (1993). To be ready for trial for purposes of Section 30.30, the
prosecution must: “(1) declare in open court that they are ready or file an off-calendar certificate of readiness and serve
it on defense counsel, and (2) in fact be ready to proceed at the time they declare readiness.” People v. Sibblies, 22
N.Y.3d 1174, 1177 (2014) (cleaned up).
8 Richardson characterized the December 17, 2012 certificate of readiness as a “desperate bid to stop the clock – even
though nothing had changed since the previous three times they stood up in court and said they were not ready because
they did not have their complaining witness.” SR 40
9 The Appellate Division reasoned that Richardson was able to use the notes to cross-examine the victim, pointed out that
Richardson never requested a continuance to attempt to locate the author of the notes, the then-retired detective, and
determined that his assertion that the detective's testimony would have been helpful to the defense “is speculative, and
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there is no reasonable possibility that the result of the trial would have been different if the notes had been disclosed
earlier.” SR 433–34.
10 The Appellate Division also determined that Richardson did not preserve his “other arguments relating to the court's
response to the jury note,” and declined to review those claims. SR 434.
11 See also SR 255 (“The question presented on this appeal is whether CPL § 30.30 automatically authorizes the exclusion
of time after the conclusion of pre-trial motion practice – even if those delays are not shown to result from the motion
or to be reasonable.”).
12 See also SR 259 (“This Court should grant leave to clarify the circumstances in which defense counsel's stated
unavailability can justify an exclusion of time, and for how long.”).
13 A judgment of conviction becomes final, triggering the one-year limitations period to file a Section 2254 petition, when
the time expires for filing a petition for a writ of certiorari in the U.S. Supreme Court. Williams v. Artuz, 237 F.3d 147,
151 (2d Cir. 2001). Due to the COVID-19 pandemic, the U.S. Supreme Court temporarily extended the time to petition
for certiorari, from 90 days to 150 days for any case where the petition was due on or after March 19, 2020. See United
States Supreme Court Order of March 19, 2020, https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf
(last viewed Feb. 15, 2024). On July 19, 2021, the Supreme Court rescinded the extension for any case in which the
relevant order denying discretionary review issued on or after July 19, 2021. See United States Supreme Court Order
of July 19, 2021, https://www.supremecourt.gov/orders/courtorders/071921zr_4g15.pdf (last viewed Fed. 15, 2024).
Here, the New York Court of Appeals denied leave to appeal on May 4, 2021, and Richardson's judgment of conviction
therefore became final 150 days thereafter, on October 1, 2021. He therefore had until October 1, 2022, to file a timely
Section 2254 petition.
14 In his habeas petition, Richardson did not raise his Brady claim or his claims arising from the trial court's denial of his
request for a missing witness charge and a justification charge. Even though such claims may contain a constitutional
component, constitutional claims not raised in the petition are not before the Court, and petitioners, including pro se
petitioners, have a right to decide which issues they wish to pursue in a federal habeas petition. SeeJerger v. Dir., No. 6:21-
CV-099, 2022 WL 3975047, at *3 (E.D. Tex. Aug. 2, 2022) (petitioner has “the power to raise the claims that he wishes
to pursue and omit those that he does not wish to pursue” and court “should not second-guess that decision” (internal
quotation marks and citation omitted)), adopted sub nom.Jerger v. Dir., TDCJ-CID, 2022 WL 3975042 (Aug. 30, 2022).
Because Richardson did not raise those claims in his petition, the government did not respond to them, and Richardson
made no mention of them in his reply, the Court declines to address whether those claims were properly exhausted on
appeal or decide the merits of those claims. SeeFolkes v. Nelson, 34 F.4th 258, 269 (4th Cir. 2022) (“Nothing authorizes
a district court to expand or contract a petitioner's claim sua sponte.”); id. at 269–70 (“Courts of appeals have expressly
recognized the district court's duty to consider only the specific claims raised in a § 2254 petition.” (collecting cases)).
15 For the purposes of this analysis, the Court construes Richardson's application for leave to appeal and his supplemental
letter as a single application for leave to appeal to the Court of Appeals.
16 While Richardson refers to constitutional claims in the list of issues at the end of his leave application, see SR 261, those
references are not relevant to his speedy trial claims.
17 In a motion before the trial court, Richardson did invoke Section 30.20 and included passing reference to his
constitutional speedy trial right. See SR 531 (affirmation in support of Richardson's January 3, 2013 motion to dismiss
on speedy trial grounds concluding, “[T]his Court should thus issue an order, pursuant to C.P.L. §§ 210.20(1)(g), 30.20
and 30.30(1)(a), dismissing the indictment on the ground that defendant has been denied his statutory and constitutional
rights to a speedy trial”). The trial court addressed the constitutional argument when denying Richardson's motion.
Seeid. at 563 (“In addition, on the record before the Court, defendant's motion under CPL 30.20, claiming a violation
of his constitutional right to a speedy trial, is similarly denied.”). As discussed above, Richardson did not raise any
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constitutional arguments or refer to the Sixth Amendment's speedy trial guarantee or C.P.L. § 30.20 in his submission
to the Appellate Division or the Court of Appeals.
18 The third Barker factor – whether the defendant asserted his speedy trial claims before the trial – is not part of the
Taranovich test. Because Richardson's claims in his leave application focused, in part, on the trial court's decisions in
his pre-trial C.P.L. § 30.30 motions, it is fair to conclude that Richardson alerted the Court of Appeals to the fact that
he invoked his state speedy trial rights under that statute in the run-up to trial.
19 While Richardson casts his constitutional claims in terms of his right to “due process” or to a “fair trial,” (see ECF 2,
at 6, 11), the Court construes the petition as asserting claims under the Speedy Trial Clause of the Sixth Amendment.
Richardson's memorandum of law includes a reference to Barker, the Supreme Court case that sets forth the standards
for a speedy trial claim under the Sixth Amendment. Seeid. at 14. Furthermore, his reply to Respondent's opposition
explicitly invokes the Sixth Amendment and again references Barker. (See ECF 17.) Moreover, as Respondent points out,
a petitioner cannot rely on broad constitutional terms such as substantive due process where a more specific constitutional
right – such as the right to a speedy trial – would better characterize the claim. SeeUnited Sates v. Medunjanin, 752 F.3d
576, 590–91 (2d Cir. 2014) (citing Albright v. Oliver, 510 U.S. 266, 273 (1994)). For these reasons, the Court construes
Richardson's constitutional claims as arising under the speedy trial protections guaranteed by the Sixth Amendment.
20 The Second Circuit has emphasized that a delay that is “presumptively prejudicial” (i.e., long enough to trigger a Sixth
Amendment inquiry) should not be confused with a delay that is so long as to cause “presumptive prejudice” (i.e.,
prejudice that need not be specifically shown) under the fourth Barker factor. United States v. Cabral, 979 F.3d 150,
157 (2d Cir. 2020) (citation omitted). “The former bears upon the need for a Barker analysis, whereas the latter bears
upon the merits of that analysis.” United States v. Moreno, 789 F.3d 72, 78 n.3 (2d Cir. 2015).
21 In its opposition to the petition, Respondent discounts the length of the delay by arguing that “[b]oth the Supreme Court
and Second Circuit have found that no speedy trial violation occurred in cases involving significantly longer delays.”
ECF 15-1, at 22 (citing, inter alia, United States v. Loud Hawk, 474 U.S. 302, 309 (1986) (delay of over 7 years);
Barker, 407 U.S. at 533–34 (delay of over 5 years); United States v. Lane, 561 F.2d 1075, 1078–79 (2d Cir. 1977) (delay
of 58 months); United States v. Williams, 372 F.3d 96, 112–13 (2d Cir. 2004) (delay of 3 years)). Although it is true
that the courts in these cases found no Sixth Amendment violation, they did not conclude that delays of those lengths
were not presumptively prejudicial so as to preclude review of the remaining Barker factors. See, e.g., Loud Hawk,
474 U.S. at 314–17 (balancing the Barker factors); Williams, 372 F.3d at 112–13 (reviewing district court's weighing
of the Barker factors).
22 Richardson argued in the state courts and in his petition that the trial court erred in holding that the periods from June
8 and August 3, 2011, and from October 22 to November 14, 2012, were excludable under C.P.L. § 30.30. See SR 53–
57; ECF 2, at 12. The state courts rejected those claims, however, and, in any event, those claims arise under state law
and this Court will not review state court interpretations of state law. SeeEstelle, 502 U.S. at 67–68.
23 In its opposition, the government argues that somewhat longer periods of time should be attributable to Richardson due
to his counsel's unavailability. See ECF 15-1, at 23 n.5. The Court here bases its calculations – which are more favorable
to Richardson – on its reading of the record and the state court's determinations on delays that should be attributable
to Richardson's counsel's unavailability.
24 Richardson's argument in the state courts that the prosecution's certificate of readiness was illusory could be construed as
an assertion of bad faith of deliberate gamesmanship on the government's behalf. The state court rejected that argument,
however. SeeRichardson, 192 A.D. 3d at 432. In any event, the certificate of readiness is a state law requirement, and
questions of state law are not cognizable on federal habeas review. SeeEstelle, 502 U.S. at 67–68.
25 It appears from the record that Richardson was detained on another matter, possibly a parole hold arising from a previous
conviction, until December 2012.
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Wilks v. Wells Fargo Bank, N.A., Not Reported in Fed. Supp. (2024)
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2024 WL 1531142
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
David E. WILKS and Lois Wilks, Plaintiffs,
v.
WELLS FARGO BANK, N.A. and Woods Oviatt Gilman, LLP, Defendants.
23 CV 2768 (HG) (CLP)
|
Signed February 26, 2024
Attorneys and Law Firms
David E. Wilks, Brooklyn, NY, Pro Se.
Lois Wilks, Brooklyn, NY, Pro Se.
Ofunne Edoziem, Michael V. Margarella, Reed Smith LLP, New York, NY, for Defendant Wells Fargo Bank, N.A.
Natalie A. Grigg, Woods Oviatt Gilman LLP, Rochester, NY, for Defendant Woods Oviatt Gilman, LLP.
REPORT AND RECOMMENDATION
POLLAK, United States Magistrate Judge:
*1 Plaintiffs David E. Wilks and Lois Wilks (collectively, “plaintiffs” or the “Wilks”), proceeding pro se, commenced this
action against defendants Wells Fargo Bank, N.A. (“Wells Fargo” or the “Bank”), and Woods Oviatt Gilman, LLP (“Woods
Oviatt” or the “Firm” and, collectively with Wells Fargo, “defendants”). (See Compl. 1 ). Two motions are currently pending
before this Court on referral from the Honorable Hector Gonzalez, United States District Judge: Wells Fargo's motion to dismiss
the Complaint pursuant to Rules 12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure (the “Bank's Motion”) (ECF
No. 16), and Woods Oviatt's motion to dismiss the Complaint pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil
Procedure (the “Firm's Motion”) (ECF No. 19). Having considered the motion papers, the allegations in the Complaint, and
plaintiffs’ objections to the motions, the Court concludes that (1) the district court lacks subject matter jurisdiction; and (2)
Younger abstention further prevents the district court from hearing plaintiffs’ claims for injunctive relief. The Court therefore
respectfully recommends that the district court GRANT both defendants’ motions and dismiss the Complaint in its entirety.
FACTUAL BACKGROUND
A. The Mortgages
On December 28, 2005, the plaintiffs Lois and David E. Wilks executed a Promissory Note in the amount of $399,600.00,
plus interest, to Wells Fargo (the “2005 Loan”). (Grigg Decl. 2 ¶ 5; see also Grigg Decl. Ex. A (ECF No. 19-2)). The 2005
Loan was secured by a mortgage on real property located at 265 East 37 th Street, a/k/a 365 East 37 th Street, Brooklyn, N.Y.
11203 (the “Premises”), which was dated December 28, 2005, and recorded in the Office of the City Register on January 25,
2006, at CRFN 2006000046845 (the “2005 Mortgage”). (Grigg Decl. ¶ 5). The 2005 Mortgage was subsequently assigned by
an Assignment of Mortgage executed on August 5, 2013, and recorded in the Office of the City Register on September 16,
2013, at CRFN 2013000379327. (Id.)
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Thereafter, plaintiffs executed and delivered a second Promissory Note to Contour Mortgage Corporation (“Contour”), dated
August 16, 2013, for the sum of $94,374.94, plus interest. (Id. ¶ 6). As security for the second Promissory Note, plaintiffs made
and delivered a mortgage bearing the same date to Mortgage Electronic Registration Systems, Inc., as nominee for Contour
(the “2013 Mortgage”). (Id.) The 2013 Mortgage was recorded in the Office of the City Register on September 16, 2013, at
CRFN 22013000379328. (Id.) The two mortgages were consolidated in CRFN 2006000046845 by a Consolidation, Extension
and Modification Agreement to form a single lien in the amount of $449,375.00 (the “2013 Consolidated Mortgage”). (Id.) The
2013 Consolidated Mortgage was assigned on three occasions from December 18, 2015, to January 22, 2016, and was recorded
in the Office of the City Register under CRFNs 2013000379329, 2016000139310, and 2016000139313. (Id.; see also Grigg
Decl. Ex. B (ECF No. 19-3))
*2 On January 23, 2016, plaintiff Lois Wilks executed a third Promissory Note to Intercontinental Capital Group, Inc., for
the sum of $25,292.50 plus interest, secured by a mortgage on the Premises and recorded in the City Register in CRFN
2016000139311 (the “2016 Mortgage”). 3 (Grigg Decl. ¶ 7). On the same date, Lois Wilks executed a Consolidated Promissory
Note to Intercontinental Capital Group, Inc. for the sum of $457,111.00 plus interest, which was secured by a consolidated
mortgage on the Premises comprised of the 2013 Consolidated Mortgage and the 2016 Mortgage, and forming a single lien
in the same amount (the “2016 Consolidated Mortgage”). (Id. ¶ 8; see also St. Ct. Compl. 4 ¶¶ 4–5). The 2016 Consolidated
Mortgage was recorded in the Office of the City Register at CRFN 2016000139312, 5 and was subsequently assigned and
recorded under CRFN 2018000090991 in March 2018. (Grigg Decl. ¶ 8; see also Grigg Decl. Ex. C (ECF No. 19-4)).
On March 13, 2020, plaintiffs executed a Loan Modification Agreement to Wells Fargo, reducing the principal balance of
the debt under the 2016 Consolidated Mortgage to $323,770.67 the “Modification Agreement”). (Grigg Decl. ¶ 9; see also
Grigg Decl. Ex. D (ECF No. 19-5)). The Modification Agreement was recorded in the Office of the City Register at CRFN
2020000175041. (Grigg Decl. ¶ 9).
B. The State Court Foreclosure Action
On February 21, 2023, defendant Wells Fargo commenced a foreclosure action against plaintiffs in New York State Supreme
Court, Kings County—Wells Fargo Bank N.A. v. Lois Wilks, David Wilks, et al., Index No. 505558/2023 (the “State Court
Action”)—seeking to foreclose on the consolidated mortgage held on the Premises. Wells Fargo alleges in the State Court
Action that, as of February 21, 2023, Wells Fargo was the owner and holder of the subject note and mortgage or had been
delegated the authority to institute a mortgage foreclosure action by the owner and holder thereof. (St. Ct. Compl. ¶ 11). Wells
Fargo further alleges that plaintiffs failed to pay the installment payment due on April 1, 2021, and all subsequent payments, and
hence were in default. (Id. ¶ 8). As of the date of the filing of the State Court Complaint, the Wilks owed a principal balance of
$317,960.90, together with accrued interest from March 1, 2021, at the rate of 3.375%, as well as late charges, monies advanced
for taxes, assessments, insurance, inspection, maintenance and preservation of the Premises, along with the expenses of sale
and attorney's fees. (Id. ¶ 9).
All defendants in the State Court Action were served with the Summons and Complaint on or about March 7, 2023 (Bank's
Mem. 6 at 2), and Lois and David Wilks appeared pro se, filing a Notice of Appearance on April 10, 2023 (Grigg Decl. ¶¶ 12,
13; see also Grigg Decl. Exs. F, G (ECF Nos. 19-7, 19-8)). The Secretary of Housing and Urban Development, which holds a
subordinate mortgage on the Premises in the amount of $128,979.37, filed a Notice of Appearance on April 13, 2023. (Grigg
Decl. ¶ 14). The Bank asserts that the Wilks have not responded to the State Court Complaint. (Bank's Mem. at 2). The State
Court Action remains pending. (See id. at 2–3; Grigg Decl. ¶ 15).
C. This Action
*3 Plaintiffs commenced this action against Wells Fargo and Woods Oviatt on April 12, 2023. They complain that the “real
Party-in-Interest” for the mortgage in the State Court Action is not Wells Fargo, but the Government National Mortgage
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Association (“GinnieMae”). (Compl. ¶ 15). Plaintiffs assert that Wells Fargo therefore had no right to commence a state
foreclosure action against the plaintiffs, and that Wells Fargo had a duty to disclose the “fact” that GinnieMae was the real party
in interest. (Id. ¶¶ 17–21, 25–27, 29–31). Plaintiffs further assert that Wells Fargo was required to provide proof establishing
the Bank as the party in interest prior to filing their foreclosure action. (Id. ¶¶ 22–24). According to plaintiffs, Wells Fargo's
supposed misrepresentation concerning the party in interest for the mortgage constitutes an “affirmative defense” to the Bank's
foreclosure action. (Id. ¶ 28).
With respect to Woods Oviatt, plaintiffs appear to claim that the Firm, in its capacity as Wells Fargo's counsel in the State Court
Action, assisted Wells Fargo in carrying out the alleged misrepresentations noted above. (Id. ¶¶ 39–41). In other words, plaintiffs
assert that Woods Oviatt was complicit in Wells Fargo's attempt to enforce a claim against the Premises when they knew that
Wells Fargo was not the real party in interest and had no standing to bring the foreclosure action. (See Pls.’ Obj. 7 at 2–3).
Plaintiffs’ Complaint contains five causes of action: (1) fraud upon the Court (Compl. ¶¶ 39–41); (2) violations of Rule 17(a)
of the Fair Debt Collections Practices Act (“FDCPA”) (id. ¶¶ 42–46); (3) violations of 42 U.S.C. §§ 1983, 1985, and 1986 (id.
¶¶ 47–49); (4) unfair business practices and fraud, in violation of 18 U.S.C. §§ 1337, 1341 (id. ¶¶ 50–54); and (5) violations
of plaintiffs’ Fifth and Fourteenth Amendment rights (id. ¶¶ 55–58).
Plaintiffs seek an Order vacating, setting aside, or voiding the judgment of foreclosure on the Premises issued by the “Nassau
County Supreme Court” 8 and awarding free and clear title to the Premises, along with a mortgage release from the real party in
interest, and damages in the amount of $469,000, representing the value of plaintiffs’ property interest involved in an allegedly
fraudulent foreclosure proceeding brought by defendants. (Id. at p. 18–19). Plaintiffs also seek an additional $5,000,000 in
damages based upon the five alleged deprivations of plaintiffs’ constitutional rights. (Id.)
PROCEDURAL HISTORY
On July 7, 2023, Wells Fargo filed a motion seeking an Order dismissing the Complaint, pursuant to Rules 12(b)(1), (5), and
(6) of the Federal Rules of Civil Procedure on abstention and other grounds. (See Bank's Mem. at 1). On July 11, 2023, Woods
Oviatt filed a motion to dismiss under Rules 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim
for relief. (Firm's Mem. 9 at 1).
On July 17, 2023, plaintiffs filed their “Objection to Defendant's Motion to Dismiss,” reiterating a number of the factual
allegations in the Complaint and arguing that, in light of those facts, defendants’ motions should be denied. (See Pls.’ Obj.). On
that same date, plaintiffs filed a so-called “Motion in Limine to Claim and Exercise Constitutionally Secured Rights and Require
the Presiding Judge to Rule Upon this Motion in Compliance with His/Her Oath and Require All Public Officers of This Court
to Uphold Said Rights and Their Oaths Pursuant to 28 U.S.C. 1361.” (ECF No. 22). In this filing, plaintiffs requested, inter
alia, a “pre-trial hearing to settle and confirm the Court's duty to uphold the Organic laws of the United States....” (Id. at 3).
*4 On July 18, 2023, the district court denied plaintiffs’ request for a hearing and warned plaintiffs that they “may not
defeat a meritorious motion to dismiss merely by asserting that the factual allegations in their complaint are true.” (ECF No.
23 at 1–2). The court gave plaintiffs the opportunity to submit any further papers in opposition to defendants’ motion by
August 30, 2023. (Id.) On August 11, 2023, plaintiffs filed objections to the district court's order, focused only on the district
court's denial of a hearing to confirm his oaths. (ECF No. 24). That same day, plaintiffs also filed a “Demand for Findings
of Fact and Conclusions of Law Based in the Authority of the Original Organic Constitution of 1787, as Amended in 1791,
to Disqualify the Unconstitutional Actions Committed by Hector Gonzalez Acting as Judge During the Denial of Plaintiff's
Motion in Limine.” (ECF No. 25). At no point, however, did plaintiffs file subsequent briefing addressing the legal issues raised
by defendants’ motions to dismiss. 10 The Bank filed a reply in support of its Motion on September 18, 2023. (ECF No. 26).
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SUBJECT MATTER JURISDICTION
Both defendants seek to dismiss plaintiffs’ claims under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground
that the district court lacks subject matter jurisdiction thereover. Specifically, Wells Fargo argues that under the doctrine set
forth in Younger v. Harris, 401 U.S. 37, 43–45 (1971), 11 the district court should abstain from exercising jurisdiction over
plaintiffs’ claims. (Bank's Mem. at 2–4). Woods Oviatt does not join in the Bank's abstention argument and instead maintains
that none of the statutory bases for jurisdiction apply here. (Firm's Mem. at 3–7). For the reasons set forth below, the Court
concludes that (1) plaintiffs have not established subject matter jurisdiction, and (2) in any event, Younger abstention applies
to the extent plaintiffs seek injunctive relief.
I. Legal Standard
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory
or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Rivera v. Ndola
Pharm. Corp., 497 F. Supp. 2d 381, 386–86 (E.D.N.Y. 2007). When considering a motion to dismiss under Rule 12(b)(1) for
lack of subject matter jurisdiction, the court must “accept as true all material factual allegations in the complaint.” Shipping
Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); see also Rivera v. Ndola Pharm. Corp., 497 F. Supp. 2d at 387;
Country Rock Cafe, Inc. v. Truck Ins. Exch., 417 F. Supp. 2d 399, 402 (S.D.N.Y. 2006). While the court will “draw all reasonable
inferences in favor of plaintiff,” Rivera v. Ndola Pharm. Corp., 497 F. Supp. 2d at 387 (quoting Natural Res. Def. Council v.
Johnson, 461 F.3d 164, 171 (2d Cir. 2006)), the plaintiff bears the burden of proving by a preponderance of the evidence that
subject matter jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also Malik v. Meissner, 82 F.3d
560, 562 (2d Cir. 1996). Moreover, a court assessing a motion to dismiss under Rule 12(b)(1) must “give the plaintiff's factual
allegations closer scrutiny” than it would in the context of a motion to dismiss pursuant to Rule 12(b)(6), “[b]ecause subject-
matter jurisdiction focuses on the court's power to hear the claim.” Physicians Comm. for Responsible Med. v. U.S. Env. Prot.
Agency, 451 F. Supp. 2d 223, 228 (D.D.C. 2006) (citing Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)).
*5 Where, as here, the plaintiffs are proceeding pro se, plaintiffs’ submissions “must be construed liberally and interpreted to
raise the strongest arguments that they suggest.” McDonald v. Esposito, No. 20 CV 828, 2021 WL 1062259, at *2 (E.D.N.Y.
Mar. 18, 2021) (quoting Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020)). Still, pro se plaintiffs must satisfy
the basic pleading requirements, including with respect to jurisdiction. See Amissah v. Wells Fargo, 2020 WL 868599, at *2
(stating that even in the context of a pro se plaintiff, “an action will survive only if the law recognizes the claims, and if the
complaint pleads enough facts to state a claim to relief that is plausible on its face”).
II. Analysis
A. Statutory Bases of Jurisdiction
The Complaint sets forth several bases for subject matter jurisdiction, all of which are deficient according to the Firm. (See
Compl. ¶¶ 2–3, 6, 8; Firm's Mem. at 3). The Court addresses each in turn and ultimately agrees that plaintiffs have not established
jurisdiction under any of the available means for doing so.
1. Diversity Jurisdiction
First, plaintiffs contend that the district court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Compl. ¶ 3). Subject
matter jurisdiction premised on § 1332 “requires complete diversity, i.e. all plaintiffs must be citizens of states diverse from
those of all defendants.” Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117–18 (2d Cir.
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2014) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)), as amended (Nov. 12, 2014). For
purposes of assessing diversity, a limited liability company or partnership is a citizen of each state of which its members or
limited and general partners are citizens. See Bayerische Landesbank v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49 (2d Cir.
2012). The party asserting jurisdiction bears the burden of proof, including with respect to the question of complete diversity.
Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d at 118 (citing DiTolla v. Doral Dental IPA of
New York, 469 F.3d 271, 275 (2d Cir. 2006)). Woods Oviatt argues that plaintiffs have not satisfied the complete diversity
requirement. (Firm's Mem. at 3–4).
Plaintiffs are domiciled in New York. (Compl. ¶ 10). Woods Oviatt is a limited liability partnership organized under New York
law and with a principal place of business in Rochester, New York. (Firm's Mem. at 4; see also Compl. ¶ 12). The Firm has
at least one partner that is a citizen of New York. (Firm's Mem. at 4–5 (citing Grigg Decl. ¶ 4)). Thus, like plaintiffs, Woods
Oviatt is a citizen of New York for purposes of assessing diversity jurisdiction. Irrespective of whether plaintiffs are diverse
from Wells Fargo—which plaintiffs assert is domiciled in California (see Compl. ¶ 11)—the lack of diversity vis-à-vis Woods
Oviatt destroys complete diversity, and thus prevents the district court from exercising jurisdiction under 28 U.S.C. § 1332. See
Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d at 117–18; Morgan v. Worldview Ent. Holdings
Inc., 611 B.R. 157, 159 n.4 (S.D.N.Y. 2019) (noting lack of complete diversity between third-party plaintiff, an LLC, and third-
party defendant, an LLP, because one member of each was a citizen of New York); Weiss Acquisition, LLC v. Patel, No. 12 CV
1819, 2013 WL 45885, at *5 (D. Conn. Jan. 3, 2013) (stating that “[u]nder the governing law, the requisite complete diversity
would be lacking if any one member of the Plaintiff LLC, and any one member of either Defendant LLC, are citizens of the
same state” (emphasis added)); Media Grp. v. Arent Fox Kitner Plotkin & Kahn, PPLC, No. 03 CV 1017, 2004 WL 162900
(D. Conn. Jan. 23, 2004) (finding that complete diversity was lacking between plaintiffs and defendant, a large LLC, based on
the citizenship of two of the LLC's members).
*6 Moreover, it is well settled that “[i]n determining the existence of federal diversity jurisdiction, the court applies a time-
of-filing rule that measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state
of facts that existed at the time of filing ....” Finnegan v. Long Island Power Auth., 409 F. Supp. 3d 91, 95–96 (E.D.N.Y. 2019)
(quoting Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 569–70, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004)). Thus, the
court could not dismiss Woods Oviatt from the case and exercise diversity jurisdiction solely with respect to plaintiffs’ claims
against Wells Fargo; diversity jurisdiction would still be lacking because jurisdiction is determined as of the time the Complaint
containing allegations against Woods Oviatt was initially filed. 12
2. Federal Question Jurisdiction
Second, plaintiffs assert that the district court has jurisdiction over their claims under 28 U.S.C. § 1331 (see Compl. ¶ 2), which
provides federal district courts with “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” In practical terms, Section 1331 creates jurisdiction where “federal law creates the cause of action or ...
the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Perpetual Sec., Inc.
v. Tang, 290 F.3d 132, 137 (2d Cir. 2002). In the latter case, “the federal issue [must be] (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by
Congress.” Leroy v. Hume, No. 21 CV 2158, 2023 WL 2928353, at *4 (2d Cir. Apr. 13, 2023) (summary order) (quoting Gunn
v. Minton, 568 U.S. 251, 258 (2013)); see also Tong v. Exxon Mobil Corp., 83 F.4th 122, 139–42 (2d Cir. 2023) (describing
and applying the “Grable/Gunn exception”). Under the longstanding “well-pleaded complaint” rule, the basis for concluding
that the claims invoke a federal question generally must appear on the face of the complaint. See Tong v. Exxon Mobil Corp.,
83 F.4th at 132–33 (2d Cir. 2023).
Merely stating a claim arising under federal law or the Constitution, or that implicates a substantial federal question, does not
automatically establish federal question jurisdiction. Rather, claims that are “not colorable”—meaning “immaterial” or “wholly
insubstantial and frivolous”—do not confer subject matter jurisdiction under 28 U.S.C. § 1331, irrespective of whether they
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arise under federal law or raise a federal question. Gallego v. Northland Grp. Inc., 814 F.3d 123, 126 (2d Cir. 2016) (quoting
Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006)); see also Perpetual Sec., Inc. v. Tang, 290 F.3d at 137 (stating that
“simply raising a federal issue in a complaint will not automatically confer federal question jurisdiction. Rather, we ask whether
the cause of action alleged is so patently without merit as to justify the court's dismissal for want of jurisdiction” (quoting Duke
Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 70 (1978))).
*7 Woods Oviatt seeks to take advantage of this point, arguing that even though plaintiffs have alleged violations of certain
federal statutes, they have failed to plead any colorable federal claims and, therefore, the district court lacks federal question
jurisdiction. (Firm's Mem. at 5–6). The Court thus turns to each of plaintiffs’ federal causes of action and ultimately concludes
that none of them are sufficiently colorable to confer jurisdiction under 28 U.S.C. § 1331. 13
a. Second Cause of Action
Plaintiffs allege that defendants violated “FDCPA Rule 17(a)” because they initiated the State Court Action despite not being
the “Real Party-in-Interest.” (Compl. ¶¶ 42–45). The Court notes that there is some confusion as to whether plaintiffs meant
to refer to Rule 17(a) of the Fair Debt Collection Practices Act (or “FDCPA”)—which seemingly does not exist (see Firm's
Mem. at 12)—or Rule 17(a) of the Federal Rules of Civil Procedure (or “FRCP”). (Compare Bank's Mem. at 6–8 (engaging
in an FDCPA analysis, with Firm's Mem. at 7, 12 (addressing both FDCPA and FRCP issues), and Pls.’ Obj. at 2 (referring to
violations of “FRCP Rule 17”)). In either case, plaintiffs’ Second Cause of Action is entirely frivolous.
The Federal Rules of Civil Procedure do not apply to the conduct of parties in a state court proceeding. See Fed. R. Civ. P.
1 (stating that “[t]hese rules govern the procedure in all civil actions and proceedings in the United States district courts”).
Moreover, the Federal Rules of Civil Procedure were put in place to govern civil actions; they do not create substantive rights,
and plaintiffs “cannot rely on [said rules] as a basis for federal question jurisdiction.” Selvaggio v. Hiatt, No. 19 CV 3185, 2019
WL 2515618, at *4 n.3 (E.D.N.Y. June 18, 2019) (citing Owen Equipment v. Kroger, 437 U.S. 365, 370 (1978)).
As for the FDCPA, plaintiffs have never identified a single provision of that law which they allege defendants violated (see
Firm's Mem. at 12), nor have they alleged or established that either defendant is a “debt collector” that engaged in collection
activity as defined by the FDCPA (Bank's Mem. at 6–8). See generally Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718 (2017). Plaintiffs’ Second Cause of Action thus does not confer federal jurisdiction under Section 1331.
b. Third and Fifth Causes of Action
Counts Three and Five bring claims for constitutional violations under 42 U.S.C. §§ 1983, 1985, and 1986 (Compl. ¶¶ 47–49),
and directly under the Fifth and Fourteenth Amendments to the United States Constitution (id. ¶¶ 55–58). Setting aside any
substantive flaws with those claims—of which there appear to be many—they all suffer from fatal pleading and procedural flaws.
“To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right
secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state
law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes
from its reach merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). Similarly, a “Fifth Amendment Due Process
claim ... cannot lie against a private actor” absent a sufficient showing of governmental action. Doe v. Livanta LLC, 489 F.
Supp. 3d 11, 17 (E.D.N.Y. 2020) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. at 50).
*8 Plaintiffs lack “credible allegations of state action” to support their claims against either defendant under Section 1983, the
Fifth Amendment, and the Fourteenth Amendment. Cramer v. Englert, 93 Fed. Appx. 263 (2d Cir. 2004). Although plaintiffs
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repeatedly assert that defendants acted under color of state law by taking concerted action to file the foreclosure action in state
court (see Compl. ¶¶ 32, 34, 41, 46–47, 55), it is well established that the “mere invocation” of New York legal procedures
does not satisfy the state actor requirement, Dahlberg v. Becker, 748 F.2d 85, 92–93 (2d Cir. 1984), and plaintiffs have not
identified any other conduct on the part of the defendants that could be reasonably construed as being under the color of state
law, see Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (requiring “a sufficiently close nexus between the State and
the challenged action”).
Plaintiffs’ claims under 42 U.S.C. § 1985 necessarily fail because they have not alleged the “specific times, facts or
circumstances relating to the alleged conspiracy.” Coakley v. 42nd Pct. Case 458, No. 08 CV 6206, 2009 WL 3095529, *4
(S.D.N.Y. Sept. 28, 2009). Moreover, plaintiffs failed to allege that any of the defendants’ conduct was “motivated by some
racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Gusler v. City of Long Beach, 823 F. Supp. 2d
98, 136 (E.D.N.Y. 2011). Plaintiffs’ claims under 42 U.S.C. § 1986 are also meritless; such claims require a valid claim under
Section 1985. See id. at 137.
In light of the above, the Court concludes that plaintiffs’ Third and Fifth Causes of Action do not suffice to confer federal
jurisdiction under 28 U.S.C. § 1331. 14
c. Fourth Cause of Action
Finally, plaintiffs’ Fourth Cause of Action alleges violations of 18 U.S.C. §§ 1337, 1341. (Compl. ¶¶ 50–54). These claims are
not colorable. 18 U.S.C. § 1337 simply is not an existing statute. Assuming, as defendants do, that plaintiffs meant to cite 19
U.S.C. § 1337, it is plain that this statute—which “governs the import of goods governed by the United States International
Trade Commission”—does not apply here. (Bank's Mem. at 9; see also Firm's Mem. at 13).
The other statute cited in plaintiffs’ Fourth Cause of Action—18 U.S.C. § 1341—is a federal criminal statute concerning
“[f]rauds and swindles.” “The law in this circuit is clear that [18 U.S.C. § 1341] does not support any private right of action,”
meaning that individuals are not empowered to bring a claim for violation of the statute. Pharr v. Evergreen Garden, Inc., 123 F.
App'x 420, 422 (2d Cir. 2005) (citing Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir. 1989)). Plaintiffs’
Fourth Cause of Action thus does not provide a basis for exercising federal jurisdiction under 28 U.S.C. § 1331.
3. Supplemental Jurisdiction
Plaintiffs also claim that the district court has supplemental jurisdiction under 28 U.S.C. § 1967(a). (Compl. ¶ 8). 15 When a
federal district court has original jurisdiction over some claims in an action, the court may also exercise supplemental jurisdiction
over all remaining claims so long as they “form part of the same case or controversy.” 28 U.S.C. § 1367(a). In deciding whether
to exercise that jurisdiction, the central question is whether the two sets of claims “arise from a common nucleus of operative
fact,” such that a plaintiff would ordinarily be expected to try them all in a single proceeding. Shahriar v. Smith & Wollensky
Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011). The Court need not engage in that analysis here, however. As noted above,
the district court lacks original jurisdiction over any of plaintiffs’ federal law claims and thus it necessarily lacks supplemental
jurisdiction over plaintiffs’ sole state law claim. Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996)
(stating that “since a court must have original jurisdiction in order to exercise supplemental jurisdiction, a dismissal pursuant
to Rule 12(b)(1) precludes a district court from exercising supplemental jurisdiction over related state claims”).
B. Abstention 16
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*9 Wells Fargo argues that plaintiffs’ claims are barred by Younger abstention because the State Court Action implicates
“important state interests in contractual and property rights,” and “[p]laintiffs have an open avenue to review in state
court.” (Bank's Mem. at 3). Under the abstention doctrine set forth in Younger, federal courts are “generally require[ed] ... to
abstain from taking jurisdiction over federal constitutional [or statutory] claims that involve or call into question ongoing state
proceedings.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (citing Younger v. Harris, 401 U.S. at
43–44); see also Fried v. CIT Bank, N.A., No. 22 CV 7376, 2023 WL 5020286, at *4 n.5 (E.D.N.Y. July 11, 2023) (confirming
that Younger extends to claims asserting statutory rights).
At its inception, the Younger doctrine applied only in the context of injunctions seeking to halt state criminal proceedings. See
17B Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 4254 (3d ed. June 2023). Over time, however, the Supreme Court
has extended Younger’s reach to two civil contexts: “certain civil enforcement proceedings” and “civil proceedings involving
certain orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Falco v. Justices of the
Matrim. Parts of Sup. Ct. of Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015) (quoting Sprint Comm'ns, Inc. v. Jacobs, 571
U.S. 69, 70 (2013)).
In assessing whether Younger abstention applies to a given case, courts may consider, inter alia, whether “the state proceeding
affords the federal plaintiff an adequate opportunity for judicial review of his or her federal constitutional [or statutory] claims.”
Id. (quoting Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d at 77). However, that question “become[s]
relevant only after applying the straightforward categorical approach required by Sprint.” Toczek v. Alvord, 841 Fed. Appx.
263, 266 n.3 (2d Cir. 2021) (quoting Falco v. Justices of the Matrim. Parts of Sup. Ct. of Suffolk Cnty., 805 F.3d at 427); see
also Cavanaugh v. Geballe, 28 F.4th 428, 432 (2d Cir. 2022). The Court thus begins its analysis by turning to the categories
enunciated in Sprint Communications, Inc. v. Jacobs.
Plaintiffs’ Complaint includes a demand for “[f]ree and clear Title to the [Premises], with a Court Ordered Mortgage Release
from [the Bank].” (Compl. at p. 19). Plaintiffs also seek an order “Vacating, Setting Aside or Voiding ... the judgment for
foreclosure of [the Premises]” (id.), which the Court construes as a request for an order halting the State Court Action given
that, to the Court's knowledge, no judgment for foreclosure has been entered. (See n.8 supra). The injunctive relief demanded by
plaintiffs in this case plainly constitutes a request to enjoin a pending state foreclosure proceeding. See McDonald v. Esposito,
2021 WL 1062259, at *3 (treating “plaintiff's request for an order that her state-court foreclosure action be dismissed and
expunged” as a request for an injunction against a state foreclosure proceeding for purposes of Younger abstention).
Since the Supreme Court decided Sprint, courts in this Circuit have routinely held that state “foreclosure action[s] qualif[y]
as a civil proceeding that implicates a State's interest in enforcing the orders and judgments of its courts.” Id. (citing cases);
see also Fequiere v. Tribeca Lending, No. 14 CV 812, 2015 WL 1412580, at *7 (E.D.N.Y. July 15, 2014) (adopting report
and recommendation and holding that “[t]o the extent plaintiff seeks federal court intervention in an ongoing state foreclosure
proceeding, such claims are generally barred by Younger”). A straightforward application of Sprint to this case thus permits but
one conclusion: that Younger abstention bars plaintiffs’ claims for injunctive relief against the State Court Action.
*10 The additional factors set out in Spargo and elsewhere only bolster this conclusion. Specifically, there is no impediment to
plaintiffs raising the arguments made in this case in the State Court Action, including their constitutional claims (assuming such
claims are not barred by res judicata or by plaintiffs’ failure to answer in the State Court Action). See Donohue v. Mangano,
886 F. Supp. 2d 126, 142 (E.D.N.Y. 2012) (collecting cases). In the event that those arguments fail before the New York State
Supreme Court, plaintiffs will also have an avenue to appeal within the state court system. Irrespective of whether plaintiffs
prove successful in any of those endeavors, they surely constitute an adequate remedy under state law. Indeed, “Younger merely
presupposes that the plaintiff be able to interpose his federal defense in the state court; it does not additionally require all
procedures for the interposition of the federal defense to be as advantageous in the state court as in the federal action.” Spargo
v. New York State Comm'n on Judicial Conduct, 351 F.3d at 81 (emphasis added); see also Kirschner v. Klemons, 225 F.3d
227, 235 (2d Cir. 2000) (concluding that “the question whether the state's procedural remedies could provide the relief sought
does not turn on whether the state will provide the relief sought by the plaintiff before the federal court” (emphasis added)).
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Plaintiffs’ claims for injunctive relief appear designed to circumvent the State Court Action and the remedies afforded to
plaintiffs therein, and exercising jurisdiction over those claims would therefore “lead to the precise federal interference in state
judicial proceedings that Younger was designed to prevent.” Kaufman v. Kaye, 466 F.3d at 86. The Court thus concludes that
Younger abstention further bars plaintiffs’ claims insofar as they seek to enjoin or otherwise disturb the State Court Action. 17
OTHER BASES FOR DISMISSAL
In addition to the grounds for dismissal noted above—which provide an adequate basis for dismissing plaintiffs’ claims against
both defendants in their entirety—Wells Fargo also argues that plaintiffs’ claims against the Bank should be dismissed pursuant
to Rule 12(b)(5) of the Federal Rules of Civil Procedure on the ground that the Bank was not properly served with process.
(Bank's Mem. at 11). Errors within Wells Fargo's memorandum make it impossible for the Court to assess the validity of that
argument. 18
Finally, both defendants raise several claim-specific arguments in support of dismissing plaintiffs’ Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. (See Bank's Mem. at 4–10; Firm's Mem. at 7–14). Since the Court finds
that dismissal is appropriate under Rule 12(b)(1), it need not reach the question of whether dismissal is also appropriate under
Rule 12(b)(6). The Court notes, however, that the above analysis of plaintiffs’ federal claims strongly suggests that plaintiffs’
Second through Fifth Causes of Action should be dismissed for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)
(6). (See pp. 15–18 supra). In any event, the Court respectfully recommends that should the district court disagree with this
Court's conclusions regarding jurisdiction and abstention, the Motion be referred back to the undersigned to address defendants’
remaining arguments.
CONCLUSION
*11 In light of the above, the Court respectfully recommends that the district court dismiss plaintiffs’ claims under Rule 12(b)
(1) of the Federal Rules of Civil Procedure. Any objections to this Report and Recommendation must be filed with the Clerk
of the Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections
within the specified time waives the right to appeal the District Court's order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d
601, 604 (2d Cir. 2008).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1531142
Footnotes
1 Citations to “Compl.” refer to plaintiffs’ “Verified Counterclaim Civil Complaint Pursuant to 42 U.S.C. § 1983, et seq.,”
filed April 12, 2023. (ECF No. 1).
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2 Citations to the “Grigg Declaration” refer to the Declaration of Natalie A. Grigg, Esq., a partner with Woods Oviatt,
filed in support of the Firm's Motion and dated July 10, 2023. (ECF No. 19-1).
3 The Court notes that the Grigg Declaration states the mortgage securing the $25,292.50 Promissory Note was recorded
in the Office of the City Register on “September 16, 2013.” (Id.) This appears to be a typographical error since the
$25,292.50 Promissory Note was not executed until January 23, 2016.
4 Citations to the “State Court Complaint” or “St. Ct. Compl.” refer to the complaint filed by Wells Fargo in the State
Court Action. (ECF No. 17-1).
5 The Court notes that the Grigg Declaration states the 2016 Consolidated Mortgage securing the Consolidated Promissory
Note was recorded in the Office of the City Register on “September 16, 2013.” (Grigg Decl. ¶ 8). This appears to be
another typographical error given that the Consolidated Promissory Note was not executed until January 23, 2016.
6 Citations to “Bank's Mem.” refer to Wells Fargo's Memorandum of Law filed in support of the Bank's Motion on July
7, 2023. (ECF No. 18).
7 Citations to “Pls.’ Obj.” refer to Plaintiffs’ Objection to Defendants’ Motions to Dismiss, filed on July 17, 2023. (ECF
No. 21).
8 Plaintiffs’ reference to the Nassau County Supreme Court appears to be an error, as the State Court Action was
commenced in Kings County. In any event, it is unclear whether the state court has actually entered a judgment of
foreclosure on the property. (See e.g., Bank's Mem. at 2–3; Grigg Decl. ¶ 15).
9 Citations to “Firm's Mem.” refer to Defendant Woods Oviatt's Memorandum of Law filed in support of the Firm's Motion
on July 11, 2023. (ECF No. 20).
10 Plaintiffs’ failure to meaningfully “oppose the defendants’ motion[s] to dismiss ‘does not, by itself, require the dismissal
of [their] claims.’ ” Amissah v. Wells Fargo, No. 19 CV 4624, 2020 WL 868599, at *1 n.1 (E.D.N.Y. Feb. 20, 2020)
(quoting Leach v. City of New York, No. 12 CV 2141, 2013 WL 1683668, at *2 (S.D.N.Y. Apr. 17, 2013)). “The
sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the
pleading and knowledge of the law.” Id. (quoting McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000)).
11 Unless noted, caselaw quotations in this order accept all alterations and omit internal quotation marks, citations, and
footnotes.
12 Courts have previously flexed the time-of-filing rule to, for example, ignore jurisdictional defects existing on the face of
the complaint and exercise diversity jurisdiction after a dispensable, nondiverse party is dismissed pursuant to Rule 21
of the Federal Rules of Civil Procedure, creating complete diversity with respect to the remaining parties. See LeBlanc
v. Cleveland, 248 F.3d 95 (2d Cir. 2001); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989); cf. Guigliano
v. Danbury Hosp., 396 F. Supp. 2d 220, 225 (D. Conn. 2005) (concluding that because plaintiff voluntarily dismissed
her claims against the only nondiverse defendant, the remaining defendants’ motions to dismiss for lack of diversity
jurisdiction were moot). Because neither party has addressed the dispensability of Woods Oviatt, the Court makes no
recommendation as to whether the district court should “exercise ... [his] considerable discretion under Civil Rule 21 to
dismiss the suit as against those nonessential nondiverse parties and continue to adjudicate the action with regard to the
remaining parties.” 13E Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3605 (3d ed. April 2023).
13 The Court does not address here plaintiffs’ fraud on the court claim, which neither arises under federal law nor implicates
a federal issue.
14 For the same reason, 28 U.S.C. § 1343(a) does not provide jurisdiction over plaintiffs’ constitutional claims. (See Compl.
¶ 4).
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15 Plaintiffs also cite the “Pendant Jurisdiction” doctrine as a basis for jurisdiction. (Id. ¶ 6). That doctrine has been
supplanted by supplemental jurisdiction as provided by Section 1367. See Itar-Tass Russian News Agency v. Russian
Kurier, Inc., 140 F.3d 442, 447 (2d Cir. 1998).
16 Younger abstention is “not a jurisdictional bar based on Article III requirements, but instead a prudential limitation on
the court's exercise of jurisdiction grounded in equitable considerations of comity.” Kaufman v. Kaye, 466 F.3d 83, 88
n.1 (2d Cir. 2006) (quoting Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003),
cert. denied, 541 U.S. 1085 (2004)). Nonetheless, courts in this district review motions to dismiss premised on Younger
abstention under the same standard applicable to motions to dismiss for lack of subject matter jurisdiction. McDonald
v. Esposito, 2021 WL 1062259, at *2 (citing United States v. Blake, 942 F. Supp. 2d 285, 292 (E.D.N.Y. 2013)).
17 Contrary to Wells Fargo's assertion, however, Younger alone does not mandate dismissal of this action in its entirety.
In addition to the injunctive relief noted above, plaintiffs seek damages in connection with a supposed injury to their
“property interests” as well as an award of “One Million Dollars for each constitutional deprivation of rights under Color
of State Law.” (Compl. at p. 20). It is well recognized that “abstention and dismissal are inappropriate when damages
are sought,” and the Court's Younger analysis thus applies only to plaintiffs’ claims for injunctive relief. Kirschner v.
Klemons, 225 F.3d 227, 238 (2d Cir. 2000).
18 Specifically, Wells Fargo's Memorandum misstates both the method of service used by plaintiffs and where service
was effected. (Compare Bank's Mem. at 11, with ECF No. 9). Because neither party has addressed whether the actual
means of service utilized by plaintiffs in this action were valid under the applicable state service laws or as a result of
Wells Fargo's own authorization, the Court cannot make a recommendation with respect to dismissal on Rule 12(b)(5)
grounds at this time.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-00748-AJB-MJK Document 26 Filed 05/19/26 Page 121 of 121