Rouse v. Corey

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RAJZHAUN ROUSE,
Petitioner,
v. 	9:24-CV-0760
(MAD)
SUPERINTENDENT, Auburn Correctional Facility,
Respondent.
APPEARANCES: 	OF COUNSEL:
RAJZHAUN ROUSE
Petitioner Pro Se
22-B-2006
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. LETITIA JAMES 	MICHELLE ELAINE MAEROV, ESQ.
Attorney for Respondent 	Ass’t Attorney General
New York State Attorney General
The Capitol
Albany, New York 12224
MAE A. D’AGOSTINO
United States District Judge
MEMORANDUM-DECISION and ORDER
I. 	INTRODUCTION
Petitioner Rajzhaun Rouse seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
Dkt. No. 1, Petition ("Pet."). Respondent opposed the Petition and filed pertinent records
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from the state court proceedings. Dkt. No. 14, Response; Dkt. No. 14-1, Memorandum of
Law in Opposition ("Resp. MOL"); Dkt. Nos. 14-3 and 14-4, State Court Records (“SR”); Dkt.
No. 14-6, State Court Transcript (“T”).1 Petitioner has not filed a reply. For the reasons
which follow, the Petition is denied and dismissed.
II. 	RELEVANT BACKGROUND
A. 	State Court Criminal Proceedings
1. The Shooting Incident and Charges Against Petitioner
On the morning of August 29, 2020, a vehicle attempted to exit Coyne’s Tavern in
Syracuse, New York, when the driver struck a bystander. SR 356, 414-415, 493-94.
Thereafter, gunshots were fired at the vehicle. Id. Security cameras outside of the tavern
recorded the incident. Id.
On September 17, 2020, Syracuse Police Detective Demetris Christou released an
attempt to identify bulletin with regard to the shooting incident from August 29, 2020, which
contained images of Petitioner and his co-defendant Gabriel Martinez, and designated them
as suspects. SR 51-52, 422, 459-460, 481; T. at 3-7, 31, 34, 46, 59. Thereafter, four police
officers acquainted with Petitioner reviewed the attempt to identify bulletin and identified
Petitioner as one of the suspects. SR 51-52, 349, 385, 407, 422-423, 443.
On October 22, 2020, Petitioner was arrested on a felony complaint that accused him
1 For the sake of clarity, with one exception, citations to all parties' filings refer to the pagination generated by
CM/ECF, the Court's electronic filing system, including citations to the State Court Transcript (“T.”). However,
citations to the State Court Record (“SR”), Dkt. Nos. 14-3 and 14-4, reference the Bates-stamp at the bottom-
right of each page, as each exhibit is separately and consecutively paginated.
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of firing a gun at an occupied vehicle on the morning of August 29, 2020, and charged him
with first-degree reckless endangerment and second-degree criminal possession of a
weapon. SR 50, 340, 342-43, 353, 356-57, 388-89, 398, 400, 411, 414-15. Immediately
before Petitioner’s arrest, he waived his Miranda rights,2 and he thereafter spoke with a law
enforcement official, during which time he identified himself on surveillance images taken
from outside of Coyne’s Tavern on the morning of August 29, 2020, but denied being
involved in the shooting. SR 53, 347, 435.
On November 19, 2020, an Onondaga County Grand Jury issued an indictment
charging Petitioner and co-defendant Gabriel Martinez with acting in concert to commit
attempted second-degree murder, and separately charging both individuals with second-
degree criminal possession of a weapon and first-degree reckless endangerment. SR 36-37.
2. Pre-trial Proceedings
a. Counsel’s Motions
On December 1, 2020, Petitioner’s counsel moved to dismiss the indictment on the
grounds that at the time Petitioner was advised on his right to testify before the grand jury,
the People failed to inform him that the grand jury would consider an attempted murder
charge in addition to the gun and reckless endangerment charges presented in the felony
complaint. SR 54-57. Thereafter, Petitioner’s counsel separately filed an omnibus motion
wherein counsel sought to (1) dismiss the indictment for legal insufficiency and other defects,
2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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(2) suppress statements made by Petitioner to police, and (3) preclude the introduction of
evidence related to Petitioner’s prior bad acts. SR 462-72.
b. Petitioner’s Request to Replace Counsel
On or about February 21, 2021, Petitioner sent a handwritten letter to the trial court
requesting to replace his attorney, Donald Kelly, on the grounds that counsel had not
communicated with him since January 26, 2021, which was Petitioner’s last court date, or
“supported” Petitioner with “paperwork” or “discovery[.]” SR 474. Petitioner also faulted
counsel for failing to obtain a reduction in his bail. Id.
c. Suppression Hearing
On April 23, 2021, the trial court conducted a hearing on Petitioner’s motion to
suppress identification evidence and statements made by Petitioner to police. SR 35, 470-
71; T at 2. Donald Kelly represented Petitioner at the hearing. SR 35, T. at 2.
During the hearing, the People introduced testimony from Syracuse Police Detective
Christou, who indicated that on September 17, 2020, he circulated an “attempt to identify”
bulletin that included images of the suspected shooters. T. at 3-7, 31, 34, 46, 59.
Police Officer McKenzie Spiddle testified that she reviewed the bulletin and recognized
Petitioner and his co-defendant Martinez as the suspects because they were friends of her
child’s father, and she had seen Petitioner’s photo on her son’s father’s social media feed. T.
29-32.
Police Officer Thomas Blake testified that he reviewed the bulletin and was able to
identify Martinez because Blake had previously arrested Martinez and regularly monitored
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Martinez’s Facebook page. T. at 55-57. Blake further testified that Martinez posted pictures
on his Facebook page with Petitioner, which is how Blake was able to identify Petitioner as
the other individual in the bulletin. T. at 55-60.
Police Officers Reed Bebernitz and Cody Nellis testified that they each reviewed the
bulletin and recognized Petitioner as someone they had witnessed in the past hanging out at
a store on the north side of the city. T. at 33-35, 46-48. Bebernitz further testified that he and
Nellis pulled Petitioner over on a traffic stop roughly three weeks after reviewing the bulletin,
and it was at this time that Bebernitz viewed Petitioner’s license and made a note of his name
before letting him go. T. at 35. Bebernitz and Nellis also testified that they saw Petitioner
standing at a street intersection on October 22, 2020, at which time they approached him and
placed him under arrest. T. at 35-39, 43-44, 48-50.
d. The Trial Court’s Decision on the Motions to Suppress
On July 7, 2021, the trial court issued a written decision denying the motions to
suppress. SR 43-48. The trial court ruled that Petitioner’s statements to police were
voluntary, that the police had probable cause to take him into custody, that the circulation of
the bulletin containing pictures of the suspects was not improper, and that Officer Spiddle’s
identifications of Petitioner and Martinez were merely confirmatory. Id.
e. Petitioner’s Guilty Plea
On February 24, 2022, Petitioner and his two attorneys, Mr. Kelly and Joseph
Wentland, appeared before the Honorable Thomas Miller in Onondaga County Court. T. at
65. During an off-the-record bench conference, counsel told Judge Miller that Petitioner
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wished to change attorneys, which Judge Miller acknowledged to Petitioner on the record. Id.
at 66. Judge Miller also told Petitioner that he was free to hire new counsel, but his trial was
scheduled to begin on March 28, 2022, and that date would not be extended based on a
change of counsel. Id. at 66-67.
Judge Miller then discussed the Petitioner’s maximum sentence exposure, told
Petitioner that his co-defendant had already pleaded guilty and was allowed to remain at
liberty pending sentence, and stated that if Petitioner pleaded guilty, he would receive the
same pre-sentencing release status. T. at 67. Thereafter, Judge Miller advised Petitioner
that during the off-the-record bench conference, the parties discussed a possible plea
disposition and directed the prosecutor to place the People’s plea offer on the record. Id.
The prosecutor then conveyed an offer to Petitioner that if he pleaded guilty to second-
degree criminal possession of a weapon, he would receive a ten-year prison term. T. at 68.
The prosecutor noted that Martinez had pleaded guilty to that charge and was promised an
eight-year sentence, which was two years less than the offer to Petitioner because the video
recording of the shooting showed Petitioner firing eight to ten shots at the vehicle, whereas
Martinez fired “maybe around three shots.” Id. The prosecutor further indicated that the offer
“expires today.” Id.
After the prosecutor concluded, Judge Miller asked Petitioner to speak with his
attorney about the offer. T. at 68-69. Thereafter, Petitioner’s case was recalled and
Petitioner agreed to accept the offer. Id. at 69-72. Judge Miller told Petitioner that he could
remain at liberty pending his sentence, and explained the consequences of any subsequent
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arrest, failure to return to court, or failure to cooperate with the officials preparing his
presentencing report. Id. at 70-72. Petitioner stated that he understood the terms and
answered questions from the court related to his plea. Id.
Petitioner first stated that he had discussed the plea with his attorneys, that he was
satisfied with their services, and that he did not have further questions. T. at 72.
Petitioner then acknowledged his understanding that by pleading guilty, he was
waiving his rights to a bench trial or a jury trial, that a jury trial would have required a
unanimous verdict, and that the prosecution during a jury or bench trial would have been
required to present evidence and he would have been entitled to cross-examine their
witnesses, present a defense, and testify on his own behalf. T. at 72-74. Petitioner also
expressed his understanding that his conviction after a guilty plea was the same as a
conviction after trial. Id. at 74.
Petitioner denied being under the influence of alcohol or drugs or having a physical or
mental impairment, denied having questions for the court, and stated that he was pleading
guilty freely because he was in fact guilty. T. at 74-75. Petitioner also denied that anyone
had coerced his guilty plea and agreed to waive his right to appeal. Id. at 75.
Thereafter, the trial court directed Petitioner’s attention to the weapons count of the
indictment and asked him whether, on August 29, 2020, in Onondaga County, he possessed
a loaded firearm at a place other than his home or place of business. T. at 77. Petitioner
admitted that he had done so and pleaded guilty to second-degree criminal possession of a
weapon, in violation of Penal Law § 265.03(3). Id. at 77-78. The court accepted Petitioner’s
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guilty plea, deeming it “knowing, intelligent, and voluntary,” and adjourned the case for
sentencing. Id.
f. Sentencing
On April 28, 2022, Petitioner and his attorneys appeared for sentencing. T. at 81-85.
The trial court reiterated the agreed upon sentence and noted that Petitioner had pleaded
guilty and waived appeal. Id. at 84. Petitioner asked to adjourn sentence, but the court
denied the request. Id. at 85.
The court then asked Petitioner if he wished to say anything before the sentence was
imposed, to which Petitioner responded, “No, sir.” T. at 85. The court then sentenced
Petitioner to a ten-year prison term, to be followed by five years of post-release supervision.
Id. at 85-86.
B. 	Direct Appeal
On appeal to the Appellate Division, Fourth Department, Petitioner’s appellate counsel
appealed Petitioner’s conviction on the grounds that his sentence was excessive because
Petitioner had no prior criminal history, there were issues with the evidence against him, and
Petitioner’s punishment should not have been tied to the number of shots fired. SR 1-24.
The People filed a brief in opposition. SR 487-501.
On March 15, 2024, the Appellate Division unanimously affirmed Petitioner’s
conviction. SR 515-16.
The appellate court held that Petitioner’s negotiated sentence was not excessive, even
though it exceeded the sentence imposed on a codefendant who had a more extensive
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criminal history, because Petitioner “fired at least twice as many shots as [his] codefendant
did, perhaps as many as eight or nine in total[,]” and “[t]he shots were fired in a crowded
parking lot while the victims were driving away from the scene of a relatively minor physical
altercation that did not involve [Petitioner].” SR 515-16. The court further observed that
Petitioner failed to cooperate with police and, even after pleading guilty, denied his guilt when
interviewed by the probation department for his presentence report. SR. 516.
Petitioner sought leave to appeal from the New York State Court of Appeals, which
was denied on April 30, 2024. SR 521-23, 531.
III. 	THE PETITION AND RESPONSE
Petitioner contends that he is entitled to federal habeas corpus relief because (1) his
sentence was harsh and excessive; (2) the identification of him as a suspect was “not
supported by evidence”; (3) his trial counsel was ineffective; and (4) the trial court improperly
denied his request to “dismiss” his trial attorney. Pet. at 2-3, 5, 7-8.
Respondent argues that the Petition should be denied and no certificate of
appealability issued because (1) Petitioner’s excessive sentence claim is not cognizable, (2)
Petitioner waived his right to challenge his trial counsel’s effectiveness and the trial court’s
denial of his request to change counsel when he pleaded guilty, and (3) other than
Petitioner’s excessive sentencing claim, his claims are unexhausted and, in any event,
meritless. See generally, Resp. MOL.
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IV. 	DISCUSSION
A. 	Exhaustion Requirement
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that an
application for a writ of habeas corpus may not be granted until a petitioner has exhausted all
remedies available in state court unless "there is an absence of available State corrective
process" or "circumstances exist that render such process ineffective to protect the rights of
the applicant." 28 U.S.C. § 2254(b)(1)(A), (B)(i), (ii). "The exhaustion requirement 'is
principally designed to protect the state courts' role in the enforcement of federal law and
prevent disruption of state judicial proceedings[.]'" Jimenez v. Walker, 458 F.3d 130, 149 (2d
Cir. 2006) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
To satisfy the exhaustion requirement, a petitioner must do so both procedurally and
substantively. Procedural exhaustion requires that a petitioner raise all claims in state court
prior to raising them in a federal habeas corpus petition. Substantive exhaustion requires
that a petitioner "fairly present" each claim for habeas relief in "each appropriate state court
(including a state supreme court with powers of discretionary review), thereby alerting that
court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations
omitted); Fama v. Comm'r. of Corr. Servs., 235 F.3d 804, 808 (2d Cir. 2000). In other words,
a petitioner "must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established appellate review process."
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The petitioner must have used the proper
procedural vehicle so that the state court may pass on the merits of his or her claims. Dean
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v. Smith, 753 F.2d 239, 241 (2d Cir. 1985); Barton v. Fillion, No. 9:03-CV-1377 (DNH/GJD),
2007 WL 3008167, at *5 (N.D.N.Y. Oct. 10, 2007). "[W]hen a 'petitioner fail[s] to exhaust
state remedies and the court to which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims procedurally barred,' the
federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez,
510 F.3d 382, 390 (2d Cir. 2008) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991)).
B. 	Standard of Review Governing Exhausted Claims
Under the AEDPA, a federal court may grant habeas corpus relief with respect to a
claim adjudicated on the merits in state court only if, based upon the record before the state
court, the state court's decision: (1) was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the United States;
or (2) was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. §§ 2254(d)(1), (2); Cullen v. Pinholster,
563 U.S. 170, 180-81, 185 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). This standard is "highly deferential" and "demands that
state-court decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U.S. 594,
598 (2011) (per curiam) (quoting Renico
◌ྭv. Lett, 559 U.S. 766, 773 (2010) (internal quotation
marks omitted)).
The Supreme Court has repeatedly explained that "a federal habeas court may
overturn a state court's application of federal law only if it is so erroneous that 'there is no
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possibility fairminded jurists could disagree that the state court's decision conflicts with th[e
Supreme] Court's precedents.'" Nevada v. Jackson, 569 U.S. 505, 508-509 (2013) (per
curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Metrish v.
Lancaster, 569 U.S. 351, 358 (2013) (explaining that success in a habeas case premised on
§ 2254(d)(1) requires the petitioner to "show that the challenged state-court ruling rested on
'an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.'") (quoting Richter, 562 U.S. at 103)).
Additionally, the AEDPA foreclosed "'using federal habeas corpus review as a vehicle
to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, 567 U.S. 37,
132 S. Ct. 2148, 2149 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court's
findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court
reviewing the claim in the first instance would have reached a different conclusion. Wood v.
Allen, 558 U.S. 290, 301 (2010). "The question under AEDPA is not whether a federal court
believes the state court's determination was incorrect but whether that determination was
unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473.
Federal habeas courts must presume that the state courts' factual findings are correct
unless a petitioner rebuts that presumption with '"clear and convincing evidence.'" Schriro,
550 U.S. at 473-74 (quoting § 2254(e)(1)). "A state court decision is based on a clearly
erroneous factual determination if the state court failed to weigh all of the relevant evidence
before making its factual findings." Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d
Cir. 2015).
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C. 	Ground One: Excessive Sentence Claim
Petitioner contends that his sentence was excessive because he had no prior criminal
history and the sentencing guideline range for Second Degree Criminal Possession of a
Weapon for a first time offender “is 3 ½ to 7 years.” Pet. at 5.
Petitioner pled guilty to Second Degree Criminal Possession of a Weapon (Penal Law
§ 265.03(3)), a class “C” violent felony offense, for which he could have been sentenced to a
prison term of up to fifteen years. See Penal Law §§ 60.05(4), 70.02(3)(b). Petitioner’s ten-
year prison term falls below the maximum term. Thus, Petitioner’s excessive sentence claim
is not cognizable on habeas review. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir.
1992) ("no federal constitutional issue is presented where, as here, the sentence is within the
range prescribed by state law."); Mayerhofer v. Bennett, No. 9:02-CV-0074 (LEK/VEB), 2007
WL 1624767, at *7 (N.D.N.Y. June 6, 2007) (same); Taylor v. Connelly, 18 F. Supp. 3d 242,
268 (E.D.N.Y. 2014) ("An excessive sentence claim may not provide grounds for habeas
corpus relief where a petitioner's sentence is within the range prescribed by state law.").
D. 	Ground Two: Insufficient Identification
Petitioner contends that the identification of him as a suspect was “not supported by
evidence.” Pet. at 7. More specifically, Petitioner asserts that the identification of him as a
suspect was flawed because he was never pointed out in a line-up, he was not “seen on” the
surveillance video, he was dressed identically to five other people at the tavern on the night
of the shooting incident, and his hair was styled differently from the shooter depicted on the
surveillance video. Id.
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As an initial matter, Petitioner’s appellate brief does not challenge the adequacy of his
conviction on the grounds that the trial court erred in denying his request to suppress
identification evidence. See SR 1-24. Rather, the appellate brief discusses deficiencies with
Petitioner’s identification as the primary shooting suspect only to support the underlying
argument that his sentence was excessive under the circumstances. SR 2, 17-23.
Furthermore, Petitioner’s leave application submitted to the New York Court of Appeals
expressly states that the application is based solely on “whether the imposition of a 10-year
sentence was unduly harsh and severe.” SR 521-523. In other words, Petitioner’s current
contention that his identification as a suspect was not supported by the evidence is
unexhausted. See Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000) (“Arguing a single
claim at length and making only passing reference to possible other claims to be found in the
attached appellate briefs” by requesting leave “[f]or all of these reasons and the reasons set
forth in his Appellate Division briefs” does not “fairly apprise the state court of those
remaining claims.”); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (if a petitioner's leave
application specifically requested review of only one claim, all other claims would be deemed
procedurally defaulted, even though the petitioner included his appellate brief in which the
other claims were raised); Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (petitioner
mentioning the issue of “ineffective assistance of counsel” in his direct appeal is insufficient to
alert the state courts of federal claim); Baldwin v. Reese, 541 U.S. 27, 32-34 (2004) (finding
that ineffective assistance claim is considered unexhausted when petitioner mentions
“ineffective assistance of counsel” on appeal without referring to a specific federal law claim).
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Generally speaking, a technically unexhausted claim can be deemed exhausted, but
procedurally defaulted because the petitioner failed to fairly present it to the state courts for
consideration. Aparicio v. Artuz, 269 F.3d 78, 90-91 (2d Cir. 2001) ("When a claim has never
been presented to a state court, a federal court may theoretically find that there is an
'absence of available State corrective process' under § 2254(b)(1)(B)(I) if it is clear that the
unexhausted claim is procedurally barred by state law and, as such, its presentation in the
state forum would be futile."); Coleman v. Thompson, 501 U.S. 722, 732 (1991) ("A habeas
petitioner who has defaulted his federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies any longer 'available' to him.").
Here, it appears that Petitioner’s contention that there was not sufficient evidence in the
record to support his identification as one of the shooting suspects (such that his motion to
suppress should have been granted) is based solely on the state court record. Moreover,
Petitioner already had one full round of direct appeal in which to raise this claim. Thus, he
cannot now challenge the trial court’s denial of his request to suppress identification evidence
in a post-judgment motion. See CPL § 440.10(2)(c); see also Clark v. Perez, 510 F.3d 382,
390-93 (2d Cir. 2008); cf. McCallie v. Poole, No. 07-CV-0473, 2011 WL 1672063, at *9
(W.D.N.Y. May 3, 2011) (finding record-based ineffective assistance claim to be unexhausted
and procedurally defaulted); Harrison v. Thompson, No. 9:20-CV-705 (MAD/ATB), 2021 WL
1601281, at *8 (N.D.N.Y. Feb. 25, 2021) ("Petitioner failed to raise any speedy trial violations
of a federal nature to the Third Department. Because petitioner has already perfected the
state court appeal to which he is entitled, and he cannot properly present this claim in a §
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440.10 motion because it is record based and could have been raised on direct appeal, he
has failed to exhaust the claim."), report and recommendation adopted by 2021 WL 1599121
(N.D.N.Y. Apr. 23, 2021); Aparicio, 269 F.3d at 91 (“Petitioner was entitled to one (and only
one) appeal to the Appellate Division and one request for leave to appeal to the Court of
Appeals, both of which he pursued long ago.”). Accordingly, Petitioner’s claim that the trial
court erred in denying his request to suppress identification evidence is procedurally
defaulted.
Procedurally defaulted claims are not subject to habeas review unless a petitioner
shows cause for the default and actual resulting prejudice, or that the denial of habeas relief
would result in a fundamental miscarriage of justice, i.e., that he is actually innocent. House
v. Bell, 547 U.S. 518, 536-39 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995); see also
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) ("Actual innocence means factual
innocence, not mere legal insufficiency." (citation omitted)). To establish cause, a petitioner
must show that some objective external factor impeded his ability to comply with the relevant
procedural rule. Maples v. Thomas, 565 U.S. 266, 280 (2012); Coleman, 501 U.S. at 753;
Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (concluding that petitioner did not satisfy
the cause and prejudice showing where he did not give any reason for failing to properly
exhaust his federal claim in state court). If a petitioner fails to establish cause, a court need
not decide whether he suffered actual prejudice, because federal habeas relief is generally
unavailable as to procedurally defaulted claims unless both cause and prejudice are
demonstrated. See Murray v. Carrier, 477 U.S. 478, 496 (1986) (referring to the "cause-and-
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prejudice standard"); Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985). In order to
demonstrate prejudice, a petitioner "must shoulder the burden of showing, 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 (1982) (emphasis in original); see also Gutierrez v.
Smith, 702 F.3d 103, 112 (2d Cir. 2012) (holding petitioner demonstrated prejudice and
allowing his procedurally defaulted claim to proceed because "[t]he difference between a
conviction for murder in the second degree and one for manslaughter is substantial, the
former carrying a significantly higher potential term of imprisonment[, and] [t]hus, the
submission of a depraved indifference murder charge to the jury, if the charge was in error,
worked to Petitioner's 'actual and substantial disadvantage'").
Petitioner has not identified any cause for the default. In fact, Petitioner does not even
acknowledge the default. In addition, Petitioner does not claim that the denial of habeas
relief would result in a fundamental miscarriage of justice, and his admission of guilt
“indicates that no fundamental miscarriage of justice will occur if the procedural bar is
applied.” Gomez v. Miller, No. 9:19-CV-1571 (TJM), 2021 WL 5446979, at *7 (N.D.N.Y. Nov.
22, 2021) (collecting cases). Accordingly, Petitioner’s claim regarding identification evidence
is procedurally barred.
Furthermore, even assuming this claim is based on facts outside the state court
record, it is plainly meritless. Petitioner placed himself at the tavern on the night of the
shooting incident at issue. SR 53, 347, 435. Detective Christou testified that he reviewed
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video surveillance footage of the shooting incident, that he was able to identify two shooters
from that footage, that he reviewed surveillance footage from inside the tavern on the same
evening, and that he was able to track the two shooters as having been inside the tavern. T.
at 4-5. Detective Christou further testified that he captured still photos from the surveillance
video and submitted those images to “OCAC, our computer people[,]” who in turn created an
attempt to identify bulletin using those images. Id. at 6-7. The bulletin was then circulated
via email to the entire police department. Id. at 7. In addition, four different law enforcement
officials offered testimony during Petitioner’s suppression hearing explaining how they were
able to identify him as one of the suspects in the bulletin, including one officer who made her
identification based on prior familiarity with Petitioner. T. at 29-39, 43-50, 55-60; SR 48.
Simply put, nothing in the record supports a finding that the procedures utilized to
identify Petitioner as a shooting suspect were unduly suggestive or unreliable such that the
trial court’s denial of the motion to suppress could be considered unreasonable. Thus,
Petitioner's insufficient evidence claim is also plainly meritless.
C. 	Grounds Three and Four
Petitioner contends that (1) trial counsel was ineffective for failing to communicate with
him, and (2) the trial court erred in denying his request to “dismiss” counsel. Pet. at 8.
As an initial matter, neither one of these claims has anything to do with the
voluntariness of Petitioner's guilty plea, which occurred after trial counsel allegedly failed to
communicate with Petitioner and after the trial court denied his request to “dismiss” his
attorney. Moreover, it is "well settled that a guilty plea represents a break in the chain of
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events which has preceded it in the criminal process and [a petitioner] may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea." Williams v. Gonyea, No. 9:16-CV-0460 (JKS), 2017 WL
4990645, at *5 (N.D.N.Y. Oct. 31, 2017) (quoting Tollett v. Henderson, 411 U.S. 258, 267
(1973)).3 Thus, Petitioner’s claims related to the ineffectiveness of his trial counsel and the
trial court’s refusal to assign him new counsel are barred under Tollett. See Coward v. Bradt,
No. 9:11-CV-1362 (LEK/CFH), 2013 WL 6195751, at *15 (N.D.N.Y. Nov. 27, 2013)
("Coward's grounds for the ineffective claim, that counsel had a conflict of interest and also
failed to move to dismiss the indictment, do not relate to the voluntariness of Coward's plea
and are barred by Tollett." (citing Canal v. Donelli, No. 06-CV-1490, 2008 WL 4287385, at *3
(N.D.N.Y. 2008)).
Furthermore, these claims are unexhausted and, while perhaps based on matters
outside of the state court record, plainly meritless.4
3 Petitioner does not contend that his guilty plea was involuntary.
4 Under New York law, when a claim of ineffective assistance of counsel is based upon facts that occurred
outside the trial record, the claim must be made on collateral attack via a CPL § 440.10 motion, and not upon
direct appeal. Hansen v. Johnson, No. 21-CV-00409, 2023 WL 4274273, at *6 (E.D.N.Y. June 29, 2023) (citing,
inter alia, Pierotti v. Walsh, 834 F.3d 171, 178 (2d Cir. 2016)). Because there is nothing in the record to suggest
that Petitioner has filed a Section 440.10 motion and there is no time limit or number cap on said requests for
relief, it is possible that his unexhausted ineffective assistance claim could still be brought in a § 440.10 motion.
See e.g., Mosley v. Rich, No. 9:18-CV-0428, 2020 WL 3128530, at *12 (N.D.N.Y. June 12, 2020) (explaining if a
Petitioner's unexhausted claims “are based on evidence outside the record, however, they could still be brought
in a motion to vacate judgment under CPL § 440.10 because there is no time limit or number cap on § 440.10
motions”). However, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).
This is particularly true where the claim is plainly meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005).
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1. 	Ineffective Assistance Claim
a. 	Legal Standard
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must
show that counsel's performance fell below an objective standard of professional
reasonableness, and but for counsel's alleged errors, "a reasonable probability" exists that
the result of the proceedings would have been different such that the petitioner suffered
prejudice. Premo, 562 U.S. at 121-22 (noting that petitioner "must show both deficient
performance by counsel and prejudice") (citation and internal quotation marks omitted);
Strickland v. Washington, 466 U.S. 668, 694 (1984). The standard "must be applied with
scrupulous care" in habeas proceedings because such a claim "can function as a way to
escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial]
proceedings[.]" Premo, 562 U.S. at 122. "Strickland does not guarantee perfect
representation, only a reasonably competent attorney." Richter, 562 U.S. at 110 (quoting
Strickland, 466 U.S. at 687) (internal quotation marks and further citation omitted). To
establish a deficient performance by counsel, a petitioner must overcome "a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance . . . [and] that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)).
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b. Analysis
Petitioner contends that trial counsel was ineffective for failing to communicate with
him before he pleaded guilty. Pet. at 8.
As an initial matter, a “failure to communicate, by itself, does not render the attorney's
performance deficient.” United States v. Amirouche, No. 1:24-CV-2596, 2024 WL 4181842,
at *11 (E.D.N.Y. Sept. 13, 2024).
Moreover, as part of Petitioner’s guilty plea, he stated, on the record, that he was
satisfied with his trial counsel’s services. See T. at 67-72. Such a representation clearly
undercuts Petitioner’s current post-sentencing contention. See Dickson-Eason v. Smith, No.
9:19-CV-00455, 2020 WL 3893005 (N.D.N.Y. July 10, 2020) (“Solemn declarations in open
court carry a strong presumption of verity, and ‘[t]he subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are contentions that
in the face of the record are wholly incredible.’” (quoting Blackledge v. Allison, 431 U.S. 63,
74 (1977))).
In addition, the plea bargain secured by Petitioner’s trial counsel was favorable, as it
included a prison term that was five years less than the maximum prison term Petitioner
faced if he was found guilty of the crime to which he pled guilty, and fifteen years below the
maximum prison sentence Petitioner could have received if he was found guilty of the top
count in the indictment. See Whitehurst v. Senkowski, 485 F. Supp. 2d 105, 120 (N.D.N.Y.
2007) (finding that the fact that a defendant had received a favorable plea bargain
“militate[d] against a finding that his attorney rendered ineffective assistance”); Seifert v.
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Keane, 74 F. Supp. 2d 199, 206 (E.D.N.Y. 1999) (“Given the favorable nature of petitioner's
plea, the court cannot say that counsel's performance was deficient[.]”), aff'd, 205 F.3d 1324
(2d Cir. 2000).
Prior to negotiating this plea agreement, trial counsel also filed a motion to dismiss the
indictment, filed an omnibus motion seeking dismissal of the indictment, suppression of
statements, and preclusion of evidence related to prior bad acts, and represented Petitioner
effectively during the suppression hearing, where trial counsel questioned multiple witnesses
extensively. SR 36-37, 54-57, 462-72; T. at 1-63.
Indeed, aside from the vague and self-serving statements in the Petition, there is
nothing in the record to suggest that trial counsel’s performance was constitutionally deficient.
Furthermore, Petitioner has failed to provide any credible explanation for why he believes he
likely would have been acquitted at trial on all charges in the indictment, or received a more
favorable sentence, had he not pled guilty when he did. See Belle v. Superintendent, No.
9:11-CV-0657 (NAM), 2013 WL 992663, at *12 (N.D.N.Y. Mar. 13, 2013) (“In the context of a
guilty plea , [in order to establish prejudice,] the [petitioner] must show a reasonable
possibility that but for counsel's errors the outcome would have been different—i.e., the
accused would not have pled guilty and would likely have been acquitted at trial, or would
have received a significantly more favorable sentence.” (citing Hill v. Lockhart, 474 U.S. 52,
59-60 (1985))).
Simply put, even if the Tollett bar did not foreclose Petitioner’s ineffective assistance
claim, which it does, the claim is also plainly meritless.
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2. 	Trial Court’s Denial of Petitioner’s Request for New Counsel
a. 	Legal Standard
“An indigent criminal defendant has the right to counsel but does not have the right to
counsel of his choice.” See Crampton v. Lilley, No. 9:23-CV-0226 (AJB/ML), 2026 WL
528921, at *8 (N.D.N.Y. Feb. 5, 2026) (citing Pizarro v. Bartlett, 776 F. Supp. 815, 819
(S.D.N.Y. 1991)), report and recommendation adopted by 2026 WL 527016 (N.D.N.Y. Feb.
25, 2026). The focus of the Sixth Amendment's protection is “the adversarial process, not . . .
the accused's relationship with his lawyer.” United States v. Cronic, 466 U.S. 648, 657 n.21
(1984).
When a criminal defendant “voices a seemingly substantial complaint about [assigned]
counsel, the court should inquire into the reasons for dissatisfaction.” McKee v. Harris, 649
F.2d 927, 933 (2d Cir. 1981) (internal quotation marks omitted). However, “[t]o succeed on a
substitution claim, a defendant must demonstrate good cause for the substitution of assigned
counsel.” Burns v. Capra, No. 22-CV-0381, 2025 WL 624952, at *4 (N.D.N.Y. Feb. 26, 2025)
(Suddaby, J.) (internal quotation marks and citation omitted).
b. Analysis
Contrary to Petitioner’s contention, the trial judge did not deny his request for new
counsel. Rather, at a pretrial conference held on February 24, 2022, an off-the-record bench
conference was held regarding Petitioner’s potential desire for new counsel, and the trial
judge thereafter communicated, on the record, that Petitioner was free to hire new counsel,
but his trial date would not be extended based on a change of counsel. T. at 65-67. The
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judge also stated his opinion that Petitioner’s trial counsel, Don Kelly, is “an excellent
attorney” who had appeared before the court on “a number of cases . . . over the years,
including some significant trials.” Id. at 67.
During this same pretrial conference, the prosecution made a plea offer, Petitioner was
afforded time to speak with his attorneys about the offer, and he then stated, on the record,
that (1) he was afforded sufficient time to speak with his attorneys about the plea offer, (2) he
wished to resolve his case with the offered plea, (3) he did not have any further questions for
his attorneys, and (4) he was satisfied with their services. T. at 67-72.
In addition, as noted, prior to Petitioner’s guilty plea, his trial counsel filed a motion to
dismiss the indictment and an omnibus motion that included a request for dismissal of the
indictment and suppression of statements, and actively represented Petitioner during his
suppression hearing. SR 36-37, 54-57, 462-72; T. at 1-63. There is no evidence in the
record (or argument made by Petitioner) that trial counsel failed to file any meritorious
motions, failed to pursue exculpatory evidence, or failed to adequately advise Petitioner on
any legal matters.
Furthermore, as noted by the trial court during the pretrial conference in which
Petitioner agreed to plead guilty, the offer accepted by Petitioner of ten years determinate
plus five years post-release supervision “improved” from a prior offer made by the
prosecution, and amounted to less than half of the maximum prison sentence Petitioner could
have received if he was found guilty of attempted murder in the second degree. T. at 68.
Simply put, there is nothing in the record to suggest that trial counsel’s performance was in
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any way deficient leading up to Petitioner’s guilty plea, or that Petitioner could have realized a
more favorable outcome with different counsel. Thus, even if the Tollett bar did not foreclose
Petitioner’s substitution of trial counsel claim, which it does, Petitioner has failed to
demonstrate that good cause existed for the trial court to replace Petitioner’s trial counsel
before accepting his guilty plea. In other words, this claim is also plainly meritless.
V. 	CONCLUSION
WHEREFORE, it is
ORDERED that the petition, Dkt. No. 1, is DENIED and DISMISSED in its entirety; and
it is further
ORDERED that no Certificate of Appealability ("COA") shall issue because petitioner
has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C.
§ 2253(c)(2) requires;5 and it is further
ORDERED that any further request for a Certificate of Appealability must be
addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order upon the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 14, 2026
5 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007)
(holding that if the court denies a habeas petition on procedural grounds, "the certificate of appealability must
show that jurists of reason would find debatable two issues: (1) that the district court was correct in its
procedural ruling, and (2) that the applicant has established a valid constitutional violation" (emphasis in
original)).
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