Duren v. LaManna

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RONNIE DUREN,

Petitioner,

MEMORANDUM AND ORDER

-against- 18-CV-7218(JS)

JAMIE LAMANNA,

Respondent.

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APPEARANCES

For Petitioner: Ronnie Duren, pro se

#13-A-0396

Great Haven Correctional Facility

P.O. Box 4000

Stormville, New York 12582

For Respondent: Sarah S. Rabinowitz, Esq.

Nassau County District Attorney’s Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Pending before the Court is pro se petitioner Ronnie

Duren’s (“Petitioner” or “Duren”) petition for a writ of habeas

corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Pet., D.E. 1.)

Following a jury trial, Petitioner was convicted of New York Penal

Law § 125.25, Murder in the Second Degree; two counts of New York

Penal Law § 110/125.25, Attempted Murder in the Second Degree; New

York Penal Law § 265.03(3), Criminal Possession of a Weapon in the

Second Degree; New York Penal Law § 265.09(1)(a), Criminal Use of

a Firearm in the First Degree; two counts of New York Penal Law

§ 120.10(1), Assault in the First Degree; and New York Penal Law

§ 110/120.10(1), Attempted Assault in the First Degree.

Petitioner raises nine issues: (1) he was subjected to unlawful

search and seizure; (2) his statements made to detectives were

involuntary and should have been suppressed as the fruit of an

illegal arrest; (3) the trial court’s Sandoval ruling denied him

the right to a fair trial; (4) he was denied a fair trial by virtue

of the admission of certain cell phone records; (5) the trial

court’s circumstantial evidence charge was improper; (6) the

prosecutor committed misconduct; (7) the evidence was legally

insufficient to prove his guilt beyond a reasonable doubt; (8)

trial counsel was ineffective; and (9) appellate counsel was

ineffective. (Pet., at ECF pp. 5-19.) For the following reasons,

the Petition is DENIED in its entirety.

BACKGROUND

I. The Offense Conduct

At approximately 11:00 p.m. on April 16, 2011, a rainy

night, Hayden Forrest (“Forrest”) (a/k/a Pete or Hayden Pierre),

accompanied by Henry Fowler (“Fowler”), and Aggnon McLeod

(“McLeod”) (a/k/a AG), drove Fowler’s royal blue Nissan Versa

(“Versa”) into the McDonald’s parking lot on Peninsula Boulevard

in Nassau County, New York. (Tr. 247.22-251:24.)1 Fowler was

1 Numbers in parentheses preceded by “Tr.” refer to pages in the

transcript of Petitioner’s trial proceedings that started on

October 2, 2012 and ended on October 24, 2012. (Tr. pp. 1-115,

D.E. 9-2; pp. 117-294, D.E. 9-3; pp. 295-399, D.E. 9-4; pp. 400-

542, D.E. 9-5; pp. 543-83, D.E. 9-6; and pp. 584-658, D.E; 9-7.)

seated in the front passenger seat of the Versa, McLeod was in the

backseat, and Forrest was driving. (Tr. 277:10-15.) Upon entering

the parking lot, Forrest parked the Versa parallel to a blue Ford

Econoline van (“van”), owned by Michael Prophet (“Prophet”).

(Tr. 160:10-22; 251:19-24; 516:4.) Forrest exited the Versa and

entered the front passenger seat of Prophet’s van, and observed

Prophet seated in the driver’s seat. (Tr. 251:25.)

Forrest then observed Prophet engage in a series of

phone calls. (Tr. 277:25.) Almost immediately thereafter, Prophet

received a call but did not answer, and then a black Mercedes Benz

sedan entered the McDonald’s parking lot. (Tr. 410:13-16; 252:7.)

Petitioner2 exited the Mercedes Benz and opened the front passenger

door to the van, where he came face to face with Forrest, who told

him to get in the back. (Tr. 279:3-8.) Petitioner then sat in

the rear driver’s side seat of Prophet’s van, where he engaged in

brief dialogue with Prophet and Forrest, then fired one bullet

through the driver’s seat, striking Prophet in his lower-back.

(Tr. 280:6-281:1.)

2 As will be discussed further, the evidence at trial

demonstrated that Petitioner Ronnie Duren was the individual

described above responsible for the shooting on April 16, 2011.

The evidence at trial included cell phone records, which placed

Petitioner at the location, and a description of Petitioner as

the shooter by witness Hayden Forrest. See infra, at 5-7, 10-

11.

After the first shot, Forrest opened the passenger door

of the van and crawled underneath it. (Tr. 281:8-9.) While under

the van, Forrest heard more gunshots. (Tr. 281:7-8.) Upon hearing

the first gunshot, McLeod quickly exited the Versa and sprinted

towards Peninsula Boulevard. (Tr. 254:5-7.) While attempting to

exit his Versa, Fowler was shot. (Tr. 255:8-13.) Fowler proceeded

to run across the street to a nearby utility truck for assistance.

(Tr. 255:22-25.) Forrest, still under the van, observed Petitioner

exit the van and enter a green SUV with two bags in his hands.

(Tr. 281:13-17.) After Petitioner drove off, Forrest crawled out

from underneath the van and drove himself to the hospital in

Fowler’s Versa. (Tr. 281:19-20.)

Following multiple 911 calls, Village of Hempstead

Police Officer Peter Rees responded to the scene and found

Prophet’s body on the ground approximately fifteen to twenty feet

away from the van. (Tr. 143:21-22.) Shortly thereafter, paramedic

Richard Gresser (“Gresser”) arrived at the scene, and lifted

Prophet’s shirt where he observed a bullet wound in the chest area.

(Tr. 149:25-150:2.) Gresser then conducted an unsuccessful vital

signs assessment of Prophet. (Tr. 149:11-14.)

The Nassau County Medical Examiner’s Office performed an

autopsy and determined that Prophet’s cause of death was a gunshot

wound that pierced his lower-back near the fourth lumbar vertebrae,

perforated his right common iliac artery and small intestines, and

exited next to his umbilicus. (Tr. 312:18-313:2; 319:22-24;

318:11-13.)

Evidence collected at the scene included three shell

casings, one bullet, and two cell phones. (Tr. 177:3-4; 174:16-

17; 174:21-24; 175:17-19.) Two of the three shell casings were

found behind the driver’s seat (Tr. 177:6-7), and the third casing

was found on the passenger side floor board. (Tr. 177:4.) After

the van was processed, one additional casing and one additional

projectile were recovered. (Tr. 177:3-12.) The additional casing

was located on the rear seat behind the front passenger, where the

bottom of the seat meets the seat back. (Tr. 178:18-20.) The

additional bullet was found behind the front passenger kick plate.

(Tr. 178:23-24.) Notably, a cell phone connected to a charger was

recovered from the floor in front of the driver’s seat (Tr. 179:11-

12), and Sprint Nextel Subscriber records indicated the number was

516-841-7677 and belonged to Prophet (Tr. 388:1-389:3; 516:25-

517:8; see also Supp. Hr’g Tr., D.E. 9-1, 7:5-22). The subscriber

records also showed that at 11:10 p.m., mere minutes before the

shooting, Prophet engaged in a nineteen second phone call with

phone number (618) 309-0096 (“(618)”). (Tr. 399:3-7.) Almost

immediately thereafter, at 11:11 p.m., that same number attempted

to call Prophet back. (Tr. 410:13-16.) Further, during those

calls, (618) was pinging cell phone towers within the range of the

McDonald’s on Peninsula Boulevard in Hempstead, New York. (Tr.

484:14-17; 485:15-486:2.) Not only had (618) been the last number

in contact with Prophet’s phone before his death, but (618) had

been in contact with Prophet’s phone twelve times that day and had

never been in contact with Prophet’s phone prior April 16, 2011

when he was killed. (Tr. 518:4-9.) The subscriber records for

the (618) phone number indicated that the account holder was “Boost

Mobie,” indicating it was a pre-paid account. (Tr. 402:21-403:1;

403:8-11.) No subscriber records exist for (618) after April 21,

2011. (Tr. 464:23-465:9.)

During the investigation, the phone number (347) 805-

8856 (“(347)”) became of interest to law enforcement. No

subscriber records for (347) exist before April 27, 2011. (Tr.

419:11-12.) Examination of subscriber records for that number

indicated that (347) had been in contact with thirteen of the same

numbers as (618). (Tr. 476:19-21.) Notably, one of the phone

numbers in common between (618) and (347) belonged to Lillian

Duren, Petitioner’s mother. (Tr. 443:9.) Further, the (618) and

(347) numbers were both in contact with the 9-10 car service on

Jamaica Avenue in Brooklyn. (Tr. 524:5-7.) Detective Jeffrey

Raymond of the Nassau County Police Department (“NCPD”) (Tr. 512:8-

13), learned from 9-10 car service that the person using the (347)

number was being picked up and dropped off in the same locations

as the person who used the (618) number (Tr. 525:2-5).

Another phone number in contact with both (618) and (347)

belonged to an individual named Jeffrey Green (“Green”). (Tr.

527:16-19.) Additionally, the person using the (618) number

exchanged numerous calls with Green on the date of the murder,

including the first call made after the murder. (Tr. 527:20-25.)

Detective Raymond interviewed Green and determined that Green and

Petitioner were friends. (Tr. 528:14-18.) Green gave a

description of Petitioner, and described him as a male black,

medium-skinned, muscular build, with several tattoos, including a

cross with writing on his right arm. (Supp. Hr’g Tr., 42:2-8.)

Det. Frederick Black of the NCPD Electronics Squad (Tr.

477:10-13), continued to investigate the (347) number and found

that it consistently pinged the same cell towers in Brooklyn as

the (618) number. (Tr. 491:17-492:5.) Thereafter, via GPS

coordinates, police tracked the (347) phone to a residential

address in Brooklyn. (Tr. 529:13-22.) After monitoring the

Brooklyn address, police observed Petitioner, who matched the

description given by Green, entering and exiting said address.

(Tr. 493:8-15.)

On June 28, 2011, Petitioner was arrested in his Brooklyn

home, at the address where police had tracked the (347) number and

transported Petitioner to the NCPD’s Homicide Squad. (Tr. 549:15-

550:12.) Prior to being given his Miranda warnings, police asked

him for pedigree information including name, date of birth, phone

number, and address. (Tr. 551:15-21.) Petitioner stated that his

phone number was (347) 805-8856. (Tr. 552:2-3.) Police then

issued Petitioner Miranda warnings and continued questioning him,

eliciting, (Supp. Hr’g Tr. 12:12-14:3), in particular, that

Petitioner was the owner of the (347) number, and that he had lost

the (618) phone.3 (Tr. 563:6-22; Supp. Hr’g Tr. 17:16-19:6.)

II. The Suppression Hearing and Trial

On March 12, 2012, a suppression hearing was held in New

York Supreme Court, Nassau County before the Hon. John L. Kase.

(See Supp. Hr’g Tr.)

During the suppression hearing, Detective Raymond

testified that he interviewed Green on June 9 and 15, 2011. (Supp.

Hr’g Tr. 38:22-24; 43:16-19.) During the second interview,

Detective Raymond showed Green still photographs taken of

Petitioner exiting the Brooklyn address where police had tracked

the (347) number. (Supp. Hr’g Tr. 43:16-44:20.) Detective Raymond

testified that in response to being shown the photographs of

Petitioner, Green “[i]n sum and substance, [ ] stated that we did

our job, that we found him, but he didn’t want to help anymore,

that he had a family to worry about and he had a kid.” (Supp.

3 Petitioner willingly answered questions after being read his

Miranda rights until Detectives mentioned Jeffrey Green. At

that point, Petitioner requested an attorney. (Tr. 559:20-

562:11.) Petitioner’s statement was recorded on videotape,

however, the videotape was not provided to the Court for review.

Hr’g Tr. 44:22-24.) When defense counsel questioned whether there

was ever a negative identification by Green, Detective Raymond

said there was not, and repeated his testimony as to Green’s

statements. (Supp. Hr’g Tr. 46:22-47:9.)

On July 6, 2012, following the suppression hearing and

prior to trial, the prosecutor and defense counsel appeared before

the Hon. William C. Donnino. (See J. Donnino Tr., D.E. 10:34.)

The parties appeared to address an issue concerning the

identification procedure conducted with Jeffrey Green. (J.

Donnino Tr. 2:21-5:19.) Ultimately, while Detective Raymond had

testified at the suppression hearing that Jeffrey Green made a

positive identification of Petitioner, it had been previously

disclosed to defense counsel by a different prosecutor that Green

did not identify Petitioner. (J. Donnino Tr. 3:8-12.) The

prosecutor conducting the suppression hearing was not aware of the

previous disclosure at the time the hearing was conducted, although

defense counsel had been in receipt of the disclosure letters prior

to the hearing. (J. Donnino Tr. 3:15-23.) The court determined

the hearing was not affected as witness Jeffrey Green was not being

called by either party to testify at trial, thus any testimony

regarding an identification procedure was a nonissue. (J. Donnino

Tr. 3:24-4:3.)

Petitioner’s jury trial began on October 2, 2012. The

prosecution presented testimony of numerous law enforcement

witnesses involved in the investigation, expert witnesses, and

civilian eyewitnesses, including victims Forrest and Fowler. (See

Tr. 2:1-658:6). Forrest testified about the shooting and events

before and after the shooting. (Tr. 273:7-293:24.) During his

direct examination, Forrest was unable to conclusively identify

Petitioner in court. (Tr. 292:15-293:17.) However, Forrest was

able to recall numerous physical characteristics of the shooter,

all of which were consistent with Petitioner’s appearance. (Tr.

285:15-24, 292:1-14.) Additionally, when asked whether Petitioner

was the person who shot and killed Prophet, Forrest testified that

“[h]e resembles him extremely, yes.” (Tr. 293:19-22.)

Dr. Gerard Catanese, Deputy Medical Examiner at the

Nassau County Medical Examiner’s Office, testified that he

performed the autopsy on Prophet and described Prophet’s bullet

wounds, and that the bullet trajectory was consistent with Prophet

being shot by an individual seated in the rear passenger seat.

(Tr. 309:5-321:7.) Additionally, Robert Freese, a firearms

examiner with the New York State Police Department Laboratory,

testified that all cartridges and bullets collected at the scene

were consistent with being fired from the same weapon. (Tr. 364:3-

377:25.)

The prosecution called numerous witnesses who testified

about cell phone evidence and drew connections between

Petitioner’s cell phone and the crime. The prosecution called

Barbara Prophet, Michael Prophet’s sister-in-law, who provided

Michael Prophet’s phone number and testified that Michael Prophet

occasionally sold marijuana out of his van. (Tr. 157:20-162:24.)

Detective Thomas Harjus of NCPD’s Asset Forfeiture and

Intelligence Command testified about his analysis of telephone

records using Pen-Link software. (Tr. 461:9-476:21.) Detective

Frederick Black of the NCPD’s Electronics Squad testified as to

his analysis of Petitioner’s cell site records--showing that

Petitioner’s cell phone was in the vicinity of the McDonald’s at

the time of the shooting and tracing the phone’s movement on the

day of the shooting--and photograph surveillance of Petitioner at

his Brooklyn address. (Tr. 477:10-511:19.)

Detective Raymond of the NCPD Asset Forfeiture Criminal

Intelligence Rapid Response Task Force testified that he responded

to the crime scene on the night of the incident and went to Mercy

Medical Center to interview Hayden Forrest. (Tr. 512:10-516:24.)

He also analyzed Prophet’s and Petitioner’s cell site records,

which revealed that Petitioner’s cell phone number was the last

number Prophet called moments before he was killed (Tr. 518:1-9),

and connected Petitioner to both the 618 and 347 cell numbers (Tr.

518:1-521:5). (See generally Tr. 512:10-540:7.) In addition, the

prosecution introduced cell site records placing Petitioner’s cell

phone in the vicinity of the McDonald’s parking lot at the time of

the incident. (See generally Tr. 386:1-511:15.)

There was no defense case. (Tr. 578:11.) Defense

counsel moved for a trial order of dismissal pursuant to Criminal

Procedure Law § 290.10, which was denied by the court. (Tr.

578:21-25, 579:12-13.) Defense counsel and the prosecution

delivered their summations to the jury, the court instructed the

jury on the law, and jury deliberations commenced. (Tr. 587:17-

642:11.) The jury convicted Petitioner of all charges, including

Murder in the Second Degree, two counts of Attempted Murder in the

Second Degree, Criminal Possession of a Weapon in the Second

Degree, Criminal Use of a Firearm in the First Degree, two counts

of Assault in the First Degree, and Attempted Assault in the First

Degree. (Tr. 652:13-653:19.)

III. The Sentence

On December 12, 2012, Petitioner was sentenced by the

court. (See S., D.E. 9-8.) The prosecution requested the maximum

sentence permissible under the law. (S. 6:20-24.) Defense counsel

declined to address the court. (S. 6:25-7:2.) The court sentenced

Petitioner to the maximum sentence, namely an indeterminate term

of imprisonment of twenty-five years to life on the one count of

murder in the second degree; two determinate terms of twenty-five

years imprisonment on the two counts of attempted murder in the

second degree, with each term of twenty-five years to be served

concurrently, but consecutively to the twenty-five-to-life

sentence; two determinate terms of imprisonment of fifteen years

on each of the two counts of criminal possession of a weapon in

the second degree, to be served concurrently with the prior

sentences imposed; a determinate term of twenty years on the one

count of criminal use of a firearm in the in the first degree, to

be served concurrently with the sentences already imposed; to a

determinate term of imprisonment of twenty-five years on each of

the two counts of assault in the first degree, also to be served

concurrently with the sentences already imposed; and to a

determinate term of fifteen years on the one count of attempted

assault in the first degree, to be served concurrently with the

sentences already imposed. (S. 7:7-9:12.) In addition, the court

ordered that a DNA sample be taken and that Petitioner pay

restitution in the amount of $11,841.79 by civil judgment, a

mandatory surcharge of $300, a DNA fee of $50, and a crime victim’s

assistance fee of $20. (S. 9:13-23.)

On January 16, 2013, the court amended Petitioner’s

sentence to include twenty years of post-release supervision on

each count of attempted murder in the second degree; twenty years

of post-release supervision for each count of criminal possession

of a weapon in the second degree; twenty-five years of post-release

supervision for the crime of criminal use of a firearm; twenty-

five years for the crime of assault in the first degree; twenty

years of post-release supervision for the crime of attempted

assault in the first degree. (Re. S., D.E. 9-9, 2:19-3:10.) The

original sentence remained otherwise unchanged. (Re. S. 3:11-13.)

IV. January 2013 Motion to Vacate Judgment

On January 21, 2013 Petitioner filed a pro se motion to

vacate his judgment of conviction and set aside the verdict,

pursuant to New York Criminal Procedure Law § 440.10, based on

allegations that: (1) the evidence at trial was not legally

sufficient; (2) the evidence admitted at trial should have been

suppressed; (3) probable cause for arrest was insufficient;

(4) prosecutorial misconduct; (5) police misconduct; and (6) he

received ineffective assistance of counsel. (See Mot. to Vacate

J., D.E. 10-35.) The trial court denied the motion in its entirety

and held that “[e]very claim made by the defendant is properly

heard on direct appeal, and as such may not be made by motion to

vacate. CPL 440.10(2).” (N.Y. Sup. Ct. Order, D.E. 10-37 at 1.)

The court also noted that “the remainder of his claims . . . are

either unsupported, too vague, or too speculative to be reviewed

here.” (N.Y. Sup. Ct. Order at 1.)

On April 18, 2013, Petitioner filed a pro se motion for

leave to appeal the trial court’s 440 decision to the Appellate

Division, Second Department, pursuant to CPL 450.15 and 460.15.

(See Mot. for Leave to Appeal, D.E. 10-43, at ECF 1). On July 19,

2013, the Appellate Division denied Petitioner’s application.

(See July 2013 App. Div. Order, D.E. 10-2.)

V. The Appeal

On September 6, 2014, Petitioner, through counsel,

appealed his conviction and sentence to the Second Department. On

direct appeal, Petitioner argued that: (1) the hearing court erred

by not suppressing all his statements made to detectives during

his interrogation on June 28, 2011; (2) the court’s Sandoval ruling

denied him a fair trial; (3) the court erred by not giving a

circumstantial evidence instruction to the jury; (4) the court

erred in admitting into evidence certain cell phone records; (5)

the prosecutor committed misconduct; (6) the trial court erred in

denying his motion for dismissal pursuant to C.P.L. 290.10 and the

verdict was against the weight of the evidence; (7) his counsel

was ineffective; (8) his sentence was illegal, excessive, and

harsh; (9) the trial court erred in admitting certain autopsy

photographs into evidence; and (10) his convictions and sentences

under counts four, Criminal Possession of a Weapon in the Second

Degree (New York Penal Law § 265.03(3)), and five, Criminal

Possession of a Weapon in the Second Degree (New York Penal Law

§ 265.03(1)), should be vacated and set aside due to the conviction

under count six, Criminal Use of a Firearm in the First Degree

(N.Y. Penal Law § 265.09(1)(a)). (See App. Div. Br., D.E. 10-3,

at 38-66.)

The Second Department held that “the judgment is

modified, on the law, by vacating the convictions of criminal

possession of a weapon in the second degree, vacating the sentences

imposed thereon, and dismissing those counts of the indictment; as

so modified, the judgment is affirmed.” People v. Duren, 130

A.D.3d 842, 842, 13 N.Y.S.3d 512, 512 (2d Dep’t 2015).

Regarding the legal sufficiency of the evidence claim,

the Second Department found that Petitioner “failed to preserve

for appellate review his challenge to the legal sufficiency of the

evidence, as defense counsel did not base his motion to dismiss on

any specific argument raised on appeal.” Id. (citations omitted).

In “viewing the evidence in the light most favorable to the People,

[the Court found] that it was legally sufficient to establish the

defendant’s guilt beyond a reasonable doubt,” and that in

conducting “an independent review of the weight of the evidence”

while according great deference to the jury’s findings, “[it was]

satisfied that the verdict of guilt was not against the weight of

the evidence.” Id. (internal citations omitted).

As to the ineffective assistance of counsel claim, the

Second Department found that “it is not evident from the matter

appearing on the record that the defendant was deprived of the

effective assistance of counsel,” and that “[s]ince the

defendant’s claim of ineffective assistance of counsel cannot be

resolved without reference to matter[s] outside the record, a CPL

440.10 proceeding is the appropriate forum for reviewing the claim

in its entirety.” Id. at 843 (internal citations omitted).

In addition, the Second Department found that “[t]he

sentence imposed was not excessive.” Id. (citations omitted).

Finally, the court held that “defendant’s remaining contentions

are unpreserved for appellate review and, in any event, without

merit.” Id.

Petitioner, through counsel, sought leave to appeal to

the New York State Court of Appeals, which was denied on

November 6, 2015. (See D.E. 10-21.) See also People v. Duren, 26

N.Y.3d 1039, 43 N.E.3d 379, 22 N.Y.S.3d 169 (2015).

VI. October 2015 Motion to Vacate Judgment

On October 19, 2015, Petitioner filed a pro se motion to

vacate judgment pursuant to CPL § 440.10(1)(b), (c), (d), and (h)

in the trial court. Petitioner argued: (1) that he received

ineffective assistance of counsel because (a) defense counsel

failed to establish the legality of Petitioner’s arrest and to

successfully suppress statements as fruit of an illegal arrest,

(b) defense counsel did not adequately prepare or ask important

questions, (c) defense counsel did not investigate the scene of

the shooting, which denied Petitioner a theory of defense

consistent with his alleged innocence, (d) defense counsel

neglected to renew objection to all evidence admitted subject to

connection, (e) defense counsel failed to move for a mistrial, (f)

defense counsel did not object to warrants being used for prior

bad acts at the Sandoval hearing, (g) defense counsel did not

object to the court’s circumstantial evidence charge, (h) defense

counsel failed to cross-examine the People’s eyewitness, (i)

defense counsel neglected to raise the issue of police fraud based

on forgery, falsifying documents, and misrepresentation, and (j)

defense counsel did not object to prosecutor’s alleged improper

remarks; and (2) that his right to due process was violated by

false testimony by witnesses and misconduct by prosecutors. (See

Second Mot. to Vacate J., D.E. 10-38, at ECF pp. 4-5.) On

December 24, 2015, Petitioner filed an addendum further detailing

his ineffective assistance of counsel claims. (See Addendum Aff.

in Supp., D.E. 10-39.)

On April 4, 2016, the Supreme Court, Nassau County issued

an order finding that Petitioner’s ineffective-assistance

arguments were “previously raised on appeal to the Appellate

Division and were found to be without merit and accordingly

rejected by the Court. Accordingly, the same claims that were

rejected by the Appellate Division are procedurally barred in his

present motion.” (See Apr. 2016 Order, D.E. 10-42, at 2) (internal

citation omitted). In addition, the court observed that “since

the defendant’s ineffective-assistance argument relating to

counsel’s alleged failure to present a defense, cross examine a

particular witness, request for a voluntariness charge, seek

suppression of defendant’s statements to police, object to the

admission of phone records, etc. were previously raised on appeal

and rejected by the Appellate Division, these arguments are

procedurally barred.” (Apr. 2016 Order at 3 (internal citations

omitted).) Finally, the court noted that it “examined all of the

claims raised by defendant’s 440.10 motion, his reply affirmation

and the People’s Opposition and concludes the defendant’s motion

is without merit and Denied in all respects.” (Apr. 2016 Order at

3 (emphasis in original).)

VII. May 2016 Application to Appeal

On May 16, 2016, Petitioner filed a pro se motion for

leave to appeal to the Appellate Division, Second Department

pursuant to C.P.L. §§ 450.15 and 160.16 and 22 N.Y.C.R.R.

§ 670.12(b) from Supreme Court’s denial of his motion to vacate

judgment of conviction. (See Aff. in Supp. of Appl. for Permission

to Appeal, D.E. 10-7.) Petitioner argued: (1) that the trial

court’s summary denial of his motion to vacate judgment of

conviction was improper; (2) that the trial court abused its

discretion by failing to recognize the appellate court’s finding

that his contentions constituted a mixed claim of ineffective

assistance of counsel; and (3) that the trial court improperly

denied his claims of prosecutorial misconduct. (See Aff. in Supp.

of Appl. for Permission to Appeal.) On July 22, 2016, the Second

Department denied Petitioner’s application. (See July 2016 App.

Div. Order, D.E. 10-9.)

On September 30, 2016, the Court of Appeals dismissed

Petitioner’s application for leave to appeal “because the order

sought to be appealed is not appealable under CPL 450.90(1).” (See

Order Dismissing Leave, D.E. 10-26.)

VIII. December 2016 Writ of Error Coram Nobis

On December 6, 2016, Petitioner filed a pro se motion

for a writ of coram nobis, in the Appellate Division, Second

Department. (See Dec. 6, 2016 Pet. Writ of Error Coram Nobis,

D.E. 10-10.) Petitioner argued that his appellate counsel’s

representation on direct appeal was deficient and prejudicial

because of the omission of a “substantial” issue--that the trial

court did not “give the defense meaningful notice of the contents

of the jury notes”--that would warrant to court to grant a de novo

appeal. (See Dec. 6, 2016 Aff. Supp. of Writ of Error Coram Nobis,

D.E. 10-10, at ECF pp. 3-14.) On July 26, 2017, the Second

Department denied Petitioner’s application because he “failed to

establish that he was denied the effective assistance of appellate

counsel.” People v. Duren, 152 A.D.3d 787, 56 N.Y.S.3d 473 (2d

Dep’t 2017). Petitioner’s application for leave to appeal to the

New York Court of Appeals was denied on October 19, 2017. People

v. Duren, 30 N.Y.3d 979, 89 N.E.3d 1261, 67 N.Y.S.3d 581 (2017).

On August 23, 2017, Petitioner filed a pro se motion for

leave to reargue the Second Department’s denial of his petition

for a writ of error coram nobis to the Second Department. (See

Mot. for Reargument, D.E. 10-15.) On January 9, 2018, the Second

Department denied this motion. (See Jan. 2018 Order, D.E. 10-14.)

IX. March 2018 Writ of Error Coram Nobis

On March 12, 2018, Petitioner again filed a pro se motion

for a writ of error coram nobis. (See Pet. Writ of Error Coram

Nobis, D.E. 10-18.) Petitioner argued that appellate counsel was

ineffective because it did not bring the following to the court’s

attention: (1) that exhibits were given to the jury outside the

court’s supervision, allowing the clerk and prosecutor to

determine the substance of the jury’s request; (2) that trial

counsel was ineffective for failing to move for a trial order

dismissal on the grounds that the prosecution failed to meet their

burden; (3) that trial counsel was ineffective for failing to

suppress the police use of a pen register to locate him; and (4)

that the prosecutor’s remarks during summations were improper and

racially inflammatory. (See Mar. 12, 2018 Aff. Supp. Writ of Error

Coram Nobis, D.E. 10-18, at 3-16.) On August 29, 2018, the Second

Department denied Petitioner’s application because he “failed to

establish that he was denied the effective assistance of appellate

counsel.” People v. Duren, 164 A.D.3d 913, 913, 79 N.Y.S. 3d 924

(Mem), 924 (2d Dep’t 2018). Petitioner’s application for leave to

appeal to the New York State Court of Appeals was denied on

December 18, 2018. People v. Duren, 32 N.Y.3d 1125, 1125, 117

N.E.3d 822, 93 N.Y.S.3d 263 (N.Y. 2018). This Petition followed.

DISCUSSION

I. The Legal Standard

Congress enacted the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996),

to restrict “the power of federal courts to grant writs of habeas

corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362,

399, 120 S. Ct. 1495, 1516, 146 L. Ed. 2d 389 (2000). A state

prisoner seeking habeas corpus relief under Section 2254 must show

that he is “in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section

2254, as amended by AEDPA, provides, in part, that:

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 claims that was not

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 [f]ederal

law, as determined by the Supreme Court of the

United States.

AEDPA, Pub. L. No. 104-132, 28 U.S.C. § 2254 Amendments. AEDPA

established a deferential standard of relief, seeking to “avoid[ ]

unnecessarily ‘disturbing the State’s significant interest in

repose for concluded litigation, denying society the right to

punish some admitted offenders, and intruding on state sovereignty

to a degree matched by few exercises of federal judicial

authority.’” Virginia v. LeBlanc, 137 S. Ct. 1726, 1729, 198 L.

Ed. 2d 186 (2017) (quoting Harrington v. Richter, 562 U.S. 86,

103, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624 (2011)) (brackets

omitted). Accordingly, a habeas corpus petition is not a vehicle

to relitigate every issue previously determined in state court.

Herrara v. Collins, 506 U.S. 390, 401, 113 S. Ct. 853, 861, 122 L.

Ed. 2d 203 (1993). Ultimately, “the petitioner bears the burden

of proving by a preponderance of the evidence that his

constitutional rights have been violated.” Jones v. Vacco, 126

F.3d 408, 415 (2d Cir. 1997); see also Hawkins v. Costello, 460

F.3d 238, 246 (2d Cir. 2006).

Therefore, a federal court may not grant a writ of habeas

corpus unless the state court’s adjudication of the claim 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). The Supreme

Court has construed AEDPA “to give independent meaning to ‘contrary

[to] and ‘unreasonable.’” Jones v. Stinson, 229 F.3d 112, 119 (2d

Cir. 2000). A state court’s 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 question of law

or if the state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.”

Williams, 529 U.S. at 412-13, 120 S. Ct. at 1523. A decision

involves “an unreasonable application” of clearly established

federal law when a 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.” Id. at 413, 120 S. Ct. at 1523. This standard does not

require that all reasonable jurists agree that the state court was

wrong; rather, the standard “falls somewhere between ‘merely

erroneous and unreasonable to all reasonable jurists.’” Stinson,

229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109

(2d Cir. 2000)). 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, 132 S. Ct. 490, 491, 181 L. Ed. 2d 468 (2011)). Section

2254(d), as amended by AEDPA, “stops short of imposing a complete

bar on federal-court relitigation of claims already rejected in

state proceedings.” Harrington, 562 U.S. at 102, 131 S. Ct. at

786.

Assuming that a petitioner’s claims are cognizable on

habeas review, a petitioner must exhaust state court remedies

before coming to federal court. Exhaustion of state court remedies

requires that a petitioner fairly present the claim in state court,

allowing the state court the “‘opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.’” See Jackson

v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438

(1971)). “A petitioner has ‘fairly presented’ his claim only if

he has ‘informed the state court of both the factual and the legal

premises of the claim he asserts in federal court.’” Jones v.

Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) (quoting Dorsey v.

Kelly, 112 F.3d 50, 52 (2d Cir. 1997)) (additional citation

omitted). “Specifically, [petitioner] must have set forth in state

court all of the essential factual allegations asserted in his

federal petition; if material factual allegations were omitted,

the state court has not had a fair opportunity to rule on the

claim.” Daye v. Att’y Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir.

1982) (collecting cases).

In addition, a federal court will not review a habeas

petition if a petitioner’s claims were decided at the state level

on “independent and adequate” state procedural grounds. Coleman

v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct. 2546, 2555, 115 L.

Ed. 2d 640 (1991). This procedural bar applies even if the state

court addressed the merits in the alternative, but decided the

claim on independent procedural grounds. Velasquez v. Leonardo,

898 F.2d 7, 9 (2d Cir. 1990).

To obtain review of procedurally barred claims, a state

prisoner must show either (1) “cause for the default and actual

prejudice as a result” or (2) actual innocence. Coleman, 501 U.S.

at 750, 111 S. Ct. at 2565.

II. Application

In this Petition, Petitioner renews many of the

arguments made on his direct appeal, specifically that: (1) the

hearing court erred by not suppressing all his statements to

detectives regarding his cell phone number following his arrest;

(2) the court’s Sandoval ruling denied him a fair trial; (3) the

court erred in failing to give a circumstantial evidence

instruction; (4) the court erred in admitting into evidence certain

cell phone records; (5) the prosecutor committed misconduct; and

(6) trial counsel was ineffective. (See generally Pet.; App. Div.

Br., at 38-53, 57-60.) Here, Petitioner also asserts that: (7) he

was unlawfully searched and seized; (8) there was insufficient

evidence to support his conviction; (9) appellate counsel was

ineffective. (Pet. at ECF pp. 6, 17, 19.)

The Court acknowledges that pro se submissions require

flexible construction, and so the Court must interpret them “‘to

raise the strongest arguments that they suggest.’” Kirkland v.

Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting Burgos

v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). But this leeway

does not excuse Petitioner “‘from compl[ying] with relevant rules

of procedural and substantive law,’” Traguth v. Zuck, 710 F.2d 90,

95 (2d Cir. 1983) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th

Cir. 1981)), as he “bears the burden of proving by a preponderance

of the evidence that his constitutional rights have been violated.”

Vacco, 126 F.3d at 415.

A. Statement Claim

Petitioner first claims that he is entitled to habeas

relief because the statements he made giving his cell phone number

to detectives following his arrest should have been suppressed as

involuntary and in violation of Miranda. This claim was raised on

direct appeal and rejected on the merits by the Appellate Division,

which stated that “defendant’s remaining contentions are

unpreserved for appellate review and, in any event, without merit.”

Duren, 130 A.D.3d at 843, 13 N.Y.S.3d at 512.

The state court in this case “expressly relied on a

procedural default as an independent and adequate state ground” in

denying Petitioner’s unpreserved claim, but found in the

alternative that it lacked merit. Velasquez, 898 F.2d at 9. As

such, in abundance of caution, the Court proceeds to reach the

merits of Petitioner’s claim.

The Supreme Court has recognized an exception to

Miranda’s protection against self-incrimination during

interrogation for statements collected through routine booking

questions4 that “appear reasonably related to the police’s

administrative concerns.” Pennsylvania v. Muniz, 496 U.S. 582,

601-02, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528 (1990). Routine

booking questions include “those designed to elicit an arrestee’s

pedigree, such as the arrestee’s name, aliases, date of birth,

address, place of employment, and marital status.” United States

v. Chandler, 164 F. Supp. 3d 368, 387 (E.D.N.Y. 2016).

However, “‘recognizing a booking exception to Miranda

does not mean . . . that any question asked during the booking

process falls within that exception. Without obtaining a waiver

of the suspect’s Miranda rights, the police may not ask questions,

even during booking, that are designed to elicit incriminatory

admissions.’” Rosa, 396 F.3d at 210 (quoting Muniz, 496 U.S. at

602 n.14, 110 S. Ct. at 2650 n.14). Routine booking questions may

not fall within the pedigree exception if the police should have

known that asking the questions was “‘reasonably likely to elicit

an incriminating response.’” Rosa, 396 F.3d at 222 (quoting Rhode

Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 1689

(1980)) (emphasis in original); see also Thompson v. United States,

821 F. Supp. 110, 120 (W.D.N.Y. 1992) (“the booking exception is

not absolute”).

4 This exception is known as the “routine booking question

exception,” “booking exception,” or “pedigree exception.”

See Rosa v. McCray, 396 F.3d 210, 214, 221-22 (2d Cir. 2005).

Determining whether a booking question falls within the

pedigree exception to Miranda requires careful consideration of

“both the question itself and its relationship to the suspected

crime.” United States v. Sezanayev, No. 17-CR-0262, 2018 WL

2324077, at *12 (S.D.N.Y. May 22, 2018); but see Rosa, 396 F.3d at

222-23 (where a booking officer asked the defendant his real hair

color, the court found the question was related to legitimate

processing purposes, and not seeking incriminating information,

although the suspect was described as having a different hair color

than defendant at the time of his arrest); see also United States

v. Pabon, 603 F. Supp. 2d 406, 409-10 (N.D.N.Y. 2009) (finding

that the pedigree exception applied where police questioned

defendant about his address after a search warrant was executed,

and by identifying the search warrant location as his address,

defendant gave incriminating information with respect to

possessing the contraband recovered therein).

Here, questioning Petitioner about his cell phone number

clearly fell into pedigree questions which are “normally and

reasonably related to police administrative concerns,” even if

providing the phone number itself may have been incriminating.

Rosa, 396 F.3d at 221-22. Additionally, the phone number being

used at the time of the murder was the (618) number, and not the

(347) number, which Petitioner stated was his current phone number

at the time of his arrest. While evidence was presented during

trial demonstrating that the user of the (347) and (618) numbers

were one and the same, Petitioner’s admission relating to the (618)

number alone was enough to tie him to the scene of the crime. The

detective’s inquiry into the (618) phone number occurred after

Petitioner had been advised of his Miranda rights.

Accordingly, Petitioner’s claim that the hearing court

erred by not suppressing all his statements regarding his cell

phone number is denied habeas relief.

B. Sandoval Claim

Petitioner next claims that the trial court’s Sandoval

ruling violated his Constitutional right to a fair trial. The

trial court held that should Petitioner testify, which he did not,

the prosecution could cross-examine him regarding warrants for his

arrest issued in unrelated matters on September 3, 2010 and

October 4, 2010.

Initially, Petitioner brought this claim before the

Appellate Division, and that court decided “defendant’s remaining

contentions are unpreserved for appellate review and, in any event,

without merit.” Duren, 130 A.D.3d at 843. Notwithstanding any

procedural bar, the Court finds that Petitioner’s claim fails on

the merits.

Courts in this Circuit apply “‘a bright-line rule . . .

barring habeas relief for allegedly erroneous Sandoval rulings in

instances where a defendant elects not [to] testify.’” Melendez

v. LaValley, 942 F. Supp. 2d 419, 424 (S.D.N.Y. 2013)

(quoting Shannon v. Senkowski, No. 00-CV-2865, 2000 WL 1683448, at

*6 (S.D.N.Y. Nov. 9, 2000)) (alterations in original); see

also Reid v. Miller, No. 02-CV-2895, 2003 WL 22383097, at *5

(S.D.N.Y. Oct. 20, 2003) (“It is well established that in order to

raise a claim for improper impeachment with a prior conviction,

the defendant must testify at trial.”).

Where, as here, the petitioner does not testify, “a court

has ‘no adequate non-speculative basis upon which to assess the

merits of that claim.’” Sorrentino v. Lavalley, No. 12-CV-7668,

2016 WL 3460418, at *4 (S.D.N.Y. June 21, 2016) (quoting Shannon,

2000 WL 1683448, at *6). As such, Petitioner’s Sandoval claim is

denied.

C. Unlawful Search and Seizure Claim

Petitioner claims that his Fourth Amendment rights were

violated when he was subject to unlawful search and seizure. To

that end, Petitioner claims that: (1) he was arrested without a

warrant; (2) the legality of his arrest was never established; (3)

the prosecution did not disclose that a cellphone was recovered

from Petitioner’s bedroom nor that it was going to use it at trial;

(4) the prosecution did not disclose that the arrest occurred in

Petitioner’s home; and (5) no warrants were introduced at trial.

(Pet. at ECF pp. 5, 15.)

As an initial matter, this Court deems Petitioner’s

Fourth Amendment claim exhausted, as no state court remedy remains,

but notes that he has defaulted on the claim. Notwithstanding,

the Court finds that Petitioner’s claim fails on the merits.

“[W]here the State has provided an opportunity for full

and fair litigation of a Fourth Amendment claim, the Constitution

does not require that a state prisoner be granted federal habeas

corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.”

Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 3046, 49 L.

Ed. 2d 1067 (1976). And the Second Circuit has further elaborated

that, under Powell,

review of fourth amendment claims in habeas

petitions would be undertaken in only one of

two instances: (a) if the state has provided

no corrective procedures at all to redress the

alleged fourth amendment violations; or (b) if

the state has provided a corrective mechanism,

but the defendant was precluded from using

that mechanism because of an unconscionable

breakdown in the underlying process.

Capellan v. Riley, 975 F.2d 67, 70, (2d Cir. 1992) (citing Gates

v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc)).

New York has adequate corrective procedures for

litigating Fourth Amendment claims set forth in CPL § 710.10 et

seq. See, e.g., Capellan, 975 F.2d at 70 n.1 (“[T]he ‘federal

courts have approved New York’s procedure for litigating Fourth

Amendment claims . . . as being facially adequate.’” (quoting

Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989))).

Because New York provides an adequate statutory

mechanism for reviewing Fourth Amendment claims, Petitioner must

show that an “unconscionable breakdown” occurred. Such a breakdown

occurs when the state court “failed to conduct a reasoned method

of inquiry into the relevant questions of fact and law.” Capellan,

975 F.2d at 71 (internal quotation marks and citations omitted).

Additionally, “the court cannot say that it is an ‘unconscionable

breakdown’ of the state’s process that a [petitioner], who fails

to raise a claim when he is initially given an opportunity for

full and fair review, is not afforded a second chance to attack

the same evidence on a different legal theory.” Cappiello v. Hoke,

698 F. Supp. 1042, 1051 (E.D.N.Y. 1988) (emphasis in original).

Here, Petitioner’s claims relate to the circumstances of

his arrest and, mainly, that his arrest occurred in his home

without a warrant. Petitioner’s claim does not prevail as he is

unable to establish that an “unconscionable breakdown” occurred

here. A suppression hearing was conducted before Hon. John L.

Kase prior to trial, wherein the prosecution presented testimony

of two witnesses, Detective Nardo and Detective Raymond. (See

generally Supp. Hr’g. Tr.) Based on the hearing, the judge

determined that there was probable cause for Petitioner’s arrest.

(See Resp’t Opp. Aff., D.E. 9, at vii, n.3.)5 While the location

of Petitioner’s arrest was not specifically addressed during the

hearing, Petitioner certainly knew where he had been arrested, and

yet he did not raise that during the hearing. As such, the Court

does not find that an “unconscionable breakdown” occurred here

where it was Petitioner who failed to raise this issue when given

a full and fair opportunity.

Further, to the extent that Petitioner claims that the

state court erred in failing to suppress evidence due to an

improper search or improper arrest charges, “[a] state court’s

erroneous ruling on an issue of state evidentiary law rises to a

federal constitutional violation only if the error deprived the

defendant of a fundamentally fair trial.” Crawford v. Artuz, 165

F. Supp. 2d 627, 635 (S.D.N.Y. 2001) (emphasis in original).

Petitioner further fails to demonstrate that he was

denied a fundamentally fair trial. As an initial matter,

Petitioner fails to show that the suppression court’s ruling

finding probable cause for his arrest was wrong. Additionally,

5 According to Respondent’s Affidavit and Memorandum of Law in

Opposition to Petition for Writ of Habeas Corpus, on July 30,

2012 the hearing court issued an amended suppression hearing

decision which added the following language: “Based upon the

record generated at the combined . . . hearing conducted on

March 12, 2010, this [c]ourt finds that the defendant’s arrest

on June 28, 2011 was based on probable cause.” However, it does

not appear that this amended decision was included with the

trial record for the Court’s review.

had the location of Petitioner’s arrest been addressed during the

hearing, it is likely that the result would have been the same.

New York State law provides several exceptions to the warrant

requirement. See generally Payton v. New York, 445 U.S. 573, 100

S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Based on the facts of this

case, it is reasonable that the exigent circumstances exception to

the warrant rule is applicable, considering Petitioner was wanted

for murder, the gun used during the shooting was never located

and, as such, Petitioner could have been armed, or could have

attempted to destroy the evidence. Payton, 445 U.S. at 587, 100

S. Ct. at 1381. As such, Petitioner fails to demonstrate that

he was denied a fundamentally fair trial. Accordingly,

Petitioner’s Fourth Amendment claim is denied.

D. Circumstantial Evidence Charge Claim

Petitioner argues that he was denied a fair trial

because, although the trial court issued a jury instruction on

circumstantial evidence, the court neglected to specifically

advise the jury that they “must scrutinize and weigh the evidence

based on the circumstantial evidence standard.” (Pet. at 16.)

Not only is this fair trial claim procedurally barred from habeas

corpus review as it was decided on the state level on adequate and

independent state grounds, but it relies entirely on New York law

and does not implicate any federal constitutional right.

State court jury instructions are a matter of state law

and do not raise a federal question, unless they implicate

Fourteenth Amendment due process rights. Cupp v. Naughten, 414

U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973).

Generally, improper jury instructions only violate due process if

they “fail[ ] to give effect to [the] requirement” that the

Government must prove every element of a charged offense beyond a

reasonable doubt. See Middleton v. McNeil, 541 U.S. 433, 437, 124

S. Ct. 1830, 1832, 158 L. Ed. 2d 701 (2004) (per curiam). “[A]

state prisoner making a claim of improper jury instructions faces

a substantial burden.” DelValle v. Armstrong, 306 F.3d 1197, 1200

(2d Cir. 2002). A petitioner must demonstrate that “‘the ailing

instruction by itself so infected the entire trial that the

resulting conviction violat[ed] due process,’ not merely [that]

‘the instruction is undesirable, erroneous, or even universally

condemned.’” Id. at 1200-01 (quoting Henderson v. Kibbe, 431 U.S.

145, 154, 97 S. Ct. 1730, 1737, 52 L. Ed. 2d 203 (1977)). Thus,

“not every ambiguity, inconsistency, or deficiency in a jury

instruction rises to the level of a due process violation.”

Middleton, 541 U.S. at 437, 124 S. Ct. at 1832.

Here, a review of the jury charge in Petitioner’s state

criminal trial indicates that, taken as a whole, the jury was

properly instructed on circumstantial evidence, reasonable doubt,

and the elements of the crime the prosecution was required to

prove, and thus did not “so infect[ ] the entire trial that the

resulting conviction violat[ed] due process.” Middleton, 541 U.S.

at 437, 124 S. Ct. at 1832. (See generally Tr. 607-43.)

Additionally, Petitioner failed to object to the jury instruction

before the trial court. Roman v. Abrams, 822 F. 2d 214, 220 (2d

Cir. 1987) (finding that a state prisoner who failed to object to

a jury instruction before the trial court procedurally forfeits

that argument on federal habeas review); see also Reyes v. Keane,

118 F.3d 136, 138 (2d Cir. 1997).

Accordingly, Petitioner’s circumstantial evidence jury

charge claim is denied habeas relief.

E. Cell Phone Records Claim

Petitioner claims that, by admitting numerous cell phone

records into evidence, the court denied his right to a fair trial.

(Pet. at 9.) Petitioner argues that a proper evidentiary

foundation was not laid to admit the cell phone records into

evidence, and that the records were entered subject to connection,

but were never actually connected. Assuming, but not deciding,

that Petitioner’s claim is not procedurally barred, it also fails

on the merits.

As a general matter, the admissibility of evidence in

state court is wholly a matter of state law and is therefore not

subject to habeas relief, barring a showing that Petitioner’s due

process rights were denied such that he was deprived a

fundamentally fair trial. See Estelle v. McGuire, 502 U.S. 62,

75. 112 S. Ct. 475, 483, 116 L. Ed. 2d 385 (1991).

Here, Petitioner fails to demonstrate how the admission

of various cell phone records denied him of a fundamentally fair

trial. Initially, from a review of the record, Petitioner cannot

show the trial court’s ruling was in error. It has long been

established that business records are an exception to the hearsay

rule. See People v. Rawlins, 10 N.Y.3d 136, 150 (2008); People v.

Guidice, 83 N.Y.2d 630, 635 (1994). Thus, Petitioner was not

denied a fundamentally fair trial when cell phone records were

properly admitted into evidence as business records.

Further, Petitioner was not denied a fundamentally fair

trial because certain cell phone records were admitted into

evidence “subject to connection.” Whether to enter evidence

“subject to connection” is in the trial court’s discretion. See

People v. Caban, 5 N.Y.3d 143, 151 (2005). While Petitioner argues

that the records were never connected, he failed to raise the issue

before the trial court.

Additionally, the record reveals that the evidence was,

in fact, sufficiently connected. As an initial matter, Petitioner,

by his own video statement, admitted that both the (618) and (347)

numbers belonged to him. The prosecution presented testimony from

Barbara Prophet, Prophet’s sister-in-law. (Tr. 158:23-24.)

Barbara Prophet established Prophet’s phone number. (Tr. 161:3-

4.)

Thereafter, employees, and record custodians, from

Sprint Nextel, Verizon, and Time Warner Cable each testified. (See

generally Tr. 383:17-438:25; 439:21-447:13; 447:17-458:7.) Sprint

Nextel representative Norman Clark connected the cell phone

subscriber records to Prophet’s phone number, as testified to by

Barbara Prophet, and further connected Prophet’s subscriber

records to Petitioner by testifying to various calls between

Petitioner and Prophet on the date, and around the timeframe, of

the murder. (Tr. 392:4-5; 410:7-23.) The Verizon representative,

Arthur Behal, then established Petitioner’s mother’s, Lillian

Duren, phone number as (718) 642-1883. Detective Harjus, testified

that Lillian Duren and Petitioner communicated using both

(618) 309-0096 and (347) 805-8856 numbers. (Tr. 443:8-12; 467:16-

18.) Gerard Elizares (“Elizares”), the Time Warner Cable

representative, then made connections between Petitioner and

Jeffrey Green. Elizares testified to Green’s phone number, and

entered Green’s subscriber records into evidence subject to

connection. (Tr. 452:15-19; 450:18-25.) Those records were then

sufficiently connected when Elizares testified that on April 17,

2011, the date of the murder, Petitioner and Green exchanged

numerous phone calls using the (618), and later, they communicated

via the (347) number. (Tr. 454:19-25; 455:17-22; 456:3-19.)

These phone records further tie Petitioner to both his

(618) and (347) phone numbers, and specifically tie him to his

(618) phone number on the date of the murder. Defense counsel

argued in his summation that perhaps Petitioner lent his phone to

someone, which is why the phone was in the vicinity of where the

murder occurred. (Tr. 589:15-590:3.) However, the phone records

demonstrate that Petitioner was in communication with Green

shortly before and after the murder, and as such, it was highly

unlikely that someone else was using his phone.

As such, the cell phone evidence was properly admitted,

and thus this claim is denied.

F. Prosecutorial Misconduct Claim

Petitioner alleges numerous instances of prosecutorial

misconduct at his criminal trial. Petitioner’s claims fall into

four categories: (1) the prosecutor introduced improper evidence

at trial; (2) the prosecutor made improper statements during her

summation; (3) the prosecutor elicited false testimony; and (4)

the prosecutor did not disclose the circumstances of Petitioner’s

arrest. Again, assuming, but not deciding, that Petitioner’s claim

is not procedurally barred, the Court addresses his claim on the

merits. As stated below, Petitioner’s claims are denied.

1. Improper Trial Evidence

Petitioner claims that the prosecutor improperly handled

the following evidence at trial: (1) the prosecutor elicited

hearsay testimony from Detective Harjus that he obtained the 347

number from a car service in Brooklyn; (2) the prosecutor elicited

hearsay statements made by Jeffrey Green without giving defense

counsel an opportunity to confront Green; and (3) the prosecutor

submitted evidence regarding a common calls report, exhibit 89,

which Petitioner asserts does not exist. (Pet. at 16-17.)

As discussed supra at 37, the admissibility of evidence

in state court is wholly a matter of state law and is therefore

not subject to habeas relief, barring a showing that Petitioner’s

due process rights were denied such that he was deprived a

fundamentally fair trial. Estelle, 502 U.S. at 75, 112 S. Ct. at

483. The Court finds that Petitioner’s alleged instances of

purported misconduct did not deny him a fundamentally fair trial.

Initially, the common calls report was not introduced as

evidence, but merely for identification to refresh witness

recollection. (Tr. 476:3-21.) As such, Petitioner is unable to

demonstrate he was prejudiced in any way, or denied a fair trial

as a result, as the common calls report was not used as evidence

against him at trial.

Petitioner further alleges he was deprived of a fair

trial when he was unable to confront witnesses during the following

instances of hearsay testimony: (1) Detective Raymond testified

that he obtained the (347) number from a car service in Brooklyn;

and (2) the prosecutor elicited hearsay statements made by Jeffrey

Green. (Pet. at 16.) These claims similarly fail.

The Sixth Amendment to the United States Constitution,

applicable to the states through the Fourteenth Amendment,

guarantees a criminal defendant “the right . . . to be confronted

with the witnesses against him.” U.S. CONST. AMEND. VI. The

Confrontation Clause prohibits admission at trial of out-of-court

testimonial statements against a criminal defendant unless the

declarant is unavailable and the defendant had a prior opportunity

to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68,

124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004).

With respect to the testimony by Detective Raymond that

he obtained the (347) number from a car service, Petitioner’s claim

is not supported by the trial record. Detective Raymond testified

that Duren’s (347) number originated from Detective Harjus,

through the Pen-Link system6, not the car service, as alleged by

Petitioner. (Tr. 520:22-521:5.) Therefore, the Confrontation

Clause is not implicated here, as Detective Harjus was available

and testified regarding his involvement in the investigation, and

6 Pen-link is computer software used by law enforcement to

analyze phone records. (Tr. 462:20-22.) Pen-link is useful in

sorting data in different ways, including chronologically. (Tr.

464:17-22.) The Pen-link system can also be used to conduct a

common call search between two phone numbers, as was the case

here. (Tr. 466:4-22 (Please note that pages 466 and 467 are

reversed on the docket).)

how he discovered Duren’s (347) number. (See generally Tr. 461:12-

476:21.)

Petitioner further claims he was denied his Sixth

Amendment rights with respect to Detective Raymond’s testimony

relating to his interview with Jeffrey Green. (Tr. 528:1-4.)

However, Detective Raymond did not testify to any statements made

by Jeffrey Green, but instead testified that, as a result of his

interview with Jeffrey Green, he concluded that Green and

Petitioner, the user of the (618) phone, were friends. (Tr. 528:8-

529:5). In his testimony, Detective Raymond was seemingly

deliberate in avoiding any statements Green made during the

interview as Detective Raymond only testified to his conclusions

based on his interaction with Green. Thus, no statements by Green,

testimonial or otherwise, were elicited during Detective Raymond’s

testimony. (Tr. 512:5-541:2.) As such, Petitioner’s Sixth

Amendment right to confront witnesses is not implicated here.

Accordingly, Petitioner’s claims for improper handling

of evidence are denied.

2. Improper Summation Commentary

Here, Petitioner claims that, during the prosecution

summation, the prosecutor: (1) incorrectly stated that Forrest

“testified that he brought the drugs to the deal;” (2) improperly

stated that Petitioner asked for an attorney during his

interrogation because he was “buried under the weight of the

evidence;” and (3) made “racially inflammatory remarks” in her

summation. (Pet. at 17.)

“A criminal conviction ‘is not to be lightly overturned

on the basis of a prosecutor’s comments standing alone’ in an

otherwise fair proceeding.” Gonzalez v. Sullivan, 934 F.2d 419,

424 (2d Cir. 1991) (quoting United States v. Young, 470 U.S. 1,

11, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1 (1985)). To amount to

constitutional error, “it is not enough that the prosecutor’s

remarks were undesirable or even universally condemned.” Darden

v. Wainwright, 477 U.S. 168, 181, 195 S. Ct. 2464, 91 L. Ed. 2d

144 (1986) (internal quotation marks and citation omitted).

Rather, the prosecutor’s comments “must represent ‘egregious

misconduct.’” Celleri v. Marshall, No. 07-CV-4114, 2009 WL

1269754, at *17 (E.D.N.Y. May 6, 2009) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 1973, 40 L. Ed.

2d 431 (1974)); see also United States v. Shareef, 190 F.3d 71, 78

(2d Cir. 1999) (“Remarks of the prosecutor in summation do not

amount to a denial of due process unless they constitute ‘egregious

misconduct.’” (citation omitted)). Thus, to warrant relief, the

Court must conclude that the comments “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.’” Darden, 477 U.S. at 181, 106 S. Ct. at 2471 (quoting

Donnelly, 416 U.S. at 643, 94 S. Ct. at 1871).

“[I]t is appropriate, on summation, to suggest

inferences that could be drawn from facts in evidence and draw

juror’s attention to relevant factors in assessing witness

credibility.” Cooper v. Costello, No. 93-CV-5670, 1996 WL

1088929, at *4 (E.D.N.Y. July 23, 1996) (citing People v.

Collins, 72 A.D.2d 431, 437-38, 424 N.Y.S.2d 954, 985 (4th Dept.

1980)). Additionally, the prosecution is permitted to rebut

arguments raised during a defendant’s summation, “‘even to the

extent of permitting the prosecutor to inject his view of the facts

to counter the defense counsel’s view of the facts.’” Readdon v.

Senkowski, No. 96-CV-4722, 1998 WL 720682, at *4 (S.D.N.Y.

Oct. 13, 1998) (quoting Orr v. Schaeffer, 460 F. Supp. 964, 967

(S.D.N.Y. 1978)). “Where a prosecutor’s statement is responsive

to comments made by defense counsel, the prejudicial effect of

such objectionable statements is diminished.” Pilgrim v.

Keane, No. 97-CV-2148, 2000 WL 1772653 at *3 (E.D.N.Y. Nov. 15,

2000) (citations omitted).

As to Petitioner’s first claim, namely that the

prosecutor incorrectly stated that Forrest testified that he

brought the drugs to the deal, the Court does not find that the

prosecutor’s comment rises to the level of egregious misconduct.

More specifically, the prosecutor stated “[Forrest] was there that

night according to his testimony--and I submit to you the evidence

in this case--because he was bringing the drugs to the deal.” (Tr.

598:14-17.) It is permissible and appropriate for the prosecutor

to make arguments by drawing inferences from the evidence presented

at trial. Cooper, 1996 WL 1088929, at *4. In fact, during

Petitioner’s own summation, defense counsel appears to have drawn

the same inference from the testimony and evidence. (“And

apparently it was going to be a drug deal of some kind.” (Tr.

588:15-16).) Thus, in this instance, the prosecutor’s summation

comment was fair argument and did not rise to the level of

egregious misconduct.

With respect to the prosecutor’s latter two comments,

while the Court finds that the prosecutor’s comments were

inappropriate, the comments did not rise to the level of egregious

misconduct.

In her summation, the prosecutor stated “[i]t must have

been some other black man who was there that night. After all

there must be millions of black men in the world, and there must

have been hundreds of thousands who lived in Brooklyn.” (Tr.

596:13-17.) While the prosecutor’s statement was careless, the

Court does not find the statement malicious, nor does it constitute

egregious misconduct. During defense counsel’s summation, he

commented on Forrest’s inability to identify Petitioner as the

shooter in court and argued that the description given by Forrest

lacked credibility. (Tr. 590:25-591:14.) While the prosecutor

was permitted to rebut defense counsel’s argument, the Court finds

her statements here were misguided, not intentionally

inflammatory. This criminal case did not otherwise present issues

involving race, such as racial bias by police, or cross-racial

identification procedures. Instead, it is evident that the

prosecutor was attempting to comment on the unlikelihood of another

individual being the shooter by speaking in a grandiose manner.

Again, while careless, the Court finds that the comment does not

amount to egregious misconduct.

As discussed below, by far the most inappropriate

comment made by the prosecutor was with respect to Petitioner’s

video statement. While the Court does not condone such comments,

once again they do not rise to the level of egregious misconduct.

The Fifth Amendment protects individuals from self-

incrimination. U.S. CONST. AMEND. V. It is a long-standing principle

that prosecutors may not comment on a criminal defendant’s silence

or instruct a jury to infer that “such silence is evidence of

guilt.” See Griffin v. California, 380 U.S. 609, 615, 85 S. Ct.

1229, 1233, 14 L. Ed. 2d 106 (1965). “The test governing whether

a prosecutor’s statements amount to an improper comment on the

accused’s silence in violation of the Fifth Amendment looks at the

statements in context and examines whether they ‘naturally and

necessarily’ would be interpreted by the jury as a comment on the

defendant’s failure to testify.” U.S. Knoll, 16 F.3d 1313, 1323

(2d Cir. 1995); see also United States v. Bubar, 567 F.2d 192, 199

(2d Cir.), cert. denied, 434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d

151 (1977).

Here, the prosecutor stated “I am going to tell you to

watch the end of the video [statement] again and watch what happens

when [Petitioner] realizes he’s been connected to both of those

numbers, to Jeff Green, and to the murder. What happens? He asks

for his attorney because he realizes he’s buried under the weight

of the evidence7.” (Tr. 603:22-25-604:3.)

This comment was indeed inappropriate. However, in

context, the Court does not find that the comment would “naturally

and necessarily” be interpreted by the jury as a comment on

Petitioner’s silence. Knoll, 16 F.3d at 1323 (internal quotation

marks omitted). In fact, the prosecutor was not commenting on

Petitioner’s silence, thereby asking the jury to draw the

impermissible inference, but instead commented on his own words,

which happened to voice the inference that is not permitted in the

Fifth Amendment context. It was Petitioner’s own words that he

would bury himself if he continued talking to police which is the

focus of the prosecutor’s comment, rather than Petitioner’s

7 As stated supra at 8 n.3, the video statement by Petitioner was

not made available for the Court’s review. However, based on

the testimony from the suppression hearing, after requesting an

attorney, all questioning by police ceased, and Petitioner

spontaneously stated in sum and substance, that there would be

no sense in him talking anymore more because he would just bury

himself. (Supp. Hr’g Tr. 14:2-6.) The video was played at

trial for the jury. (See generally Tr. 559:9-562:14.)

request for an attorney, because Petitioner’s own statement voiced

the inference of guilt.

Additionally, the Court does not find that Petitioner

has shown substantial prejudice as a result of the prosecutor’s

statements. United States v. Modica, 663 F.2d 1173, 1181 (2d Cir.

1981) (per curium), cert. denied, 456 U.S. 989, 102 S. Ct. 2269,

73 L. Ed. 2d 1284 (1982). Petitioner faces a heavy burden that he

cannot meet in light of the court’s jury instructions advising

them that “nothing either counsel may say in their summations is

evidence in this case[.]” (Tr. 587:9-11.)

As such, the Court does not find that the prosecutor’s

remarks constituted egregious misconduct. Accordingly,

Petitioner’s claims for improper statements are denied.

3. False Testimony

Petitioner argues his right to due process was violated

when the prosecutor elicited false testimony on two occasions: (1)

Detective Raymond testified falsely regarding his June 9, 2011

interview of Jeffrey Green; and (2) the prosecutor elicited false

testimony regarding Forrest’s description of the shooter. (Pet.

at 16-17.)

The threshold question is whether the witness in fact

committed perjury. United States v. Monteleone, 257 F.3d 210, 219

(2d Cir. 2001). “A witness commits perjury if he gives false

testimony concerning a material matter with the willful intent to

provide false testimony, as distinguished from incorrect testimony

resulting from confusion, mistake, or faulty memory.” Id. (citing

United States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116,

122 L. Ed. 2d 445 (1993)). “[P]etitioner has the burden of

demonstrating by a preponderance of the evidence that the witness

committed perjury.” Boyle v. United States, 10-CV-2639, 2013 WL

6684995, at *2 (E.D.N.Y. Dec. 18, 2013) (quoting Zimmerman v.

Burge, 492 F. Supp. 2d 170, 196 (E.D.N.Y. 2007)).

In the first instance, Detective Raymond testified

regarding his interview, and positive identification procedure8,

with Green at Petitioner’s suppression hearing. (Supp. Hr’g Tr.

38:22-39:2; 44:18-24; 46:22-47:9.) Ultimately, it was disclosed

to the court that Green had also given a negative identification,

which was addressed on the record before Hon. William C. Donnino.

(J. Donnino Tr. at 2:1-5:16.) The court determined that the

hearing outcome was unaffected as Green would not be making an

identification at trial. Id.

Even if Petitioner was able to establish that Detective

Raymond committed perjury, which the Court declines to decide

8 Detective Raymond testified at the suppression hearing that,

when shown a photograph of Petitioner, Jeffrey Green stated, “In

sum and substance, . . . that we did our job, that we found him,

but he didn’t want to help anymore, that he had a family to

worry about and he had a kid.” (Supp. Hr’g Tr., 44:22-24.)

here,9 he is unable to prove he was prejudiced at trial. Green

did not testify at Petitioner’s criminal trial, nor did Detective

Raymond, or any other witness at Petitioner’s trial, testify to

the identification procedure. “Whether the introduction of

perjured testimony requires a new trial depends on the materiality

of the perjury to the jury’s verdict and the extent to which the

prosecution was aware of the perjury.” United States v. Wallach,

935 F.2d 445, 456 (2d Cir. 1991). The testimony at issue here was

not presented to the jury, and as such it is an issue beyond the

scope of the trial record. Therefore, the testimony does not bear

any materiality whatsoever to the jury’s verdict. As such,

Petitioner was not denied his right to a fair trial with respect

to the suppression hearing testimony regarding Green.

Petitioner further alleges that the prosecutor elicited

false testimony as to the description given to police by eyewitness

and shooting victim Hayden Forrest. (Pet. at 16-17.) But

Petitioner fails to demonstrate, by a preponderance of the

evidence, that the description of the perpetrator was false. While

Petitioner relies on Forrest’s testimony, wherein he states

9 In Respondent’s brief, the People provided information that it

was in fact Detective Nardo that informed the prior prosecutor

about the negative identification. (Resp’t Opp. Aff. at vii,

¶ 24.) As such, the Court does not have sufficient information

before it to conclude that Detective Raymond was knowledgeable

of the negative identification at the time he testified at the

suppression hearing that Jeffrey Green positively identified

Petitioner.

“[l]ike I told the detectives, I didn’t really see his face[,]”

Forrest also testified to numerous descriptive characteristics of

the perpetrator, which were consistent with Petitioner’s physical

appearance. (Tr. 279:21-280:3; 283:9-17; 285:15-24.) As such,

the prevailing issue is Forrest’s credibility. Assessment of

witness credibility is an issue beyond the scope of this Court,

and it defers to the trial jury’s assessment. Maldonado v. Scully,

86 F.3d 32, 35 (2d Cir. 1996). Accordingly, Petitioner’s claim

that he was denied his right to due process fails.

4. Nondisclosure of Petitioner’s Circumstances of

Arrest

Petitioner claims he was denied the right to a fair trial

when the prosecutor failed to disclose that Petitioner was arrested

in his home, and that exhibit 103, Petitioner’s (347) cell phone,

was recovered from his home. The Court disagrees.

First, the Appellate Division found this claim was

“unpreserved for appellate review and, in any event, without

merit.” Duren, 130 A.D.3d at 843. Despite the potential

procedural bar, the Court reaches the merits and finds Petitioner’s

claim fails.

In federal habeas corpus review, unless Petitioner can

demonstrate “actual prejudice,” the error is harmless. Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed.

2d 353 (1993). Assuming, but not deciding, that the prosecution

did, in fact, fail to disclose the location of Petitioner’s arrest,

Petitioner still fails to demonstrate that he was actually

prejudiced as a result. As discussed supra at 31, with respect to

his unlawful search and seizure claim, Petitioner had an

opportunity to fully litigate the circumstances of his arrest at

his suppression hearing. By not raising the issue during the

suppression hearing, and as discussed herein, Petitioner was not

denied a fundamentally fair trial, and as such, he cannot establish

actual prejudice.

As such, Petitioner’s claim that he was denied his right

to a fair trial is denied habeas relief.

G. Ineffective Assistance of Trial Counsel Claim

Petitioner claims he received ineffective assistance

from trial counsel. He asserts what he perceives as numerous

errors and failures by his trial counsel, including: (1) deficient

performance at his suppression hearing; (2) failure to conduct an

investigation; (3) failure to explore whether an individual

shooting from the backseat could have inflicted the bullet

trajectory as testified to by the Medical Examiner; (4) failure to

object to numerous cell phone records; (5) failure to move for a

mistrial or object and move to strike limiting instruction for the

prosecution’s use of exhibit 103; (6) failure to object to arrest

warrants being used for prior bad acts to impeach Petitioner at

the time of the Sandoval hearing; (7) failure to cross examine

witness Hayden Forrest; (8) failure to object when the prosecution

requested the circumstantial evidence jury charge; and (9) failure

to object to various comments made by the prosecutor in the

People’s summation. (Pet. at 18.)

Assuming, but not deciding, that all of Petitioner’s

claims are not procedurally barred, the Court proceeds to evaluate

the merits of the Petitioner’s ineffective assistance of counsel

claims. As stated herein, the Court finds that Petitioner’s claims

provide no basis for relief.

As a general principle, there is “a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland v. Washington, 466 U.S. 668,

689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). After all,

“there are countless ways to provide effective assistance in any

given case,” and “[e]ven the best criminal defense attorneys would

not defend a particular client in the same way.” Id. In reviewing

the totality of the evidence, the Court must “use a ‘doubly

deferential’ standard of review that gives both the state court

and the defense attorney the benefit of the doubt.” Burt v.

Titlow, 571 U.S. 12, 15, 134 S. Ct. 10, 13, 187 L. Ed. 2d 348

(2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.

Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011)). Bearing in mind this

deferential standard, it is no surprise that “the great majority

of habeas petitions that allege constitutionally ineffective

counsel” fail. Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.

2001).

To establish deficient performance, Petitioner must

prove that “counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.

Ct. at 2064. But even if Petitioner can show deficient

performance, he must also establish prejudice--that is, “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694, 104 S. Ct. at 2068. A reasonable probability “lies

between prejudice that ‘had some conceivable effect’ and prejudice

that ‘more likely than not altered the outcome in the case.’”

Lindstadt, 239 F.3d at 204 (quoting Strickland, 466 U.S. at 693,

104 S. Ct. at 2067–68).

1. Ineffective Performance at Suppression Hearing

Petitioner claims that trial counsel’s suppression

hearing performance constituted ineffective assistance for the

following alleged failures: (1) counsel failed to establish the

legality of Petitioner’s arrest; (2) counsel failed to establish

location of Petitioner’s arrest; (3) counsel failed to litigate a

warrant for Petitioner’s April 16, 2011 arrest; (4) counsel failed

to address that Petitioner was arrested in his home, taken to the

police precinct, and questioned regarding his cell phone number

prior to being read his Miranda rights; (5)counsel failed to

utilize or ascertain documents which contradicted the

identification testimony by the detectives; (6) counsel failed to

adversarially test the evidence, specifically the circumstances of

the description given of the perpetrator; (7) and counsel failed

to ask important questions at the suppression hearing. (Pet. at

18.)

Considering Petitioner’s lack of any explanation or

examples of questions to which he is referring, Petitioner’s claim

that counsel failed to ask important questions at the suppression

hearing is addressed with the remainder of his suppression hearing

claims.

As stated above, Petitioner must show both deficient

performance and prejudice to prevail on his ineffective assistance

claim. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Petitioner

fails to establish either deficient performance or prejudice in

his claims involving the circumstances of his arrest. While the

record shows that defense counsel did not ascertain the location

of Petitioner’s arrest, Petitioner fails to articulate how he was

prejudiced as a result, as probable cause is supported by the

hearing record. Further, as stated supra at 35, there is little

to no support that had the location and circumstances of

Petitioner’s arrest been addressed in the hearing, the outcome

would have been any different, based on the prosecution’s

likelihood of success on an exigent circumstances argument.

Petitioner further claims that defense counsel failed

to effectively adversarially test the evidence regarding his

identification and the description of the perpetrator elicited at

the hearing. (Pet. at 18.) It is unclear from the petition what

is meant by “adversarially” testing evidence, however the Court

interprets the claim as trial counsel failing to confront Detective

Raymond and Detective Nardo at the hearing regarding the

description and identification of Petitioner.

From a review of the hearing record, and the record at

trial, defense counsel did cross examine Detective Nardo regarding

the propriety of the photo-array procedure, and confronted

Detective Raymond about whether Green gave a negative

identification of Petitioner. (See generally Supp. H’rg Tr. 21:6-

30:12; 46:22-47:9.) Petitioner’s claim that trial counsel failed

to adversarially test the evidence is belied by the record, and as

such, fails.

Petitioner further includes in his claim for ineffective

assistance of counsel that, after being arrested in his home, he

was “brought to police headquarters and prior to being given [his]

Miranda rights, was asked to disclose his cellphone number, which

he disclosed as 347-805-8856. At the time o[f] [P]etitioner’s

arrest, the detectives were in possession of the cellphone records

regarding 347-805-8856.” (Pet. at 18.) The Court interprets

Petitioner’s claim as defense counsel’s failure to litigate at the

suppression hearing, and at trial, the voluntariness of the

statement and whether the statement was the product of a custodial

interrogation.

For the reasons discussed supra at 27, Petitioner’s pre-

Miranda statement fell within the pedigree exception, and as such,

Petitioner has not met his burden of showing that counsel’s

performance here fell below the objective reasonableness standard.

Nor is it likely that the outcome would have been different,

thereby actually prejudicing Petitioner. As such, Petitioner’s

claim with respect to his pre-Miranda statement is denied.

2. Failure to Adequately Investigate the Case

Petitioner makes a series of claims in which he contends

that his attorney failed to adequately investigate his case. (See

Pet. at 18.) Specifically, Petitioner claims that he received

ineffective assistance of counsel when his attorney failed to

investigate the scene of the shooting and van where the shooting

occurred and failed to explore the possibility that someone

shooting from the back, passenger seat may not have been able to

inflict a bullet trajectory from left to right. (Pet. at 18.)

It is clear that “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S. at

691, 104 S. Ct. at 2066. However, a reasonable investigation does

not “compel defense counsel to investigate comprehensively every

lead or possible defense, or to scour the globe on the off-chance

something will turn up.” Greiner v. Wells, 417 F.3d 305, 321 (2d

Cir. 2005) (internal quotation marks and citations omitted). “‘[A]

petitioner alleging that counsel’s ineffectiveness was centered on

a supposed failure to investigate has the burden of providing the

court sufficiently precise information, that is, a comprehensive

showing as to what the investigation would have produced.’” Halo

v. United States, No. 06-CV-5041, 2007 WL 1299158, at *13 (E.D.N.Y.

Apr. 30, 2007) (quoting Simmons v. Gramley, 915 F.2d 1128, 1133

(7th Cir. 1990)).

Here, Petitioner makes only conclusory allegations that

counsel did not fully investigate the matter, and as such, fails

to articulate what the investigation would have produced. In

addition, from a review of the record, the bullet trajectory is

supported by witness testimony from both Hayden Forrest, who

testified about where the shooter was seated, and the Medical

Examiner who testified that the deceased, Michael Prophet, was

likely shot by someone sitting in the backseat. (Tr. 279:3-8; Tr.

320:21-321:4.) Accordingly, Petitioner has not demonstrated that

his attorney’s conduct fell below an objectively reasonable

standard, and thus, he cannot satisfy the Strickland standard.

3. Failure to Move For a Mistrial

To succeed on his claim for ineffective assistance of

counsel with respect to his alleged error that counsel failed to

move for a mistrial, Petitioner must establish that counsel acted

in a manner that “‘cannot be explained convincingly as resulting

from a sound trial strategy, but instead arose from oversight,

carelessness, ineptitude, or laziness.’” Wilson v. Mazzuca, 570

F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687,

104 S. Ct. at 2064).

Here, Petitioner is unable to meet this burden.

Petitioner alleges that trial counsel should have moved for a

mistrial on the grounds that the prosecution used exhibit 103,

Petitioner’s physical cell phone recovered at the time of his

arrest. (Pet. at 18.) It appears, from a review of the record,

that trial counsel’s trial strategy was not based on excluding the

cell phone evidence, but rather that the police had arrested the

wrong person for the crime. As such, trial counsel’s decision not

to move for a mistrial when exhibit 103, Petitioner’s cell phone,

was introduced for identification purposes only, arguably resulted

from counsel’s legal strategy.

Further, and as discussed herein, when to object and on

what grounds are matters of trial strategy. See Broxmeyer, 661 F.

App’x at 748; Cohen, 427 F.3d at 170. As it is clear that defense

counsel’s strategy was not to exclude cell phone evidence, but

rather that Petitioner was not the individual who committed the

crime, Petitioner’s claim that trial counsel was ineffective for

failing to object to cell phone records must also be denied.

Additionally, Petitioner cannot demonstrate that but for

counsel’s unprofessional error, the outcome of his trial 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. at 2052. The effect of exhibit 103

being used for identification purposes only is not enough to

demonstrate a “substantial and injurious” effect. Brecht, 507

U.S. at 637, 113 S. Ct. at 1721. As such, Petitioner fails to

establish prejudice, and accordingly his claim that trial counsel

erred when he failed to move for a mistrial is denied.

4. Failure to Object to Evidence of Prior Bad Acts at

the Sandoval Hearing

Petitioner claims that trial counsel was ineffective for

failing to object to “arrest warrants being used for prior bad

acts to impeach [ ] [P]etitioner at the time of the Sandoval

hearing.” (See Pet. at 18.) Petitioner fails to demonstrate

either that counsel’s performance at the Sandoval hearing fell

below an objective standard of reasonableness, or that but for

counsel’s error, the outcome of the trial would have been

different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

There were two arrest warrants proffered by the

prosecution at the Sandoval hearing: a bench warrant from

October 4, 2010 and a parole warrant from September 3, 2010. (Tr.

6:23-7:6; Tr. 8:6-16.) The record demonstrates that defense

counsel objected to both warrants, and in fact, the court reserved

ruling on the admissibility of the October 4, 2010 warrant after

defense counsel argued to the court that the warrant was related

to an open case. (Tr. 7:10-8:4.) With respect to the September

3, 2010 warrant, defense counsel objected on the grounds that the

parole warrant would be prejudicial to Petitioner, and the court

agreed, and issued a ruling that the prosecution could only inquire

whether Petitioner had a warrant for his arrest on September 3,

2010. (Tr. 8:21-9:1.)

The record simply does not support Petitioner’s claim

that his trial counsel’s performance fell below the Strickland

objective standard of reasonableness. Nor can Petitioner

demonstrate any prejudice. As discussed supra at 30, Petitioner

did not testify, so any potential for prejudice is merely

speculative and cannot be examined here. Accordingly,

Petitioner’s ineffective assistance claim for failure to object to

evidence of prior bad acts at the Sandoval hearing is denied.

5. Failure to Cross-Examine Hayden Forrest

Petitioner claims that he was subject to ineffective

assistance of counsel when his trial counsel failed to cross

examine eye witness Hayden Forrest. The Court disagrees.

“Decisions whether to engage in cross-examination, and

if so to what extent and in what manner, are . . . strategic in

nature.” U.S. v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987);

see also United States v. Bari, 750 F.2d 1169, 1182 (2d Cir. 1984).

It is clear from the record that defense counsel’s theory was

misidentification, specifically that Petitioner was not the person

who had committed this crime. (Tr. 589:21-590:3; 592:1-15.) Thus,

the decision not to cross-examine witness Hayden Forrest, who was

unable to successfully conduct an in-court identification, was

well within the objective standard of reasonable conduct. Further,

as no cross-examination of Hayden Forrest was conducted, the Court

can only speculate as to the result, and therefore is unable to

state that Petitioner was prejudiced by counsel’s decision.

Accordingly, Petitioner’s claim that he was subject to ineffective

assistance of counsel for failing to cross-examine a witness is

denied.

6. Failure to Object to the Circumstantial Evidence

Charge

Petitioner claims that trial counsel was ineffective for

failing to take exception when the prosecution requested the

circumstantial evidence jury charge. (Pet. at 18.) Because

Petitioner is unable to show that the jury instructions were

erroneous, as discussed supra at 35, and that counsel’s failure to

object to the circumstantial evidence jury charge constitutes

ineffective assistance of counsel, Petitioner’s claim is denied

habeas relief.

Trial counsel’s decision not to object to the

prosecution’s request for a circumstantial evidence charge did not

amount “to incompetence under prevailing professional norms[.]”

Richter, 562 U.S. at 105, 131 S. Ct. at 788 (internal quotation

marks and citation omitted). Based on the prosecution’s largely

circumstantial case against Petitioner, it was unlikely that

defense counsel would have won such an objection. Additionally,

unless the trial court’s jury instruction contains “clear and

previously identified errors,” counsel’s failure to object to said

instruction does not constitute an unreasonably deficient

performance. Bloomer v. United States, 162 F.3d 187, 193 (2d Cir.

1998). As discussed herein, the Court does not find error with

the jury instructions as given in this case. As such, Petitioner

has failed to demonstrate that counsel’s performance falls below

an objective standard of reasonableness, and thus his claim of

ineffective assistance of counsel must be denied.

7. Failure to Object to Prosecution Summation

Once again Petitioner alleges a claim of ineffective

assistance for conduct which falls squarely within the purview of

trial strategy, and once more, Petitioner’s claim is denied.

As discussed supra at 60, when to object and on what

grounds are matters of trial strategy and cannot be challenged

absent extraordinary circumstances. See Broxmeyer, 661 F. App’x

744, 748 (2d Cir. 2016); Cohen, 427 F.3d at 170. To object during

the prosecutor’s summation may bring unnecessary attention to the

remarks, and the decision by trial counsel not to object has been

determined to be a reasonable trial strategy. Broxmeyer, at 748.

Additionally, as stated above, the Court finds that,

while inappropriate, the prosecutor’s summation comments did not

result in actual prejudice. Accordingly, the Court finds that

Petitioner has failed to meet Strickland’s second prong with

respect to his ineffective assistance of counsel claim.

Petitioner’s ineffective assistance of counsel claims

are denied in their entirety.

H. Insufficient Evidence Claim

Petitioner claims that there was insufficient evidence

to support his conviction beyond a reasonable doubt because: (1)

there was no scientific or factual evidence linking Petitioner to

the crime; (2) there was no identification of the Petitioner by

any witness nor was there evidence of his presence at the scene of

the crime; (3) Detective Fred Black testified on cross-examination

that the (618) cell number, at the time of the shooting, was

outside of the range of the cell phone towers capable of pinging

the McDonald’s parking lot; (4) the police improperly operated

under the assumption that the “last number recorded on the

decedent’s phone” was the shooter; (5) “[n]o motive or reason was

given for the shooting”; (6) Prophet’s injuries were impossible to

inflict from the rear passenger seat; (7) “Detective Black

testified to the speculative nature of cell tower evidence”; and

(8) no evidence existed as to whether the shooter knew of McLeod’s

presence at the scene. (Pet. at 17-26.)

On Petitioner’s direct appeal, the Second Department

determined that, because defense counsel failed to articulate any

specific argument in his motion to dismiss, Petitioner did not

preserve his legal sufficiency claim. Duren 130 A.D. at 842; see

also CPL 470.05(2). However, the appellate court still addressed

Petitioner’s claims on the merits. Upon review of the record, the

Second Department was “satisfied that the verdict of guilt was not

against the weight of the evidence.” Duren, 130 A.D. at 842; see

People v. Romero, 7 N.Y.3d 633, 638, 859 N.E.2d 163, 166, 826

N.Y.S. 2d 163 (2006).

Accordingly, Petitioner’s legal insufficiency claim is

procedurally barred from this Court’s review. It has been well

established that the failure to preserve a claim for appellate

review is considered an independent and adequate state ground, and

furthermore, even if the state court addresses the merits “in any

event”, the claim is procedurally barred. See Harris v. Reed, 489

U.S. 255, 264, 109 S. Ct. 1038, 1044, 103 L. Ed. 2d 308 (1989);

see also Velasquez, 898 F.2d at 9.

Even absent the procedural bar to Petitioner’s legal

sufficiency claim, Petitioner is not entitled to habeas relief on

the merits of his claim. To evaluate the sufficiency of the

evidence, “[a] federal court must look to state law to determine

the elements of the crime.” Quartararo v. Hanslmaier, 186 F.3d

91, 97 (2d Cir. 1999).

At the heart of Petitioner’s claim is that he was not

the person who committed the crime. As such, the Court looks to

the elements of the top count charged, Murder in the Second Degree.

To convict Petitioner of Murder in the Second Degree, the

prosecution was required to prove that Petitioner, with intent to

cause the death of another person, caused the death of such person.

N.Y. PENAL LAW § 125.25(1). While Petitioner argues that there was

not enough evidence tying Petitioner to the crime, the Court

disagrees.

When determining whether there was sufficient evidence

to support a conviction, the Court considers whether there was

“sufficient evidence to justify a rational trier of the facts to

find guilt beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 313, 99 S. Ct. 2781, 2785, 61 L. Ed. 2d 560 (1979). “[A]

challenge to the sufficiency of the evidence presents the question

‘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.’”

Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (quoting Jackson,

443 U.S. at 307, 99 S. Ct. at 2783 (emphasis in original)).

Moreover, “[a] defendant challenging a conviction on sufficiency

grounds bears a heavy burden” and “[t]he reviewing court must

consider the evidence in the light most favorable to the

government, crediting every inference that the jury might have

drawn in favor of the government.” United States v. Hernandez, 85

F.3d 1023, 1030 (2d Cir. 1996).

At Petitioner’s criminal trial, the prosecution relied

on both testimonial and circumstantial evidence. Through

testimony and cell records, the prosecution was able to show that

the (618) cell phone, which Petitioner admitted was his cell phone

number, was present in the vicinity of the scene of the shooting.

It is unlikely that Petitioner lent out his (618) cell phone at

the time, because calls made shortly before and after the shooting

were to Jeffrey Green, an individual the prosecution established

was Petitioner’s friend. Additionally, the last call before the

murder on the (618) number was from Michael Prophet, the deceased,

which was consistent with Forrest’s trial testimony.

Hayden Forrest testified that the shooter was seated in

the backseat at the time he heard gunshots, and Prophet was seated

in the driver’s seat. In addition to evidence that one of the

bullets entered through the backseat and exited through the front

seat, the Deputy Medical Examiner testified that the trajectory of

the bullet, which entered Prophet through his back, was consistent

with a shot being fired by someone in the backseat of the car and

firing at a person leaning forward in the front seat. (Tr. 320:21–

321:4.) Additionally, the prosecution presented testimony from

ballistics expert Detective Robert Freese, who testified that the

evidence collected from the scene supported that all bullets were

fired from the same gun. (Tr. 364:3-378:11.)

Forrest’s testimony further established that any

rational juror could find that it was Petitioner seated in the

backseat, and Petitioner who was the shooter. While there was no

in-court identification procedure affirmatively identifying

Petitioner as the shooter, when asked whether Petitioner was the

shooter, Forrest did testify that “[h]e resembles him extremely,

yes.” (Tr. 293:22.) Additionally, Forrest provided numerous

identifying characteristics during his testimony that matched

Petitioner’s physical description. (Tr. 283:9-17; 285:15-24.)

The credibility of Forrest’s testimony describing Petitioner as

the shooter is a matter for the jury to determine. Maldonado, 86

F.3d at 35.

As such, drawing all inferences in favor of the

prosecution, based on the above evidence it is not unreasonable

that any rational juror could have found Petitioner guilty beyond

a reasonable doubt. As such, Petitioner’s legal sufficiency of

the evidence claim is denied habeas relief.

I. Ineffective Assistance of Appellate Counsel Claim

Petitioner largely reasserts his prosecutorial

misconduct and ineffective assistance of trial counsel arguments

in his ineffective assistance of appellate counsel claim. To

support his claim, Petitioner never actually references his

appellate counsel. (Pet. at 19.) However, affording Petitioner’s

arguments the flexible construction required under Kirkland, this

Court finds that, Petitioner alleges that his appellate counsel

was ineffective largely due to his failure to make the appellate

court aware of every alleged “fundamental defect” that amassed at

trial. (Pet. at 19.) The alleged “fundamental defect[s]” that

appellate counsel failed to argue are: (1) the court failed to

read the contents of the jury’s request into the record; (2) the

court failed to apprise counsel of its response to the jury’s

inquiry; (3) the prosecution responded to a jury request without

first consulting with defense counsel; (4) failure to raise that

trial counsel was ineffective for failing to give a specific ground

for trial order of dismissal and failing to suppress the police

use of a pen register to locate defendant; (5) prosecutorial

failure to prove their burden as a matter of law; and (6) improper

racial remarks during summation. (Pet. at 19.)

The Appellate Division, citing Jones v. Barnes, found

that Petitioner “failed to establish that he was denied the

effective assistance of appellate counsel.” Duren, 164 A.D.3d at

913; see also Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77

L. Ed. 2d 987 (1983). The Court finds the Appellate Division’s

decision was not contrary to, and did not involve an unreasonable

application of, the Strickland standard. 28 U.S.C. § 2254(d)(1).

Ineffective assistance of appellate counsel claims are

evaluated using the same framework established by the Supreme Court

in Strickland. See Mayo v. Henderson, 13 F.3d 529, 533 (2d Cir.

1994) (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2064);

Mabee v. Phillips, No. 05-CV-4182, 2009 WL 3644077, at *5 (S.D.N.Y.

Nov. 4, 2009). To show “that appellate counsel’s failure to raise

a state claim constitutes deficient performance, it is not

sufficient for the habeas petitioner to show merely that counsel

omitted a nonfrivolous argument, for counsel does not have a duty

to advance every nonfrivolous argument that could be made.” Mayo,

13 F.3d at 533. Rather, a petitioner can only “establish

constitutionally inadequate performance if he shows that counsel

omitted significant and obvious issues while pursuing issues that

were clearly and significantly weaker.” Id.

Additionally, in Jones v. Barnes, the Supreme Court

stated that it is up to the professional judgment of counsel to

determine which points to argue, and recognized the importance of

“winnowing out weaker arguments on appeal and focusing on one

central issue, if possible, or at most on a few key issues.”

Barnes, 463 U.S. at 751-52, 103 S. Ct. at 3312-13.

Regarding Petitioner’s claims involving the jury notes,

specifically that the court failed to read the contents of the

jury’s request into the record, the court failed to apprise counsel

of its response to the jury’s inquiry, and the prosecution

responded to a jury request without first consulting with defense

counsel, the Court finds that the Appellate Division reasonably

applied the Strickland standard.

The Court of Appeals established guidelines in People v.

O’Rama outlining the ideal procedure for trial courts to

communicate with the jury during deliberations. See People v.

O’Rama, 78 N.Y. 2d 270, 277-78, 579 N.E. 2d 189, 192-93, 574 N.Y.S.

2d 159 (1991). When the trial court receives a written

communication from the jury, ideally the court should: (1) mark

the note as a court exhibit; (2) read the note verbatim into the

record, in the presence of counsel, before the jury is present;

(3) give counsel an opportunity to suggest responses; (4) inform

counsel of the court’s intended response; and (5) read the note in

open court in the presence of the jury. O’Rama, 78 N.Y. 2d at

277-78.

From a review of the record, while the trial court did

not follow the guidelines established in O’Rama exactly, the court

substantially apprised the attorneys of the substance of the notes

in this case, and each time defense counsel failed to suggest any

response, or object to the court’s proposed responses. (See

generally Tr. 644:3–647:16; 647:19–648:18.)

As such, Petitioner does not demonstrate that appellate

counsel’s representation fell below the objective reasonableness

standard, as the claims asserted with respect to the jury notes

lack merit, and further, Petitioner has failed to demonstrate any

prejudice as a result of appellate counsel failing to advance these

claims. Thus, these claims are denied.

Petitioner further asserts that appellate counsel failed

to argue that trial counsel was ineffective for failing to state

a specific ground for his Criminal Procedure Law 290.10 trial order

of dismissal motion, and for failing to suppress the pen register

used to locate Petitioner. (Pet. at 19.) As discussed supra at

60, these decisions by trial counsel fall within the gambit of

strategic decisions. See Broxmeyer v. United States, 661 F. App’x

at 748; United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005).

Courts are “reluctant to second guess matters of trial strategy

simply because the chosen strategy has failed.” United States v.

Aulet, 618 F.2d 182, 189 (2d Cir. 1980). Therefore, the Appellate

Division did not unreasonably apply the Strickland standard here,

where appellate counsel was likely to fail by advancing arguments

based in trial counsel’s strategy. And as such, Petitioner’s

claims similarly fail.

Further, Petitioner reasserts his insufficient evidence

and prosecutorial misconduct claims here, and, again, they are

denied. (Pet. at 19.) For the reasons discussed herein,

Petitioner cannot demonstrate how he was prejudiced, and as such,

fails to meet the Strickland standard.

Accordingly, Petitioner’s ineffective assistance of

appellate counsel claim is denied in its entirety.

CONCLUSION

Petitioner’s Petition for a writ of habeas corpus

(D.E. 1) is DENIED.

The Court declines to issue a certificate of

appealability because the Petitioner has not made a substantial

showing that he was denied a constitutional right. See 28 U.S.C.

§ 2253(c)(2).

The Court also certifies that any appeal of this Order

would not be taken in good faith, and thus his in forma pauperis

status is denied for the purposes of any appeal. Coppedge v.

United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 921, 8 L. Ed.

2d 21 (1962).

The Clerk of the Court is respectfully directed to mark

this case CLOSED and mail a copy of this Order to the pro se

litigant.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: January 30 , 2020

Central Islip, New York