Hernandez v. Artus

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANTHONY HERNANDEZ,

Petitioner,

MEMORANDUM & ORDER

-against-

09-CV-05694 (KAM)

DALE ARTUS, Superintendent of

Clinton Correctional Facility,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Petitioner Anthony Hernandez (“petitioner”),

proceeding pro se, filed this petition for a writ of habeas

corpus on December 28, 2009, challenging the constitutionality

of his 2006 state court conviction for Murder in the Second

Degree and Criminal Possession of a Weapon in the Second Degree.

(ECF No. 1, Petition for Writ of Habeas Corpus (“Pet.”) 1.) The

original petition alleged that petitioner’s conviction for

murder was not supported by legally sufficient evidence, and

that his due process rights were violated at sentencing by the

unlawful addition of a period of post-release supervision. (See

generally id.) On August 18, 2018, following a lengthy stay of

proceedings, petitioner filed an amended petition. (ECF No. 34,

Amended Petition for Writ of Habeas Corpus (“Am. Pet.”).) The

amended petition added two new claims alleging that petitioner

was denied effective assistance of counsel at trial, and on

appeal. (Id. 6, 8.) Dale Artus, the nominal respondent

(“respondent”),1 opposes the petition as procedurally barred and

without merit. (See generally ECF No. 39, Response to Order to

Show Cause.)2 For the reasons discussed below, the petition is

denied in its entirety.

BACKGROUND

I. Factual Background

Petitioner’s conviction stems from the July 19, 2004

shooting death of fifteen year-old Larry Hill (“Hill”). (ECF

No. 1-5, Memorandum in Support (“Mem. in Sup.”) 2, 3; see, e.g.,

ECF No. 39-1, People v. Hernandez, Indictment No. 4271/05 (Kings

Cty. Crim. Ct.), Hearing Transcript dated May 22, 2006 (“Pre-

trial Tr. (5/22/06)”), 13:9-13; see also id., Trial Transcript

(“Trial Tr.”), 3:9-13.)3 It is undisputed that petitioner was the

gunman. (Trial Tr. 248:20-23 (Defense Counsel: “I submit to you

based on the evidence [that petitioner] was not trying to shoot

Larry Hill but he hit him. He wasn’t trying to hurt anybody but

he hit Larry Hill.”).) At trial, the State presented witnesses

1 Mr. Artus was the Warden of Clinton Correctional Facility, petitioner’s

place of incarceration when this case commenced. The District Attorney of

Kings County is representing respondent in this matter pursuant to an

agreement with the Attorney General of the State of New York.

2 Respondent’s filing includes an Affidavit in Opposition to the

petition, available at ECF No. 39, ECF pp. 1-5 (“Aff. in Opp.”), and a

Memorandum of Law in Opposition to the petition, available at ECF No. 39, ECF

pp. 6-24 (“Opp.”).

3 The transcript for pre-trial proceedings on May 22, 2006, a suppression

hearing, is available at ECF No. 39-1, ECF pp. 1-40. The transcript for

petitioner’s trial, which began September 12, 2006, and ended September 15,

2016, is available at ECF pp. 212-530.

Amanda Lee Santiago and Jamell Young, both of whom were present

at the shooting. (Id. 27, 73.) The witnesses provided mutually

corroborative testimony that petitioner instigated a

confrontation with the victim, fired a warning shot, then fired

two shots into Hill’s back while Hill was seated on a park

bench. (Id. 28-31, 81-86.) The defense argued that Hill

instigated the confrontation, and that petitioner accidentally

shot Hill only after firing multiple warning shots in response

to a third individual, J.P., who began chasing petitioner with a

knife. (Id. 244, 248-49.)

On September 15, 2006, petitioner was convicted by a

unanimous jury verdict of Murder in the Second Degree and

Criminal Possession of a Weapon in the Second Degree. (Id. 315-

16.) On October 11, 2006, the late Justice Gustin Reichbach

sentenced petitioner to a term of 22.5 years to life

imprisonment. (ECF No. 39-1, People v. Hernandez, Indictment

No. 4271/05 (Kings Cty. Crim. Ct.), Sentencing Transcript dated

October 11, 2006 (“Sent. Tr.”), 12:15-17.)4 Though Justice

Reichbach did not impose a period of post-release supervision at

sentencing, on October 16, 2006, the clerk of court issued a

revised sentencing order that incorporated a term of five years

post-release supervision. (Aff. in Opp. ¶ 7.)

4 For the charge of Criminal Possession of a Weapon, Justice Reichbach

imposed a prison term of seven years, to run concurrently with petitioner’s

sentence for the murder charge. (Id. 12:17-20.)

II. Procedural History

Petitioner appealed his guilty verdict, alleging

legally insufficient evidence and due process violations at

sentencing. (Aff. in Opp. ¶ 8.) On appeal, the Appellate

Division affirmed petitioner’s conviction but vacated the term

of post-release supervision, explaining that the trial court

erred by failing to pronounce that aspect of petitioner’s

sentence. People v. Hernandez, 55 A.D.3d 849, 850 (N.Y. App.

Div. 2d Dep’t 2008). On remand, the court re-sentenced

petitioner to the same term of custody, and formally imposed

five years post-release supervision. (Aff. in Opp. ¶ 10.) On

January 22, 2009, the New York Court of Appeals denied

petitioner leave to appeal. People v. Hernandez, 874 N.Y.S.2d

11 (N.Y. 2009).

On December 17, 2009, petitioner filed the habeas

petition commencing this case. (See Pet.) On February 5, 2010,

petitioner filed a motion to vacate his conviction under New

York Criminal Procedure Law (“CPL”) § 440.10 (ECF No. 17-10,

440.10 motion), arguing that his trial counsel was ineffective.

(Am. Pet. 2, 3.) On July 9, 2010, Justice Reichbach denied

petitioner’s 440.10 motion. (ECF No. 17-7, Decision and Order

Denying 440.10 Motion (“440.10 Decision”).) The 440.10 Decision

held that:

While most of the arguments defendant now raises in

support of his claim of ineffective assistance of

counsel appear on the record and therefore could have

been adequately reviewed upon direct appeal, the

defendant failed to raise any of these issues in that

appeal. The claims are therefore barred by CPL §

440.10(2)(c) . . . .

(Id. 1.)

Justice Reichbach further held that, “[i]f the Court

were to reach the merits,” it would find that: (1) defense

counsel’s decision to have petitioner testify at his trial did

not result in petitioner providing testimony that was more

incriminatory than his pre-trial statement to the police; (2) it

would be impossible, five years after the trial, to recreate the

petitioner’s demeanor while he testified, in order to gauge

whether his testimony negatively impacted the jury’s perception

of him and his credibility; (3) petitioner’s claim that his

counsel did not discuss the plea offer with him was belied by

petitioner’s concession that he understood the plea offer; (4)

the claim that defense counsel did not make clear to petitioner

that he should accept the offer was too subjective; (5) the

remainder of petitioner’s arguments were both meritless. (Id.

2-3.) The court thus dismissed petitioner’s 440.10 motion in

its entirety. (Id. 3.)

On December 3, 2010, the Appellate Division denied

petitioner leave to appeal the 440.10 Decision. (ECF No. 29,

Status Update Letter, dated May 30, 2018 (“Status Ltr.”).) On

February 2, 2011, the court granted petitioner’s motion to stay

the case, effective nunc pro tunc from March 5, 2010, pending

exhaustion in state court of petitioner’s unexhausted claims.

(ECF No. 19.) Petitioner thereafter filed a petition for writ

of error coram nobis before the Appellate Division, and asserted

that he was denied effective assistance of appellate counsel.

(Status Ltr.) On May 30, 2012, the Appellate Division denied

petitioner’s motion, People v. Hernandez, 95 A.D.2d 1358 (N.Y

App. Div. 2d Dep’t 2012), and on October 29, 2012, the New York

Court of Appeals denied petitioner leave to appeal the Appellate

Division’s denial. People v. Hernandez, 19 N.Y.3d 1102 (2012).

On June 6, 2018, the court lifted the stay in this

case, and administratively re-opened the matter. (Dkt. Order

dated June 6, 2018.) On August 18, 2018, petitioner filed his

amended habeas petition, adding claims of ineffective assistance

of trial and appellate counsel. (Am. Pet. 6, 8.) Respondent

filed his opposition on October 29, 2018 (ECF No. 39), and

petitioner filed a reply on November 11, 2018. (ECF No. 40,

Reply.)

LEGAL STANDARD

Under 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

an application for a writ of habeas corpus by a person in

custody pursuant to a state court judgment may only be brought

on the grounds that his or her custody is “in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). A habeas petitioner is required to show that

the state court decision, having been adjudicated on the merits,

is either “contrary to, or involved an unreasonable application

of, clearly established Federal law” or was “based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d);

see also Johnson v. Williams, 568 U.S. 289 (2013).

For the purposes of federal habeas review, “clearly

established law” is defined as “the holdings, as opposed to the

dicta, of [the Supreme] Court’s decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S.

362, 412 (2000). A state court decision is “contrary to,” or an

“unreasonable application of,” clearly established federal law

if the decision: (1) is contrary to Supreme Court precedent on a

question of law; (2) arrives at a conclusion different than that

reached by the Supreme Court on “materially indistinguishable”

facts; or (3) identifies the correct governing legal rule but

unreasonably applies it to the facts of the petitioner’s case.

Id. at 412-13. Factual determinations made by the state court

are presumed to be correct, and a petitioner bears the burden of

rebutting the presumption of correctness by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

A federal court “will not review questions of federal

law presented in a habeas petition when the state court’s

decision rests upon a state-law ground that ‘is independent of

the federal question and adequate to support the judgment.’”

Downs v. Lape, 657 F.3d 97, 101–02 (2d Cir. 2011) (quoting Cone

v. Bell, 556 U.S. 449, 465 (2009)); see also Coleman v.

Thompson, 501 U.S. 722, 729 (1991). Federal review is barred

whenever “a state court has expressly relied on a procedural

default as an independent and adequate state ground, even where

the state court has also ruled in the alternative on the merits

of the federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d

Cir. 1990).

State procedural default or failure to exhaust state

court remedies will operate as a bar to habeas review unless the

petitioner can (1) establish cause for his default and actual

prejudice resulting from the alleged violation of federal law,

or (2) demonstrate that the failure to consider the petitioner’s

claims would result in a fundamental miscarriage of justice.

See Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012);

Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). A

petitioner may fulfill the cause requirement in two related

ways. First, the petitioner can demonstrate that “some

objective factor, external to Petitioner’s defense, interfered

with his ability to comply with the state’s procedural rule.”

Gutierrez, 702 F.3d at 111 (citing McClesky v. Zant, 499 U.S.

467, 493 (1991)). Alternatively, the petitioner can establish

cause by demonstrating futility, specifically, that “prior state

case law has consistently rejected a particular constitutional

claim.” Id. (citing DiSimone v. Phillips, 461 F.3d 181, 191 (2d

Cir. 2006)). To establish prejudice, the petitioner must

demonstrate that the alleged error resulted in “actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” Torres v. Senkowski, 316 F.3d

147, 152 (2d Cir. 2003) (internal quotation marks and citation

omitted).

Even if the petitioner is unable to establish cause

and prejudice, the procedural default may be excused if he can

show that a fundamental miscarriage of justice would result,

i.e., “that he is actually innocent of the crime for which he

has been convicted.” Dunham v. Travis, 313 F.3d 724, 730 (2d

Cir. 2002) (citations omitted). “‘[A]ctual innocence’ means

factual innocence, not mere legal insufficiency.” Id. (quoting

Bousley v. United States, 523 U.S. 614, 623 (1998)) (alteration

in original, internal quotation marks omitted).

Habeas corpus petitions must also meet “heightened

pleading requirements,” McFarland v. Scott, 512 U.S. 849, 856

(1994), including pleading facts supporting the petition with

particularity. See 28 U.S.C. § 2254, Habeas Corpus Rule

2(c)(2), (3) (requiring that petition must “state the facts

supporting each ground” and “state the relief requested”); see

also Mayle v. Felix, 545 U.S. 644, 655, 656 (2005) (pleading

standard for “Habeas Corpus Rule 2(c) is more demanding,” and

“habeas petitioners [must] plead with particularity”); Kane v.

Bailey, No. 2:17-CV-157-CR-JMC, 2017 WL 7037684, at *2 (D. Vt.

Oct. 10, 2017), report and recommendation adopted sub nom. Kane

v. Comm'r of Dep't of Mental Health, No. 2:17-CV-157, 2018 WL

527968 (D. Vt. Jan. 22, 2018) (petition was “fatally undermined

by the absence of facts supporting [petitioner’s] claims”).

Furthermore, in reviewing the instant petition, the

court is mindful that “[a] document filed pro se is to be

liberally construed, and a pro se complaint, however inartfully

pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (internal quotation marks and citations omitted);

Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (noting

that courts should review pro se habeas petitions with a lenient

eye). Accordingly, the court must interpret petitioner’s

pleadings as raising the strongest arguments they suggest.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Martin v.

United States, 834 F. Supp. 2d 115, 119 (E.D.N.Y. 2011) (citing

Williams, 722 F.2d at 1050).

DISCUSSION

I. Insufficient Evidence

Petitioner claims his conviction for Murder in the

Second Degree was based on legally insufficient evidence. (Am.

Pet. 4.) Specifically, petitioner asserts the prosecution did

not prove beyond a reasonable doubt that he had the requisite

intent to kill Hill, that the testimony of the two alleged

eyewitnesses to the shooting—Jamell Young and Amanda Santiago—

contradicted one another, and that the medical examiner

contradicted the eyewitnesses’ testimony. (Id.)

Petitioner’s insufficient evidence claim is

procedurally barred because it was decided on an independent and

adequate state law ground. It is well-settled that “a federal

court may not review federal claims that were procedurally

defaulted in state court—that is, claims that the state court

denied based on an adequate and independent state procedural

rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). The bar

applies “even where the state court has also ruled in the

alternative on the merits of the federal claim,” which is often

the case. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

“To bar habeas review . . . the state court’s decision must rest

not only on an independent procedural bar under state law, but

also on one that is adequate to support the judgment.” Murden

v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (internal quotation

and citation omitted), cert. denied, 552 U.S. 1150 (2008). A

state procedural bar “is ‘adequate’ if it ‘is firmly established

and regularly followed by the state in question’ in the specific

circumstances presented.” Id. (quoting Monroe v. Kuhlman, 433

F.3d 236, 241 (2d Cir. 2006)).

On direct appeal, the Appellate Division unambiguously

denied petitioner’s insufficient evidence claim as unpreserved

pursuant to CPL § 470.05(2). Hernandez, 55 A.D.3d at 849 (“The

defendant’s contention that the evidence was legally

insufficient to support his conviction of murder in the second

degree is unpreserved for appellate review [under CPL §

470.05(2)].”). CPL § 470.05(2), “[t]he most common state law

procedural ground that arises,” requires that an issue be

preserved by contemporaneous objection. Whitlock v. LaValley,

No. 13 CV 5772 (RJD), 2019 WL 3754415, at *3 (E.D.N.Y. Aug. 8,

2019) (citing CPL § 470.05(2)). CPL § 470.05(2) “has been held

to be a firmly established and regularly followed rule for the[]

purposes” of procedural default. Id. (citing Richardson v.

Greene, 497 F. 3d 212, 217-18 (2d Cir. 2007)). Here,

petitioner’s claim is procedurally barred because the Appellate

Division “clearly and expressly state[d] that its judgment

rest[ed] on a state procedural bar.” Aparicio v. Artuz, 269

F.3d 78, 92 (2d Cir. 2001) (quoting Harris v. Reed, 489 U.S.

255, 263 (1989)).5

Moreover, although the Appellate Division was under no

obligation to decide petitioner’s procedurally barred claim on

the merits, see Harris, 489 U.S. at 264 n.10 (“[A] state court

need not fear reaching the merits of a federal claim in an

alternative holding,” because “the adequate and independent

state ground doctrine requires the federal court to honor a

state holding that is a sufficient basis for the state court’s

judgment.”), the court nonetheless finds, as did the Appellate

Division, that petitioner’s insufficient evidence claim is

meritless. Hernandez, 55 A.D.3d at 849. In order to prevail in

a § 2254 proceeding on a claim of legally insufficient evidence,

petitioner must show that “no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” Bossett v.

Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting Jackson v.

Virginia, 443 U.S. 307, 324 (1979)). To evaluate the

sufficiency of the evidence, the court “must view the evidence

in the light most favorable to the prosecution,” Jackson, 443

U.S. at 319, and decide whether the record is “so totally devoid

5 Although a habeas petitioner may overcome a procedural default under

state law by (1) establishing cause for his default and actual prejudice

resulting from the alleged violation of federal law, or (2) demonstrating

that the failure to consider the petitioner's claims would result in a

fundamental miscarriage of justice, see Gutierrez, 702 F.3d at 111; Carvajal,

633 F.3d at 104, petitioner has made no such showing here, and the court

detects no cause, prejudice, or injustice arising from his conviction for

murder.

of evidentiary support that a due process issue is raised.”

Bossett, 41 F.3d at 830 (quoting Mapp v. Warden, N.Y. State

Corr. Inst. for Women, 531 F.2d 1167, 1173 n.8 (2d Cir.), cert.

denied, 429 U.S. 982 (1976)).

Viewing the evidence in the light most favorable to

the prosecution, the record adduced at petitioner’s trial was

sufficient to permit a rational juror to find petitioner guilty

of murder beyond a reasonable doubt. Critically, there is no

dispute that petitioner fired the shots that ended Hill’s life.

Two eyewitnesses provided consistent testimony that petitioner

instigated the incident by firing a warning shot, and declared,

“I’m tired of these pussy ass niggas in the neighborhood.”

(Trial Tr. 50:12-15.)6 Petitioner then fired a warning shot at

Hill, before firing two more shots into Hill’s back, killing

him. In addition to reasonably concluding that petitioner

intended to kill Hill by his actions, the jury could have also

inferred petitioner’s murderous intent from his conduct before

and after the shooting. Amanda Santiago testified that

petitioner told her, before the shooting, that “he was going to

get” Hill. (Id. 85:1-4.) After petitioner shot Hill, he

boasted “Crip for life,” (id. 89:14-18), mounted his bike, and

6 Amanda Santiago testified that, at petitioner’s urging, she approached

Hill and called him a “pussy.” (Tr. 81:6-9.) Though Ms. Santiago’s account

differs slightly from Mr. Young’s, her testimony is essentially consistent

with Mr. Young’s recollection that petitioner sought to instigate a

confrontation with Hill.

left the crime scene. (Id. 33:19-22.) The record does not

indicate that petitioner expressed remorse for his actions, or

concern for Hill’s well-being, in the immediate aftermath of the

shooting. At bottom, the evidence against petitioner, including

eyewitness testimony from multiple individuals present at the

shooting, was appropriately presented and weighed, and it is not

the place of this court to question the verdict of a competent

jury in a properly conducted proceeding. Thus, petitioner’s

claim of insufficient evidence is meritless, as well as

procedurally barred.

II. Sentencing Error

Petitioner next claims due process violations in

relation to the error following sentencing. (Am. Pet. 5.) The

court agrees with petitioner that the Kings County Criminal

Court clerk lacked authority to add a period of five years post-

release supervision to petitioner’s sentence without a

corresponding pronouncement by the trial judge at sentencing.

But this issue is moot. Petitioner challenged his term of post-

release supervision on direct appeal. The Appellate Division

recognized the trial court’s error and vacated petitioner’s

post-release supervision term. See People v. Hernandez, 55

A.D.3d at 850. Petitioner’s case was thereafter remanded for

resentencing, and the trial judge corrected the initial error.

(Aff. in Opp. ¶ 10.) It is unclear what further relief

petitioner is requesting, and the court can surmise none that is

appropriate. Because the issue has been fully resolved, the

court finds petitioner’s claim regarding his post-release

supervisory sentence is denied as moot.

III. Ineffective Assistance of Trial Counsel

Petitioner asserts a laundry list of deficiencies with

his trial counsel’s performance, which he claims, both

individually and in the aggregate, fell below a Constitutionally

acceptable threshold. The petition’s ineffective assistance

allegations were each raised in his 440.10 motion (compare

440.10 motion with Am. Pet.), and comprise both on- and off-the-

record actions and omissions.

With respect to claims that may be gleaned from the

trial record, petitioner asserts his Sixth Amendment right to

effective assistance of counsel was violated because his trial

counsel (1) failed to object to Jamell Young’s identification of

petitioner on the grounds that petitioner and Young were

strangers; (2) failed to challenge petitioner’s warrantless,

out-of-state arrest; (3) erred by comparing petitioner’s case to

a “Hollywood movie” in closing arguments; (4) gave a generally

weak closing argument that “sealed [p]etitioner’s guilty

verdict;” (5) failed to request a jury instruction charging that

Amanda Santiago was petitioner’s accomplice; and (6) failed to

object to the trial court’s adverse ruling on defense counsel’s

motion for submission of a lesser-included offense. (Am. Pet.

6-7.)7 Petitioner additionally claims his defense counsel erred

in the following ways that are not evident from the trial

record: (7) counsel failed to explain the prosecution’s plea

offer to petitioner; (8) counsel did not prepare petitioner to

testify at trial or apprise him of the attendant risks; and (9)

counsel generally failed to prepare for petitioner’s trial.

(Id. 6.)

A. Petitioner’s Ineffective Assistance Claim is Not

Procedurally Barred

Respondent urges the court to dismiss petitioner’s

claim of ineffective assistance of trial counsel as procedurally

barred. (Opp. 10.) In the 440.10 Decision, Justice Reichbach

held that petitioner failed to raise his on-the-record claims on

direct appeal, and therefore found petitioner’s ineffective

assistance claims barred under CPL § 440.10(2)(c).8 The Second

Circuit has recognized that a state court’s reliance on CPL §

7 Petitioner categorizes the fifth error as an off-the-record claim, but

it is manifestly evident from the trial transcript that counsel did not seek

an accomplice instruction with respect to Ms. Santiago.

8 The text of CPL § 440.10(2)(c) provides that a trial court:

[M]ust deny a motion to vacate a judgment when, [a]lthough

sufficient facts appear on the record of the proceedings

underlying the judgment to have permitted, upon appeal from such

judgment, adequate review of the ground or issue raised upon the

motion, no such appellate review or determination occurred owing

to the defendant’s unjustifiable failure to take or perfect an

appeal during the prescribed period or to his unjustifiable

failure to raise such ground or issue upon an appeal actually

perfected by him.

CPL § 440.10(2)(c).

440.10(2)(c) constitutes an adequate and independent state

ground that precludes federal habeas review. See, e.g., Reyes

v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Levine v. Comm'r of

Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995), cert. denied, 520

U.S. 1106 (1997). Further, it is well-settled that a motion

pursuant to CPL § 440.10 “cannot be used as a vehicle for an

additional appeal or as a substitute for a direct appeal.”

Woods v. Heath, No. 12-CV-02175 NGG, 2013 WL 6092804, at *9

(E.D.N.Y. Nov. 19, 2013) (quoting People v. Donovan, 107 A.D.3d

433 (N.Y. App. Div. 2d Dep’t 1985)).

Under New York law, however, where “some of the

defendant’s allegations of ineffectiveness involve matters

appearing on the record, while other involve matters that are

outside the record, the defendant has presented a ‘mixed claim’

of ineffective assistance.” Pierotti v. Walsh, 834 F.3d 171,

178 (2d Cir. 2016) (quoting People v. Maxwell, 89 A.D.3d 1108,

1109 (N.Y. App. Div. 2d Dep't 2011) (alteration omitted)).

“Where a defendant presents a mixed claim of ineffective

assistance . . ., such a mixed claim, presented in a Section

440.10 motion, is not procedurally barred, and the Section

440.10 proceeding is the appropriate forum for reviewing the

claim of ineffectiveness in its entirety.” Id. (quoting

Maxwell, 89 A.D.3d at 1109) (alteration in original, brackets

and internal quotation marks omitted).

Although the 440.10 Decision barred further

consideration petitioner’s on-the-record ineffective assistance

claims, the court finds that CPL § 440.10(2)(c) does not erect a

procedural bar to plaintiff’s claims, and, ipso facto, does not

establish grounds for procedural default. This is because a

habeas petitioner may successfully challenge a procedural bar,

even a “firmly established and regularly followed” one, such as

CPL § 440.10(2)(c), where the state court’s application of the

rule was “exorbitant,” “render[ing] the state ground inadequate

to stop consideration of a federal question.” Pierotti, 834

F.3d at 177 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)).

Here, petitioner’s CPL § 440.10 motion raised a unified

ineffective assistance of counsel claim that depended on some

facts appearing on the trial record, but also turned on facts

appearing outside the record. Accordingly, petitioner’s claim

is not procedurally barred, and the court must review it on the

merits. See Anderson v. Lee, No. 19-CV-4488 (BMC), 2020 WL

1682605, at *7 (E.D.N.Y. Apr. 7, 2020); accord Pierotti, 834

F.3d at 178.

B. Petitioner’s Claim Lacks Merit

1. Legal Standard

In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court “clearly established” that the Sixth Amendment to

the United States Constitution guarantees effective assistance

of counsel. Williams, 529 U.S. at 390-91. A defendant claiming

ineffective assistance must establish both prongs of the test

Strickland prescribes: “deficient performance by counsel and

prejudice.” Premo v. Moore, 562 U.S. 115, 122 (2011) (citation

omitted). Moreover, “[t]he Strickland standard is a general

one, so the range of reasonable applications is substantial.”

Harrington v. Richter, 562 U.S. 86, 105 (2011).

To satisfy the first prong–deficient performance–a

defendant must show that counsel’s representation “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at

688. A court reviewing an attorney’s performance must be

“highly deferential,” making “every effort . . . to eliminate

the distorting effects of hindsight” and evaluating “the conduct

from counsel’s perspective at the time.” Id. at 689.

Consequently, a reviewing court “must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance[.]” Id.; accord Brown v.

Greene, 577 F.3d 107, 110 (2d Cir. 2009).

To satisfy the second prong—prejudice–a habeas

petitioner must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. Merely alleging that errors “had

some conceivable effect on the outcome of the proceeding” is

insufficient. Id. at 693. Instead, “[c]ounsel’s errors must be

‘so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Harrington, 562 U.S. at 104

(quoting Strickland, 466 U.S. at 687). “In assessing prejudice

stemming from the failure to investigate and introduce certain

evidence, a court must consider ‘all the relevant evidence that

the jury would have had before it,’ had the evidence been

introduced, including unfavorable evidence.” Barnes v. Burge,

372 F. Appx. 196, 199 (2d Cir. 2011) (emphasis in original)

(quoting Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per

curiam)).

Because the standards under Strickland and AEDPA are

highly deferential, “when the two apply in tandem, review is

‘doubly’” deferential. Harrington, 562 U.S. at 105 (quoting

Knowles, 556 U.S. at 123). As the Supreme Court reasoned in

Harrington:

Federal habeas courts must guard against the danger of

equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d)

applies, the question is not whether counsel’s actions

were reasonable. The question is whether there is any

reasonable argument that counsel satisfied

Strickland’s deferential standard.

Id. Critically, however, the AEDPA’s “doubly deferential”

framework applies only where a federal constitutional claim has

been “adjudicated on the merits” by the state court. See 28

U.S.C. § 2254(d).

The 440.10 Decision did not adjudicate petitioner’s

ineffective assistance of counsel claims on the merits. Justice

Reichbach addressed the merits solely as a counterfactual

matter, (see 440.10 Decision 2 (“If the Court were to reach the

merits . . .”) (emphasis added)), and only after presumptively

disposing of petitioner’s claims as procedurally barred. The

Second Circuit has stated that where a discussion of the merits

is “preceded by a contrary-to-fact construction,” such a

“contingent observation” does not constitute an “adjudication on

the merits.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007);

cf. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (noting

that “adjudicated on the merits” means “a decision finally

resolving the parties’ claims, with res judicata effect, that is

based on the substance of the claim advanced, rather than on a

procedural, or other, ground”). Accordingly, the court will

review petitioner’s ineffective assistance of counsel assertions

de novo, and not under the AEDPA’s “doubly deferential”

framework.

2. Failure to Explain Plea Offer to Petitioner

Petitioner claims that he was denied effective

assistance of counsel because his attorney, allegedly, failed to

explain the plea offer to him. (Am. Pet. 6.) According to

petitioner, his trial counsel communicated the prosecution’s

plea offer by “whisper[ing] in his ear for the very first time

in Court,” to ask “if the petitioner wanted to do 18 years flat

in prison.” (Reply 8.) According to petitioner, he declined

the plea offer of 18 years imprisonment because “18 years

sounded like to [sic] much time to do in prison.” (Id.) The

petition and reply are otherwise devoid of factual

substantiation for this claim, but petitioner’s 440.10 motion

provides greater detail:

Counsel failed to advise, consult or explain to the

defendant, his right to accept a plea bargain, or, of

his right to testify at his trial. In front of the

Court, the defendant was asked by his lawyer, as he

whispered into the defendant's ear, if he would accept

16 or 18 years flat. Without any prior discussion,

assistance or consultation, the defendant whispered

back to his lawyer and answered “no.” Counsel failed

to advocate to the defendant what the plea bargaining

procedure was, and to the advantages and disadvantages

in accepting or rejecting a plea. All counsel did was

ask his illiterate client if he wanted to do 18 years

in prison.

(440.10 Motion 8.)

“The decision whether to plead guilty or contest a

criminal charge is ordinarily the most important single decision

in a criminal case and counsel may and must give the client the

benefit of counsel’s professional advice on this crucial

decision.” Carrion v. Smith, 365 F. App'x 278, 281 (2d Cir.

2010) (quoting Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996),

cert. denied, 521 U.S. 1118 (1997)) (internal quotation marks,

brackets, and ellipses omitted). “In the context of a defense

counsel’s advice surrounding a plea offer, [a] lawyer shall

explain a matter to the extent reasonably necessary to permit

the client to make informed decisions regarding the

representation.” Carrion, 365 F. App'x at 281 (quotation

omitted). A defendant’s “potential sentencing exposure at

trial” is a “key consideration for defendant in making an

informed decision” because “knowledge of the comparative

sentence exposure between standing trial and accepting a plea

offer will often be crucial to the decision whether to plead

guilty.” Davis v. Greiner, 428 F.3d 81, 88–89 (2d Cir. 2005)

(internal quotation marks omitted).

In addressing Strickland’s performance prong, the

Second Circuit has admonished that defense counsel ”must

communicate to the defendant the terms of the plea offer, and

should usually inform the defendant of the strengths and

weaknesses of the case against him, as well as the alternative

sentences to which he will most likely be exposed.” Purdy v.

United States, 208 F.3d 41, 45 (2d Cir. 2000) (citation

omitted). In order to satisfy Strickland’s prejudice prong, a

defendant “must demonstrate a reasonable probability that but

for counsel’s deficient performance, he would have pled guilty

instead of going to trial.” Raysor v. United States, 647 F.3d

491, 495 (2d Cir. 2011). “A significant sentencing disparity

between what is provided for under the plea agreement and the

sentence imposed after trial, in combination with defendant’s

statement of his intention that he would have pled guilty[,] is

sufficient to support a prejudice finding.” Carrion, 365 F.

App’x at 282 (quoting Pham v. United States, 317 F.3d 178, 182

(2d Cir. 2003) (brackets and internal quotation marks omitted).

Petitioner’s claim that trial counsel rendered

ineffective assistance by inadequately advising him about the

plea offer fails. Even if the court accepts as true

petitioner’s allegation that counsel provided no plea offer

advice whatsoever, and agrees that there was a significant

disparity between the 18-year sentence offered by the

prosecution and the 22.5 year to life sentence ultimately

imposed, see Muyet v. United States, 03 Civ. 4247, 95 Cr. 941,

2009 WL 2568430 at *5 (S.D.N.Y. Aug.19, 2009) (“While a

significant sentence disparity between the plea offer and the

actual sentence imposed can be indicative of prejudice, such a

disparity does not mandate a finding of prejudice in all

cases.”)(citations omitted), petitioner does not state or imply,

either in the petition, reply, or his 440.10 motion, that he

would have actually accepted the plea offer. In order for a

habeas petitioner to establish prejudice under Strickland, the

Second Circuit “requires some objective evidence other than

defendant’s assertions” to corroborate a claim that a plea offer

would have been accepted, but for counsel’s errors. Pham, 317

F.3d at 182. The petitioner has made no such assertion here

and, in fact, his 440.10 motion suggests otherwise. (See 440.10

Motion 7 (“This is not the case where the defendant would have

accepted the lower offer at the time that the offer was related

to him.”).)

Further, petitioner maintained at trial that he only

shot Hill by accident in response to another individual chasing

him with a knife (Trial Tr. 180-82, 204-07), and that it was

actually Hill who, without provocation, instigated a fight with

petitioner. (Id. 174, 193-97.) Petitioner’s insistence that he

was acting in self-defense belies the notion that he would have

actually accepted guilt for murdering Hill. See Cullen v.

United States, 194 F.3d 401, 407–08 (2d Cir. 1999) (“In

assessing [defendant's] credibility, the factfinder would be

entitled, but not required, to consider [defendant’s] continued

protestation of innocence as weighing against the credibility of

his claim, and to regard the disparity between the [sentencing]

range he faced and the range as represented by defense counsel

as another factor bearing upon his credibility. The credibility

determination should be based on all relevant circumstances.”)

(citation omitted); cf. Mickens v. United States, No. 97–CV–

2122, 2006 WL 2505252 at *4 (E.D.N.Y. Aug.28, 2006) (despite

significant sentencing disparity, trial court rejected

petitioner’s claim that he would have pled guilty if properly

advised by counsel where, inter alia, petitioner was “hardly a

bastion of credibility,” had “presented [ ] an elaborate defense

at trial” and had “nothing to lose by making such a claim”

because he had already been convicted), aff'd, 257 F. App'x 461,

463 (2d Cir. 2007) (“The district court, having the opportunity

to assess [petitioner's] credibility, disbelieved his testimony

that he would have accepted the plea agreement. We see no reason

to disturb this conclusion.”), cert. denied, 553 U.S. 1006

(2008). Accordingly, petitioner’s claim regarding his trial

counsel’s alleged failure to advise him about the plea offer

fails because petitioner cannot show that, but for counsel’s

omission, petitioner would have pled guilty instead of going to

trial.

3. Failure to Prepare Petitioner to Testify and to

Warn Him of Attendant Risks

The court lacks a sufficient record to determine

whether counsel’s preparation of, and advice to petitioner

regarding his testimony was objectively unreasonable. In any

event, petitioner fails to establish that counsel’s allegedly

deficient performance actually prejudiced him. In his 440.10

motion, petitioner asserted his “posture and behavior,” tendency

to keep his head down, and unspecified “sarcastic remarks,” led

the jury to conclude that he was guilty. (440.10 Motion 11.)

As a preliminary matter, defendant’s assertions

regarding his physical demeanor during cross-examination, and

the juror’s reactions thereto, are wholly speculative and,

fourteen years after his trial, are nigh impossible to assess,

let alone reconstruct. In addition, the court has reviewed

defendant’s testimony on cross-examination and finds his

responses to the questions posed to him were responsive,

appropriate, and did not volunteer more information than was

asked for. More fundamentally, the trial transcript does not

indicate that petitioner provided testimony more inculpatory

than, or otherwise inconsistent with, his signed, pre-trial

statement to the detective investigating Hill’s slaying, which

was before the jury.9 A reasonable reading of the record

warrants the conclusion that petitioner was found guilty as a

result of the evidence against him, including two eyewitness

accounts and his own pre-trial statement, and not as a result of

9 Defendant’s pre-trial statement provided, in pertinent part:

I pulled over my bike and was chillin'. I saw JP, a guy with braids and

the guy I popped. JP and the other kid were throwing up Blood signs

saying, CK, yo, CK, Crip killas. The kid I popped said, yo, want to get

it on. So I got off my bike, walk over to them and I hit the kid I

popped like two or three times.

The guy with the braids pulled out a knife from his left side pocket

and opened the folding knife and tried to hand it to the kid. So then I

snuffed him in the face. I run towards the gate, got to my bike, pulled

the gun out and popped him twice. I think I fired it three or four

times in the air after that. The gun was a .25 auto. I threw it away by

Pitkin and 77th Street by the cemetery. I didn't know the kid was dead

until the next day.

(Trial Tr. 122-23 (emphasis added).)

his own testimony at trial. This lack of prejudice is fatal to

petitioner’s claim under Strickland.

4. Failure to Investigate, Prepare, and Consult

Petitioner

Petitioner also makes a blanket allegation that

counsel failed to “prepare, communicate, consult, or visit” the

petitioner. (Am. Pet. 6.) The petition and reply, however, are

wholly devoid of facts substantiating this broad claim.10 “[A]

claim of ineffective assistance of counsel must contain specific

factual contentions regarding how counsel was ineffective.”

Peart v. Royce, No. 9:17-CV-01187-JKS, 2019 WL 3454076, at *9

(N.D.N.Y. July 31, 2019); see Hall v. Phillips, No. 1:04-CV-

1514, 2007 WL 2156656, at *13 (E.D.N.Y. July 25, 2007) (the

absence of allegations that demonstrate how counsel was

ineffective is “fatal to an ineffective assistance claim on

habeas” review); see, e.g., Powers v. Lord, 462 F. Supp. 2d 371,

381-82 (W.D.N.Y. 2006) (laying out the general rule that

“undetailed and unsubstantiated assertions [about counsel’s

alleged shortcomings] have consistently been held insufficient

to satisfy either Strickland prong”) (citation omitted); cf.

Litwok v. United States, No. 14-CV-4341 (JFB), 2016 WL 6892814,

at *4 (E.D.N.Y. Nov. 23, 2016) (ineffective assistance claim

10 The 440.10 motion claims that counsel barely spoke to petitioner, and

their brief interactions rarely addressed any substantive matters. (440.10

Mot. 5-6.) His claim is otherwise duplicative of the assertions pertaining

to petitioner’s plea offer and testimony.

based on trial counsel’s lack of expertise relied on “conclusory

allegations . . . insufficient to meet the rigorous standard

under Strickland v. Washington.”) (quoting Smalls v. McGinnis,

No. 04 Civ. 0301(AJP), 2004 WL 1774578, at *23 (S.D.N.Y. Aug.

10, 2004)). Petitioner’s generalized “lack of preparation”

claim thus fails.

Petitioner also fails to demonstrate that counsel’s

alleged lack of preparedness would have resulted in a different

outcome at trial. On the contrary, the record strongly supports

the conclusion that defense counsel was well-prepared for trial,

and provided zealous and competent representation for petitioner

throughout the trial proceedings. For example, trial counsel

moved to suppress pretrial identifications of petitioner as

unduly suggestive and represented him at the suppression hearing

(see generally Pre-trial Tr. (5/22/06)), made cogent opening and

closing statements, successfully moved the court to charge the

jury with a lesser-included offense, presented a defense case

(see Trial Tr. 221-30, 234), and objected where appropriate.

Notably, petitioner does not even conjecture how counsel’s

performance may have been improved, or what alternative strategy

counsel would have pursued, had counsel adequately prepared.

For example, petitioner does not state that a witness with

material exculpatory information could have been called, but was

not.

Time and again, courts in the Second Circuit have held

that where, as here, a habeas petitioner “fails to allege, let

alone establish, how the result of his case would have been

different had any of his laundry list of shortcomings been

corrected, there is no basis for finding that . . . any

prejudice resulted from [the attorney’s] actions.” Petrucelli

v. United States, 05 Civ. 9582, 02 Cr. 099, 2009 WL 4858081 at

*11 (S.D.N.Y. Dec. 15, 2009); see, e.g., Jones v. Fischer, No.

05 CV 24, 2006 WL 2583206 at *7 (E.D.N.Y. Sept. 6, 2006)

(“Allegations with regard to pre-trial preparation and trial

advocacy that ‘are vague, conclusory, and unsupported by

citation to the record, any affidavit, or any other source . . .

do not permit the [c]ourt to conclude that the charged errors

reflect performance falling below an objective standard of

reasonableness or that but for the errors the result would have

been different.’”); Slevin v. United States, 1999 WL 549010, at

*5 (S.D.N.Y. July 28, 1999), aff’d, 234 F.3d 1263 (2d Cir. 2000)

(“Petitioner’s conclusory allegations that counsel evinced ‘a

general lack of preparation’ do not demonstrate that absent the

alleged errors, the outcome of the trial would have been

different. Petitioner has not elaborated on how counsel’s

alleged general lack of preparation prejudiced the outcome of

his trial. Accordingly, such purported lack of preparation

cannot be deemed ineffective assistance of counsel.”); see also

Vasquez v. United States, 1997 WL 148812, at *1-2 (S.D.N.Y. Mar.

28, 1997)(“Petitioner’s allegations with regard to alleged

counsel errors in pre-trial preparation and investigation and

trial advocacy are vague, conclusory, and unsupported by

citation to the record, any affidavit, or any other source, and,

accordingly, the vague and unsubstantiated nature of the claims

defeated petitioner’s claim of ineffective assistance of

counsel.”) (brackets, internal quotation marks, and ellipses

omitted); Hartley v. Senkowski, 1992 WL 58766, at *2 (E.D.N.Y.

Mar. 18, 1992)(“In light of this demanding [Strickland]

standard, petitioner’s vague and conclusory allegations that

counsel did not prepare for trial or object to errors carry very

little weight.”). Accordingly, petitioner’s scattershot attack

on trial counsel’s preparedness at trial fails.

5. Failure to Request Jury Instruction Regarding

Santiago’s Status as Accomplice

Petitioner claims that counsel erred by not requesting

that the trial court instruct the jury that Santiago was

defendant’s accomplice. Under New York law, an accomplice is “a

witness in a criminal action who, according to evidence adduced

in such action, may reasonably be considered to have

participated in: (a) [t]he offense charged; or (b) [a]n offense

based upon the same or some of the same facts or conduct which

constitute the offense charged.” CPL § 60.22(2). If the trial

court concludes, based upon the undisputed evidence, that “the

jury could reasonably reach no other conclusion but that” the

witness is an accomplice within the meaning of CPL § 60.22(2),

then the witness is an accomplice as a matter of law, and the

court must instruct the jury that the witness is an accomplice,

subject to the statutory corroboration requirement under CPL §

60.22(1). People v. Jones, 166 A.D.3d 1394, 1395 (N.Y. App.

Div. 3d Dep’t 2018), leave to appeal denied, 123 N.E.3d 825

(N.Y. 2019) (quoting People v. Besser, 749 N.E.2d 727 (N.Y.

2001)). CPL § 60.22(1) bars a conviction based on accomplice

testimony which is “unsupported by corroborative evidence

tending to connect the defendant with the commission” of the

crime charged.

As an initial matter, there is no basis in the record

to support Santiago’s purported accomplice status because the

evidence does not indicate she shared petitioner’s intent, or

solicited, requested, commanded, or intentionally aided

petitioner to kill Hill. See New York Penal Law (“NYPL”) §

20.00. “[T]o be an accomplice for corroboration purposes, the

witness must somehow be criminally implicated and potentially

subject to prosecution for the conduct or factual transaction

related to the crimes for which the defendant is on trial.”

People v. Kocsis, 137 A.D.3d 1476, 1480 (N.Y. App. Div. 3d Dep’t

2016) (citation omitted). “The determination of accomplice

status depends on whether there is a showing that the witness

took part in the preparation or perpetration of the crime with

the intent to assist therein, or that the witness counseled,

induced or encouraged the crime.” Id. (citation omitted).

Petitioner’s vague remark to Santiago that he was going to “get”

Hill, and her verbal taunts to Hill on the night of the

shooting, do not support the conclusion that she knew of

petitioner’s intent, much less shared it.

Moreover, even if petitioner were entitled to a jury

instruction that Santiago was his accomplice, that instruction

would not have helped petitioner. The resulting charge would

have merely instructed the jury that Santiago’s testimony could

not be credited absent corroboration by other evidence. See CPL

§ 60.22(1); accord CJI2d[NY] Accomplice, as a Matter of Law.11

At trial, Santiago’s testimony was amply corroborated by

petitioner’s admission that he fired the shots that killed Hill,

and the testimony of Jamell Young. Thus, the absence of an

accomplice charge was not prejudicial because, even if Santiago

11 A hypothetical accomplice instruction to the jury would have read

substantially as follows:

Our law provides that a defendant may not be convicted of any crime

upon the testimony of an accomplice unless it is supported by

corroborative evidence tending to connect the defendant with the

commission of that crime. In other words, even if you find the testimony

of Ms. Santiago to be believable, you may not convict the defendant solely

upon that testimony unless you also find that it was corroborated by other

evidence tending to connect the defendant with the commission of the

crime.

were deemed petitioner’s accomplice, her testimony still could

have been credited by the jury.

In sum, trial counsel did not act in an objectively

unreasonable manner by not requesting an accomplice jury charge,

and in any event, an accomplice instruction almost certainly

would not have altered the outcome of petitioner’s trial.

6. Failure to Object to Adverse Ruling on Motion

for Submission of Lesser-Included Offense

Petitioner’s next claim is easily dispensed with.

Petitioner claims that he was denied effective assistance of

counsel because counsel failed to object to the trial court’s

adverse ruling on his motion for the submission of second-

degree manslaughter as a lesser-included offense of the murder

charge. (See Trial Tr. 221-30, 234.)12 A party need not take an

exception to a court’s ruling on its specific motion to preserve

a claim for appeal. CPL § 470.05(2); accord id., Practice

Commentaries (McKinney) (“Modern New York procedure no longer

requires an express ‘exception’ to a ruling in order to raise a

point of law on appeal. This applies to mid-trial rulings as

well as to requests to charge or objections to the charge.”);

see People v. Rosen, 81 N.Y.2d 237, 245 (N.Y. 1993) (“We also

reject the argument that defendant's claim is unpreserved. The

People fault defendant for ‘dropping the subject without further

12 The trial court decided to instruct on Manslaughter in the First Degree

as a lesser-included charge. (Id. 234.)

discussion’ after the court announced its ruling denying

defendant’s request to attend sidebars. However, defendant’s

specific application and the court’s equally specific ruling

were sufficient to preserve the issue for appeal.”) (alteration

omitted). Here, the issue of whether the court should have

charged the jury with the lesser-included offense of second-

degree manslaughter was already preserved for appeal. Trial

counsel had no need to object, and did not render ineffective

assistance by failing to do.

7. Failure to Object to Young’s Identification of

Petitioner at Trial

Petitioner claims his trial counsel was ineffective

for failing to challenge Jamell Young’s trial identification of

petitioner on the basis that petitioner and Young were

strangers. The Second Circuit has observed that “[c]enturies of

experience in the administration of criminal justice have shown

that convictions based solely on testimony that identifies a

defendant previously unknown to the witness is highly suspect

[and] the least reliable, especially where unsupported by

corroborating evidence.” Jackson v. Fogg, 589 F.2d 108, 112 (2d

Cir. 1978). The Supreme Court has likewise cautioned that,

“even when uncontradicted . . . identification of strangers is

proverbially untrustworthy.” United States v. Wade, 288 U.S.

218 (1967). The trial and pre-trial record do not warrant these

concerns. At the pre-trial suppression hearing, the prosecution

asked petitioner whether he knew Jamell Young; petitioner’s

trial counsel answered in the affirmative. (Pre-trial Tr.

(5/22/06) 37 (“[Petitioner] knows the [victim’s] brother, but he

doesn't know him by that name. He knows that the deceased has a

brother.”) In addition, the detective assigned to investigate

the shooting testified that Young stated he knew petitioner for

“at least three months,” and saw him “on almost a daily basis,”

prior to the shooting. (Id. 23.) Counsel therefore had a

reasonable basis to conclude petitioner and Young were not

strangers, and following the suppression hearing, had no

apparent reason to press the matter any further. Petitioner’s

claim thus fails to satisfy the first Strickland prong.

8. Failure to Challenge Petitioner’s Warrantless

Arrest Outside of New York State

Petitioner also claims that counsel was ineffective

for failing to challenge the legality of petitioner's

warrantless arrest outside of the state. There appears to be no

legal basis for petitioner’s grievance, however. New York

Criminal Procedure Law authorizes officers to make warrantless

arrests when the officer has “reasonable cause” to believe the

arrestee has committed a crime, “whether in [the officer’s]

presence or otherwise.” CPL § 140.10(1). The officer’s

authority to arrest is not confined to his or her “geographical

area of employment.” See id. § 140.10(3); see also id. §

1.20(34-a) (defining “geographic area of employment”). As

relevant here, an officer may “pursue” the offender outside New

York State and effect an arrest of that person in any state that

subscribes to the principles of the “uniform close pursuit act.”

Id. § 140.10(3). The statutory text of CPL § 140.10(3) does not

mandate that the out-of-state arrest be close in time to the

commission of the underlying crime.

On June 7, 2005, petitioner was arrested on felony

charges outside his home—at a pizza shop in Pennsylvania13 (see

Pre-trial Tr. (5/22/06) 16)—and thus no warrant was necessary to

arrest him, even though he was outside New York State at the

time of arrest. See NYPL § 140.10(3). Counsel’s decision not

advance a baseless objection did not run afoul of petitioner’s

Sixth Amendment right to effective counsel.

9. Reference to Case as Resembling a “Hollywood

movie”

Petitioner claims that counsel was ineffective for

referring to his case as one that could be seen in movies. (Am.

Pet. 7.) Indeed, petitioner’s trial counsel compared the

prosecutor’s opening statement to a movie trailer, in which the

trailer is often far better than the movie, suggesting the

13 Pennsylvania’s equivalent to New York Uniform Close Pursuit Act is

codified at 42 Pa. Stat. and Cons. Stat. Ann. § 8953.

People’s opening statement overhyped the quality of its actual

trial evidence. (See Trial Tr. 6:14-7:3.)14 Petitioner’s

conclusory critique is a paradigmatic example of an attack on

counsel’s strategic choices, rather than conduct based on

ineffective assistance. Counsel, in his professional judgment,

determined that he could effectively deploy a framework, rooted

in widely-understood cultural terms, to remind the jury of its

duty to render a verdict based solely on the evidence presented

at trial, rather than being unduly swayed by the rhetorical

force of the prosecution’s opening and closing remarks.

Counsel’s use of an easily comprehensible analogy, designed to

guide the jury in its task of weighing only the trial evidence,

is a “virtually unchallengable” strategic choice, Strickland,

466 U.S. at 690, and cannot sustain a claim for ineffective

assistance of counsel. See, e.g., United States v. Luciano, 158

F.3d 655, 660 (2d Cir. 1998) (deference to counsel’s decisions

is particularly warranted when considering matters of trial

strategy, which reviewing courts are “ill-suited to second-

14 Counsel stated the following:

I suggest to you this is reminiscent, say, to a movie trailer. The

previews, say, that you see in the movies. And I will remind you if you

have ever gone to movies and watched the trailers, then subsequently

see the movies, sometimes the trailer looks like you are going to see a

comedy and when you see the movie it turns out to be a tragedy.

Sometimes the trailer indicates that you are going to see an action

picture, instead it turns out to be a love story. What I would request

of each and everyone is to pay attention to the evidence. Keep your

eye on the ball. Don't let any lawyer, including me, tell you what you

should think and see.

guess”); Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994)

(“Actions or omissions by counsel that might be considered sound

trial strategy do not constitute ineffective assistance.”)

(internal quotation marks omitted); accord United States v.

Smith, 198 F.3d 377, 386 (2d Cir. 1999) (reasonably made

strategic calls do not support ineffective assistance claim).

Petitioner’s challenge to counsel’s statement fails.

10. Counsel Gave a Weak Summation

Lastly, petitioner claims that counsel was ineffective

for giving, in defendant’s view, a weak summation. (Am. Pet.

7.) As an initial matter, petitioner’s claim is wholly

conclusory and bereft of factual support. Even so, the court

finds, based on a review of trial counsel’s closing statement,

that the defense’s summation was well within the range of

reasonable attorney conduct, and effectively sought to minimize

the evidence against petitioner, while accentuating evidence

favorable to petitioner. Although petitioner’s counsel was

unsuccessful, insofar as petitioner was convicted, petitioner

has not provided the court with any basis to find that the trial

outcome was a result of anything other than the evidence against

petitioner, rather than the quality of defense counsel’s closing

remarks.

The court therefore rejects petitioner’s assertions of

ineffective assistance of trial counsel, both individually and

in the aggregate.

IV. Ineffective Assistance of Appellate Counsel

Finally, petitioner argues that appellate counsel

failed to raise two meritorious claims: “i) The court erred in

not charging the jury with the lesser included offense of

Manslaughter in the Second Degree; and ii) Trial counsel

provided ineffective assistance of counsel to the Petitioner.”

(Am. Pet 9.) “Although the Strickland test was formulated in

the context of an ineffective assistance of trial counsel claim,

the same test is used with respect to claims of ineffective

appellate counsel.” Etoria v. Bennett, 292 F. Supp. 2d 456, 466

(E.D.N.Y. 2003) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d

Cir. 1992)). Appellate counsel are not obliged to advance every

nonfrivolous argument that could be made, see Jones v. Barnes,

463 U.S. 745, 754 (1983), but a petitioner may establish that

appellate counsel was constitutionally ineffective “if he shows

that counsel omitted significant and obvious issues while

pursuing issues that were clearly and significantly weaker,”

Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

The court will address petitioner’s claims of

ineffective assistance of appellate counsel in reverse order.

First, as discussed above, the court finds petitioner’s trial

counsel rendered effective assistance under Strickland, and

accordingly, the decision of petitioner’s appellate counsel not

to pursue a meritless ineffective assistance claim on appeal was

well within “the wide range of professionally competent

assistance.” Id.

As for petitioner’s claim that his appellate counsel

erred by not challenging the trial court’s refusal to charge the

jury with the lesser-included offense of Manslaughter in the

Second Degree, the court finds no merit. At trial, petitioner’s

counsel moved the court to charge the jury with Manslaughter in

the First Degree and Manslaughter in the Second Degree as

lesser-included offenses of Murder in the Second Degree. (Trial

Tr. 221-30.) After reserving decision, Justice Reichbach

partially granted the motion, and charged the jury with the

lesser-included offense of Manslaughter in the First Degree, but

not Manslaughter in the Second Degree. (Id. 234:6-13 (“[B]ased

on the record here I see no basis to give the request for

Manslaughter in the Second Degree. However, since this was a

shooting at some distance I am, I think -- totally possible that

a jury might conclude that it wasn't an intent to kill but

rather [to] cause serious physical injury. I'm going to give

Manslaughter in the First Degree as a lesser included of Murder

in the Second Degree.”).)15

Even if, arguendo, the trial court erred by holding

that no “reasonable view of the evidence . . . would support a

finding that [petitioner] committed the lesser offense but not

the greater,” Repanti, 28 N.E.3d at 513 n.1 (citation omitted),

the court’s error was harmless. The New York Court of Appeals,

and its lower courts, have declined to vacate convictions, even

though the trial court may have “erred in denying defendant’s

request to submit the crime[] of manslaughter in the second

degree . . . to the jury as [a] lesser included offense[] of the

charged crimes of murder in the second degree and manslaughter

in the first degree . . . .” People v. McIntosh, 128 N.E.3d

173, 173–74 (N.Y. 2019); see, e.g., People v. Johnson, 662

N.E.2d 1066, 1067 (N.Y. 1996) (“Having found defendant guilty of

reckless murder the jury did not reach the offense of

manslaughter in the first degree, and thus we need not decide

whether the court erred in failing to submit the more remote

offense of manslaughter in the second degree.”) (citation

15 “To establish that a count is a lesser included offense . . . a

defendant must establish ‘that it is theoretically impossible to commit the

greater crime without at the same time committing the lesser.’” People v.

Repanti, 28 N.E.3d 511, 513 (N.Y. 2015) (quoting People v. Glover, 439 N.E.2d

376 (N.Y. 1982)); see also CPL § 1.20(37). This determination requires the

court to compare the statutes in question, without reference to the case’s

factual particularities. Repanti, 28 N.E.3d at 513. “Thus, the defendant

must show that the offense ‘is an offense of lesser grade or degree and that

in all circumstances, not only in those presented in the particular case, it

is impossible to commit the greater crime without concomitantly, by the same

conduct, committing the lesser offense.’” Id. (citation omitted).

omitted); People v. Wilder, 132 A.D.2d 683 (N.Y. App. Div. 2d

Dep’t 1987) (“Any error in the trial court's refusal to charge

manslaughter in the second degree as a lesser included offense

of murder in the second degree was harmless, since the jury was

given the lesser included offense of manslaughter in the first

degree and nonetheless convicted the defendant of the top

count.”) (citations omitted); People v. Quintana, 135 A.D.2d

752, 753 (N.Y. App. Div. 2d Dep’t 1987) (“In any event, any

error in failing to charge manslaughter in the second degree was

harmless as the jury rejected the intoxication defense and

additionally rejected the lesser included charge of manslaughter

in the first degree and convicted the defendant of the higher

crime of murder in the second degree.”) (citation omitted).

If the trial court did err by refusing to charge the

jury with Manslaughter in the Second Degree, appellate counsel

may have reasonably concluded that the error was harmless, and

that the Appellate Division would not find justification to

vacate petitioner’s conviction because “the jury’s guilty

verdict on the indictment’s highest count[,] despite the

availability of the next lesser included offense for their

consideration, foreclose[d] [petitioner’s] challenge to the

court's refusal to charge the remote lesser included offenses.”

McIntosh, 128 N.E.3d at 174 (citations, brackets, and internal

quotation marks omitted). The “process of ‘winnowing out weaker

arguments on appeal and focusing on’ those more likely to

prevail, far from being evidence of incompetence, is the

hallmark of effective appellate advocacy.” Smith v. Murray, 477

U.S. 527 (1986) (quoting Jones, 463 U.S. at 751-752). Had

appellate counsel challenged petitioner’s conviction on the

grounds he now proposes, the Appellate Division almost certainly

would have determined that petitioner’s conviction on the

indictment’s highest count of Murder in the Second Degree,

despite being charged with the Manslaughter in the First Degree,

“dispel[led] any speculation as to whether the jury might have

reached a guilty verdict” on an even lower degree of homicide,

i.e. Manslaughter in the Second Degree. Id. (citation omitted).

Thus, appellate counsel’s decision not to pursue a futile

argument on appeal was objectively reasonable, and did not

violate petitioner’s right to effective counsel. Petitioner’s

claim of ineffective assistance of appellate counsel thus fails,

and is denied.

CONCLUSION

Based on the foregoing, the petition for a writ of

habeas corpus is DENIED in its entirety. Petitioner’s claim of

insufficient evidence is procedurally barred and meritless.

Although the trial court erred at sentencing, the error was

properly addressed on appeal and subsequently rectified by the

trial court, and is therefore denied as moot. Petitioner fails

to state a plausible claim for ineffective assistance of counsel

with respect to either his trial or appellate counsel. Thus,

the petition for a writ of habeas corpus is DENIED and this case

is DISMISSED. A certificate of appealability shall not issue

because petitioner has not made a substantial showing of the

denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

The clerk is respectfully directed to enter judgment

in favor of respondent, close this case, and send a copy of this

Memorandum and Order and the judgment to the petitioner at his

last known address and note service on the docket.

SO ORDERED.

Dated: May 28, 2020

Brooklyn, New York

/s/

Hon. Kiyo A. Matsumoto

United States District Judge