# O'Neal v. The People of New York State

> District Court, E.D. New York · June 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10304343

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304343

## How later opinions describe it (automated extraction)

- holding that before considering a petitioner’s habeas corpus application, the Court must “determine if he exhausted all of his state remedies in pursuing his ineffective of assistance of counsel claims”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BRONTE O’NEAL, MEMORANDUM
AND ORDER
Petitioner, CV 17-0260 (GRB)

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

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GARY R. BROWN, United States District Judge:

Petitioner Bronte O’Neal (“petitioner” or “O’Neal”), proceeding pro se, petitions this
Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his October 20,
2016 conviction and sentence in the Supreme Court of the State of New York, County of Suffolk
(the “Suffolk County Court”).1 O’Neal pled guilty to four counts of assault in the second degree,
N.Y. Penal Law § 120.05, and one count of grand larceny in the fourth degree, N.Y. Penal Law §
155.30. Petitioner was sentenced to concurrent sentences with a maximum fixed term of four
years’ imprisonment and three years’ post-release supervision. O’Neal thereafter filed a Notice
of Appeal, and on January 27, 2017, the Legal Aid Society was assigned to represent petitioner
on his appeal. Respondent the People of New York (“respondent” or the “People”) opposes the
petition and moves to dismiss the petition.
For the reasons set forth below, respondent’s motion to dismiss is granted and the petition
is dismissed.

1 At the time the petition was filed, O’Neal was incarcerated at the Livingston Correctional
Facility in Sonyea, New York. DE 1. He has since been released. DE 50.
BACKGROUND
A. Facts2
On May 30, 2015, police officers in the Town of East Hampton Police Department

arrested O’Neal in Bridgehampton, New York for assaulting an 83-year old woman and leaving
the scene in the victim’s car without her permission. DE 19-3 at 29-43 (East Hampton Town
Police Arrest Report). Petitioner was charged with the crime of assault in the second degree in
violation of N.Y. Penal Law § 120.05. See id. A grand jury thereafter indicted O’Neal on four
counts of assault in the second degree in violation of N.Y. Penal Law § 120.05 and one count of
grand larceny in the fourth degree in violation of N.Y. Penal Law § 155.30. DE 19, Exh.1
(Suffolk County Indictment 1361-15). Kathleen Gearraty, Esq. of the Legal Aid Society was
assigned to represent O’Neal. DE 19, Ex. 2. Bail was set at $200,000 with a $100,000 cash
alternative.3 Miller Aff., dated April 28, 2017, DE 18, ¶ 5.
On June 26, 2015, O’Neal’s counsel requested a Bill of Particulars, made a Demand for

Discovery, gave notice that O’Neal would contest his confession, and requested the Suffolk
County Court review the Grand Jury minutes. Id. The Legal Aid Society was thereafter relieved
of counsel on August 15, 2015, and on that same day, Marianne Rantala, Esq. filed a notice of
appearance on behalf of O’Neal. DE 19, Ex. 3.

2 The facts are drawn from the record of O’Neal’s proceedings in state court. In light of
petitioner’s conviction by guilty plea, the facts are viewed in the light most favorable to
respondent. See Bonds v. Keyser, 16-CV-5908 (AMD) and 18-CV-2794 (AMD), 2020 WL
1550575 at *1 (E.D.N.Y. Mar. 31, 2020) (citing Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir.
2012)).

3 There is no indication in the record that O’Neal was released on bail.
Following a review of the transcript of the minutes of the Grand Jury proceedings, on
November 2, 2015, the Suffolk County Court concluded that there was sufficient evidence to
establish all of the elements of the charges in the indictment. Miller Aff., dated April 28, 2017,
DE 18, ¶ 7 and Ex. 5. On January 21, 2016, Keith O’Halloran, Esq. replaced Marianne Rantala

as counsel for O’Neal. DE 19, Ex. 4. O’Halloran made a motion to preclude the use of cell-
phone “ping information,” and the Respondent agreed not to use “ping information” at O’Neal’s
trial. Miller Aff., dated April 28, 2017, DE 19, ¶ 8.
On July 27, 2016 and July 28, 2016, a pre-trial Huntley hearing was held in the Suffolk
County Court to determine the admissibility of oral and written statements O’Neal made to
members of the East Hampton Police Department. Miller Aff., dated April 28, 2017, DE 18, ¶ 9,
Ex. 6. The court held that the petitioner’s statements were voluntary, made only after O’Neal
had knowingly and voluntarily waived his right to counsel, and therefore would be admissible at
trial. Id.
O’Neal pleaded guilty to all of the charges in Indictment 1361-15 on August 16, 2016.

Miller Aff., dated April 28, 2017, DE 19, ¶ 10. Petitioner did so with the understanding that the
court would sentence him to concurrent sentences with a maximum fixed term of four years,
followed by three years supervised release. Id.
On October 20, 2016, O’Neal was sentenced to concurrent sentences with a maximum
fixed term of four years, followed by three years supervised release. Miller Aff., dated April 28,
2017, DE 18, ¶¶ 10-11. Petitioner filed a Notice of Appeal on October 20, 2016. Id. at ¶ 11, Ex.
7 (Notice of Appeal). On January 27, 2017, the Legal Aid Society was assigned to represent
O’Neal on his appeal. Miller Aff., dated April 28, 2017, DE 19, ¶ 12. According to respondent,
the appeal has not yet been perfected. Id.
B. Procedural History
On January 6, 2017, petitioner filed the instant petition before the Court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. DE 1. O’Neal moved for leave to proceed in forma
pauperis, DE 6, and on April 4, 2017, District Judge Joseph F. Bianco granted the motion, DE
17. Although petitioner moved for Appointment of Counsel, the district court denied the motion.
DE 9, 11.
O’Neal filed a second petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
on February 27, 2017, challenging the same conviction and sentence that is the subject of the
instant petition. See O’Neal v. The People of the State of New York, CV 17-1234 (JFB). On
April 4, 2017, Judge Bianco ordered the consolidation of the CV 17-1234 (JFB) action with the
instant action, directed that the Clerk of the Court close the case, and ordered that the February
17, 2017 petition be docketed as an amended petition for writ of habeas corpus (hereinafter the

“amended petition”) in this action, CV 17-0260 (JFB). Id. at DE 6.
Respondent submitted the People’s response to the petition on April 28, 2017. DE 18-19.
On June 16, 2017, petitioner filed a letter with the Court, DE 27, which Judge Bianco construed
as a motion to amend the petition, DE 32. The Court noted that there was no memorandum of
law or narrative explanation accompanying O’Neal’s motion to amend, but nonetheless on
October 4, 2017, granted petitioner leave to submit an amended petition for writ of habeas
corpus in this case within thirty (30) days of the date of the Order. Id. On October 16, 2017,
O’Neal filed an amended petition. DE 34.
On May 16, 2019, the case was reassigned to Judge Joan M. Azrack by random selection.
Petitioner filed a notice of change of address on December 19, 2019. DE 50. On January 31,
2020, the case was reassigned to the undersigned by random selection.
The Court has fully considered all the submissions and arguments of the parties.

STANDARD OF REVIEW
A. Deferential Standard of Review
To determine whether a petitioner in state custody is entitled to a writ of habeas corpus, a
federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides in relevant part:
(d) an application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the claim ---

(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).
“Clearly established Federal law means the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant state-court decision.” Green v. Travis,
414 F.3d 288, 296 (2d Cir. 2005) (internal quotation marks and citation omitted). A state-court
decision is contrary to federal law “if the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an unreasonable application of clearly
established Supreme Court law when “the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. at 413.
To be clear, AEDPA establishes a deferential standard of review. “[A] federal habeas
court may not issue the writ simply because the court concludes in its independent judgment that

the relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.” Gilchrist v. O’Keefe, 260 F.3d
87, 92 (2d Cir. 2001) (internal quotation marks and citation omitted); see Nevada v. Jackson, 569
U.S. 505, 508-09 (2013) (per curiam) (holding a district court “may overturn a state court’s
application of federal law if it is so erroneous that there is no possibility fair-minded jurists could
disagree that the state court’s decision conflicts with [Supreme Court] precedents”) (internal
quotation marks and citations omitted). That said, while “[s]ome increment of incorrectness
beyond error is required . . . the increment need not be great; otherwise, habeas relief would be
limited to state court decisions so off the mark as to suggest judicial incompetence.” Francis S.
v. Stone, 221 F3d 100, 111 (2d Cir. 2000). (internal quotation marks and citation omitted).

Apart from a state court’s adjudication of a claim that was an unreasonable or contrary
application of federal law, a district court may grant a writ of habeas corpus when the state court
decision “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)(2). The state court determination
of the facts are presumed to be correct, however, and the petitioner bears the burden of “rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Finally, “if the federal claim was not adjudicated on the merits, AEDPA deference is not
required and conclusions of law and mixed findings of fact . . . are reviewed de novo.” Dolphy v.
Montello, 552 F.3d 236, 238 (2d Cir. 2009) (internal quotation marks and citation omitted).
B. Exhaustion Requirement
As a threshold matter, a district court shall not review a writ of habeas corpus unless “the
applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. §

2254(b)(1)(A). The Second Circuit has adopted a “two-stage inquiry for determining whether
the requisite exhaustion has occurred.” Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). First,
the petitioner must have fairly presented “his or her constitutional claim to the appropriate state
court, id., and “apprise the highest state court of both the factual and the legal premises of the
federal claims ultimately asserted in the habeas petition,” Galdamaz v. Keane, 394 F.3d 68, 73
(2d Cir. 2005); see Morrison v. Brown, No. 11-CV-3366 (KAM), 2019 WL 267190, at *4
(E.D.N.Y. Jan. 18, 2019) (“To satisfy this requirement, a prisoner must have fairly presented to
an appropriate state court the same federal constitutional claim that he [or she] now urges upon
the federal courts, either in the form of explicit constitutional arguments or by alleging facts that
fall well within the mainstream of constitutional litigation”) (internal quotation marks and

citations omitted). That is to say, the state court claim must have (1) raised “factual and . . . legal
premises” as the federally asserted claim, and (2) have been presented in a way that was “likely
to alert that [state] court to the claim’s federal nature.” Daye, 696 F.2d at 191-92.
Second, after “having presented his [or her] federal constitutional claim to an appropriate
state court, and having been denied relief, the petitioner must have utilized all available
mechanisms to secure appellate review of the denial of that claim.” Klein, 667 F.2d at 282.
Although a petitioner need not petition the United States Supreme Court by writ of certiorari, 28
U.S.C. § 1257; see Lawrence v. Florida, 549 U.S. 327, 333 (2007), the state prisoner must fairly
present his federal constitutional claims to the highest state court having jurisdiction over them,
Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). “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.” Id.

To that end, “[t]he chief purposes of the exhaustion doctrine would be frustrated if the
federal habeas court were to rule on a claim whose fundamental legal basis was substantially
different from that asserted in state court.” Id. at 192 (footnote omitted). Thus, the exhaustion
doctrine arises out of principles of comity and the respect that state judgments must be accorded.
Id. at 191; see Rose v. Lundy, 455 U.S. 509, 518 (1982) (the exhaustion doctrine is “designed to
protect the state courts’ role in the enforcement of federal law and prevent disruption of state
judicial proceedings”). Accordingly, “[a] district court must dismiss any petition for habeas
corpus, brought pursuant to 28 U.S.C. § 2254, that contains issues not exhausted in the state
courts.” McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (citations omitted).
Nevertheless, as discussed below, where a petitioner “can no longer obtain state-court

review of his present claims on account of his [or her] procedural default, those claims are . . .
deemed to be exhausted.” DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (citations
omitted). Such exhaustion, however, “in this sense does not automatically entitle the habeas
petitioner to litigate his or her claims in federal court.” Woodford v. Ngo, 548 U.S. 81, 93 (2006)
(citation omitted). Rather, “if the petitioner procedurally defaulted on those claims, the prisoner
generally is barred from asserting those claims in a federal habeas proceeding,” id., unless the
petitioner “can show cause for the default and actual prejudice resulting therefrom or that he is
actually innocent,” DiGuglielmo, 366 F.3d at 135 (citations omitted).
C. Procedural Bar
A petitioner’s federal claims may be procedurally barred from habeas review “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.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)); see also Downs v. Lape, 657 F.3d 97, 101-
02 (2d Cir. 2011); Morrison, 2019 WL 267190, at *4 (“[p]ursuant to the adequate and
independent state ground doctrine, federal habeas review is precluded if the last state court to
render judgment clearly and expressly states that its judgment rests on a state procedural bar”)
(citations omitted). To be independent of the federal question, the state court’s decision “must
have actually relied on the procedural bar as an independent basis for its disposition of the case”
by “clearly and expressly stat[ing] that its judgment rests on a state procedural bar.” Harris v.
Reed, 489 U.S. 255, 261-63 (1989) (internal quotation marks and citation omitted). A state
procedural rule is adequate to support the judgment if it “is firmly established and regularly

followed by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (internal
quotation marks and citation omitted); see Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011).
This preclusion applies, “[e]ven where the state court has ruled on the merits of a federal
claim in the alternative,” so long as there is an adequate and independent state ground that would
bar the claim in state court. Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (internal
quotation marks and citations omitted); accord 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. By its very
definition, the adequate and independent state ground doctrine requires the federal court to honor
a state court’s holding that is a sufficient basis for the state court’s judgment, even when the state
court also relies on federal law) (emphasis in the original)).
The procedural bar “is not, however, unqualified.” Id. The Supreme Court has explained
that “[i]n an effort to balance the societal interests in finality, comity, and conservation of scarce

judicial resources with the individual interest in justice that arises in the extraordinary case,” it
recognizes “a miscarriage-of-justice exception.” Id. (internal quotation marks and citation
omitted). Thus, a procedural default based on independent and adequate state grounds prevents
federal habeas corpus review of a procedurally barred claim unless the petitioner can overcome
the procedural default by showing either “cause for the default and actual prejudice,” or “that
failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501
U.S. at 750. A miscarriage of justice is shown in an extraordinary case, such as where a
constitutional violation results in the conviction of a person who is actually innocent. Murray v.
Carrier, 477 U.S. 478, 495-96 (1986).
D. Pro Se Petitioner Consideration

Here, O’Neal is proceeding pro se. As such, his pleadings are held to “less stringent
standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks and citation omitted); see Boykin v. KeyCorp, 521 F.3d 202, 214 (2d
Cir. 2008), and are liberally construed “to raise the strongest arguments that they suggest,”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted).
“Nonetheless, a pro se [litigant] is not exempt from compliance with relevant rules of procedural
and substantive law.” Gutierrez v. Capra, No. 14-CV-6887 (KAM), 2019 WL 1508454, at *7
(E.D.N.Y. Apr. 5, 2019) (internal quotation marks and citations omitted). Petitioner’s
submissions are evaluated accordingly.
DISCUSSION
O’Neal petitions this Court for a writ of habeas corpus. DE 1-2, and 34. Construing
O’Neal’s petition liberally, O’Neal seeks (1) seeks $500 million in damages for claims of false
arrest, defamation, ineffective assistance of counsel and corruption; and (2) review of his bail

status. Id. In addition, petitioner states he is entitled to habeas relief because he received
ineffective assistance of counsel during the criminal proceedings. Id. In his amended petition,
O’Neal concedes that he has not exhausted his state court remedies. See O’Neal v. The People of
the State of New York, CV 17-1234 (JFB), DE 1. Specifically, petitioner states that he has
directly appealed his claims to the Supreme Court, Second Department, but that he has not
received a decision from the state court. Id. Finally, O’Neal sets forth a claim that he suffered
physical injuries while incarcerated as a result of his attorney’s actions. DE 1-2, and 34; See
O’Neal v. The People of the State of New York, CV 17-1234 (JFB), DE 1.
Respondent represents that petitioner’s appeal of his conviction and sentence has not
been perfected. Specifically, respondent states that while O’Neal filed a notice of appeal and the

Legal Aid Society has been appointed to represent him, his appeal has not yet been filed.
(1) Claim for Damages
O’Neal’s request for monetary relief for alleged torts and violations of his constitutional
rights is not cognizable in a petition for a writ of habeas corpus. As the Supreme Court has made
clear, “[i]f a state prisoner is seeking damages, he is attacking something other than the fact or
length of his confinement, and he is seeking something other than immediate or more speedy
release—the traditional purpose of habeas corpus. In the case of a claim for damages, habeas
corpus is not an appropriate or available federal remedy.” Preiser v. Rodriguez, 411 U.S. 475,
493 (1973). Rather, a damages action by a state prisoner may be brought under the Civil Rights
Act in federal court without any requirement of prior exhaustion of state remedies. Id.
Notably, petitioner filed a civil rights action pursuant to 42 U.S.C. § 1983 on January 29,
2016 against defendants Thomas Spota, Suffolk County Municipality, East Hampton Town, East

Hampton Town Police, Marianne S. Rantala and Irene Foster seeking damages for the alleged
violations of his constitutional and civil rights by defendants based on the same allegations set
forth in O’Neal’s petition. See CV 16-0579 (JFB) (GRB). By Memorandum and Order dated
January 12, 2017, the district court dismissed plaintiff’s claims against defendants Thomas Spota
and Suffolk County Municipality. See id., DE 60. Thereafter, in a Report and Recommendation
dated August 27, 2017, the undersigned recommended that (i) defendants East Hampton Town
and East Hampton Town Police’s motion to dismiss the complaint pursuant to Rule 12 of the
Federal Rules of Civil Procedure be granted, (ii) the remaining claims against defendant
Marianne S. Rantala (petitioner’s state court attorney) and Irene Foster (the victim of the assault
underlying his conviction) be dismissed, and (iii) leave to replead be denied. O’Neal v. East

Hampton Town, No. 16-0579 (JFB) (GRB), 2017 WL 4174788 (E.D.N.Y. Aug. 28, 2017). The
district court adopted the findings and recommendations in the Report and Recommendation in
their entirety. O’Neal v. East Hampton Town, No. 16-0579 (JFB) (GRB), 2017 WL 4162307
(E.D.N.Y. Sept. 19, 2017). O’Neal appealed the district court’s dismissal of his 42 U.S.C. §
1983 claims to the Second Circuit, and by Summary Order dated December 6, 2018, the Court
affirmed the judgment of the district court. O’Neal v. Spota, 744 F. App’x 35 (2d Cir. Dec. 6,
2018).
Accordingly, given that (i) a claim for monetary relief is not an available remedy in a
petition for habeas corpus and (ii) O’Neal has filed a civil rights action pursuant to 42 U.S.C. §
1983 regarding these claims which has been fully decided, respondent’s motion to dismiss this
claim is granted with prejudice.
(2) Review of Petitioner’s Bail Status
In his petition and amended petition, O’Neal seeks this Court’s review of his bail status

and asks the undersigned to grant him bail pending the appeal of his conviction and sentence in
state court. See DE 1-2, and 34; see also O’Neal v. The People of the State of New York, CV 17-
1234 (JFB), DE 1. Petitioner maintains that he is “innocent” and that the sentence imposed was
excessive. Id. In addition, O’Neal states that he has his own business in the Hamptons which is
suffering because “his clients may have all found replacements in the time” that he has been
incarcerated, and he needs to be granted bail because he has not earned any income since he has
been in jail. Id. Finally, O’Neal states that he has suffered physical injuries while incarcerated
and that some inmates tried to “kill him.” Id.
First, to the extent petitioner seeks to challenge his conviction and the length of his
sentence, O’Neal concedes that this claim is unexhausted because although he claims he

appealed his sentence to the Appellate Division, he has not received a decision. Id. It is well-
established that “[t]o properly exhaust a claim that relies on errors or omissions that are apparent
from the record of trial or pretrial proceedings, petitioner must raise it on direct appeal to the
Appellate Division and then seek leave to appeal to the Court of Appeals.” Moore v. Attorney
Gen. of NY, No. 17-CV-0474 (JFB), 2019 WL 3717580, at * 7 (E.D.N.Y. Aug. 7, 2019) (internal
quotation marks and citation omitted). Because this claim has not been adequately exhausted,
O’Neil has deprived the state court “a fair opportunity to act on his claim.” Anthoulis v. New
York, No. 11-CV-1908 (BMC), 2012 WL 194978, at *3 (E.D.N.Y. Jan. 23, 2012).
Furthermore, it is well established “that there is no absolute federal constitutional right to
bail pending appeal after a conviction in the state courts.” Finetti v. Harris, 609 F.2d 594, 597
(2d Cir. 1979). New York law permits only one application for bail pending appeal. See N.Y.
Crim. Proc. Law § 460.50. Relief is discretionary, and there is no statutory provision that

permits direct appeal from the denial of a post-conviction bail application. Id.; see also Finetti,
609 F.2d at 595. The Second Circuit, has held that “even though there is no right to a direct
appeal from an order denying bail pending appeal, exhaustion requires a state prisoner to have
commenced a state habeas corpus proceeding for the purpose of raising the same constitutional
challenges to the denial of bail as he [or she] seeks to present in his [or her] federal habeas
corpus proceeding.” Finetti, 609 F.2d at 597; see Garson v. Perlman, 541 F. Supp. 2d 515, 519-
20 (2008) (“if there is a constitutionally protectible interest in the denial of bail pending appeal,
state habeas corpus relief is available to assert it”).
Here, O’Neal concedes that he did not commence a state habeas corpus proceeding
regarding bail. See DE 1-2, and 34; see also O’Neal v. The People of the State of New York, CV

17-1234 (JFB), DE 1. Moreover, petitioner reports that he has not exhausted his claim for
injuries while incarcerated because he filed a civil case which is still “pending” in state court.
See id.
Finally, petitioner’s application for bail pending appeal is moot because a review of the
Docket Report reveals that O’Neal is no longer incarcerated, but instead resides in Mastic Beach,
New York. DE 50.
Accordingly, respondent’s motion to dismiss this claim is granted with prejudice.
(3) Ineffective Assistance of Counsel
Petitioner claims that he was denied the right to effective counsel under the Sixth
Amendment based on conduct outside the state court record by his attorneys Marianne Rantala
and Keith O’Halloran. See DE 1-2, and 34; see also O’Neal v. The People of the State of New

York, CV 17-1234 (JFB), DE 1. O’Neal argues principally that his attorneys’ representations
had been constitutionally defective during the criminal proceedings. Id. Additionally, O’Neal
claims that he suffered physical injuries by fellow inmates while incarcerated due to his attorney
Marianne Rantala’s actions. Id. Petitioner’s claims are premature as he has failed to exhaust his
available state court remedies.
For purposes of AEDPA, the factual basis for an ineffective assistance of counsel claim
must, like other issues, be presented to all relevant state courts and exhausted. See Cornell v.
Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (holding that before considering a petitioner’s
habeas corpus application, the Court must “determine if he exhausted all of his state remedies in
pursuing his ineffective of assistance of counsel claims”); see also Daye v. Attorney General,

696 F.2d 186, 191-92 (2d Cir. 1982). In addition, the “nature or presentation of the claim [must
be] likely to alert the court[s] to the claim's federal nature.” Daye, 696 F.2d at 192; see Cornell,
655 F.3d at 375.
Here, however, the basis for petitioner's ineffectiveness of counsel claims relies on
alleged conversations between himself and his attorneys -- evidence which is outside the state
court record and could not have been raised on direct appeal. See Griffin v. Suffolk County, No.
13-CV-4375 (JFB), 2013 WL 6579839, at *3 n. 3 (E.D.N.Y. Dec. 16, 2013) (citing People v.
Harris, N.Y.S.2d 678, 687 (4th Dep’t 1985) (noting that the New York Court of Appeals “has
time and again advised that ineffective assistance of counsel is generally not demonstrable on the
main record.”); see also Johnson v. Kirkpatrick, No. 11-CV-1089 (CM), 2011 WL 3328643, at
*12 (S.D.N.Y. Aug. 3, 2011) (stating that “[c]laims based on evidence outside the trial record,
including most ineffective assistance of counsel claims, cannot be raised on direct state appeal
but rather must be made through a CPL § 440 motion”). Indeed, an ineffective assistance of

counsel claim is not generally amenable to resolution on the basis of the main record because
such a claim tends to rely on “matters outside the record concerning defense counsel's choice of
trial strategy.” People of Flores, 900 N.Y.S.2d 647, 647 (1st Dep’t 2010).
To properly exhaust an ineffective assistance of counsel claim that relies on matters
outside the record, “the petitioner must raise it as part of a motion to vacate judgment under N.Y.
Crim. Proc. Law § 440.10 and then seek leave to appeal to the Appellate Division.” Anthoulis v.
New York, No. 11-CV-1908 (BMC), 2012 WL 194978, at *3 (E.D.N.Y. Jan. 23, 2012) (citing
Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003)). Because there is no time limit to filing a
motion under N.Y. Crim. Proc. Law § 440.10, O’Neal may still seek review of his ineffective
assistance of counsel claims in state court. See N.Y. Crim. Proc. Law § 440.10(1) (providing

that a defendant may bring a motion to vacate an entry of judgment “[a]t any time after the entry
of a judgment”); see Carpenter v. Unger, No. 10-CV-1240, 2014 WL 4105398, at *25
(N.D.N.Y. Aug. 20, 2014) (finding petitioner's claim of ineffective assistance of counsel during
plea bargaining process unexhausted, but not procedurally barred because claim relied on
evidence outside the record and could be raised on collateral review); see also Griffin, 2013 WL
6579839, at *3 (finding non-record based claims, including ineffective assistance of counsel,
unexhausted but not procedurally barred because Section 440.10 does not have a statute of
limitations and a state remedy was still available pursuant to N.Y. Crim. Proc. Law § 440.10).4
Petitioner's claims of ineffective assistance of counsel are unexhausted and therefore not
properly before this Court on federal habeas review. Accordingly, the Court grants respondent’s
motion to dismiss this claim without prejudice for failure to exhaust.5

CONCLUSION
For the foregoing reasons, the Court dismisses the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 without prejudice to petitioner’s right to file a future
petition after he fully exhausts his state court remedies with respect to his claims of ineffective
assistance of counsel. As to petitioner’s claims for damages and review of his bail status, such
claims are dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly
and close this case. The Clerk of the Court is directed to serve a copy of this Memorandum and
Order upon pro se petitioner.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis
status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).

4 While the claim of ineffective assistance is unexhausted, the review of this matter, as
summarized above, reveals that petitioner received a vigorous defense which appears well above
the standard for ineffective assistance.

5 Because petitioner’s claims have not been exhausted, the Court, in its discretion, determines
that dismissal of the petition is warranted, rather than a stay. Cf. Thompson v. Burge, No. 05-
CV-2914 (JFB), 2007 WL 2020185, at *6 (E.D.N.Y. July 6, 2007) (“When a petitioner submits a
mixed petition to the court, the court may dismiss petitioner’s unexhausted claims, stay
consideration of the exhausted claims, and allow petitioner to amend the petition after he returns
to state court to satisfy the exhaustion requirement”) (citing Zarvela v. Artuz, 254 F.3d 374, 379-
82 (2d Cir. 2001)).
Dated: Central Islip, New York
June 5, 2020

/s/ Gary R. Brown__________
Gary R. Brown
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304343. Public record. Not legal advice.