Reid v. Martuscello

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------X

REGGIE REID,

Petitioner,

MEMORANDUM AND ORDER

- against - 12-CV-3371 (RRM)

DANIEL MARTUSCELLO, Superintendent,

ERIC T. SCHNEIDERMAN, former New York State

Attorney General

Respondents.

-----------------------------------------------------X

ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Petitioner Reggie Reid brings this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254, challenging his March 23, 2007, conviction in New York State Supreme Court,

Kings County, on two counts of robbery in the first degree and three counts of robbery in the

second degree. (Pet. (Doc. No. 1-2).) For the reasons set forth below, the petition is dismissed.

BACKGROUND

On September 14, 2001, several individuals were robbed at Seagate Medical Center in

Coney Island, Brooklyn (“Seagate”). (Pet. at 12.)1 Petitioner Reggie Reid and Ricardo Mendez

were subsequently indicted on five counts of robbery in the first degree, six counts of robbery in

the second degree, robbery in the third degree, grand larceny in the fourth degree, and petit

larceny. (Respondents’ Affidavit in Opposition to Petition (“Opp.”) (Doc. No. 5) at ¶ 5.)

Mendez was also charged with criminal possession of a controlled substance.

In 2002, following a joint trial with Mendez, a jury convicted Reid of two counts of

robbery in the first degree and one count of robbery in the second degree. As explained further

1 Page numbers for all documents refer to pagination assigned by the Court’s Electronic Case Filing system.

infra, his conviction was ultimately reversed. See People v. Reid, 22 A.D.3d 690 (2d Dep’t

2005). Reid and Mendez’s joint retrial in 2006 is the subject of the instant petition.

I. The Investigation

On September 16 and 17, 2001, Detectives Dalton and John Closs of the 60th precinct

were assigned to investigate the robbery. The detectives came to identify Reid as a suspect and

on October 1, 2001, Closs went to Seagate to show some of the employees a photo array with

Reid’s picture. (Pre-trial Hearing Tr. (Doc. No. 5-2) at 15.) Seagate employees Andre

Sanzharevsky, Igor Shulgin, Dr. Jacobs, a chiropractor, and Svetlana Tachenka, a Seagate

receptionist, each viewed the photo array separately. Both Sanzharevsky and Shulgin identified

Reid, while Tachenka and Dr. Jacobs were unable to identify anyone. (Id. at 16–18.)

The next day, on October 2, 2001, Closs conducted a lineup at the 60th Precinct. (Trial

Transcript (“Tr.”) (Doc. No. 5-3) at 141.) Zakharov, a former office manager at Seagate,

Sanzharevsky, and Dr. Jacobs viewed a six-person lineup, which included Reid, through a one-

way glass. (Id.) Both Zakharov and Sanzharevsky, viewing the lineup separately, identified

Reid, though only Zakharov testified at trial. (Pre-trial Hearing Tr. at 29–30.) Dr. Jacobs did not

identify anyone. (Tr. at 163.) Photographs of the lineup were received into evidence. (Tr. at

147–48.)

Following the lineup, Closs arrested Reid and learned that he was 37 years old, 5’10” tall,

and lived approximately one block from Seagate. (Tr. at 149–50, 158–59.) On October 4, 2001,

Mendez was arrested, after which he made a confession that is central to the instant petition.

II. The 2002 Trial and Direct Appeal

Reid and Mendez faced a joint trial in 2002. Reid was convicted by a jury of two counts

of robbery in the first degree and one count of robbery in the second degree, and he was

sentenced as a predicate violent felony offender to an aggregate prison sentence of thirty-two

years. (Opp. at ¶ 6.)

Reid pursued a timely appeal to the New York State Supreme Court, Appellate Division,

Second Department (hereinafter “Appellate Division”). He raised several points of error,

including: (1) the People’s evidence was legally insufficient; (2) Zakharov’s lineup

identification should have been suppressed; (3) the prosecutor committed a Rosario violation by

failing to disclose a page of handwritten notes pertaining to Lugo; and (4) defense counsel

provided Reid with ineffective assistance of counsel. (Opp. at ¶ 7.)

Reid’s conviction was ultimately reversed based on prosecutorial misconduct – a claim

that Reid did not in fact raise, but that Mendez raised in his appeal. The Court found that the

prosecutor’s summation unfairly suggested that more than one witness had identified Reid, and

ordered a new trial as a matter of discretion “in the interest of justice.” See People v. Reid, 22

A.D.3d 690 (2d Dep’t 2005). The Court held that, “[i]n light of the less than overwhelming

evidence of guilt adduced at trial, the prosecutor’s misconduct . . . cannot be considered

harmless.” Id. at 689.

III. The 2006 Trial

The retrial was tried by a different prosecutor, before a new jury and judge – New York

State Supreme Court Justice Guy Mangano, Jr. The People relied on Zakharov as the primary

eyewitness. (Tr. at 5.) On the afternoon of September 14, 2001, three days after the 9/11

terrorist attack, Zakharov was at work, watching the news and talking with his colleagues

Sanzharevsky and Shulgin. (Id. at 8.) They were in a room with the door open, across from

chiropractor Marc Jacobs’ office. (Id. at 10.) Zakharov recalled seeing a black man peek inside

the room he was in for a few seconds, taking “a good look around” before disappearing. (Id. at

9–11.) Assuming the man was a patient, Zakharov and his colleagues did not find it suspicious.

(Id. at 11.) However, when the man reappeared, it was clear he planned to rob Seagate.

The man, who Zakharov later identified as Reid, subsequently reappeared, along with a

shorter, Hispanic man. (Tr. 13, 16, 18, 26–27, 37–38, 80.) Based on the bluge in Reid’s pocket,

Zakharov testified that he “saw what [he] believed to be a firearm.” (Tr. at 14; see also 54, 62–

64, 87.) According to Zakharov, Reid demanded to know where the money was kept and

threatened to shoot any resistors, saying, “where is the fucking cash,” and “I will blow your

heads off.” (Id. at 16.) After being directed to a safe and finding no money there, the men

robbed Zakharov and his two co-workers. Reid took Zakharov’s Fendi watch, worth $450, as

well as $30 or $40 in cash. (Id. at 24–26.) Zakharov also saw Reid take cash, a “very expensive

gold bracelet,” and a Cartier watch from Shulgin and Sanzharevsky. (Id. at 23–24.)

Zakharov stated that when he tried to call 911, Reid ripped the phone cord from the wall

and said that the police would not help, as they were preoccupied with the aftermath of 9/11.

(Tr. at 22.) Reid allegedly said, “I freaking dare you, nobody is going to come and help you,

everybody is down at the World Trade Center . . . . ” (Id.) Zakhoarov estimated that the entire

incident lasted five to ten minutes before the men left. (Id. at 30, 64, 59, 78.)

Dr. Jacobs testified that he was at his desk that afternoon, across the hall from Zakharov,

when a physical therapist entered his office, “muttering, oh my God.” (Id. at 104.) Before she

could explain, a Hispanic man wearing a sweatshirt, hood up, appeared behind her. (Id. at 105,

111.) The man proceeded to steal $150 in cash from Dr. Jacobs and other valuables, including

watches and jewelry, from the physical therapist, as well as an acupuncturist and a patient. (Id.

at 106, 111–13, 124, 131.) Reid did not enter Dr. Jacobs’ office, but Dr. Jacobs saw him through

the open office door. (Id. at 106.) Jacobs testified that he heard “commotion” coming from the

office across the hall, and heard someone say “something like . . . I’ll blow your head off.” (Id.

at 110.)

Both Zakharov and Dr. Jacobs recounted details of Reid’s physical appearance, and

stated that the office was “very well-lit.” (Id. at 40.) Zakharov testified that Reid did not wear a

mask or hat, and that there was nothing obscuring his face. (Id. at 17.) Zakharov, who is 5’11”

stated that Reid was “somewhat shorter” than him, offering an estimate of 5’8”, and he stated

that he was “on the slim side,” had an oval or round face, and uncombed hair. (Id. at 16, 57–59,

65, 84.) Dr. Jacobs testified that there were two men – a black male and a Hispanic male – and

that he noticed the black man was taller than the Hispanic man. (Id. at 156.) The jury had the

opportunity to view Reid and Mendez and assess their relative heights and weights. (Id. at 259–

60.) Zakharov testified that Reid was wearing a brown leather jacket, dark jeans, and suede

gloves, (id. at 14), and Jacobs recalled the gloves, as well, (id. at 111).

With respect to Mendez, Zakharov testified that Mendez wore a hooded sweatshirt and

had a goatee, and that he smelled liquor on Mendez’s breath. (Id. at 19, 27.) Dr. Jacobs also

reported him as wearing a hooded sweatshirt and gloves. (Id. at 106, 111.)

Zakharov and Jacobs also testified about the lineup. Zakharov stated that he recognized

Reid “right away,” within “a few seconds,” and that he felt “very certain” about the

identification. (Id. at 38.) Jacobs stated that he did recognize someone in Reid’s lineup, but that

he chose not to identify him because he was not “100 percent” certain and was “afraid” of

making a wrong identification. (Id. at 118.) Zakharov also identified Reid in court. (Id. at 15,

27–28.)

Dalton’s testimony is at the heart of Reid’s habeas petition. Dalton testified that after

Mendez’s arrest, he made a statement admitting that he went to the crime scene with “other

guys.” Specifically, Dalton testified, “He told me that he went to the location with the guys, the

guys went in the back, he was up front, he got scared and ran out.” (Id. at 201.) Dalton did not

ask Mendez any follow-up questions, such as who “the guys” were, nor did he record or write

down the statement. (Id. at 208–13; 216–17.) Dalton justified the absence of any writing by

pointing to the chaos of 9/11; he stated, “Since it was right after 911 and we were involved with

the cleanup of Ground Zero . . . the papers got put aside.” (Id.) To explain why he did not probe

Mendez with follow-up questions, the People elicited Dalton’s testimony that he had only been

searching for two suspects, and that when Mendez was arrested, Reid was already in custody.

(Id. at 222.) At trial, the People repeatedly emphasized that the crime was only committed by

two men, (see e.g., Id. at 83; 136–37; 222; 330), while the defense tried to cast doubt on their

narrative by underscoring that Mendez said he and “other guys” (plural) committed the robbery.

(Id. 317–18, 322–23, 324, 325, 330, 334.)2 Other testimony created uncertainty about the

number of perpetrators, as well. (See Tr. at 48, 51, 85.)

In summation, the prosecutor referenced Mendez’s confession. In listing the evidence for

the jury, he mentioned Zakharov’s identification, and then stated:

You have received the corroborating testimony of Dr. Jacobs and you have the

defendant Mendez’s statement in this case . . . . [T]alk amongst yourself [sic]

about exactly how this evidence proves . . . . that Reggie Reid and Ricardo

Mendez are responsible for this robbery . . . .

(Id. at 336.)

Neither Reid nor Mendez testified, and both relied on a misidentification defense. Reid

argued that he had been misidentified because he lived in the neighborhood where Seagate was

located. Reid’s attorney, George Sheinberg, reminded the jury that it is common to recognize

2 In his summation, Mendez’s attorney also called attention to the fact that internal prosecution documents suggested

there were six individuals involved in the robbery. (Tr. at 288.)

people in one’s neighborhood, implying that Zakharov recognized Reid because he was a local

and looked familiar. (See id. at 159, 299–308.)

During the charge conference, Sheinberg did not voice objection to Justice Mangano’s

proposed charge. Sheinberg stated only that he sought a Daniels charge.3 (Id. at 272.) In his

charge, Judge Mangano stated that, after determining whether Mendez’s statement was accurate

and voluntary, jurors could “consider [the confession] as evidence and evaluate it as you would

any other evidence.” (Id. at 355.) The Court did not provide a limiting instruction explicitly

addressing the confession. Judge Mangano also stated, “There are two defendants before you.

We are, thus, conducting two trials in one. It is your obligation to evaluate the evidence as it

applies or fails to apply to each defendant separately.” (Id. at 339.)

During its deliberations, the jury asked for a readback of “all testimony regarding

Mendez’s confession,” among other things. (Id. at 414.) The court also read back testimony

“regarding how much information [the police] had regarding the number of people involved” to

“explain why the follow-up questions were not asked by the officer.” (Id. at 414–15.)

On March 23, 2007, Reid was once again convicted of two counts of robbery in the first

degree, in violation of New York Penal Law (“N.Y.P.L.”) § 160.15(4), and three counts of

robbery in the second degree, in violation of N.Y.P.L. § 160.10(1). Reid was sentenced as a

second felony offender to an aggregate prison sentence of 30 years. (Tr. at 448–49.)

IV. The Direct Appeal and § 440 Motion

Reid timely appealed to the Appellate Division. First, he argued that his Sixth

Amendment right to confrontation was violated by the admission of Dalton’s testimony repeating

Mendez’s post-arrest statement, and its introduction without any limiting instruction. Next, he

3 Sheinberg was referring to People v. Daniels, 88 A.D.2d 293 (2d Dep’t 1982), which recommends a certain

instruction when only eyewitness testimony connects defendant to a crime.

challenged the prosecutor’s summation stating that Mendez’s confession could be considered

against Reid, and the court’s instruction that the jury could consider the confession like any other

evidence, provided it found that it was voluntary. Reid asked the court to reach the unpreserved

claims in the interest of justice, and in the alternative, he raised an ineffective assistance of

counsel claim, primarily based on his attorney’s failure to object to 1) the admission of Mendez’s

confession; 2) the absence of a limiting instruction; 3) the court’s charge; and 4) the prosecutor’s

improper summation. (Pet. at 23.) Reid alleged other points of error, including the admission of

incriminating hearsay testimony related to the investigation, and he also argued that his sentence

was excessive.

On March 2, 2010, the Appellate Division modified Reid’s sentence in the interests of

justice, resulting in a twenty-year aggregate term of imprisonment. People v. Reid, 71 A.D.3d

699, 699 (2d Dep’t 2010). However, the Court declined to reach Reid’s Sixth Amendment

confrontation claim, finding that he failed to preserve it. Id. at 700. The Appellate Division

further found that counsel’s failure to object to the admission of Mendez’s confession did not

amount to ineffective assistance because the “trial attorney’s affirmative use of the statement

may well have been in furtherance of trial strategy which would have been reasonable under the

circumstances . . . in which case the defendant’s claim . . . would have been waived.” Id.

(citations omitted). The remainder of Reid’s claims were found to be either unpreserved or

without merit.

On June 18, 2010, Reid’s application for leave to appeal the Appellate Division’s

decision to the New York Court of Appeals was denied. People v. Reid, 15 N.Y.3d 756, 933

(2010).

Reid also pursued a motion to set aside his sentence, dated May 13, 2010, pursuant to

New York Criminal Procedure Law (“C.P.L.”) § 440.20. On September 27, 2010, Reid’s motion

was denied in a decision by the New York State Supreme Court, Kings County, and on July 8,

2011, Reid’s application for leave to appeal the decision to the Appellate Division was denied.

(Opp. at ¶¶ 14–15.)

V. Subsequent Motions

On May 9, 2011, Reid learned that a portion of the proceedings from his second trial had

not been properly transcribed. The previously un-transcribed minutes showed that on the

morning of October 11, 2006, Reid’s attorney had made a severance application, arguing that

Mendez’s confession would likely be prejudicial to Reid, given that Reid would be “the only

‘guy’ sitting with” Mendez at trial. (Pre-trial Tr. (Doc. No. 1-2) at 89–91.) Reid’s lawyer did

not cite any case law and even implied that there was no relevant case law, though it was

relatively clear that he raised a Confrontation Clause issue. (Id.) The severance motion was

denied, as Judge Mangano found that the confession did not inculpate Reid, and stated that he

would issue “a curative instruction as to its use.” (Id. at 90–92.) Although Judge Mangano gave

general instructions reminding the jury of its “obligation to evaluate the evidence as . . . to each

defendant separately,” he did not issue an instruction specifically ordering the jurors not to use

Mendez’s confession against Reid, and Sheinberg did not remind him to do so. When given the

opportunity to take exception to the charge, Sheinberg declined. (Tr. at 272.)

Subsequently, on June 6, 2011, Reid filed a motion to renew or reargue his direct appeal,

pursuant to C.P.L. § 2221, in light of the new minutes. Reid asserted that the complete transcript

established that, contrary to the Appellate Division’s finding, Sheinberg’s failure to object to the

admission of the confession was not strategic; rather, he sought to sever Reid’s trial due to his

serious concern about the prejudicial statement. Reid also argued that his motion to reargue

should be granted “to afford him a fair appeal based on a record of sufficient completeness to

permit proper consideration of his constitutional claims, adequate appellate review and an appeal

free of constitutional doubt, and an adequate effective first appeal as of right with the effective

assistance of appellate counsel.” (Pet. at 31.) On October 4, 2011, Reid’s motion to reargue was

summarily denied. On November 28, 2011, Reid’s request for leave to appeal to the New York

Court of Appeals was also denied.

On July 9, 2012, Reid, represented by counsel, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, positing two grounds for relief. On October 3, 2012, Reid filed an

amended petition, adding a third ground. (Am. Pet. (Doc. No. 6).)4

In his amended petition, Reid first asserts a claim for ineffective assistance of counsel

based on his dissatisfaction with counsel’s approach to the post-arrest confession. Reid argues

that the admission of the confession of a non-testifying co-defendant violated state law and his

constitutional right to confrontation. He contends that its admission destroyed his

misidentification defense and enabled Mendez to “in effect [become] the second witness to

inculpate him in the robberies.” (Pet. at 58.) Reid argues that Sheinberg’s failure to object to 1)

the admission of the confession; 2) the absence of a limiting instruction; 3) the court’s charge;

and 4) the prosecutor’s improper summation, was unreasonable. He asserts that the outcome of

his trial would have been different, but for Sheinberg’s errors. (Pet. at 53.)

In the second proposed ground for relief, Reid claims that he was denied his right to a fair

appeal. He argues that the Appellate Division denied him due process of law by affirming his

conviction on direct appeal based on an incomplete trial record, and then denying his motion to

4 Respondents never filed an opposition to the third ground for relief. However, because the Court denies the

petition in its entirety, there is no need to solicit a response from respondents.

reargue after he presented “previously-untranscribed and highly relevant minutes from his trial.”

(Pet. at 11.)

Reid’s third proposed ground for relief alleges a violation of his right to confrontation

under the Sixth Amendment, based on the admission of Mendez’s confession. (Am. Pet. at 18–

19.)

In opposition to Reid’s petition, Respondents argue that all of Reid’s claims are without

merit. (Opp. at 26.) Respondents state that the un-transcribed minutes reveal that Reid’s trial

counsel timely objected to the admission of Mendez’s statement, and thus, Reid’s Confrontation

Clause claim is fully preserved. (Opp. at 15.) Nevertheless, Respondents argue that Reid

received meaningful representation and that the confession was properly admitted, as it did not

inculpate Reid. (Opp. at 17.) Moreover, Respondents argue, even if the statement did violate

Reid’s confrontation rights, he fails to show that he was prejudiced by its admission. (Opp. at

19.) Finally, Respondents assert that Reid’s due process claim does not present a federal

question, and is meritless. (Opp. at 22.)

DISCUSSION

I. AEDPA Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

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). The standard is high because “the purpose of the AEDPA is to ensure that

federal habeas relief functions as a ‘guard against extreme malfunctions in the state criminal

justice systems,’ and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38

(2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). A habeas petition is not an

opportunity to relitigate issues previously decided in state trials. See Herrera v. Collins, 506

U.S. 390, 401 (1993) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).

Courts apply the AEDPA in two steps. See Jackson v. Conway, 763 F.3d 115, 133–34

(2d Cir. 2014). “The first is to identify the governing ‘clearly established Federal law.’” Id.

(citation omitted). “The second asks whether, in the context of the petitioner’s case, the state

court’s decision was contrary to or an unreasonable application of that clearly established

precedent.” Id. (citing Yarborough v. Alvarado, 541 U.S. 652, 663 (2004); Williams v. Taylor,

529 U.S. 362, 412 (2000)). A state court’s decision is “contrary to” clearly established law when

it “reached a conclusion of law that directly contradicts” a Supreme Court holding, or when it

“arrived at a result opposite to that reached by the Supreme Court when presented with”

materially indistinguishable facts. Id. at 134; Smith v. Wenderlich, 826 F.3d 641, 649 (2d Cir.

2016). A state court’s decision is an “unreasonable application” of clearly established law when

it “identifies the correct governing legal principle but unreasonably applies that principle to the

facts of the case before it.” Evans, 712 F.3d at 132 (internal quotation marks omitted) (quoting

Williams, 529 U.S. at 413). “Unreasonable” in this context does not mean “incorrect” or

“erroneous” – “a federal habeas court may not issue the writ simply because that court concludes

in its independent judgment that the relevant state-court decision applied clearly established law

erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks

omitted) (citation omitted). Courts may not grant the writ unless the state court’s decision was

“objectively unreasonable,” or imbued with “some increment of incorrectness beyond error.”

Evans, 712 F.3d at 133 (internal quotation marks omitted).

For the reasons explained below, Reid fails to demonstrate that the Appellate Division’s

judgment denying his ineffective assistance of counsel claim was contrary to or an unreasonable

application of clearly established federal law, and he fails to raise meritorious claims that his

constitutional rights to confrontation or due process were violated.

II. Right to Confrontation

The Sixth Amendment’s Confrontation Clause guarantees a defendant’s right to confront

the witnesses against him. In Bruton, the Supreme Court held that a criminal defendant’s right to

confrontation is violated if the incriminating hearsay statement of a non-testifying co-defendant

is introduced at the defendants’ joint trial. Bruton v. United States, 391 U.S. 123, 126 (1968);

see also Davis v. Washington, 547 U.S. 813, 827–28 (2006); Crawford v. Washington, 541 U.S.

36, 68 (2004). In Richardson v. Marsh, the Supreme Court distinguished between a confession

that directly inculpates a defendant and one that is “not incriminating on its face,” but becomes

“so only when linked with evidence introduced later at trial . . . .” 481 U.S. 300, 208 (1987).

Redacted confessions must be viewed in isolation from other evidence to evaluate their impact

on the jury. See United States v. Jass, 569 F.3d 47, 61 (2d Cir. 2009) (citing Richardson, 481

U.S. at 208–09); United States v. Yousef, 327 F.3d 56, 149 (2d Cir. 2003) (observing that Bruton

asks whether the statement “standing by itself” implicates defendant); Williams, 936 F.2d at 700.

As long as the confession standing alone is not incriminating, “even if the confession taken

together with other evidence implicates the defendant, the confession may be admitted.” United

States v. Wimbley, 18 F. App’x 24, 27–28 (2d Cir. 2001) (citation omitted); see also United

States v. Harris, 167 F. App’x 856, 859 (2d Cir. 2006) (“[S]ubstituting a neutral pronoun or

word for any mention of a non-declarant defendant” . . . “satisfactorily addresses Bruton’s

concern, even if other evidence in the case indicates that the neutral word or pronoun is a

reference to the non-declarant defendant.” (citing Williams, 936 F.2d at 700–01)); United States

v. Sanin, 252 F.3d 79, 85 (2d Cir. 2001). In Jass, defendant challenged the admission of a

statement by her co-defendant that replaced Jass with “the other person.” Id. at 53. Even though

the confession seemed to refer to a woman, and even though Jass was “the only woman-indeed,

the only person-on trial” with Leight, the Second Circuit concluded that “[a]t most . . . a juror

might have inferred from [the] confession that the prosecutor believed Jass to be the other person

that Leight acknowledged in his confession, but-as far as the jury was aware-did not specifically

identify.” Id. 63. Thus, the Court found that “the availability of this inference did not jeopardize

Jass’ right to confrontation.” Id.

The Second Circuit has repeatedly held that redacted confessions replacing the names of

defendants with neutral references may resolve the confrontation problem. In United States v.

Cambrelen, the Second Circuit approved of the trial’s court’s replacement of the codefendants’

names with “guy,” “guys,” or “the guys.” 5 F. App’x 30, 35 (2d Cir. 2001). In United States v.

Williams, the Second Circuit approved of the use at trial of a redacted codefendant’s confession

where references to the Williams were replaced by “another guy.” 936 F.2d 698, 700–01 (2d

Cir. 1991). The Second Circuit found in United States v. Tutino that “a redacted statement in

which the names of co-defendants are replaced by neutral pronouns, with no indication to the

jury that the original statement contained actual names . . . may be admitted without violating a

co-defendant’s Bruton rights.” 883 F.2d 1125, 1135 (2d Cir. 1989); see also Gray v.

Maryland, 523 U.S. 185, 196 (1998) (where the Supreme Court itself suggested that “me and a

few other guys” could serve as a proper redaction).

Here, then, the Court must ask whether Dalton’s testimony “standing alone, would

clearly inculpate” Reid “without further introduction of evidence.” United States v. Kyles, 40

F.3d 519, 526 (2d Cir. 1994). To reiterate, Dalton testified, “He [Mendez] told me that he went

to the location with the guys, the guys went in the back, he was up front, he got scared and ran

out.” (Tr. at 200.) The Court finds that a jury that heard only this testimony would not conclude

that “other guys” clearly inculpated Reid. The statement is vague; standing alone, it does not

identify Reid in any way, shape, or form. In fact, the statement was not redacted at all – Mendez

never referred to Reid’s name, but actually used the word “guys.”5 Moreover, its effect on the

jury’s perception of Reid may be neutral. It cannot be said that the confession inescapably points

to Reid because “guys” is plural. On the contrary, the statement likely created uncertainty in

light of the prosecution’s narrative that only two people robbed Seagate. Defense counsel

Sheinberg recognized that ambiguity and sensibly attempted to profit from it. In Amaker v. Lacy,

Judge Trager similarly found that a co-defendant’s statement implying more than two people

were at the scene of the crime did not inescapably point to petitioner. 941 F. Supp. 1340, 1345

(E.D.N.Y. 1996), (where co-defendant stated, “all of us had guns”), aff’d, 133 F.3d 906 (2d Cir.

1997). “The fact that many people were described at the scene . . . contradicts the notion that

[the co-defendant] had to be referring to the petitioner.” Amaker, 941 F. Supp. at 1348–49.

Even if the testimony was susceptible to Reid’s interpretation – that “the other guys”

undoubtedly included Reid – given the lack of specific identifying information pointing to Reid,

it would be “at least as reasonable to interpret the testimony” to mean that Reid was not included

5 Note the pre-trial transcripts to Trial #1 show there was some dispute over whether he said “guy” or “guys” but

that Dalton testified as to “guys.” (Pre-trial Hearing at 148.) Dalton’s testimony is what is relevant here as that is

what the jury heard.

in the group of culpable “guys.” See Bowen v. Phillips, 572 F. Supp. 2d 412, 420 (S.D.N.Y.

2008).

The Court recognizes that in the cases cited above, defendants enjoyed the benefit of

limiting instructions to control any prejudicial effect, however, here, the absence of a proper

limiting instruction is immaterial because the Court finds there was no Sixth Amendment

violation. While Reid alleges he suffered a “paradigmatic” Confrontation Clause violation,

(Reply at 9–10), the cases he relies upon are distinguishable. In Mason, for example, the

prosecutor elicited testimony from an investigator, stating that after the co-defendant confessed,

he decided to search for Mason. Mason v. Scully, 16 F.3d 38, 45 (2d Cir. 1994). In finding that

Mason’s right to confrontation was violated, the Second Circuit highlighted that the evidence

was so underwhelming that the jury was “hopelessly” deadlocked until after an Allen charge was

given. Id. In that case, “[n]one of the three eyewitnesses who testified could specify any

distinguishing characteristic” of Mason. Id. By contrast, here, Zakharov and Dr. Jacobs pointed

to distinguishing characteristics of Reid, and Zakharov made a quick, confident identification in

a lineup. See Amaker, 941 F. Supp. 1340, 1351 (finding Mason “easily distinguishable”).

Similarly, Reid’s reliance on Henry similarly does not advance his case. There, the confession at

issue was “devastating to petitioner’s claim of innocence,” as it provided “highly prejudicial

evidence” that “provided a complete and independent basis for the jury to find petitioner guilty

beyond a reasonable doubt.” Henry v. Scully, 918 F. Supp. 693, 717 (S.D.N.Y. 1995), aff’d, 78

F.3d 51 (2d Cir. 1996). It simply cannot be said that Mendez’s statement had an equivalent

“disastrous” effect on Reid. Id. at 699. The effect of the confession here was significantly

“more attenuated than in Mason.” Alston v. Phillips, 476 F. App’x 907, 910 (2d Cir. 2012). The

fact that the jury asked to review Dalton’s testimony does not necessarily indicate they used the

confession against Reid; it could just as easily indicate they were confused and sought

clarification. The jury “may well have failed to catch the possible inference.” Id. Distinct from

the cases Reid cites, “the implicit accusation . . . was at most a peripheral component” of the

prosecution’s case, the center of which was “eyewitness testimony . . . entirely independent of

the challenged indirect statement.” Id.

a. Harmless Error

In any event, even if the Court were to identify a constitutional error, it would be

harmless. It is well-established that Bruton violations are subject to harmless error analysis. See

United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004); Fuller v. Goczyk, 273 F.3d 212, 220

(2d Cir. 2001); Bowen, 572 F. Supp. 2d at 419 (“Even when a Confrontation Clause violation has

occurred, a habeas corpus petition cannot be granted if the error was harmless.”). Under Brecht,

a state court’s error is harmless unless it had “substantial and injurious effect or influence in

determining the jury’s verdict.” 507 U.S. 619, 637 (1993) (internal quotation marks omitted)

(citation omitted); see also Fry v. Pliler, 551 U.S. 112, 121–22 (2007) (“[I]n § 2254 proceedings

a court must assess the prejudicial impact . . . under the . . . standard set forth in Brecht.”). To

satisfy the Brecht standard, a petitioner must show that he suffered “actual prejudice.” Bentley v.

Scully, 41 F.3d 818, 824 (2d Cir. 1994). A petition may not be granted if there is “merely a

‘reasonable possibility’ that trial error contributed to the verdict.” Id. (quoting Brecht, 507 U.S.

at 637); see also Ryan v. Mann, 73 F. Supp. 2d 241, 252 (E.D.N.Y. 1998), aff’d, 201 F.3d 432

(2d Cir. 1999). The Second Circuit weighs several factors in assessing whether the Brecht

standard has been met, including the strength of the prosecution’s case and whether the evidence

admitted in error was “crucial, critical, [or] highly significant.” Collins v. Scully, 755 F.2d 16,

19 (2d Cir. 1985). The prosecution’s case may be “the most significant factor,” but “the court

need only find the prosecution’s case to be weighty, not overwhelming.” Ryan, 73 F. Supp. 2d at

253 (citing Glenn, 98 F.3d at 729). Moreover, “to conclude that the error was harmless . . . we

need not find that the improperly admitted evidence had no effect at all, we need only find that

the effect was not substantial and injurious.” Samuels v. Mann, 13 F.3d 522, 528 (2d Cir. 1993)

(citing United States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992)); see also Ruiz v. Kuhlmann, 80

F. App’x. 690, 694 (2d Cir. 2003) (habeas petition properly denied despite Bruton violation in

light of “compelling” testimony of two eyewitnesses “identifying petitioner as one of the

shooters”).

Here, the People have demonstrated that Mendez’s confession did not have a “substantial

and injurious effect or influence” on the jury’s verdict. Viewing the record as a whole, Reid’s

conviction did not rise and fall on the confession. While the People presented only a single

eyewitness, Zakharov’s identification was strong. Zakharov testified under oath that he

recognized Reid in the lineup “right away,” within a “few seconds,” and that he was “very

certain.” (Tr. at 38.) It appears that he had ample opportunity to observe the perpetrators and to

look at Reid’s face during the five- to ten-minute incident, (Tr. at 30, 64, 114), and Seagate, like

most medical facilities, was “very well-lit,” (Tr. at 40, 113). Zakharov said that Reid did not

have anything covering his face. He said he could see Reid “very well,” and that he looked at

Reid’s face – “his eyes, nose, lips, [and] chin.” (Tr. at 11, 16–17, 63–64, 10–12, 45–46, 49, 59,

74.) He testified: “I was looking at him. . . . his body movements, his hand in his pocket,” (Tr.

at 16), and Zakharov was “listening to what he [was] saying, observing him, looking nowhere

else, really,” (Tr. at 17). Zakharov testified in detail about Reid’s outfit, including the color and

material of his gloves – he stated that Reid was wearing a brown leather jacket and dark jeans,

and he noticed that he was wearing suede gloves despite the weather not being particularly cold.

(Tr. at 14, 59, 65–66.) His detailed memory of the events is consistent with his testimony that he

was “pretty scared, intimidated” and “wanted to be alert.” (Tr. at 23.) The fact that Zakharov

was present with Reid for several minutes and had no known reason to lie, likely allowed jurors

to find his detailed testimony and confident identification credible. As Judge Mangano charged

the jury: “The law is not so much concerned with the number of witnesses called as with the

quality of the testimony given.” (Tr. at 356.)

Further, while Dr. Jacobs chose not to identify anyone in the lineup, he testified under

oath that he recognized someone. Moreover, his testimony corroborated Zakharov’s account of

the perpetrators and the crime. Jacobs recalled that Reid was wearing gloves, (Tr. at 111); that

the robbers were both male (one black, one Hispanic); and that the Hispanic robber was shorter

than the black robber, (Tr. at 157). Like Zakharov, Jacobs recalled hearing threats to “blow

[their] heads off.” (Tr. at 17, 31, 110.) The jurors also viewed the defendants themselves, and

were able to assess relative heights. (Tr. at 258–59.) Moreover, they heard Closs testify that he

received information that led him to Reid, and that Reid lived one block from Seagate. (Tr. at

150, 158–59, 188.)

Even if the prosecution’s case was not overwhelming, the prosecution “provided

sufficiently weighty evidence to far outweigh the prejudice triggered by [any alleged] Bruton

violation.” Ryan, 73 F. Supp. 2d at 254. Mendez’s confession, even if admitted erroneously,

was “not only short in duration, but also, not particularly powerful in impact,” given that

standing alone, it did not inculpate Reid. Ryan, 73 F. Supp. 2d at 254. Here, the Court cannot

find that the testimony was “crucial, critical, [or] highly significant” to the jury’s verdict, as a

reasonable jury could have convicted Reid based on other evidence presented at trial. Collins,

755 F.2d at 19. Accordingly, the Court finds that Dalton’s testimony did not have a “substantial

and injurious effect or influence” on the verdict, and thus, even assuming arguendo there was a

Bruton violation, that error was harmless. Brecht, 507 U.S. at 637.

a. State Law

Finally, Reid’s argument that the admission of Mendez’s confession violated New York

state law fails to recognize that “a federal habeas corpus court does not sit to correct a

misapplication of state law unless the misapplication violates the United States Constitution” or

federal law. Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002); Taylor v. Phillips, No. 05-

CV-2596 (DRH), 2016 WL 5678582, at *7 (E.D.N.Y. Sept. 30, 2016). § 2254(a) expressly

refers to the writ as providing relief for violations of “the Constitution or law or treaties of the

United States.” Indeed, it is “not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see also

Downs v. Lape, 657 F.3d 97, 105 (2d Cir. 2011); Carvajal v. Artus, 633 F.3d 95, 109 (2d Cir.

2011) (“[W]e have no occasion to decide whether there was error in the state court’s statutory

interpretation [of New York law]”). To the extent that Reid argues that New York state law

differs from federal law, “it is only noncompliance with federal law that renders a state’s

criminal judgment susceptible to collateral attack in the federal courts.” Wilson v. Corcoran, 562

U.S. 1, 5 (2010) (per curiam); see also Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) (“A

claim that a state conviction was obtained in violation of state law is not cognizable in the federal

court.”).

III. Ineffective Assistance of Counsel

In his second proposed ground for relief, Reid argues that he received ineffective

assistance of counsel. In Strickland, 466 U.S. 668 (1984), the Supreme Court set out a two-

pronged test for ineffective assistance of counsel claims. Under the first prong, a petitioner must

show that counsel’s performance “fell below an objective standard of reasonableness.” Id. at

688. In assessing reasonableness, courts “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. at 689 (citation omitted); United States v. Best, 219 F.3d

192, 201 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 689). With respect to the second prong,

a petitioner must demonstrate “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The

Supreme Court defines “reasonable probability” as “a probability sufficient to undermine

confidence in the outcome.” Id.; Harrington, 562 U.S. at 104 (“Counsel’s errors must be ‘so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” (quoting

Strickland, 446 U.S. at 687, 693)). The Strickland test is conjunctive; thus, if a petitioner fails to

satisfy either prong, his ineffective assistance claim fails. See Rosario v. Ercole, 582 F. Supp. 2d

541, 575 (S.D.N.Y. 2008) (citing Strickland, 466 U.S. at 697), aff’d, 601 F.3d 118 (2d Cir.

2010).

The AEDPA requires federal courts “to accord deference to the state court’s ruling on

claims of ineffective assistance of counsel.” Santone v. Fischer, 689 F.3d 138, 154 (2d Cir.

2012); see also Hamilton v. Lee, 707 F. App’x 12, 15–16 (2d Cir. 2017), cert. denied sub nom.

Hamilton v. Griffin, 138 S. Ct. 668 (2018). Further, reviewing courts must show deference to the

defense counsel’s choices at trial, pursuant to Strickland. See Harrington, 562 U.S. at 105; Rivas

v. Fischer, 780 F.3d 529, 547 (2d Cir. 2015). Ultimately, “the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105.

In Reid’s case, there is at least a reasonable argument that trial counsel satisfied

Strickland. First, counsel’s performance was not constitutionally defective. It was reasonable

for the Appellate Division to find that counsel’s strategy was to use the confession affirmatively

rather than object to its use. Despite Reid’s argument to the contrary, this finding is consistent

with the severance motion; it is entirely possible, and in fact supported by the record, that

Sheinberg shifted strategies after his motion was denied. Once he accepted that the confession

would be introduced, Sheinberg took advantage of the challenged testimony to advance the

defense of misidentification, or at least to create uncertainty as what transpired on September 14,

2001. Indeed, counsel deftly attempted to inject doubt into the prosecution’s narrative. On

cross-examination, Sheinberg asked Dalton, “guys means plural, isn’t that right?” (Tr. at 208.)

He read Mendez’s statement to the jury in summation, asking, “What guys? Who was there?

Who are the other guys?” (Tr. at 307.) Sheinberg also used the confession to create questions

about the integrity of the investigation. In his summation, Sheinberg highlighted Dalton’s failure

to ask Mendez follow-up questions, such as the names of “the guys,” calling it “insane” in

summation and arguing that “the excuse of 9/11” was unacceptable. (Tr. at 308.) On cross-

examination, Sheinberg asked Dalton, “Did you ask any other questions? . . . did you say, which

guys, what guys, where did they live? . . . did you ask him anything of that nature?”, to which

Dalton replied, “I don’t recall.” (Tr. at 210–11.) Sheinberg may have reasonably used this line

of questioning to encourage the jury to doubt Dalton, particularly given the dearth of information

the jury had on how the detectives landed on Reid as a suspect. Sheinberg further enhanced this

strategy by developing testimony aimed at portraying Dalton and Closs as disorganized,

highlighting how they failed to take notes, to record Mendez’s statement, and to contact certain

witnesses, such as Seagate patients and the responding officers. (See, e.g., Tr. at 210, 212, 216,

307.)

In pursuit of his strategy to use the confession affirmatively, Sheinberg could have

reasonably decided not to call attention to any potential negative interpretation of the confession.

Accordingly, there is at least a reasonable argument that Sheinberg’s decision to refrain from

objecting to the absence of a limiting instruction, the prosecutor’s summation, or the Court’s

charge was a reasonable strategy. In some circumstances, objecting may only serve to “highlight

the implication for the jury.” Alston v. Phillips, 703 F. Supp. 2d 150, 182 (E.D.N.Y. 2010), aff'd,

476 F. App’x 907 (2d Cir. 2012). While this was not the only viable strategic choice here, it was

a reasonable one, and thus the Court cannot find that defense counsel’s performance fell outside

the “wide range” of reasonableness.

With respect to the second prong, it cannot be said that Reid’s counsel failed to protect

his right to confrontation in a way that prejudiced him at trial. The Court has concluded, supra,

that the admission of the confession did not amount to a Bruton violation, and that any alleged

error would be harmless. To be sure, counsel’s severance application was not a model of clarity.

However, counsel’s lackluster motion practice does not rise to the level of constitutional

deficiency because Mendez’s confession was not, on its own, prejudicial to Reid. Any prejudice

was minimized if not negated entirely by counsel taking advantage of the confession in an effort

to create doubt about the prosecution’s case. Viewing counsel’s performance in totality, it

cannot be said that any error changed the result of the proceeding or deprived Reid of a fair trial.

As Reid is unable to show that the state court’s determination was an unreasonable

application of Strickland or an unreasonable determination of the facts, his claims are dismissed.

IV. Right to Due Process

In the third and final proposed ground for relief, Reid asserts that he was deprived

effective appellate review in violation of his right to due process. First, he contends that the

Appellate Division “did not provide him with a record of sufficient completeness” and its

dismissal of his direct appeal was “based upon a materially incomplete record.” (Pet. at 62.)

Second, Reid argues that the Appellate Division’s “unexplained denial” of his motion for

reconsideration, its refusal to consider Reid’s claims “in light of the full record,” “and its

resultant adherence to its . . . incorrect determination,” denied him due process of law. (Am. Pet.

at 17.)

Neither federal law nor the United States Constitution guarantees criminal defendants the

right to appeal state convictions. See Jones v. Barnes, 463 U.S. 745, 751 (1983); Ross v. Moffitt,

417 U.S. 600, 611 (1974); Lovacco v. Stinson, No. 97-CV-5307 (SJ), 2004 WL 1373167, at *11

(E.D.N.Y. June 11, 2004). Once a state does establish a criminal appellate system, the Supreme

Court has determined that the process must meet certain fairness requirements; namely,

defendants may not be denied an opportunity to appeal due to indigency or lack of

representation. See Douglas v. California, 372 U.S. 353 (1963) (on the right to counsel in a

criminal appeal); Griffin v. Illinois, 351 U.S. 12 (1956) (on the cost of appeal as a barrier).

However, there is no federally created right to appeal a state criminal conviction.

By extension, Reid does not have a federal or constitutional right to file a motion to

reargue his direct appeal. In Velazquez, Judge Vitaliano disposed of a similar claim that the

Appellate Division “ignored” petitioner’s motion to reargue, concluding that “[f]ederal law does

not guarantee the right to appeal state criminal convictions.” 614 F. Supp. 2d 284, 345

(E.D.N.Y. 2007). Reid’s due process claim is not driven by his indigency or inability to procure

counsel on appeal. Therefore, “[b]ecause those are the only aspects of the state appellate process

that a federal court may consider on habeas review, the instant claim is not reviewable.”

Lovacco, 2004 WL 1373167, at *11.

Furthermore, a missing transcript does not confer automatic entitlement to relief. In

addressing an indigent defendant’s access to transcripts, the Supreme Court has held, “[O]nce a

State offers to criminal defendants the opportunity to appeal their cases, it must provide a trial

transcript to an indigent defendant if the transcript is necessary to a decision on the merits . . . .”

Ake v. Oklahoma, 470 U.S. 68, 76 (1985); see Griffin, 351 U.S. at 19. However, records need

only be “sufficiently complete” to afford defendants a fair appeal and they may conform to due

process “even absent ‘a complete verbatim transcript.’” Hernandez v. Larkin, No. 12-CV-8090

(AJN) (SN), 2013 WL 4453316, at *20 (S.D.N.Y. Aug. 19, 2013) (quoting Mayer v. Chicago,

404 U.S. 180, 194 (1971)). In order to demonstrate that an incomplete transcript caused a due

process violation, habeas petitioners must establish that they suffered actual prejudice. See

Santiago v. Coughlin, 107 F.3d 4, 1997 WL 32924, at *1 (2d Cir. 1997); McCray v. Barkley, 03-

CV-04821 (DAB) (GWG), 2004 WL 32931, at *11–12 (S.D.N.Y. Jan. 7, 2004); Hernandez,

2013 WL 4453316, at *20 (collecting cases). Mere speculation that petitioner suffered prejudice

does not suffice. See Walker v. Martuscello, No. 14-CV-7458 (JPO), 2016 WL 2732195, at *7

(S.D.N.Y. May 10, 2016); Maxwell v. Conway, 06-CV-14203 (KMK) (LMS), 2010 WL

4273296, at *2 (S.D.N.Y. Oct. 28, 2010) (citations, brackets and internal quotation marks

omitted); Quinones v. New York State Div. of Parole, No. 07-CV-8633 (LBS), 2008 WL

2276540, at *5 (S.D.N.Y. June 2, 2008) (petition dismissed where missing voir dire transcript

suggested “possible, not actual harm”); Van Stuyvesant v. Conway, 03-CV-03856 (LAK), 2007

WL 2584775, at *37 (S.D.N.Y. Sept. 7, 2007) (denying petition when claim of prejudice was

speculative); McCray v. Barkley, No. 03-CV-4821 (DAB) (GWG), 2004 WL 32931, at *12

(S.D.N.Y. Jan. 7, 2004) (petitioner failed to supply evidence that “the missing portions of the

transcript reflect reversible error” (internal quotation marks omitted) (citation omitted)). Where

a petitioner “fail[s] to identify a meritorious appellate issue that the missing minutes would have

revealed,” his due process rights have not been violated. Id.

Here, Reid has failed to sufficiently allege actual prejudice. Reid claims that the minutes

he uncovered constitute “clear and convincing” evidence undermining the Appellate Division’s

determination that Sheinberg used the confession strategically. However, as noted supra,

strategic use of the confession is not inconsistent with the severance motion, as strategy may

shift over the course of a trial. Thus, the unveiling of new minutes did not require the Appellate

Division to alter its judgment – even if with a complete transcript, the Appellate Division could

have reasonably dismissed Reid’s claim for ineffective assistance of counsel. Additionally,

while the complete transcript revealed that Reid’s Confrontation Clause claim was arguably

preserved, this Court has found that this claim is without merit.

As Reid suffered no actual prejudice from the incomplete transcript, the Court finds that

the Appellate Division did not infringe upon his right to a fair appeal. Consequently, the Court

must also find no error in the denial of Reid’s motion to reargue. While the Appellate Division

did not issue an elaborate opinion dismissing Reid’s motion to reargue – or any statement

explaining its adherence to its prior decision – courts are not obligated to do so under federal or

constitutional law. See Velazquez, 614 F. Supp. 2d at 284 (petitioner’s “allegation concerning

the brevity of the Appellate Division’s decision is . . . meritless”). As Reid has failed to

demonstrate a denial of his right to a fair appeal, his due process claim must be dismissed.

CONCLUSION

For the reasons set forth above, Reid’s petition for a writ of habeas corpus is denied and

this action is dismissed. A certificate of appealability shall not issue because Reid has not made

a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The

Clerk of Court is directed to enter judgment in accordance with this Memorandum and Order, to

mail a copy of the judgment and this Memorandum and Order to Reid, to note the mailing on the

docket, and to close this case.

SO ORDERED.

Dated: Brooklyn, New York

July 2, 2020 Roslynn R. Mauskopf

____________________________________

ROSLYNN R. MAUSKOPF

Chief United States District Judge