Gousse v. Superintendent

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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REGINALD GOUSSE,

Petitioner,

MEMORANDUM AND ORDER

-against- 19-CV-1607(JS)

SUPERINTENDENT,

WENDE CORRECTIONAL FACILITY,

Respondent.

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APPEARANCES

For Petitioner: Johnathan I. Edelstein, Esq.

Edelstein & Grossman

501 Fifth Avenue, Suite 514

New York, New York 10017

For Respondent: Daniel Bresnahan, Esq.

Sarah S. Rabinowitz, Esq.

Nassau County District Attorney’s Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Pending before the Court is Petitioner Reginald Gousse’s

(“Petitioner”) petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. (Pet., D.E. 1.) Following a jury trial, Petitioner

was convicted of one count of New York Penal Law § 125.27, Murder

in the First Degree; one count of New York Penal Law

§ 110/160.15(2), Attempted Robbery in the First Degree; and one

count of New York Penal Law § 190.25, Criminal Impersonation in

the First Degree. Petitioner raises seven issues: (1) trial

counsel was ineffective; (2) the prosecution failed to disclose

Brady material; (3) newly discovered evidence demonstrates his

actual innocence; (4) the trial court erred by failing to suppress

identification testimony; (5) the trial court’s Molineux ruling

deprived him of due process and a fair trial; (6) the trial court’s

Sandoval ruling denied him of due process and a fair trial; and

(7) appellate counsel was ineffective. (Pet., ECF pp. 8-19.) For

the following reasons, the Petition is DENIED in its entirety.

BACKGROUND

I. The Offense Conduct

James Gottlieb (“Gottlieb”) was murdered on January 5,

2005, in Franklin Square, New York. (Tr. 229:16-17; 235:11-15.)1

In January 2005, Gottlieb was employed as an assistant branch

manager at HSBC bank in Cedarhurst, New York. (Tr. 228:6-7; 241:5-

7; 244:1-7.) After closing the bank at approximately 6:30 p.m. on

Wednesday, January 5, 2005, Gottlieb was driving home from work.

(Tr. 230:8-13.) A 2003 or 2004 black Ford Expedition SUV

(“Expedition”) with a siren and revolving light, driven by

Petitioner, stopped Gottlieb’s car across the street from 190

Semton Boulevard, Franklin Square, New York. (Tr. 293:16-20;

295:15-19; 296:17-23; 297:3-298:5; 348:1-12.) Petitioner exited

1 The underlying state trial started on February 27, 2006 and

ended on March 22, 2006. Transcripts (“Tr.”) can be found as

follows: Hearing (“Hr’g) Transcripts pp. 1-138, D.E. 13, and pp.

139-341, D.E. 13-1. Trial (“Tr.”) Transcripts pp. 1-171, D.E.

13-2; pp. 172-340, D.E. 13-3; pp. 341-539, D.E. 13-4; pp. 540-

629, D.E. 13-5; pp. 637-712, D.E. 13-6; pp. 713-855, D.E. 13-7;

pp. 856-1016, D.E. 13-8; pp. 1017-1139, D.E. 13-9; and pp. 1140-

1265, D.E. 13-11. Sentencing (“Sent’g”) Transcript, D.E. 13-10.

the Expedition and approached Gottlieb’s vehicle, a 1998 maroon

Mercury sedan, and told Gottlieb to get out of the car, give

Petitioner his keys, and put his hands behind his back to be

handcuffed. (Tr. 229:7-8; 297:5-13; 348:1-4.) Petitioner was

wearing what appeared to be a dark uniform and boots, similar to

a police uniform. (Tr. 298:22-25.)

Gottlieb refused to comply with Petitioner’s requests

for his keys and to put his hands behind his back, and instead

repeatedly asked Petitioner for his identification. (Tr. 298:6-

11.) Petitioner and Gottlieb continued arguing as Petitioner

followed Gottlieb to the front door of 190 Semton Boulevard. (Tr.

299:23-300:3.) Steps away from the front door of the house,

Petitioner struck Gottlieb in the head with a handgun causing

Gottlieb to fall to the ground. (Tr. 300:5-301:7.) Petitioner

then shot Gottlieb two times, once in the right arm and once in

the left leg, and sped off in the Expedition. (Tr. 302:15-16;

303:5-8; 376:21-377:5.)

Gottlieb knocked on the door to 190 Semton Boulevard and

asked for someone to please help him. (Tr. 303:13-18.) Anthony

Giardulo (“Giardulo”), who lived at 190 Semton Boulevard and had

been watching the altercation between Gottlieb and Petitioner

until he closed his front door after the first gunshot, opened the

door to help Gottlieb and called 911. (Tr. 303:20-23; 304:14.)

Gottlieb appeared to be in shock and walked back to his car and

laid down in his car. (Tr. 304:19-24.)

Detective Ricky Frassetti (“Det. Frassetti”) was the

first member of the Nassau County Police Department (“NCPD”) to

arrive on the scene. (Tr. 274:18.) Gottlieb told Det. Frassetti

that he had been shot and thought that the man was trying to take

his car, then pointed towards Hempstead Turnpike and said that he

went that way. (Tr. 276:16-20.) Ambulance Medical Technician

Joseph Rice (“A.M.T. Rice”) arrived moments later and began working

on Gottlieb. (Tr. 277:3-7.) Gottlieb told A.M.T. Rice a black

man had shot him. (Tr. 277:23-278:5.) A.M.T. Rice transported

Gottlieb to Mercy Medical Center, and Gottlieb was pronounced dead

shortly thereafter. (Tr. 381:21; 383:11-13.)

Detective John McHugh (“Det. McHugh”) was the lead

homicide detective assigned to Gottlieb’s murder investigation.

(Tr. 1019:3-5.) As part of the investigation, Det. McHugh spoke

with eyewitness Giardulo. (Tr. 1020:8-13.) Giardulo described

the perpetrator as a light skinned black male, about thirty years

old, about five foot six inches tall, clean shaven, and wearing

dark colored police or military-type clothing with black boots.

(Tr. 297:14-298:25; 1021:9-19.) Det. McHugh also spoke with

witnesses Daniel Bellucci (“Bellucci”) and Nancy Montenegro

(“Montenegro”), who both described the perpetrator’s vehicle as a

2003 or 2004 black Ford Expedition. (Tr. 348:1-14; 398:18-22.)

Later, on January 15, 2005, a defense attorney named

Mitchell Dinnerstein (“Dinnerstein”) contacted the NCPD and spoke

with Det. McHugh. (Hr’g Tr. 16:12-15.) Dinnerstein defended a

murder trial in Queens County in May 1999, and during that trial,

Petitioner, while a prosecution witness, testified pursuant to a

cooperation agreement. (Tr. 880:14-881:22.) During his

testimony, Petitioner admitted that he had committed a crime

involving the robbery of a Staples store, and Dinnerstein believed

that the facts of that robbery were similar in nature to the facts

surrounding Gottlieb’s murder. (Tr. 902:3-914:20.)

After receiving the information from Dinnerstein, Det.

McHugh began investigating Petitioner. (Tr. 1027:3-13.) Det.

McHugh learned that Petitioner had rented a 2004 black Ford

Expedition from Hertz at 2:21 p.m. on January 5, 2005 and returned

it at 10:57 a.m. on January 6, 2005. (Tr. 1032:1-4; 804:7-17;

806:2-6; 807:4-6.) On January 20, 2005, Frank Kassel (“Kassel”)

of the NCPD Fleet Services Bureau examined the Expedition and

discovered evidence that supported that an emergency light or siren

has been installed and removed. (Tr. 916:11-12; 919:21-23; 921:6-

10.) Also on January 20, 2005, Det. McHugh put Petitioner’s

photograph in a photo array and showed it to Giardulo, who

identified Petitioner as the individual who had shot Gottlieb.

(Tr. 1027:14-19; 306:7-24.) Petitioner was arrested on

February 9, 2005. (Tr. 582:15-583:6.) The next day, Giardulo

identified Petitioner again in a lineup. (Tr. 307:22-308:1; 309:4-

12.)

II. The Suppression Hearing and Trial

On October 28, 2005, a suppression hearing was held in

New York Supreme Court, Nassau County before the Honorable John L.

Kase to address identification procedures, including a photo array

and lineup. (See Hr’g Tr.)

Petitioner’s jury trial began on February 27, 2006

before the Honorable Jerald S. Carter. (Tr. at 1.) Prior to

trial, the court granted, in part, the prosecution’s Molineux

application to prove Petitioner’s identity. The court permitted

the prosecution to enter evidence of Petitioner’s prior robbery

conviction, the robbery of the Staples from 1998 (“1998 Staples

robbery”), which included a trial transcript of Petitioner’s

testimony from the above-mentioned murder trial where he testified

to the details of the 1998 Staples robbery. (Tr. 5:3-14; 51:17-

52:12.) The court also permitted the prosecution to present

evidence found in a Chevrolet Lumina, a vehicle that was once

previously registered to Petitioner but had been abandoned, which

revealed alterations that were similar to those found in the

Expedition Petitioner had rented from Hertz. (Tr. 73:6-19; 11:11-

19.)

At the pre-trial Sandoval hearing, the court ruled that

should Petitioner testify, the prosecution would be permitted to

cross-examine him regarding the underlying facts of the 1998

Staples robbery, and the existence, but not the underlying facts,

of one other attempted robbery conviction from 1992. (See

generally Tr. 61:18-63:1.)

During the trial, the prosecution presented testimony of

numerous law enforcement witnesses involved in the investigation,

expert witnesses, and civilian eyewitnesses. (See Tr. 225:18-

1012:4). Giardulo testified that on January 5, 2005 at around

7:00 p.m. he heard a police siren, so he opened his front door and

looked out the window of his outer door. (Tr. 293:16-295:25.)

Giardulo observed Petitioner exit a black SUV with a blue and white

revolving light on the dashboard and approach Gottlieb’s red car.

(Tr. 296:17-297:8.)

Giardulo testified that Petitioner and Gottlieb argued

back and forth, Petitioner telling Gottlieb to give his keys and

put his hands behind his back, and Gottlieb asking for Petitioner’s

identification, as Gottlieb walked towards Giardulo’s front door

while Petitioner followed. (Tr. 297:11-300:3.) The area in front

of Giardulo’s house was well-lit as he still had his Christmas

lights on his house in addition to three other lights affixed to

the front of his house, and, as such, he was able to clearly see

Gottlieb and Petitioner. (Tr. 301:13-24.) Giardulo testified

that he saw Petitioner strike Gottlieb in the head with a gun,

heard one gunshot, and then he closed his door. (Tr. 300:5-

302:20.) Giardulo then heard two more gunshots and a car speeding

away. (Tr. 303:5-8.) Giardulo identified Petitioner in court,

and testified that he had previously identified Petitioner in both

a photo array and lineup. (Tr. 297:23-298:5; 306:7-21; 307:22-

309:12.)

Two of Giardulo’s neighbors from Semton Boulevard also

testified, Bellucci and Montenegro. Both Bellucci and Montenegro

testified that they were home at about 7:00 p.m. on January 5,

2005 when they heard a shot or a firecracker outside. (Tr. 342:9-

11; 345:14-16; 391:14; 395:15-20.) Bellucci testified that he

heard three gunshots then looked outside his window facing Semton

Boulevard. (Tr. 347:17-22.) Bellucci, a self-described auto body

man who repaired cars for fifteen years, recognized a black 2003

or 2004 Ford Expedition, with a flashing blue and white light on

the dashboard, parked behind Gottlieb’s maroon-red Mercury sedan.

(Tr. 344:1-3; 348:1-14.) Bellucci observed Petitioner approach

the Mercury sedan and look inside before getting into the

Expedition. (Tr. 350:2-5; 351:10-12.) Montenegro also testified

that she has family in the automobile industry and can distinguish

makes and models of different cars, and she observed a black Ford

Expedition racing down Semton Boulevard. (Tr. 394:16-395:1;

398:18-25.)

Dr. Michael DeMartino (“Dr. DeMartino”), Deputy Medical

Examiner at the Nassau County Medical Examiner’s Office, testified

that he performed the autopsy on Gottlieb. (Tr. 401:24-402:2;

406:13-15.) Dr. DeMartino testified he observed Gottlieb had a

blunt force injury that caused lacerations to the left side of his

face and nose, likely caused by an elongated narrow object. (Tr.

407:16-24; 409:3-8.) Dr. DeMartino also testified that Gottlieb

suffered two gunshot wounds, one to his left calf, and one to his

right forearm. (Tr. 409:25-410:2.) The gunshot wound to

Gottlieb’s right forearm severed an artery, which was a fatal

injury. (Tr. 413:5-17.)

The prosecution’s theory at trial was that this crime

was part of a distinctive pattern that Petitioner had committed

once before during the 1998 Staples robbery. (Tr. 208:18-23.) To

demonstrate Petitioner’s pattern, or modus operandi, the

prosecution entered into evidence the transcript of Petitioner’s

prior testimony where he detailed each step in the 1998 Staples

robbery. (See generally Tr. 902:3-914:20.)

During the Staples robbery, Petitioner approached the

Staples general manager in a vehicle in which he had installed a

red dome light, armed with a bounty hunter shield, handcuffs, a

scanner, and a revolver. (Tr. 903:3-12.) Petitioner placed the

manager in handcuffs, brought the manager back to his residence,

had the manager tell him the Staples alarm code, and then went

back to the Staples to remove merchandise. (Tr. 903:12-17.) These

facts were part of Petitioner’s admitted policeman routine. (Tr.

905:19-21.)

In the transcript, Petitioner also detailed how he

prepared to rob the Staples. Petitioner determined who the manager

was and which car belonged to the manager, brought a box cutter

the day of the robbery and slashed the manager’s car tires, then

waited for the manager to come out of the store and pulled him

over by pretending to be a police officer. (Tr. 907:9-909:15.)

The prosecution presented evidence demonstrating the

similarities between the 1998 Staples robbery and the instant

crime, including testimony from Gottlieb’s co-worker, and fellow

bank manager, Richard Slipka (“Slipka’). (See generally Tr.

238:11-266:21.) Slipka testified that both he and Gottlieb were

able to both open and close the bank, and both had the alarm codes.

(Tr. 244:1-21.) On January 5, 2005, Slipka testified that instead

of going home after work, he went across the street to a bar for

a drink with another co-worker. (Tr. 247:12-18.) When Slipka

returned to his car, he drove a couple miles before realizing his

tire had been slashed right above the rim. (Tr. 250:24-251:16.)

Slipka gave his tire to Detective Scott Kovar, of the Forensic

Evidence Bureau, who determined that the slash was a four-inch

diagonal cut consistent with being made by a sharp object. (Tr.

634:8-15; 637:22-638:9.)

The prosecution offered into evidence a photocopy of

Petitioner’s credit card to demonstrate the purchases he made to

prepare for the crime.2 (Tr. 600:20-24.) Kenneth Epstein, owner

of Mesk Police Equipment Corp., a police equipment store, testified

that Petitioner had ordered a custom thigh gun holster for a .40

caliber Glock, which ultimately was not ready by January 5, 2005,

and the order was later cancelled. (Tr. 979:10-18; 982:18-23.)

Michael Thseldar, a Radio Shack employee, testified that

Petitioner bought a police scanner on January 3, 2005. (Tr.

996:11-12; 999:14-1000:9.)

Kassel, of the NCPD Fleet Services Bureau, testified

that he examined the Expedition. (Tr. 916:9-12; 919:21-23.) He

testified that there was evidence that an emergency light or siren

had been installed and removed from the Expedition. (Tr. 921:6-

10.) The fins on the oil cooler were dented, which was consistent

with a siren being placed there, and insulation on wires had been

pulled back, which was also consistent with connecting a siren.

(Tr. 924:8-10; 926:19-927:3.) Kassel also testified that he

examined a 1997 gray Chevrolet Lumina that was previously

registered to Petitioner. (Tr. 941:8-16; 737:11-19.) Kassel

2 The photocopy of Petitioner’s credit card was entered into

evidence over an objection by defense counsel that the photocopy

violated the best evidence rule. (Tr. 600:2-9.) The

whereabouts of the actual credit card were unknown at the time

of trial, and thus the prosecution offered the photocopy as the

best evidence at the time. (Tr. 599:22-600:9.)

explained that the Lumina was altered in a very similar way to the

Expedition. (Tr. 941:21-24.)

At the close of the prosecution’s case, defense counsel

moved for a trial order of dismissal pursuant to New York Criminal

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

1012:17-1013:9.) Defense counsel presented one witness, Det.

McHugh, the lead homicide detective on the case. (Tr. 1018:18-

1070:1.) The defense theory was that another person, named Amili

Chambers (“Chambers”) was the perpetrator of the crime.3 (Tr.

216:15-217:1.) Throughout the prosecution’s case, defense counsel

cross-examined witnesses regarding Chambers. Chambers owned a

2005 black Ford Expedition, and there was a stipulation entered by

both parties that Detective James Carroll viewed a 2005 Ford

Expedition, registered to Chambers, but did not look inside the

car, or engine.4 (Tr. 718:19-719:3.)

3 Prior to trial, on October 12, 2005, Assistant District

Attorney Mary Biunno (“ADA Biunno”) provided Brady materials to

defense counsel, which included information regarding numerous

leads, and specifically the investigation into Lead # 182, Amili

Chambers. (See Affirm. in Opp. to 2d Mot. to Vacate J., D.E.

14-7, ¶¶ 26, 31 and ECF pp. 61, 111-13.) The NCPD received a

tip from an individual named Lorence Williams that Chambers has

a black SUV with lights and sirens, that he has a gun and pulls

people over, and had confessed to the crime. (Tr. 613:2-17.)

The trial court did not allow the substance of the tip into

evidence because it was hearsay. (Tr. 715:9-12.)

4 During defense counsel’s cross examination of Detective

Carroll, defense counsel began a line of questioning regarding

Chambers. (Tr. 611:9-10.) The prosecution objected, and there

was a lengthy sidebar regarding the admissibility of third-party

Defense counsel questioned Det. McHugh regarding his

investigation into Chambers. Det. McHugh testified that he did

not show Chambers’ photograph to any of the civilian witnesses in

the case. (Tr. 1030:10-25.) Det. McHugh also testified that he

inspected Chambers’ 2005 Ford Expedition and observed that there

was a siren attached to the front portion of the engine

compartment, and that Chambers was completely cooperative. (Tr.

1051:15-19; 1062:2-3.) At trial, there was also testimony that

Chambers was six-foot-seven inches tall, which is about a foot

taller than Petitioner and Giardulo’s description, and that he had

an alibi for the time of Gottlieb’s murder. (Tr. 297:14-20; 726:4-

8; 1049:4-1050:17.) Det. McHugh’s direct examination testimony

regarding Chambers’ alibi was as follows:

Q: Did you ever learn where Amili Chambers was, on the

evening of January 5, 2005?

A: To the best of my knowledge, he was at work.

Q: Where was work?

A: Either in Brooklyn or Queens.

culpability evidence relating to Chambers, specifically with

respect to the substance of the tip received by law enforcement.

(See generally Tr. 611:20-628:2.) The trial court suspended

questioning of Detective Carroll pending its decision on the

admissibility of certain evidence of third-party culpability.

(Tr. 632:1-5.) The trial court ultimately decided to allow

questioning regarding the inspection of Chambers vehicle, but

not the tip itself as it was inadmissible hearsay. Thus, rather

than recall Detective Carroll to the stand, the parties agreed

to enter into a stipulation. (Tr. 714:8-717:5.)

Q: Do you know specifically where he was that night?

A: No, I do not.

Q: When you say, work, he didn’t work in a particular

office; is that right?

A: I don’t know if he reported to an office. He was

a field worker.

Q: He would go out in the field and repair computers.

Is that what he did?

A: That’s correct.

Q: He would move around?

A: Brooklyn and Queens; yes.

Q: You have no idea where he was at roughly seven

o’clock in the evening, on January 5, 2005?

Mr. Klein: Objection.

The Court: Sustained.

A: He was working. Where exactly he was, in Brooklyn

or Queens, I do not know.

Q: Did you ever ask him where he was, specifically,

that night?

Mr. Klein: Objection.

The Court: Sustained.

A: Yes, I did.

The Court: All right. Go ahead.

Q: Where was he?

A: He was at a bank location on, I believe it was

Liberty Avenue, in Queens.

Q: Did you go to that location?

A: Yes, I did.

Q: Did you speak to anyone there?

A: Yes, I did.

Q: Who did you speak to?

A: The branch manager.

Q: What was his name?

A: I don’t recall her name.

(Tr. 1049:4-1050:17.)

At the close of all the evidence, defense counsel made

another motion for a trial order of dismissal, which the court

also denied. (Tr. 1083:9-22.) Defense counsel and the prosecution

delivered their summations to the jury, the court instructed the

jury on the law, and the jury deliberated. (Tr. 1084:7-1139:25.)

The jury convicted Petitioner of Murder in the First Degree,

Attempted Robbery in the First Degree, and Criminal Impersonation

in the First Degree. (Tr. 1257:20-1258:12.)

III. The Sentence

On April 19, 2006, Petitioner was sentenced by the court.

(See Sent’g Tr., D.E. 13-10.) The prosecution requested life in

prison without parole, the maximum sentence permissible under the

law. (Sent’g Tr. 14:8-14.) Defense counsel and Petitioner both

addressed the court, and Petitioner maintained his innocence.

(Sent’g Tr. 14:18-20:1.) The court sentenced Petitioner to the

maximum sentence of life imprisonment without possibility of

parole on the murder in the first degree charge; fifteen years

imprisonment with five years post-release supervision on charges

of attempted robbery in the first degree; and an indeterminate

sentence of one-and-one-third to four years on the charge of

criminal impersonation. (Sent’g Tr. 24:15-25:8.) All sentences

were ordered to run concurrently. (Sent’g Tr. 25:8-9.)

IV. The Appeal

On December 21, 2006, Petitioner, through counsel,

appealed his conviction and sentence to the Second Department.

(Appellant Br., D.E. 15.) On direct appeal, Petitioner argued

that: (1) he was deprived of a fair trial by the trial court’s

admission of Molineux evidence (Appellant Br. at 32-36; (2) the

trial court’s Sandoval ruling deprived him of due process and the

right to testify on his own behalf (Appellant Br. at 37-40); (3)

the court erred by failing to suppress the line-up identification

(Appellant Br. at 41-42); (4) a Trowbridge error deprived him of

a fair trial (Appellant Br. at 43-47a0; and (5) he was deprived of

a fair trial when the court refused to permit him to call Kevin

Cooney (“Cooney”) as a witness5 (Appellant Br. at 48-50).

5 Cooney was a witness proffered by defense counsel. (Tr.

850:25-851:6.) According to defense counsel, Cooney worked at a

bank that shared a parking lot with the bank where Gottlieb

worked. (Tr. 851:12-14.) Defense counsel anticipated that

Cooney would testify that the day before the murder, on

January 4, 2005, he was followed home by a black man driving a

dark SUV. (Tr. 851:18-20.) However, Cooney did not identify a

vehicle, he didn’t see the individual driving the vehicle, and

The Second Department affirmed the judgment. People v.

Gousse, 43 A.D.3d 958, 958, 841 N.Y.S. 2d 383, 384 (2d Dep’t 2007).

Regarding the Molineux claim, the Second Department found that

“[e]vidence of the defendant’s conviction arising from his

involvement in the ‘1998 Staples case’ was properly admitted to

establish his identity as the perpetrator of the instant crime.”

Id. (citations omitted). With respect to Petitioner’s Sandoval

claim, the Second Department found that “[l]ikewise, the court

properly exercised its discretion with respect to its various

Sandoval rulings.” Id. (citations omitted).

As to Petitioner’s claim that the hearing court erred by

failing to suppress the lineup identification, the Second

Department found that “[t]he hearing court properly denied that

branch of the defendant’s motion which was to suppress

identification evidence.” Id. (citations omitted). Regarding

the alleged Trowbridge error, the Appellate Division held that

“defendant’s contention that the detective’s testimony regarding

the lineup improperly bolstered the witness’s identification

testimony is not preserved for appellate review, and we decline to

review it in the exercise of our interest of justice jurisdiction.”

Id. (internal citations omitted). Finally, with respect to

there was no contact between the individual in the vehicle and

Cooney. (Tr. 853:6-20.) The Court ruled that Cooney was not

allowed to testify. (Tr. 855:1-2.)

Petitioner’s claim regarding witness Cooney, the court held that

“defendant’s remaining contention is without merit.” Id.

Petitioner, through counsel, sought leave to appeal to

the New York State Court of Appeals, which was denied on July 8,

2008. (See People v. Gousse, 10 N.Y.3d 959, 959, 893 N.E.3d 449,

449, 863 N.Y.S. 2d 143, 143 (2008); D.E. 16-3.)

V. Seven Motions for Writ of Error Coram Nobis

The Court notes that Petitioner filed seven motions for

writ of error coram nobis, all of which were denied by the

Appellate Division for failure to establish that he was denied the

effective assistance of appellate counsel.

In his first motion, Petitioner argued that his

appellate counsel’s representation on direct appeal was deficient

and prejudicial, due to weak arguments made in support of the

claims raised on direct appeal, and because appellate counsel

failed to raise two purportedly meritorious issues: (1) the

prosecutor committed prosecutorial misconduct by making improper

remarks during summation; and (2) trial counsel was ineffective

for (a) failure to request a limiting instruction regarding

Molineux evidence; (b) failure to object to an improper Molineux

charge conference; (c) failure to object to the Molineux jury

instruction; and (d) failure to object during the prosecution

summation. (See Mem. in Supp. of 1st Writ of Error Coram Nobis,

D.E. 15-3, at pp. 38-71.)

Petitioner further argued in his six later motions that

appellate counsel was ineffective for failing to bring the

following arguments on direct appeal: (1) that the prosecution

committed misconduct for failure to correct false testimony by

Detective McHugh; (2) that trial counsel was ineffective for

failure to make a sufficiently detailed motion for a trial order

of dismissal on the grounds that there was insufficient evidence

of intent to kill; (3) that the prosecution violated its Brady

obligations by failing to disclose photographs of Chambers’

vehicle; (4) that the trial court erred by admitting a gun for

illustrative purposes only; (5) that the trial court erred by

admitting a photocopy of Petitioner’s credit card, rather than the

actual credit card, in violation of the best evidence rule; (6)

that the trial court erred by precluding defense counsel from

cross-examining witnesses regarding the details of how police

learned about Amili Chambers; and (7) that trial counsel was

ineffective for failure to object to the trial court’s instruction

that Petitioner be required to wear leg shackles during his

criminal trial. (See generally Mem. in Supp. 2d Writ of Error

Coram Nobis, D.E. 15-10; Mem. in Supp. of 3rd Writ of Error Coram

Nobis, D.E. 15-14; Suppl. Pleading in Supp. 3rd Writ of Error Coram

Nobis, D.E. 15-15; Aff. in Supp. 4th Writ of Error Coram Nobis,

D.E. 15-19; Aff. in Supp. 5th Writ of Error Coram Nobis, D.E. 15-

22; Aff. in Supp. 6th Writ of Error Coram Nobis, D.E. 15-25; Aff.

in Supp. 7th Writ of Error Coram Nobis, D.E. 15-28.) As stated

herein, all seven motions for writ of error coram nobis were

denied.

VI. Two Motions to Vacate Judgment

Petitioner filed two motions before the trial court to

vacate his judgment of conviction and set aside the verdict,

pursuant to New York Criminal Procedure Law § 440.10. In his first

pro se motion, Petitioner argued that: (1) defense counsel was

ineffective for failing to adequately investigate a third-party

culpability defense and presenting a perjurious police witness;

(2) defense counsel was ineffective for failing to obtain critical

Brady material that was central to the asserted third-party

culpability defense; and (3) he was deprived due process when the

prosecution summation made references to Det. McHugh’s allegedly

perjured testimony. (See 1st Mot. to Vacate J., D.E. 14.) The

trial court denied the motion in its entirety, and, with respect

to Petitioner’s ineffective assistance of counsel claims, held

that “[u]pon a review of the record and counsel’s representation

of defendant in totality and at the time of the representation,

this court finds that the defendant received adequate counsel under

either the federal test of a deficient performance and prejudiced

that defendant or the more stringent state test of meaningful

representation.” (May 11, 2011 Order, D.E. 14-2, ECF p. 4.)

Thereafter, Petitioner filed a pro se motion for leave

to appeal the trial court’s 440 decision to the Second Department,

pursuant to CPL 450.15 and 460.15. (See Mot. for Leave to Appeal,

D.E. 15-6, ECF p. 1). The Appellate Division denied Petitioner’s

application. (See Dec. 12, 2011 Dec. & Order, D.E. 15-9.)

On December 22, 2017, Petitioner filed a motion through

counsel to vacate judgment pursuant to CPL § 440.10(1) (g) and (h)

in the trial court, and argued that: (1) he is entitled to a new

trial based on newly discovered evidence; (2) he is entitled to a

new trial due to nondisclosure of Brady/Giglio material; and (3)

trial counsel was ineffective for failing to present certain

evidence. (See 2d Mot. to Vacate J., D.E. 14-3, at 11-19.)

The Supreme Court, Nassau County issued an order finding

that Petitioner’s claims were “largely procedurally barred and

uniformly meritless.” (See Nov. 29, 2018 Order, D.E. 14-9.) In

addition, the court stated that “defendant’s claims of newly

discovered evidence are without merit.” (Id. at 2.) Regarding

Petitioner’s Brady/Giglio claims, the court ruled that “no

Brady/Giglio material was withheld from defendant . . . and the

remaining information that defendant erroneously characterizes as

Brady/Giglio evidence is not material, did not exculpate him, and

he was not prejudiced by the alleged nondisclosure because there

is no reasonable probability that the result of the proceeding

would have been different had the information been disclosed.”

(Id. at 2.) Finally, the court ruled that “as the Supreme Court

has previously held, trial counsel was not ineffective, and

provided meaningful representation.” (Id. at 3.)

This Petition followed.

DISCUSSION

I. The Legal Standard

Congress enacted the Antiterrorism and Effective Death

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

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

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

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

prisoner seeking habeas corpus relief under Section 2254 must show

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

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

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

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claims that was not

adjudicated on the merits in State court

proceedings unless the adjudication of the

claim-–(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established [f]ederal

law, as determined by the Supreme Court of the

United States.

28 U.S.C. § 2254. AEDPA established a deferential standard of

relief, seeking to “avoid[ ] unnecessarily ‘disturbing the State’s

significant interest in repose for concluded litigation, denying

society the right to punish some admitted offenders, and intruding

on state sovereignty to a degree matched by few exercises of

federal judicial authority.’” Virginia v. LeBlanc, 137 S. Ct.

1726, 1729, 198 L. Ed. 2d 186 (2017) (quoting Harrington v.

Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 787, 178 L.Ed. 2d 624

(2011)) (brackets omitted). Accordingly, a habeas corpus petition

is not a vehicle to relitigate every issue previously determined

in state court. Herrara v. Collins, 506 U.S. 390, 401, 113 S. Ct.

853, 861, 122 L. Ed. 2d 203 (1993). Ultimately, “the petitioner

bears the burden of proving by a preponderance of the evidence

that his constitutional rights have been violated.” Jones v.

Vacco, 126 F. 3d 408, 415 (2d Cir. 1997); see also Hawkins v.

Costello, 460 F. 3d 238, 246 (2d Cir. 2006).

Therefore, a federal court may not grant a writ of

habeas corpus unless the state court’s adjudication of the claim

either: (1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States, or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

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

The Supreme Court has construed AEDPA “to give independent meaning

to ‘contrary [to] and ‘unreasonable.’” Jones v. Stinson, 229 F.3d

112, 119 (2d Cir. 2000). A state court’s decision is “contrary

to” clearly established federal law if “the state court arrives at

a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case different

than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.

Ct. at 1523. A decision involves “an unreasonable application” of

clearly established federal law when a state court “identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id. at 413, 120 S. Ct. at 1523. This

standard does not require that all reasonable jurists agree that

the state court was wrong; rather, the standard “falls somewhere

between ‘merely erroneous and unreasonable to all reasonable

jurists.’” Jones, 229 F.3d at 119 (quoting Francis S. v. Stone,

221 F.3d 100, 109 (2d Cir. 2000)). AEDPA “‘imposes a highly

deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the

doubt.’” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012)

(quoting Hardy v. Cross, 565 U.S. 65, 66, 132 S. Ct. 490, 491, 181

L. Ed. 2d 468 (2011)). Section 2254(d), as amended by AEDPA,

“stops short of imposing a complete bar on federal-court

relitigation of claims already rejected in state proceedings.”

Harrington, 562 U.S. at 102, 131 S. Ct. at 786.

Assuming that a petitioner’s claims are cognizable on

habeas review, a petitioner must exhaust state court remedies

before coming to federal court. Exhaustion of state court remedies

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

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

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

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

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

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

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

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

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

Kelly, 112 F.3d 50, 52 (2d Cir. 1997)). “Specifically,

[petitioner] must have set forth in state court all of the

essential factual allegations asserted in his federal petition; if

material factual allegations were omitted, the state court has not

had a fair opportunity to rule on the claim.” Daye v. Att’y Gen.

of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982) (collecting cases).

In addition, a federal court will not review a habeas

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

on “independent and adequate” state procedural grounds. Coleman

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

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

court addressed the merits in the alternative, but decided the

claim on independent procedural grounds. Velasquez v. Leonardo,

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

To obtain review of procedurally barred claims, a state

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

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

at 750, 111 S. Ct. at 2565.

II. Application

Petitioner argues that: (1) trial counsel was

ineffective; (2) the prosecution failed to disclose Brady

material; (3) newly discovered evidence demonstrates his actual

innocence; (4) the trial court erred by failing to suppress

identification testimony; (5) the trial court’s Molineux ruling

deprived him of due process and a fair trial; (6) the trial court’s

Sandoval ruling denied him of due process and a fair trial; and

(7) appellate counsel was ineffective. (Pet., ECF pp. 8-15.)

A. Ineffective Assistance of Trial Counsel Claim

Petitioner claims he received ineffective assistance

from trial counsel. He asserts what he perceives as numerous

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

to discover, develop, and present evidence of third-party

culpability as to Chambers; (2) failure to discover and impeach

false testimony by Detective McHugh; (3) failure to request a

limiting instruction as to Molineux material; (4) failure to object

to improper jury instructions regarding Molineux evidence; and (5)

failure to object to improper comments made during the prosecution

summation. (Pet., ECF p. 4.)

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

claims are not procedurally barred, the Court evaluates the merits

of Petitioner’s ineffective assistance of counsel claims and finds

that Petitioner’s claims provide no basis for relief.

As a general principle, there is “a strong presumption

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

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

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

“there are countless ways to provide effective assistance in any

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

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

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

deferential’ standard of review that gives both the state court

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

Titlow, 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013) (quoting Cullen

v. Pinholster, 563 U.S. 170, 190, 131 S. Ct. 1388, 1403, 179 L.

Ed. 2d 557 (2011)). Bearing in mind this deferential standard, it

is no surprise that “the great majority of habeas petitions that

allege constitutionally ineffective counsel” fail. Lindstadt v.

Keane, 239 F.3d 191, 199 (2d Cir. 2001).

To establish deficient performance, Petitioner must

prove that “counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.

Ct. at 2064. But even if Petitioner can show deficient

performance, he must also establish prejudice--that is, “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694, 104 S. Ct. at 2068.

1. Failure to Adequately Present Evidence of Third-Party

Culpability

Petitioner argues that trial counsel’s failure to

adequately present evidence of third-party culpability constituted

ineffective assistance based on the following alleged issues: (1)

counsel failed to go to the Chase bank where Detective McHugh

claimed Chambers was working at the time of the crime to determine

that there were no female bank managers; (2) counsel failed to

call Chambers as a defense witness; and (3) counsel failed to

obtain and present photographs of Chambers’ vehicle. (Pet., ECF

p. 8.)

In his first motion to vacate his judgment, Petitioner

asserted these arguments to the trial court, and argued that these

failures were the result of trial counsel’s lack of a pre-trial

investigation into Petitioner’s third-party liability defense.

(See 1st Mot. to Vacate J., ECF pp. 38-40.) The trial court ruled

that

[t]he singular thrust of counsel’s strategy

was that someone else, specifically Chambers,

committed this crime. To that end, he cross-

examined prosecution witnesses, and produced

witnesses on behalf of the defendant. His

summation continued to maintain that defense.

The fact that photographs of Chambers’ car

were never produced does not constitute an

ineffectiveness of trial counsel. In fact,

the exhibits attached to defendant’s motion

reveal that no such photographs exist. While

Detective McHugh testified that there were

photographs taken, there was very detailed

testimony elicited about the description of

Chambers’ SUV . . . [u]pon a review of the

record and counsel’s representation of

defendant in totality and at the time of the

representation, this court finds that the

defendant received adequate counsel under

either the federal test of a deficient

performance that prejudiced the defendant or

the more stringent state test of meaningful

representation.

(See May 11, 2011 Order, at pp. 3-4.)

The Court finds that the state court’s ruling is not

contrary to, or an unreasonable application of, Strickland, nor is

it based on an unreasonable determination of the facts in light of

the evidence before the state court. Petitioner fails to establish

either deficient performance or prejudice in his claims related to

his third-party culpability defense. Strickland, 466 U.S. at 694,

104 S. Ct. at 2068.

Further, it is clear that “counsel has a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466

U.S. at 691, 104 S. Ct. at 2066. However, a reasonable

investigation does not “compel defense counsel to investigate

comprehensively every lead or possible defense, or to scour the

globe on the off-chance something will turn up.” Greiner v. Wells,

417 F.3d 305, 321 (2d Cir. 2005) (internal quotation marks and

citation omitted).

In his first motion to vacate, Petitioner attached an

affidavit from an investigator named Irwin Blye, stating that Blye

investigated the Chase bank located on Liberty Avenue in Richmond

Hill, Queens, and “as best as we could determine,” there were two

male managers employed at the branch in January 2005, and a female

manager employed at the end of 2005.6 (1st Mot. to Vacate J.,

Ex. E, ECF p. 103.) This Chase bank was the same bank where

Detective McHugh testified he believed Chambers told him he was

working on January 5, 2005, and where he had spoken to a female

bank manager. (Tr. 1050:1-17; 1st Mot. to Vacate J., Ex. E, ECF

p. 104.) Petitioner argues that had defense counsel gone to the

Chase bank himself, he would have learned that there were two male

managers in January 2005 and that Chambers’ alibi must be false.

(Mem. in Supp. of Pet., D.E. 8, at 23.)

Petitioner further contends that had trial counsel

interviewed and proffered Chambers as a witness, Chambers would

6 Irwin Blye was an investigator hired by Petitioner after his

criminal trial and prior to filing his first motion to vacate

his judgment. (See 1st Mot. to Vacate J., Ex. E, ECF p. 103.)

have testified similarly to his 2017 deposition testimony.7 (Mem.

in Supp. of Pet., at 27-28.) According to Chambers’ deposition

transcript, he did not recall telling the police specifically where

he was working on January 5, 2005. Petitioner once again alleges

that Chambers’ deposition testimony refutes Det. McHugh’s

Chambers’ alibi testimony.

Lastly, Petitioner argues that had trial counsel timely

requested the photographs of Chambers’ vehicle, the photographs

could have been presented as evidence at trial, and that failure

to do so constituted ineffective assistance of counsel.

Petitioner is unable to demonstrate either that

counsel’s performance fell below the objective reasonableness

standard or that he was prejudiced. As the trial court noted, the

singular thrust of the defense case was that Amili Chambers was

the actual perpetrator of the crime. Trial counsel was not

required to present all possible proof of Chambers’ guilt at trial.

Further, the aforementioned information allegedly

missing from Petitioner’s third-party culpability defense would

not have changed the outcome of Petitioner’s trial. The substance

of both the investigator’s affidavit and Chambers’ deposition

testimony do not necessarily refute Det. McHugh’s testimony

7 Petitioner commenced a lawsuit for libel against Amili Chambers

in 2016, and as a result deposed Chambers on February 22, 2017.

(See generally 2d Mot. to Vacate J., Ex. E, D.E. 14-4, ECF pp.

13-31, and D.E. 14-5, ECF pp. 1-48.)

regarding Chambers’ alibi. It is unclear from Det. McHugh’s

testimony when he went to the Chase bank to investigate the alibi

or who he spoke to, and thus he may have spoken to the female bank

manager who worked at the bank in late 2005, according to the

investigator’s own affidavit. In Chambers’ deposition testimony,

which took place twelve years after the crime, he did not recall

his exact exchange with the detectives, and did not remember

telling detectives where he was working on January 5, 2005. Also,

there was extensive testimony regarding what Chambers’ vehicle

looked like though no actual photographs were presented as

evidence.

Additionally, it is worth noting that defense counsel

may have made a strategic decision by not presenting Chambers as

a defense witness. See United States v. DiTomasso, 932 F.3d 58,

69-70 (2d Cir. 2019) (“Trial counsel’s ‘[a]ctions or omissions .

. . that might be considered sound trial strategy,’ including

decisions not to ‘call specific witnesses—even ones that might

offer exculpatory evidence—[are] ordinarily not viewed as a lapse

in professional representation.’”) (quoting United States v. Best,

219 F.3d 192, 201 (2d Cir. 2000)). It was established at trial

that Chambers was six-foot-seven-inches tall, about a foot taller

than Petitioner. Had Chambers testified, the jury would have been

able to see that Chambers was unusually tall, and may have

discounted the third-party culpability defense.

Accordingly, Petitioner’s ineffective assistance of

trial counsel claim with respect to his third-party culpability

defense is denied.

2. Failure to Impeach Detective McHugh

Petitioner claims that trial counsel was ineffective for

failing to properly impeach Detective McHugh. Petitioner’s

support for this claim is similar to his first claim, in that he

argues that had trial counsel completed a thorough investigation,

he would have had relevant information to properly impeach

Detective McHugh’s testimony regarding Chambers’ alibi.

Petitioner asserts that trial counsel should have impeached

Detective McHugh with two items of evidence: (1) the information

contained in investigator Irwin Blye’s affidavit; and (2) that

Chambers became defensive when confronted with the siren, refused

to allow any further inspection of his 2005 Ford Expedition, and

requested an attorney. (Mem. in Support of Pet., at 23-24.) This

claim similarly fails.

Petitioner’s claim regarding investigator Irwin Blye’s

affidavit as impeachment evidence is without merit. As stated

above, the substance of the investigator’s affidavit does not

necessarily contradict Det. McHugh’s testimony regarding Chambers’

alibi, and, thus, Petitioner is unable to demonstrate prejudice.

Petitioner’s second argument is premised on defense

counsel’s possession of information from ADA Biunno’s notes, which

are also the subject of his Brady claim. Petitioner’s

ineffectiveness claim cannot co-exist with his Brady claim, where

he argues that it was the prosecution’s suppression of the notes

that caused Petitioner prejudice. Thus, no amount of investigation

on the part of trial counsel would have resulted in locating ADA

Biunno’s notes if Petitioner’s contention is that the notes were

improperly withheld under Brady. As such, Petitioner cannot

establish that trial counsel’s performance was deficient.

Further, as discussed in detail herein, Petitioner was not

prejudiced by the fact that defense counsel did not have ADA

Biunno’s notes. Thus, this claim does not survive the Strickland

test.

Accordingly, Petitioner’s claim that trial counsel was

ineffective for failure to impeach Det. McHugh is denied.

3. Failure to Request Limiting Instruction

Petitioner claims that trial counsel was ineffective

because he did not request a limiting instruction when Molineux

evidence of Petitioner’s 1998 Staples robbery was read into the

record. (See Pet., ECF p. 8.) This claim is denied.

Petitioner raises yet another claim that falls within

the gambit of strategic decisions by trial counsel. “As

with trial decisions to offer or stipulate to certain evidence,

decisions such as when to object and on what grounds are primarily

matters of trial strategy and tactics, and thus are virtually

unchallengeable absent exceptional grounds for doing so.” United

States v. Cohen, 427 F. 3d 164, 170 (2d Cir. 2005) (internal

quotation marks and citations omitted). By not requesting a

limiting instruction at the time that the transcript of

Petitioner’s testimony was read into the record, defense counsel

arguably made a strategic decision to avoid drawing further

attention to the evidence. Thus, Petitioner is unable to

demonstrate that defense counsel’s performance was deficient.

Further, the trial court read a jury instruction

regarding Molineux evidence at the time the jury was charged on

the law, and explained the limited purpose for which the evidence

should be considered. As such, Petitioner is unable to demonstrate

prejudice.

Accordingly, Petitioner’s ineffective assistance claim

for failure to request a limiting instruction is denied.

4. Failure to Object to Improper Jury Instruction

Petitioner next claims that trial counsel was

ineffective for failing to object to improper jury instructions

regarding Molineux evidence. (Pet., ECF p. 8.) This claim is

denied.

As an initial matter, this claim is absent any

explanation as to why the trial court’s Molineux jury instruction

was improper. However, in his first motion for writ of error coram

nobis, Petitioner argued that trial counsel was ineffective for

failing to object to the intent portion of the trial court’s

Molineux jury charge. (See Mem. in Supp. of 1st Writ of Error

Coram Nobis, ECF pp. 61-65.) The essence of Petitioner’s coram

nobis claim was that the trial court’s pre-trial Molineux ruling

spoke only of identity as a permissible use of the 1998 Staples

robbery evidence, yet the jury charge included that the evidence

was also proffered to prove intent, and thus the trial court

violated its own pre-trial ruling. (See Mem. in Supp. of 1st Writ

of Error Coram Nobis, ECF pp. 61-65.)

While much of the charge conference was held off the

record, trial counsel did object to the trial court’s proposed

Molineux jury instruction. (Tr. 1079:23-1080:21.) Although the

trial court did not use specific wording proffered by defense

counsel off the record, in response to defense counsel’s objection,

the trial court expanded the jury instruction rather than read the

condensed version of the Molineux charge. (Tr. 1080:6-18.) The

jury instruction explained that the Molineux evidence was offered

to establish Petitioner’s identity and intent through evidence

demonstrating a particular modus operandi, and that the evidence

should only be considered for that limited purpose. (Tr. 1210:9-

16.) As discussed later, both identity and intent are permissible

uses of Molineux evidence. Molineux, 168 N.Y. at 293, 61 N.E. at

294. As such, the jury charge as read was proper.

Because the Court does not find error with the jury

instructions as given in this case, and because trial counsel did

note his objection, Petitioner has failed to demonstrate that

counsel’s performance fell below an objective standard of

reasonableness. Additionally, Petitioner is unable to demonstrate

a reasonable probability that the outcome of the proceeding would

have been different. Had the trial court only instructed on

identity, it would not have altered the proceeding; evidence of

Petitioner’s 1998 Staples robbery would still have been before the

jury. The trial court’s jury instruction served to limit how the

jury could view that evidence. Thus, Petitioner has failed to

demonstrate either deficient performance or prejudice.

As such, Petitioner’s claim that counsel was ineffective

for failure to object to the Molineux jury charge is denied.

5. Failure to Object to Improper Summations Remarks

Petitioner alleges a claim of ineffective assistance for

conduct which falls squarely within the purview of trial strategy,

and it is denied.

As an initial matter, it is unclear from the Petition

what portions of the prosecution summation Petitioner alleges

constitute improper commentary. However, based on Petitioner’s

first motion to vacate his judgment, it appears his claims are

based on comments made by the prosecution that relied on both Det.

McHugh’s testimony regarding Chambers’ alibi and the underlying

facts of Petitioner’s 1998 Staples robbery conviction. (See Mem.

in Supp. of 1st Mot. for Writ of Error Coram Nobis, D.E. 15-3, ECF

pp. 35-36; Aff. in Supp. of 2d Mot. for Writ of Error Coram Nobis,

D.E. 15-10, ECF p. 21; Aff. in Supp. of 1st Mot. to Vacate J.,

D.E. 14, ECF pp. 47-50.)

“A claim of prosecutorial misconduct during summation

requires a court to consider ‘whether the prosecutor’s comments so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Torres v. Racette, No. 11-

CV-1647, 2018 WL 4762246, at *6 (E.D.N.Y. Oct. 2, 2018) (quoting

Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2472, 91

L. Ed. 2d 144 (1986)). Additionally, as discussed supra at 32,

when to object and on what grounds are matters of trial strategy

and cannot be challenged absent extraordinary circumstances. See

Cohen, 427 F.3d at 170. To object during the prosecutor’s

summation may bring unnecessary attention to the remarks, and the

decision by trial counsel not to object has been determined to be

a reasonable trial strategy. Broxmeyer v. United States, 661 F.

App’x 744, 748 (2d Cir. 2016).

Here, both instances of alleged misconduct constituted

proper summation commentary. With respect to the 1998 Staples

robbery, the trial court’s Molineux ruling was proper. Thus, it

was entirely proper for the prosecution to rely on the underlying

facts of the 1998 Staples robbery to prove identity and intent.

With respect to the comments made about Det. McHugh’s testimony,

the evidence does not demonstrate that Det. Chambers’ alibi was

false. Additionally, “[p]rosecutors are permitted broad latitude

during summation and are permitted to respond to arguments by the

defense ‘impugning the integrity of [their] case,’” Torres, 2018

WL 4762246, at *6 (quoting United States v. Bautista, 23 F.3d 726,

732 (2d Cir. 1994)). The entire defense theory was based on

Chambers’ responsibility for the crime, and as such the prosecution

was permitted to rebut that theory by pointing to Det. McHugh’s

testimony regarding Chambers’ alibi.

Accordingly, Petitioner cannot demonstrate that defense

counsel’s performance was deficient, or that he was prejudiced,

and, as such, Petitioner’s ineffective assistance of counsel

claims are denied on this basis and in their entirety.

B. Brady Material Claim

Petitioner claims he is entitled to habeas relief

because the prosecution failed to disclose Brady material.

Petitioner alleges that the undisclosed Brady material includes

photographs of Chamber’s vehicle, police reports, notes made by

the police that demonstrated that the police made no attempt to

investigate or search for the weapon Chambers was known to have,

and notes made by the Nassau County District Attorney’s Office

that demonstrated that Chambers was evasive when he was interviewed

by the police. (Pet., ECF p. 10; Mem. in Supp. of Pet., at 28.)

For the following reasons, Petitioner’s Brady claim is denied.

Petitioner raised this claim on his second motion to

vacate his judgment pursuant to C.P.L. § 440.10. (See 2d Mot. to

Vacate J., D.E. 14-3, ECF pp. 20-21.) However, Petitioner failed

to raise this claim in his first motion to vacate his judgment,

and as such, the court ruled that

[d]efendant’s claims are largely procedurally

barred . . . defendant unjustifiably failed to

raise the majority of his claims in his prior

motion to vacate judgment. See C.P.L. §

440.10(3)(c) . . . [N]o Brady material was

withheld from defendant. Before the trial,

defendant was indisputably made aware of most

of the information he now claims was withheld

from him, and the remaining information that

defendant erroneously categorizes as

Brady/Giglio evidence is not material, did not

exculpate him, and he was not prejudiced by

the alleged nondisclosure because there is no

reasonable probability that the result of the

proceeding would have been different had the

information been disclosed.

(See Nov. 29, 2018 Order, ECF p. 2.)

Section 440.10(3)(c) of the Criminal Procedure Law

states that, “the court may deny a motion to vacate a judgment

when upon a previous motion made pursuant to this section, the

defendant was in a position adequately to raise the ground or issue

underlying the present motion but did not do so.” C.P.L.

§ 440.10(3)(c). Thus, Petitioner’s present claim is procedurally

barred from review as it was denied by the state court on

independent and adequate state court grounds. See Murden v. Artuz,

497 F. 3d 178, 192 (2d Cir. 2007). Further, it is well established

that even if the state court also addresses the merits, the claim

is still procedurally barred. See Harris v. Reed, 489 U.S. 255,

264, 109 S. Ct. 1038, 1044, 103 L. Ed. 2d 308 (1989); see also

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

To overcome a procedural bar a petitioner must show

either (1) “cause for the default and actual prejudice as a result

of the alleged violation of federal law” or (2) “that failure to

consider the claims will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. Here,

Petitioner has not demonstrated cause for the default or actual

prejudice, nor has he demonstrated that failure to consider the

claims will result in a fundamental miscarriage of justice, and,

thus, he is unable to lift the procedural bar. Regardless, the

Court evaluates Petitioner’s claim on the merits.

To prove that a Brady violation occurred, Petitioner

must show that the evidence at issue was “favorable to the accused,

either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948,

144 L. Ed. 2d 286 (1999). Here, the Court finds that the state

court’s ruling with respect to Petitioner’s Brady claim is not

contrary to, or an unreasonable application of, United States

Supreme Court precedent, nor is it based on an unreasonable

determination of the facts in light of the evidence before the

state court. As such, Petitioner’s claim is denied.

Petitioner asserts three main pieces of alleged Brady

material were withheld: (1) ADA Biunno’s file notes regarding

Chambers; (2) police paperwork or paperwork from the District

Attorney’s Office regarding the investigation, or lack thereof,

into whether Chambers had a weapon; and (3) photographs of

Chambers’ vehicle, which was a 2005 black Ford Expedition. (Pet.,

ECF p. 10; Mem. in Supp. of Pet., at 28.)

ADA Biunno’s file notes stated, in sum and substance,

that when a siren speaker was found in Chambers’ Expedition he

became defensive and “lawyered up,” and that an alibi must be

established for Chambers. (See Ex. To 2d Mot. to Vacate J., D.E.

14-4, ECF pp. 3-4.) Based on Petitioner’s defense theory at trial

that Chambers was the actual perpetrator, it is understandable

that Petitioner would believe that ADA Biunno’s file notes are

favorable to him. Additionally, with respect to the suppression

prong of the Strickler test, it is unclear from the court’s C.P.L.

§ 440.10 decision whether there was actually a determination about

whether this specific evidence was actually withheld from

Petitioner.8 See Strickler, 527 U.S. at 281-82, 119 S. Ct. at

1948.

Assuming without deciding that Petitioner’s claim

survives the first two prongs of the Strickler test, nevertheless,

fatal to his claim is the lack of prejudice. Id. While Petitioner

may not have been in possession of these notations made by ADA

Biunno, Petitioner was largely in possession of information

relating to Chambers, so much so that the entire defense case was

premised on a third-party culpability theory pointing to Chambers.

According to Strickler, “there is never a real ‘Brady violation’

unless the nondisclosure was so serious that there is a reasonable

probability that the suppressed evidence would have produced a

different verdict.” Id. at 281. Here, the Court does not find

that this note would have produced a different verdict in light of

all of the information Petitioner possessed regarding Chambers at

the time of trial. Thus, Petitioner has not shown that the trial

court’s ruling was contrary to, or involved an unreasonable

application of, clearly established federal law with respect to

ADA Biunno’s notes.

8 The trial court’s order stated “no Brady/Giglio material was

withheld from defendant. Before trial, defendant was indisputably

made aware of most of the information he now claims was withheld

from him[.]” (See Nov. 29, 2018 Order, ECF p. 2) (emphasis added.)

Thus, it is unclear whether the trial court found that ADA Biunno’s

file was not withheld from Petitioner, or that regardless, the

note itself was not Brady, and thus no Brady material was withheld.

Petitioner also alleges that police paperwork or

paperwork from the District Attorney’s Office regarding the

investigation into whether Chambers had a weapon was withheld.

(See Pet., ECF p. 10; Mem. in Supp. of Pet., at 28.) However,

based on the record, it appears that Petitioner was provided with

this information. Prior to trial, Brady materials were provided

to defense counsel, including information regarding the

investigation into Lead #182, Amili Chambers. (See Affirm. in

Opp. to 2d Mot. to Vacate J., ¶¶ 26, 31 and ECF pp. 61, 111-13.)

Additionally, at the pre-trial suppression hearing, Detective

McHugh testified regarding the investigation conducted regarding

Chambers, and spoke about steps taken to determine whether Chambers

had a weapon, specifically a gun. (Hr’g Tr. 176:12-177:6.) As

such, Petitioner cannot demonstrate that this information was

suppressed by the State, as required by Strickler, and further,

because Petitioner was in possession of the alleged withheld

information prior to his criminal trial, he cannot demonstrate

that any prejudice occurred.

The last evidence allegedly withheld by the prosecution

was photographs of Chambers’ 2005 Ford Expedition. (See Pet., ECF

p. 10; Mem. in Supp. of Pet., at 31.) In Petitioner’s first motion

to vacate his judgment, and again in this Petition, he alleges

that his trial counsel was ineffective for failing to obtain the

photographs of Chambers’ Ford Expedition and characterized the

photographs as Brady. (See 1st Mot. to Vacate J., ECF pp. 43-45.)

While the trial court did not rule on the issue of whether the

photographs were Brady material outside the context of

Petitioner’s ineffective assistance of counsel claim, the court

did state that “the exhibits attached to defendant’s motion reveal

that no such photographs exist.” (See May 11, 2011 Order, ECF p.

3.) Here, Petitioner has not demonstrated that the photographs

themselves were favorable. Testimony was elicited at trial

regarding the fact that Chambers drove a 2005 black Ford

Expedition, which was similar to the vehicle described by witnesses

as the vehicle involved in the murder. With respect to the

photographs that were purportedly withheld by the prosecution, or

whether these photographs actually even existed at the time of

trial, it bears little relevance here as Petitioner is clearly

unable to show prejudice. The testimony elicited regarding

Chambers’ vehicle was enough, and there is not a reasonable

probability that the photographs would have produced a different

verdict.

Accordingly, Petitioner’s Brady claim is denied in its

entirety.

C. Newly Discovered Evidence Claim

Petitioner claims that he is entitled to habeas relief

because newly discovered evidence demonstrates that he is actually

innocent of the charges in this case. (Pet., ECF pp. 11-13.) The

alleged newly discovered evidence includes: (1) evidence that

Amili Chamber’s alibi was falsified; (2) photographs and other

evidence concerning the appearance of Chambers’ vehicle; (3)

deposition testimony of Amili Chambers; (4) undisclosed police

documents and notes; and (5) undisclosed notes from the Nassau

County District Attorney’s Office. (Pet., ECF p. 11.) For the

following reasons, this claim is denied.

In Petitioner’s second motion to vacate his judgment

pursuant to C.P.L. § 440.10, he raised a claim that he is entitled

to a new trial based on newly discovered evidence. (See 2d Mot.

to Vacate J., ECF pp. 11-19.) While Petitioner argued in that

motion that the new evidence would probably result in an acquittal,

such an argument is different from the claim he brings now,

specifically that the newly discovered evidence demonstrates his

actual innocence. (See 2d Mot. to Vacate J., ECF p. 13; Pet., ECF

p. 11.) Assuming without deciding that Petitioner has exhausted

his current claim, the Court determines that it fails on the

merits. The Supreme Court of Nassau County held that

defendant’s claims of newly discovered

evidence are without merit. Defendant has

largely failed to satisfy the due diligence

requirement with respect to the information he

now characterizes as ‘newly discovered’

evidence, and the information/evidence is

generally either not ‘newly discovered,’ or is

offered merely to impeach or contradict the

trial evidence (E.B.T. Chambers).

(See Nov. 28, 2018 Order, ECF p. 2.) (citation omitted).

The Court finds that the state court’s ruling is not

contrary to, or an unreasonable application of, United States

Supreme Court precedent, nor is it based on an unreasonable

determination of the facts in light of the evidence before the

state court.

In this circuit, an “actual innocence claim plays a

‘procedural, not substantive’ role in [a habeas] case.” Hyman v.

Brown, 927 F.3d 639, 655 (2d Cir. 2019) (quoting Rivas v. Fischer,

687 F.3d 514, 541 (2d Cir. 2012)). “[A] claim of actual innocence

must be both ‘credible’ and ‘compelling.’” Rivas, 687 F.3d at 541

(quoting House v. Bell, 547 U.S 518, 521, 538 (2006)); see also

Amin v. Hulihan, No. 10-CV-2293, 2016 WL 6068128, at *5 n.6

(E.D.N.Y. Oct. 13, 2016) (“A claim of actual innocence must be

supported by ‘new reliable evidence’ and is therefore ‘rarely

successful.’”) (quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.

Ct. 851, 865, 130 L. Ed. 2d 808 (1995)). “For the claim to be

‘credible,’ it must be supported by ‘new reliable evidence—-

whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not

presented at trial.’” Rivas, 687 F.3d at 541 (quoting Schlup, 513

U.S at 324, 115 S. Ct. at 865). “For the claim to be ‘compelling,’

the petitioner must demonstrate that ‘more likely than not, in

light of the new evidence, no reasonable juror would find him

guilty beyond a reasonable doubt—or to remove the double negative,

that more likely than not any reasonable juror would have

reasonable doubt.’” Id. (quoting House, 547 U.S. at 538, 126 S.

Ct. at 2077); see also McQuiggin v. Perkins, 569 U.S. at 385, 395,

399, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013).

In support of his claim, Petitioner presents evidence

including ADA Biunno’s notes, investigator Blye’s affidavit, and

Chambers’ 2017 deposition testimony, and generic photographs of

2003, 2004, and 2005 black Ford Expeditions. Because the trial

court’s ruling was not contrary to, or an unreasonable application

of the Schlup standard, Petitioner’s claim fails. Schlup, 513 U.S

at 324, 115 S. Ct. at 865.

As an initial matter, the majority of what Petitioner

presents here is not newly discovered at all, and thus he cannot

satisfy the threshold question in Schlup. Certainly Petitioner

would have had access to generic photographs of various Ford

Expeditions at the time of his criminal trial. Likewise, the

information included in investigator Blye’s affidavit was

available and could have been investigated at the time of trial.

Additionally, while Petitioner did not depose Chambers until 2017,

Chambers was available prior to Petitioner’s trial.

Furthermore, Petitioner cannot demonstrate that

purported “newly discovered” evidence makes it more likely than

not that no reasonable juror would find him guilty. Clearly,

generic photographs of various Ford Expeditions do not exculpate

Petitioner. Further, the Court has already found that ADA Biunno’s

notes do not constitute a Brady violation because, ultimately,

Petitioner cannot demonstrate prejudice. While the substance of

ADA Biunno’s notes demonstrates an instance of Chambers acting

defensive, the notes do not exculpate Petitioner. Similarly, as

discussed further supra at 31-32, investigator Blye’s affidavit

and Chambers’ 2017 deposition testimony do not actually falsify

Chambers’ alibi, or demonstrate Petitioner’s innocence.

As such, Petitioner’s newly discovered evidence claim

fails.

D. Improper Identification Evidence Claim

Petitioner claims that he is entitled to habeas relief

on the grounds that the identification procedure was unfairly

suggestive. In support of his claim, Petitioner asserts that he

was the only person in both the photo array and lineup, and there

was no independent source testimony by eyewitness Giardulo. (Pet.,

ECF 13; Mem. in Supp. of Pet., at 38-39.) Petitioner raised this

claim on direct appeal and the Appellate Division denied it,

stating that “[t]he hearing court properly denied that branch of

the defendant’s motion which was to suppress identification

evidence.” Gousse, 43 A.D. 3d 958, 958, 841 N.Y.S. 2d 383, 384

(2007) (citations omitted).

The Appellate Division’s decision is not contrary to, or

an unreasonable application of, United States Supreme Court

precedent, nor is it based on an unreasonable determination of the

facts in light of the evidence before the state court. There is

no Supreme Court case supporting Petitioner’s contention that the

fillers in the photo array must be the same for in the lineup. It

is long established that identification testimony is subject to

suppression only when the “identification procedure was so

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” Simmons v. United

States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247

(1968). Petitioner cannot demonstrate that either the photo array

or lineup identification procedures were unduly suggestive.

Accordingly, Petitioner’s claim is without merit.

“[A] pretrial photographic identification procedure used

by law enforcement officials violates due process if the procedure

‘is so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.’”

Jarrett v. Headley, 802 F. 2d 34, 40–41 (2d Cir. 1986); quoting

Simmons, 390 U.S. at 384, 88 S. Ct. at 971. As such, a photo array

is constitutionally permissible even if there are differences in

physical characteristics among the individuals in a photo array,

provided that they are not significant enough to suggest the

defendant was the perpetrator. See United States v. Bautista, 23

F. 3d 726, 731 (2d Cir. 1994); United States v. Maldonado–Rivera,

922 F. 2d 934, 974 (2d Cir. 1990) (“The array must not be so

limited that the defendant is the only one to match the witness's

description of the perpetrator.”); Jarrett, 802 F. 2d 34 at 40–

41.

Here, eyewitness Giardulo described the perpetrator to

police as a black male, approximately thirty years old, and about

five-foot-seven or eight-inches. Thereafter, Det. McHugh showed

Giardulo a photo array on January 20, 2005, consisting of six black

males, including Petitioner. (Hr’g Tr. 25:7-11; 28:2-14.) While

the photo array is not available for the Court’s review, there is

nothing in the record suggesting that the individuals in the

photographs used in the photo array were significantly different

in physical appearance from Petitioner, and Petitioner does not

argue that they were. Petitioner’s sole argument with respect to

whether the identification procedures were unduly suggestive is

that the same fillers were not used in both the photo array and

lineup. Thus, there is no evidence that the photo array was unduly

suggestive.

“[I]dentification evidence [is] admissible if (a) the

[pretrial identification] procedures were not suggestive or (b)

the identification has independent reliability.” Raheem v. Kelly,

257 F. 3d 122, 133 (2d Cir. 2001). “A lineup is unduly suggestive

as to a given defendant if he meets the description of the

perpetrator previously given by the witness and the other lineup

participants obviously do not.” Raheem, 257 F. 3d at 134.

Giardulo participated in a lineup identification

procedure on February 10, 2005. (Hr’g Tr. 88:24-89:12.) Detective

Michael Kuhn (“Det. Kuhn”) created the lineup and testified that

the fillers were black males, in their early thirties, and were of

medium build. (Hr’g Tr. 251:1-2.) All of the lineup participants

were seated, all participants wore a pale yellow jumpsuit to cover

their clothing, a white sheet covered each participant’s shoes,

and everyone was instructed to look straight ahead. (Hr’g Tr.

252:21-253:23.) Upon viewing the lineup, Giardulo almost

immediately identified Petitioner from the shooting on January 5,

2005. (Hr’g Tr. 258:5-15.) Again, the lineup is not available

for the Court’s review, however, based on the record, there was

nothing significant to single out Petitioner as the perpetrator.

Thus, Petitioner has not demonstrated that the lineup procedure

was unduly suggestive.

While Petitioner argues that there was no independent

source evidence from Giardulo, the Court need not reach that

analysis. “If the procedures were not suggestive, the

identification evidence presents no due process obstacle to

admissibility, and no further inquiry by the court is required.”

Raheem, 257 F. 3d at 133 (internal citations omitted). Regardless,

in an abundance of caution, the Court looks to the factors

established by the Supreme Court to determine independent

reliability. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.

Ct. 375, 382, 34 L. Ed. 2d 401 (1972). The factors include “the

opportunity of the witness to view the criminal at the time of the

crime, the witness’ degree of attention, the accuracy of the

witness’ prior description of the criminal, the level of certainty

demonstrated by the witness at the confrontation, and the length

of time between the crime and the confrontation.” Biggers, 409

U.S. at 199-200, 93 S. Ct. at 382.

Giardulo testified at trial that Petitioner was a few

feet away from his front door when he observed him and that the

area was well-lit by the lights on his house, as well as his

Christmas lights. (Tr. 301:8-20.) Giardulo also provided a very

detailed description of Petitioner to police, he viewed the photo

array fifteen days after the crime, and he observed the lineup

over a month later and during both identification procedures he,

both quickly and with certainty, identified Petitioner. As such,

based on the totality of the circumstances, there was independent

reliability for Giardulo’s positive identifications of Petitioner.

Accordingly, Petitioner’s identification claim is

denied.

E. Molineux Claim

Next, Petitioner’s claim that the trial court’s Molineux

ruling deprived him of due process and a fair trial is denied.

On direct appeal, Petitioner argued that the trial

court’s Molineux ruling permitting evidence and testimony

regarding his 1998 Staples robbery conviction, and alterations

made to his Chevrolet Lumina, denied him his right to a fair trial.

(See Appellant. Br., at 32-36.) The Appellate Division ruled that

“[e]vidence of the defendant’s conviction arising from his

involvement in the ‘1998 Staples case’ was properly admitted to

establish his identity as the perpetrator of the instant crime.”9

Gousse, 43 A.D. 3d at 958 (citations omitted). Petitioner has

failed to demonstrate that the Appellate Division’s ruling was

contrary to, or an unreasonable application of, federal or Supreme

Court law, or that it was based on an unreasonable determination

of the facts in light of the evidence before the state court.

Pursuant to New York State law, evidence of prior bad

acts by a criminal defendant is admissible “to prove the specific

crime charged when it tends to establish (1) motive; (2) intent;

(3) the absence of mistake or accident; (4) a common scheme or

plan . . . ; (5) the identity of the person charged with the

commission of the crime on trial.” People v. Molineux, 168 N.Y.

264, 293 (1901). As a general matter, the admissibility of

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

9 The Appellate Division decision only references Petitioner’s

1998 robbery conviction and does not reference Petitioner’s

Chevrolet Lumina argument. Gousse, 43 A.D. 3d at 958.

Arguably, however, the Appellate Division found the claim

without merit as it affirmed Petitioner’s conviction. See id.

Thus, the Court could reasonably apply either AEDPA deference or

de novo review, but here it makes no difference as Petitioner’s

claim is without merit.

therefore not subject to habeas relief, barring a showing that

Petitioner’s due process rights were denied such that he was

deprived a fundamentally fair trial. See Estelle v. McGuire, 502

U.S. 62, 75, 112 S. Ct. 475, 483-84, 116 L. Ed. 2d 385 (1991).

More specifically, “[a] habeas claim asserting a right to relief

on Molineux grounds must rise to the level of constitutional

violation . . . because Molineux is a state law issue.” Roldan v.

Artuz, 78 F. Supp. 2d 260, 276–77 (S.D.N.Y. 2000) (citations

omitted).

“The first step in this analysis is to determine whether

the state court decision violated a state evidentiary rule, because

the proper application of a presumptively constitutional state

evidentiary rule would not be unconstitutional.” Green v. Herbert,

No. 01-CV-1881, 2002 WL 1587133 at *12 (S.D.N.Y. July 18, 2002)

(citation omitted); see also Jones v. Stinson, 94 F. Supp. 2d 370,

391–92 (E.D.N.Y).

The trial court ruled, prior to trial, that the

prosecution was permitted to present evidence and testimony

regarding the 1998 Staples Robbery and the Chevrolet Lumina and

Mercedes Benz vehicles, as each were relevant to proving identity.

(Tr. 51:8-53:24; 73:17-19.) Pursuant to this ruling, the

prosecution read the trial transcript of Petitioner’s testimony

regarding the 1998 Staples robbery into the record, and presented

testimony from Detective Joseph Bello and Frank Kassel, who each

examined the Chevrolet Lumina. (Tr. 902:3-914:19; see generally

735:1-743:4, 941:1-951:18.) Both the 1998 Staples robbery

transcript and testimony regarding the Chevrolet Lumina

demonstrated similarities relevant and probative to Petitioner’s

identity pursuant to Molineux.

The trial court’s ruling with respect to Petitioner’s

prior bad acts clearly fell within permissible Molineux evidence.

The 1998 Staples robbery and Petitioner’s Chevrolet Lumina

established that Petitioner had a unique pattern, or modus

operandi, which demonstrated his identity as the perpetrator.

Additionally, the similarities between the 1998 Staples robbery

and the facts surrounding Gottlieb’s murder helped demonstrate

Petitioner’s intent and supported the prosecution’s theory that

Petitioner attempted to rob Gottlieb. As such, the trial court’s

ruling was within the limits proscribed by Molineux and state law,

and Petitioner has not shown that the trial court’s Molineux ruling

violated his right to a fair trial.

Therefore, Petitioner’s Molineux claim is denied.

F. Sandoval Claim

Petitioner also claims that the trial court’s Sandoval

ruling violated his constitutional right to a fair trial.

Petitioner brought this claim before the Appellate Division, which

held that “the [trial] court properly exercised its discretion

with respect to its various Sandoval rulings.” Gousse, 43 A.D.3d

at 958 (citations omitted). As such, the Court applies AEDPA

deference to the Appellate Division’s decision and finds that

Petitioner’s claim fails on the merits.

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

barring habeas relief for allegedly erroneous Sandoval rulings in

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

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

v. Senowski, No. 00-CV-2865, 2000 WL 1683448, at *6 (S.D.N.Y.

Nov. 9, 2000)) (ellipsis in original); see also Reid v. Miller,

No. 02-CV-2895, 2003 WL 22383097, at *5 (S.D.N.Y. Oct. 20,

2003) (“It is well established that in order to raise a claim for

improper impeachment with a prior conviction, the defendant must

testify at trial.”) (citation omitted).

Here, the prosecution made an application to the trial

court seeking to question Petitioner, should he testify, about

four prior robbery convictions, including the 1998 Staples robbery

that was the subject of the Molineux application. (See generally

Tr. 55:2-59:1.) The trial court held that should Petitioner

testify, which he did not, the prosecution could cross-examine him

regarding the underlying facts of the 1998 Staples robbery, and

the existence of one other robbery conviction. (See generally Tr.

61:18-63:1.) The trial court would not allow the prosecution to

cross-examine Petitioner as to the other two robbery convictions.

(See generally Tr. 61:18-63:1.) Where, as here, the petitioner

does not testify, “a court has ‘no adequate non-speculative basis

upon which to assess the merits of that claim.’” Sorrentino v.

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

(quoting Shannon, 2000 WL 1683448, at *6). In any event, the

ruling was within the trial court’s discretion. People v.

Sandoval, 34 N.Y. d 371, 373, 357 N.Y.S. 849, 852, 314 N.E. 2d 413

(1974).

As such, Petitioner’s Sandoval claim is denied.

G. Ineffective Assistance of Appellate Counsel Claim

Finally, Petitioner asserts that he was deprived of

effective assistance of appellate counsel. Petitioner alleges

that appellate counsel failed to raise the following arguments on

direct appeal: (1) that the prosecution committed prosecutorial

misconduct by making improper summation comments; (2) that the

prosecution knowingly failed to correct false testimony, and

referred to such testimony during summation; (3) that the

prosecution violated Brady by withholding photographs of Chambers’

vehicle; (4) that the trial court erred by allowing a gun into

evidence that was not the actual murder weapon; and (5) that trial

counsel was ineffective for various failures. (Pet., ECF pp. 4,

6-7, 15.) As discussed below, all of Petitioner’s claims are

denied.

Ineffective assistance of appellate counsel claims are

evaluated using the same framework established by the Supreme Court

in Strickland. See Mayo, 13 F.3d at 533 (citing Strickland, 466

U.S. at 688, 104 S. Ct. at 2064); Mabee v. Phillips, No. 05-CV-

4182, 2009 WL 3644077, at *5 (S.D.N.Y. Nov. 4, 2009). To show

“that appellate counsel’s failure to raise a state claim

constitutes deficient performance, it is not sufficient for the

habeas petitioner to show merely that counsel omitted a

nonfrivolous argument, for counsel does not have a duty to advance

every nonfrivolous argument that could be made.” Mayo, 13 F.3d at

533. Rather, a petitioner can only “establish constitutionally

inadequate performance if he shows that counsel omitted

significant and obvious issues while pursuing issues that were

clearly and significantly weaker.” Id.

Additionally, in Jones v. Barnes, the Supreme Court

stated that it is up to the professional judgment of counsel to

determine which points to argue and recognized the importance of

“winnowing out weaker arguments on appeal and focusing on one

central issue, if possible, or at most on a few key issues.”

Jones, 463 U.S. at 751-52, 103 S. Ct. at 3312-13.

Petitioner raised all these claims in his seven motions

for writ of error coram nobis. After each motion for writ of error

coram nobis, the Appellate Division denied Petitioner’s motions

and ruled that Petitioner had “failed to establish that he was

denied the effective assistance of appellate counsel.” See Gousse,

71 A.D. 3d at 1159, 896 N.Y.S. 2d at 915; Gousse, 98 A.D. 3d at

584, 949 N.Y.S. 2d at 633; Gousse, 110 A.D. 3d at 1100, 974 N.Y.S.

2d at 260; Gousse, 123 A.D. 3d at 848, 996 N.Y.S. 2d at 533;

Gousse, 13 A.D. 3d at 955, 20 N.Y.S. 3d at 901; Gousse, 147 A.D.

d at 974, 46 N.Y.S. 2d at 800; Gousse, 156 A.D. 3d at 815, 65

N.Y.S. 3d at 793. The Court does not find that the Appellate

Division’s rulings are contrary to, or an unreasonable application

of, Strickland or Jones, nor are they based on an unreasonable

determination of the facts in light of the evidence before the

state court.

Accordingly, and as discussed in detail below, all of

Petitioner’s claims for ineffective assistance of appellate

counsel are denied.

1. Prosecution Misconduct Claims

Petitioner argues that appellate counsel failed to argue

that the prosecution committed three acts of misconduct: (1) the

prosecutor made improper summation comments; (2) the prosecution

failed to correct false testimony and referred to such testimony

during summation; and (3) the prosecution violated Brady by

withholding photographs of Chambers vehicle. (Pet., ECF pp. 6-

8.) Petitioner argues that by failing to bring these claims on

direct appeal, he was denied effective assistance of appellate

counsel. For the foregoing reasons, Petitioner’s claims are

denied.

As discussed supra at 38-39, the prosecutor’s comments

regarding both Det. McHugh’s testimony regarding Chambers’ alibi

and the underlying facts of Petitioner’s 1998 Staples robbery

constituted proper summation commentary.

Petitioner’s claim that the prosecutor failed to

correct, and improperly relied on, Det. McHugh’s false testimony

regarding Chambers’ alibi is similarly without merit. The evidence

does not demonstrate that Det. McHugh committed perjury when he

testified about Chambers’ alibi. As such, the prosecution was not

obligated to correct testimony that was not false. Further, the

prosecution was permitted to rely on the testimony to rebut the

defense’s third-party culpability theory.

Additionally, and as discussed supra at 39-45,

Petitioner’s Brady claim is similarly without merit. As such, the

state court’s ruling that appellate counsel was not ineffective

for failing to raise the Brady claim with respect to the

photographs of Chambers’ vehicle was not contrary to, or an

unreasonable application of, Supreme Court or federal law.

Accordingly, Petitioner’s claims that appellate counsel

was ineffective for failure to raise claims regarding

prosecutorial misconduct are without merit, and are denied.

2. Fair Trial Claims

Petitioner argues that the trial court erred by: (1)

directing that Petitioner’s legs be shackled; and (2) admitting a

gun that was not the murder weapon into evidence for demonstrative

purposes. (Pet., ECF pp. 5-7.) In doing so, Petitioner argues

that the trial court denied him his right to a fair trial, and

thus appellate counsel was ineffective for failing to raise these

two arguments on direct appeal. (Pet., ECF pp. 5-7.) Petitioner’s

claims fail for the following reasons.

At trial, if a defendant is visibly shackled, or if the

jury becomes aware that the defendant is shackled, the defendant’s

right to a fair trial may be violated. Deck v. Missouri, 544 U.S.

622, 626, 633-34, 125 S. Ct. 2007, 2014-15, 161 L. Ed. 2d 953

(2005). However, shackling may be unavoidable in certain

situations, and, as such, there is a “need to give trial courts

latitude in making individualized security determinations.” Deck,

544 U.S. at 632, 125 S. Ct. at 2014. “The court must impose no

greater restraints than are necessary, and it must take steps to

minimize the prejudice resulting from the presence of the

restraints.” Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995)

(citing Lemons v. Skidmore, 985 F.2d 354, 356–59 (7th Cir. 1993)).

Here, the trial court referenced two prior incidents of

Petitioner attempting escape as justification for shackling his

legs during trial, which Petitioner indicated to the court that he

understood. (Tr. 64:7-12.) It is also evident that the trial

court took precautions to prevent the jury from seeing that

Petitioner was shackled. (Tr. 1072:18-22.) Because the trial

court was justified in shackling Petitioner’s legs during the

pendency of the trial and took steps to ensure that he was not

prejudiced as a result, Petitioner’s shackling claim lacks merit.

Accordingly, appellate counsel was not ineffective for failing to

raise the argument on direct appeal.

Petitioner’s demonstrative evidence claim also fails.

The admissibility of evidence in state court is wholly a matter of

state law and is therefore not subject to habeas relief, barring

a showing that Petitioner’s due process rights were denied such

that he was deprived a fundamentally fair trial. See Estelle, 502

U.S. at 75, 112 S. Ct. at 483-84. Here, Petitioner does not

establish that he was denied a fair trial when the trial court

admitted a gun as demonstrative evidence only as he does not argue

how he was prejudiced.

Accordingly, Petitioner’s claims that appellate

counsel was ineffective for failure to argue fair trial claims are

denied.

3. Ineffective Assistance of Trial Counsel Claims

Here, Petitioner’s reasserts his ineffective assistance

of trial counsel claims, as discussed supra at 26-39, including:

(1) failure to obtain photographs of Chambers’ vehicle; (2) failure

to impeach Detective McHugh; (3) failure to request a limiting

instruction as to Molineux material; (4) failure to object to

improper jury instructions regarding Molineux evidence; and (5)

failure to object to improper comments made during the prosecution

summation. (Pet., ECF p. 8.) For the reasons stated herein,

Petitioner’s claims that trial counsel was ineffective are without

merit, and, as such, appellate counsel was not ineffective for

failing to raise these claims on direct appeal.

Petitioner further claims that appellate counsel was

ineffective for not addressing the additional failures of trial

counsel on direct appeal: (1) failure to make a detailed motion

for a trial order of dismissal; (2) failure to object to a

photocopy of Petitioner’s credit card being admitted into evidence

in violation of the best evidence rule; (3) failure to object to

Petitioner’s legs being shackled; and (4) failure to argue that

the trial court erred by precluding defense counsel from cross-

examining Detective Carroll regarding Chambers. (Pet., ECF pp. 5-

7, 15.)

Petitioner’s claim regarding trial counsel’s failure to

state a specific ground for his Criminal Procedure Law 290.10 trial

order of dismissal motion is without merit. It is another example

of a decision by trial counsel that falls within the gambit of

strategic decisions. See Broxmeyer, 661 F. App’x at 748; Cohen,

427 F.3d at 170. Therefore, the Appellate Division did not

unreasonably apply the Strickland standard here, where appellate

counsel was likely to fail by advancing arguments based in trial

counsel’s strategy. Thus, Petitioner’s claim has no merit.

Likewise, Petitioner’s argument that trial counsel

failed to object on the grounds of the best evidence rule also

fails. In addition to being a strategic decision when to object,

the claim itself is without merit. Even if admitting a photocopy

of Petitioner’s credit card rather than his actual credit card was

in error, the error was not of constitutional dimension warranting

habeas relief. See, e.g., Lyons v. Girdich, No. 02-CV-3117, 2003

WL 22956991, at * 12 (E.D.N.Y. Oct.15, 2003) (alleged violations

of the best evidence rule are evidentiary issues involving state

law and are not federal constitutional questions appropriate

for habeas review). Thus, Petitioner’s claim is denied.

Petitioner’s claim regarding cross-examining Detective

Carroll clearly has no merit, and thus appellate counsel was not

ineffective for failure to argue such a frivolous claim.

Petitioner’s claim is premised on the fact that the trial court

precluded defense counsel from cross-examining Detective Carroll.

However, as discussed supra at 12-13, n.4, that is not the case.

After the trial court rendered its decision, the parties agreed to

a stipulation rather than recalling Detective Carroll. Thus,

Petitioner’s claim is without merit and it is denied.

Last, Petitioner’s claim that appellate counsel was

ineffective for failing to argue that trial counsel was ineffective

for failing to object to Petitioner’s leg shackling is also without

merit. Here, the trial court did not err, or deny Petitioner’s

right to a fair trial, by directing his legs to be shackled during

the criminal trial. As such, Petitioner is unable to demonstrate

that he was prejudiced as a result, and thus his claim is denied.

Accordingly, Petitioner’s ineffective assistance of

appellate counsel claim is denied in its entirety.

CONCLUSION

Petitioner’s petition for a writ of habeas corpus

(D.E. 1) is DENIED. The Court declines to issue a certificate of

appealability because the Petitioner has not made a substantial

showing that he was denied a constitutional right. See 28 U.S.C.

§ 2253(c)(2). The Clerk of the Court is respectfully directed to

close this case.

SO ORDERED.

/s/ JOANNA SEYBERT______

JOANNA SEYBERT, U.S.D.J.

Dated: July 29 , 2020

Central Islip, New York