Allen v. Graham

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CARL ALLEN,

Petitioner,

MEMORANDUM & ORDER

-against-

16-cv-1285(KAM)(LB)

HAROLD GRAHAM, SUPERINTENDENT OF

AUBURN CORRECTIONAL FACILITY;

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

On March 9, 2016, pro se petitioner Carl Allen

(“petitioner”) filed a petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254, in the United States District

Court for the Eastern District of New York, challenging his

November 2, 2012 conviction in the Supreme Court, Richmond

County, on one count of murder in the second degree. (See ECF

No. 1, Petition for Writ of Habeas Corpus (“Pet.”).) For the

reasons set forth below, the court finds petitioner’s claims are

without merit, and denies and dismisses his petition.

Background

I. 1999 Murder of Ms. Ortiz

Petitioner’s November 2, 2012 conviction stemmed from

the murder of Noemi Ortiz (“Ms. Ortiz”). (Pet. at 1.) On

September 4, 1999, Ms. Ortiz’s boyfriend, Eric Donaldson

(“Donaldson”), found Ms. Ortiz dead in her apartment, at 73 Wave

Street, Staten Island, New York, lying on the floor between her

living room and bedroom. (ECF No. 10-5, People v. Allen,

Indictment No. 390/2010 (Richmond County Crim. Ct.), Trial

Transcript (“Trial Tr.”), at 83:8,14-17,20-22.)1 Ortiz had

suffered several blunt force injuries to her head, neck, torso,

and extremities, as well as numerous stab wounds to her neck and

the right side of her head. (Id. at 600:10-12.) Large amounts

of blood were found throughout the bedroom, on the walls,

blinds, bedding, sheets, comforter, and doorknob; in addition,

there were teeth on the floor and bloody palm prints on the

walls. (Id. at 301:8-25.) The officers who arrived at the

scene also discovered a blood-covered, green, plastic-coated

dumbbell (Id. at 290:22-25), which, during the September 5, 1999

autopsy, the medical examiner determined to be the weapon used

to inflict blunt force trauma to Ms. Ortiz. (Id. at 604:21-24.)

During the autopsy, the medical examiner also collected rape kit

evidence from Ms. Ortiz’s body, and the swabs tested positive

1 The caption “Trial Tr.” refers to the criminal trial proceedings in

People v. Allen, dated October 16 through November 2, 2012. The trial

transcripts are available at ECF Nos. 10-5 through ECF No. 10-16, and

correspond to the trial dates as follows: ECF No. 10-5, ECF pp. 1-138(October

16); ECF No. 10-6, pp. 139-247(October 17); ECF No. 10-7, ECF pp. 248-338

(October 18); ECF No. 10-8, ECF pp. 339-448 (October 19); ECF No. 10-9, ECF

pp. 449-543 (October 22); ECF No. 10-10, ECF pp. 544-641 (October 23); ECF

No. 10-11, ECF pp. 642-738(October 24); ECF No. 10-12, ECF pp. 739-880

(October 25); ECF No. 10-13, ECF pp. 881-948 (October 26); ECF No. 10-14, ECF

pp. 949-953 (October 31); ECF No. 10-15, ECF pp. 954-971 (November 1); ECF

No. 10-16, ECF pp. 972-980 (November 2). Citations to the trial proceedings

from October 16 through November 2 correspond to the transcript pagination (1

to 980).

for semen. (See ECF No. 6-10, State Court Record, Attachments

to Opposition to Motion to Dismiss (“Attachments”), at 11; Trial

Tr. at 668-670.)2 The cause of death was found to be homicide.

(Attachments at 49, 57; Trial Tr. at 610:11.)

Following the autopsy, an officer from the Crime Scene

Unit returned to Ms. Ortiz’s apartment and recovered the

dumbbell. (Id. at 306:19-25.) Additionally, the Crime Scene

Unit recovered the aforementioned bloody palm prints by cutting

the sheetrock of the prints out of the walls as well as the

blood-covered doorknob. (Id. at 308: 17-23.)

Around the same time, a NYPD criminalist tested

several items found in Ms. Ortiz’s apartment for readable

prints: a manila envelope, a plastic rotisserie chicken

container, the doorknob, the dumbbell, a mop, a bleach

container, a light switch, and the two pieces of sheetrock.

(Trial Tr. at 459:22-25; 460:11-12; 461:5-6, 12-19, 20-21;

462:19-25; 464:5-7, 21-23; 465:1-3, 6-9; 466-467.) The

criminalist visually examined each item, looking for ridge

details in the prints that could be compared and identified.

(Id. at 24-27.) She photographed any visible prints she

determined to be “potentially of value” and sent them to NYPD

property clerk’s office for a secondary evaluation. (Id.)

2 The caption “Attachments” refers to the attachments to the government’s

opposition to petitioner’s motion to dismiss, available at ECF No. 6-10.

Citations to the record correspond to the transcript pagination (1 to 57).

In addition, Detective Michael McLoughlin assisted

with the ongoing investigation by taking palm prints of more

than 30 suspected individuals. (Trial Tr. at 272:17-22; 274:9-

18.) Detective McLoughlin testified that on September 11, 1999,

he and another detective met with and questioned petitioner

regarding Ms. Ortiz’s murder and whether he owed Ms. Ortiz

money; petitioner denied both having a romantic relationship

with Ms. Ortiz and owing her money. (Id. at 29-31; see also

Attachments at 53-54.) The detectives then asked petitioner to

accompany them to the precinct so they could obtain a set of

petitioner’s palm prints from him. (Attachments at 53.)

Petitioner stated that he was preparing dinner for his children

and would need to find a babysitter, but he would be happy to

meet the detectives at the precinct in an hour. (Id.)

Petitioner failed to arrive at the precinct at the designated

time. (Id.) The detectives called petitioner’s residence, and

an unidentified female informed them that petitioner had left

the residence and would not be going to the precinct. (Id.)

Detective McLoughlin made numerous attempts to reach

petitioner through his beeper and, after approximately two

hours, the detectives received a call from petitioner, who

stated that he would not be coming to the precinct that evening.

(Id. at 54). Petitioner informed the detectives that he

retained legal counsel, and would be coming in with said counsel

on Monday, September 13, 1999, to be interviewed and

fingerprinted. (Id.) Petitioner did not show up to the

precinct as he had indicated. (See ECF No. 6-9, Government’s

Opposition to Motion to Dismiss, (“Opp. to Mot. to Dismiss”), at

13; see also ECF No. 6-8, Petitioner’s Motion to Dismiss (“Pet.

Speedy Trial Mot.”), at 17.)

The investigation continued, but the police could not

find petitioner after their September 11, 1999 correspondence

and interactions. (See Attachments at 54; Opp. to Mot. to

Dismiss at 13.) Between October 1999 and November 2001, the

police ran US postal checks, DMV checks, and arrest reports in

an effort to locate petitioner, which were unsuccessful. (Id.;

see also Attachments at 21-27.)

II. Petitioner’s 2003 Arrest and Release

On April 25, 2003, petitioner was arrested on

unrelated rape charges. (ECF No. 5, People’s Affidavit in

Opposition to Writ of Habeas Corpus (“Aff. in Opp.”) ¶ 6; Pet.

Speedy Trial Mot. at 17.) In connection with that arrest,

petitioner’s palm prints were taken and submitted for comparison

with an unidentified bloody palm print from the Ortiz murder

scene. (See Opp. to Mot. to Dismiss at 14.) Later that day,

the relevant police squad was informed that petitioner’s palm

prints matched the bloody palm print from the Ortiz murder

scene. (See id.; see also Attachments at 49, 55.)

Petitioner was arrested for Ms. Ortiz’s murder on the

same day. (See Opp. to Mot. to Dismiss at 14.) The detectives

read petitioner his Miranda rights, which petitioner voluntarily

waived, and petitioner was then interviewed by the detectives.

(See Attachments at 55-56.) Petitioner admitted to knowing Ms.

Ortiz, but he refused to provide any other information to the

detectives. (See id. at 53-54.) Respondent asserts that, after

petitioner’s arrest, the assigned assistant district attorney

(“ADA”) reviewed the casefile and saw that the print on the

dumbbell was still unidentified. (See Opp. to Mot. to Dismiss

at 15.) As such, the ADA decided not to proceed with the murder

charges against petitioner and, instead, to develop more

evidence or identify the dumbbell print. (Id.)

On May 1, 2003, petitioner was released on the

homicide case docket pending in Richmond County Criminal Court;

however, petitioner remained incarcerated for the unrelated

later rape charge. (Id.) Later in May 2003, the murder case

was waived to the Grand Jury, and there were no court

appearances until 2010. (See id. at 15-16; see also Pet. Speedy

Trial Mot. at 17.) On August 14, 2003, petitioner pled guilty

in the rape case, and, on September 9, 2003, petitioner was

sentenced to a one-year term of imprisonment. (See Opp. to Mot.

to Dismiss at 16.)

III. Interim Investigation

On May 8, 2003, respondent obtained an order for

petitioner’s DNA to be tested and compared to evidence collected

from Ms. Ortiz’s rape kit. (Opp. to Mot. to Dismiss at 17.) On

July 15, 2003, a DNA report revealed a match between

petitioner’s sample and the semen sample obtained from Ms.

Ortiz’s autopsy. (See Attachments at 5-9.) In late 2004, an

ADA from the Richmond County DA’s office requested a crime

reconstruction in the case from the Forensic Analysis and

Reconstruction Unit (“FARU”). (Id. at 46.) The unit reviewed

various NYPD reports, DNA reports, autopsy reports, and

photographs of the crime scene. (Id.) On January 3, 2005, FARU

issued a report, which noted that the palm print on the wall was

consistent with petitioner’s palm print, but it could not be

determined if the particular print was made before or after the

blood had spattered on the wall. (Id.)

In 2006, a new ADA was assigned to the case. (Opp. to

Mot. to Dismiss at 19-20.) The ADA contacted the NYPD Cold Case

Squad for assistance with the investigation and met with a

detective from that squad on May 4, 2007 to discuss the case.

(Id. at 20-21.) On May 8 and June 30, 2007, the detective made

requests to compare the unidentified dumbbell print with the

prints of the mother of petitioner’s children and the

petitioner’s girlfriend, respectively. (See id. at 21; see also

Attachments at 28-29.)

In August 2007, the ADA worked with two detectives of

the NYPD Major Case Print Lab regarding the Ortiz case. (Opp.

to Mot. to Dismiss at 21.) One of the detectives determined the

dumbbell print to be of “no value” and informed the ADA that

although an NYPD print report had initially listed the dumbbell

print as being “of value,” said designation was only a

criminalist’s preliminary determination and could be reversed.

(See id.; see also Trial Tr. at 538:7-8, 20-23; 539:11-21;

540:16-24.)

The cold case detective made unsuccessful efforts

throughout September and October 2007 to locate petitioner,

including visiting petitioner’s registered address and his place

of employment. (See Attachments 30-42.) On October 3, 2007,

the ADA and cold case detective met with the print lab detective

to discuss his finding of “no value” for the dumbbell print and

the print’s unreadability. (Opp. to Mot. to Dismiss at 24-25.)

Of the prints initially determined to be “potentially of value”

by the 1999 criminalist, the print lab detective found several

to actually be “no value” — the manila envelope, the doorknob,

the dumbbell — and two “of value,” but identified as Ortiz’s —

the plastic rotisserie chicken container and the headboard.

(Trial Tr. at 584-87.) The print lab also informed the ADA that

there was a second palm print from the crime scene that had not

yet been examined. (See Opp. to Mot. to Dismiss at 25.) The

ADA requested a comparison of the unexamined palm print with all

known prints and, several days later, the print was identified

as belonging to petitioner. (Id.; see also Attachments at 52.)

Throughout 2008, the cold case detective located, met,

and interviewed various individuals associated with the case.

(See Opp. to Mot. to Dismiss at 26.) In August 2009, the ADA

retained an independent forensic fingerprint analyst to re-

examine the case prints. (See id. at 26-27.) The analyst’s

report was completed on January 29, 2010, and it confirmed the

NYPD lab’s finding that both bloody palm prints matched the

petitioner’s prints and that the dumbbell print was insufficient

to identify an individual and was therefore of “no value.”

(Attachments at 43-44.)

IV. Criminal Proceedings

A. Indictment

The DA’s office decided to proceed with the murder

charges and on December 2, 2010, petitioner was indicted by a

Grand Jury for Murder in the Second Degree (N.Y. Penal Law §

125.25(1)). (See Pet. Speedy Trial Mot. at 17-18.)

B. Motion to Dismiss

On March 30, 2011, petitioner filed an omnibus motion

seeking, inter alia, dismissal of the indictment on speedy trial

and due process grounds. (See generally Pet. Speedy Trial Mot.;

Aff. in Opp. ¶ 11.) Petitioner’s due process claim focused on

the delay between the 1999 crime and 2003 arrest. (Id.) The

speedy trial claim was directed at the delay between the 2003

arrest and the indictment in 2010. (Id.) By Decision and Order

dated June 23, 2011, Justice Leonard P. Rienzi denied

petitioner’s motion on the grounds that the seriousness of the

murder weighed against dismissal, and that the State had

satisfied its burden of proof by showing that any delays were

made in “good faith.” (ECF No. 6-11, Decision and Order from

Justice Rienzi, Richmond County, Supreme Court (“Rienzi Order”),

at 1.) In denying the motion, Justice Rienzi also noted that

petitioner had only been incarcerated for six days, concurrent

with his incarceration for an unrelated rape case, and that

petitioner’s claimed prejudice resulting from the delays was

unsubstantiated. (Id.)

C. Jury Selection

Jury selection began on October 10, 2012. (ECF. No

10-1, Pre-Trial Proceedings and Jury Selection (“Voir Dire”), at

28-85.)3 On October 11, 2012, a clerk brought to Justice Robert

3 The caption “Voir Dire,” refers to the transcript for pre-trial proceedings

and jury selection, which took place beginning October 10 through October 15,

2012. Jury Selection transcripts are available at ECF No. 10-1, ECF pp. 1-85

Collini’s attention that a December 7, 2010 article about

petitioner and Ms. Ortiz’s murder, which had been reprinted from

the internet and indicated an AOL screen name on the bottom, had

been found on a table in Central Jury. (Voir Dire at 91-109,

110-11.) Petitioner’s counsel moved to dismiss the panel on the

basis that the article was prejudicial because it included

information about the details of the case and petitioner’s prior

rape conviction. (See id. at 111:20-25, 112.) Petitioner’s

counsel argued that no juror would admit to reading it for fear

of punishment. (Id.; Aff. in Opp. ¶ 25.)

Justice Collini inquired about the screen name, and

one prospective juror, Margaret McInery, admitted it was hers.

(Id. at 115:12-25, 116-17.) She was questioned outside the

presence of the other prospective jurors, and she admitted she

had come across the article when researching a witness named at

the beginning of jury selection. (Id. at 115.) She admitted

reading the article, but she denied showing it to or discussing

it with other prospective jurors. (Id. at 116-17.) She

acknowledged that having read the article would affect her

ability to be fair and impartial in the case. (Id. at 117:6-8.)

(October 10), ECF No. 10-2, ECF pp. 86-166 (October 11), ECF No. 10-3, ECF

pp. 167-314 (October 12), ECF No. 10-4, ECF pp. 315-372 (October 15).

Justice Collini excused Mrs. McInery from the panel. (Id. at

117:9-10.)

The court then consulted with the parties and settled

on two questions to ask the prospective jurors: (1) “whether or

not anybody in this room has discussed this case today with [the

aforementioned juror];” and (2) whether anyone “has [] done any

internet research or read any internet articles about this case

or done any investigation with respect to any of the parties on

the internet or anywhere else with respect to this case.” (Id.

at 120:5-10, 121:3-6.) Five prospective jurors who indicated

that they had done one of the two were asked to stay, and the

court temporarily dismissed the rest of the panel from the room.

(Id. at 121-22.)

Only one prospective juror, Alan Crecca, admitted to

reading the article, but stated that it would not affect his

ability to be fair and impartial in deciding the case. (Id. at

122:8-12, 13-16.) Mr. Crecca later returned to the courtroom to

say that he would not be able to put the article out of his mind

to fairly and impartially decide the case. (Id. at 136:4-15.)

He was excused from the panel. (Id. at 136:16.)

Another prospective juror admitted he had done some

internet research on his own, but he had not been able to find

any articles. (Id. at 122:25, 123:1-6.) He was dismissed to

join the rest of the panel. (Id. at 123:25, 124:1-4.) A third

prospective juror explained that she worked for the Staten

Island Advance, the publication that had published the article

and remembered that articles had been written about the case,

and was also excused from the panel. (Id. at 124-126.)

A fourth prospective juror was excused because he knew

of the case when it occurred in 1999, and had done internet

research on the case during the previous night, and admitted

that he would be unable to fairly and impartially decide the

case. (Id. at 127-28.) Prospective juror Donna Lefkowitz

stated that she had not read any articles about the case and did

not use the computer at all. (Id.) Without further inquiry as

to whether she had spoken with Ms. McInery, the court dismissed

her from the room to join the panel. (Id. at 129; Aff. in Opp.

¶ 30.)

Another prospective juror, Marilyn Rubbo, stated that

though she had not read any articles or done any research, she

and two others had overheard Mrs. McInery talking in the jury

room. (Id.) Ms. Rubbo stated that “[Ms. McInery] just made one

statement that stuck in my head about the defendant.” (Id. at

129:23-24.) Nonetheless, Ms. Rubbo believed that she could put

the statement out of her mind and be impartial. (Id. at 130:1-

5.) Two other prospective jurors, Elena Startseva, and Leslie

Braggs, stated that they had heard Ms. McInery speak about the

case, but described it as “a brief talk,” and stated that they

would be able to fairly and impartially decide the case. (Id.

at 132-35; 134:16-18.)

Petitioner’s counsel sought a for-cause challenge for

Ms. Rubbo, which was granted on the basis of her difficulty

understanding the court’s inquiry as well as the length of time

that lapsed before she stated that she could be impartial. (Id.

at 139:17-23, 140:9-10; Aff. in Opp. ¶ 33.) Petitioner’s

counsel then renewed his request for the entire panel to be

dismissed. (Id. at 142-43.) The court denied the request on

the basis that the court’s inquiry was standard procedure and

sufficient. (Id.) The court returned the panel to the

courtroom and reiterated its inquiry of whether any jurors had

done any investigation into the case, to which no one responded.

(Id. at 143-44.)

During round two of jury selection, both Ms. Startseva

and Ms. Braggs were seated. (Id. at 168.) They both stated

that they could “keep an open mind” when listening to the

testimony, and taking defendant’s criminal convictions into

account. (Id. at 219:9-11.) The government challenged Ms.

Startseva for cause, on the grounds that she had a family member

with an arrest history, and she gave confusing answers. (Id. at

227.) Defense counsel opposed the government’s challenge, and

the court denied the challenge. (Id. at 228.) The State then

peremptorily challenged her. (Id. at 231.) Neither side

questioned nor peremptorily challenged the Ms. Braggs from the

trio. (Id. at 224-27, 232.) Jury selection ended on October

15, 2012, without the defense exhausting its peremptory

challenges. (Id. at 365.)

D. Verdict and Sentencing

After a ten-day trial, the murder charge was submitted

to the jury. (Trial Tr. at 911:6-11, 12-22.) On November 2,

2012, the jury found petitioner guilty of Murder in the Second

Degree, NY Penal Law § 125.25(1). (Id. at 976:24-25 - 978.) On

January 10, 2013, the court sentenced petitioner to 25 years to

life in prison. (ECF. No 10-17, Sentence Hearing, (“Hearing”)

at 16.)

V. Post-Conviction Proceedings

A. Direct Appeal

On March 16, 2015, petitioner, through his appellate

counsel Lynn W. L. Fahey, Esq., directly appealed his conviction

and sentence. (See ECF. No 6-1, Brief for Defendant-Appellant

(“Appellate Brief”).) Petitioner appealed on the basis that:

(1) he was denied due process of law and a speedy trial due to

the seven-year delay between his initial arrest and the

indictment; (2) he was denied his right to a fair and impartial

jury because the court did not dismiss the jury venire; and (3)

he was denied his right to effective assistance of counsel

because his counsel did not use a peremptory challenge to remove

one of the jurors. (Id.)

On December 2, 2015, the Appellate Division, Second

Department affirmed the trial court’s judgment of conviction.

See People v. Allen, 134 A.D.3d 730 (2d Dep’t 2015). The

Appellate Division found that, though there had been an

extensive delay, “the People met their burden of demonstrating

good cause for the delay.” Id. at 731. The Appellate Division

further noted that “defendant was incarcerated on this charge

for only six days before his indictment, which period was

concurrent with his incarceration on an unrelated charge, and

the defendant failed to demonstrate significant prejudice from

the delay.” Id. Lastly, the Appellate Division also found that

the trial court had “providently exercised its discretion” in

questioning the jurors about their potential exposure to the

news article, and the “defense counsel’s failure to exercise a

peremptory challenge . . . did not constitute ineffective

assistance of counsel.” Id.

On December 22, 2015, petitioner sought leave to

appeal to the New York Court of Appeals. On February 25, 2016,

the Court of Appeals denied petitioner’s application. People v.

Allen, 26 N.Y.3d 1107 (N.Y. 2016).

B. Petition for Habeas Relief

On March 9, 2016, petitioner, proceeding pro se, filed

the instant petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. (See generally Pet.)4 Petitioner asserts that

relief is warranted on the same grounds he raised in his direct

appeal, which were rejected by the Appellate Division: (1)

petitioner’s rights to due process and a speedy trial were

denied due to a seven-year delay between his arrest in 2003 and

his indictment in 2010; and (2) he was denied his right to a

fair and impartial jury due to the jury’s exposure to pretrial

publicity and consequently, the state trial court’s refusal to

dismiss the entire venire as a result; and (3) he was denied his

right to effective assistance of counsel due to his trial

defense counsel’s failure to peremptorily challenge a

prospective juror who had been exposed to pretrial publicity.

(See id. at 2.)

Petitioner requests an expedited ruling and

evidentiary hearing pursuant to 28 U.S.C. § 1657 and any other

appropriate relief. (Id.) Respondent filed his affidavit and

memorandum in opposition on June 3, 2016, (ECF No. 5, Aff. in

4 On November 15, 2013, pro se petitioner initially filed a petition in this

court, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Allen

v. Graham, No. 13-cv-6317 (KAM) 2013 WL 6244712, at *1 (E.D.N.Y. Dec. 2,

2013). Because petitioner’s direct appeal in the Appellate Division, Second

Department was pending at the time, the court dismissed the petition without

prejudice on the grounds that petitioner had not exhausted all of his state

remedies. Id. at 2.

Opp., and 5-1, Memorandum in Opposition (“Opp. Mem.”)) and

petitioner filed his reply on July 5, 2016. (ECF No. 7, Reply

(“Reply”).)

Standard of Review

A petition for a writ of habeas corpus filed by a

person in state custody is governed, inter alia, by the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

28 U.S.C. § 2254. Section 2254 provides that “a district court

shall entertain an application for a writ of habeas corpus

on behalf of a person in custody pursuant to the judgment of a

State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a).

The application shall not be granted to any claim

adjudicated on the merits in state court proceedings unless the

adjudication of the claim (1) “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States” or (2) “resulted in a decision that was based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

“Clearly established Federal law” is comprised of “the

holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.”

Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000). A 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 differently than [the Supreme Court] has on a set

of materially indistinguishable facts.” Williams, 529 U.S. at

413. In order to find that the state court’s adjudication

constituted “an unreasonable application of” a Supreme Court

holding, the district court must conclude that “the state court

identifie[d] the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applie[d] the

principle to the facts of the prisoner’s case.” Id.

“[T]his standard is difficult to meet ... because it

was meant to be.” Harrington v. Richter, 562 U.S. 86, 102

(2011). “[F]ederal habeas relief functions as a ‘guard against

extreme malfunctions in the state criminal justice systems,’ and

not as a means of error correction.” Greene v. Fisher, 565 U.S.

34, 43 (2011) (quoting Harrington, 562 U.S. at 102-03) (internal

quotations marks omitted).

In reviewing the instant petition, the court is

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

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(internal quotation marks and citations omitted); Williams v.

Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (noting that courts

should review pro se habeas petitions “with a lenient eye”).

Accordingly, the court is obliged to interpret petitioner's

pleadings as raising the strongest arguments they suggest.

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

United States, 834 F. Supp. 2d 115, 118 n.1 (E.D.N.Y. 2011)

(citing Williams, 722 F.2d at 1050).

Discussion

I. Denial of Rights to Due Process and a Speedy Trial

A. Speedy Trial

i. Legal Standard

The Sixth Amendment to the Constitution guarantees a

criminal defendant the right to speedy trial. U.S. Const.

amend. VI; see also Barker v. Wingo, 407 U.S. 514, 515 (1972).

The Supreme Court has identified four factors to guide a court's

determination when approaching speedy trial claims: (1) the

“[l]ength of the delay”; (2) “the reason for the delay”; (3)

“the defendant's assertion of his right”; and (4) “prejudice to

the defendant” from the delay. Barker, 407 U.S. at 530. No one

factor is “a necessary or sufficient condition to the finding of

a deprivation of the right of speedy trial.” Id. at 533.

Rather the factors “must be considered together with such other

circumstances as may be relevant,” and “courts must still engage

in a difficult and sensitive balancing process” to determine

whether the right has been violated. Id.

ii. Application

Petitioner asserts, as he did on direct appeal, he was

denied his right to a speedy trial due to the seven-year delay

between his 2003 arrest and his indictment in 2010. (Pet. at

3.) Petitioner largely bases this claim on a pre-trial motion

he filed during his criminal case in Richmond County Supreme

Court. (See Pet. Speedy Trial Mot.) He contends that the delay

was the result of the “police and prosecutors being negligent,

careless, and prejudicial towards the evidence and petitioner’s

constitutional rights.” (Reply at 2.) Respondent contends that

the Appellate Division “undertook [the requisite] sensitive

balancing process and rejected petitioner’s claim on the merits”

and “is therefore entitled to this Court’s deference.” (Opp.

Mem. at 12.)

For the reasons set forth below, the court finds that

the state court’s determination, that petitioner’s right to a

speedy trial was not violated, was neither contrary to, nor

involved an unreasonable application of, clearly established

federal law, nor did it entail an unreasonable determination of

the facts. 28 U.S.C. § 2254(d)(1)-(2); see also Kennaugh v.

Miller, 289 F.3d 36, 42 (2d Cir. 2002).

Upon deciding petitioner’s 2011 motion to dismiss,

Justice Rienzi applied New York’s prevailing Taranovich

balancing test for speedy trial violations, which includes: (1)

the extent of the delay; (2) the reasons for the delay; (3) the

nature of the underlying charge; (4) whether there has been an

extended period of pretrial incarceration; and (5) whether there

is any indication that the defense has been impaired by reason

of delay. People v. Vernace, 96 N.Y.2d 866, 887 (2001) (citing

People v. Taranovich, 37 N.Y.2d 442, 445 (1975)).

Although the Taranovich test and the Barker test are

not identically phrased, courts have noted that they are

essentially “identical.” See Gathers v. New York, No. 11-CV-

1684 (JG), 2012 WL 71844, at *12 (E.D.N.Y. Jan. 10, 2012)

(“Although the Taranovich factors and the Barker factors are not

identically phrased, they are essentially identical tests.”)

(internal citation omitted); Smith v. Maher, 468 F.Supp.2d 466,

474 (W.D.N.Y.2006) (“The Taranovich factors essentially mirror

the four-part inquiry outlined by the Supreme Court in Barker v.

Wingo to determine whether a defendant's speedy trial right had

been violated by prosecutorial delay ....”); see also Frazier v.

Czarnetsky, 439 F. Supp. 735, 736–37 (S.D.N.Y. 1977). Thus,

application of the Taranovich factors is not “‘contrary to’ the

federal law clearly established by Barker.” Gathers, 2012 WL

71844, at *12 (citing Garcia v. Annetts, No. 9:08–CV–0736 (LEK)

(RFT), 2011 WL 4810012, at *6 (N.D.N.Y. Sept. 1, 2011).

Nevertheless, the court independently reviews the state court

record and applies the relevant factors.

1. The Length of the Delay

“[T]he lower courts have generally found post-

accusation delay ‘presumptively prejudicial’ at least as it

approaches one year.” See Doggett v. United States, 505 U.S.

647, 652 n.1 (1992) (finding a delay of eight and a half years

was “presumptively prejudicial” and warranted relief). Though

respondent acknowledges that the seven-year delay here is

undeniably long, he argues that the “length does not, standing

alone, establish violation of the [speedy trial] right, in light

of the seriousness of the offense.” (Opp. Mem. at 13.) The

court agrees, but finds that close scrutiny of the other factors

is warranted. Doggett, 505 U.S. at 652.

Though “there is no precise formula for determining

what constitutes a presumptively prejudicial delay,” in the

present case, a lengthy pretrial delay is less likely to be

considered a violation of defendant’s Sixth Amendment right to a

speedy trial because petitioner was found guilty of the serious

crime of murder in the second degree. See Micolo v. New York,

No. 07-CV-0449 (JS), 2010 WL 3310721, at *8 (E.D.N.Y. Aug. 18,

2010); see also Barker, 407 U.S. at 531 (“[T]he delay that can

be tolerated for an ordinary street crime is considerably less

than for a serious, complex. . . charge.”). The seriousness of

the offense is further demonstrated by the fact that there is no

statute of limitations in New York for murder. See C.P.L. §

30.30(3) (the New York State Legislature excluded murder and

manslaughter from its statutory speedy trial requirements); see

also People v. Wiggins, 31 N.Y.3d 1, 11 (2018) (discussing the

inapplicability of CPL § 30.30 to a charge of murder in the

second degree). As such, the courts of the Second Circuit have

repeatedly held, in murder and manslaughter cases, that lengthy

delays do not violate a defendant’s speedy trial rights where

the prosecution has shown good cause for the delay and the

defendant has not suffered prejudice. See Rayborn v. Scully,

858 F.2d 84, 89 (2d Cir. 1988) (seven-year delay between arrest

and trial was not a speedy trial violation); see also Vernace,

96 N.Y.2d at 887-88 (finding defendant’s speedy trial rights

were not infringed because the People had established good cause

for seventeen-year preindictment delay in a double murder

prosecution); Decker v. Heath, No. 10-CV-03294 (NGG), 2012 WL

2374639, at *3-4 (E.D.N.Y. June 22, 2012) (finding a fifteen-

year delay between the indictment and the murder conviction did

not violate defendant’s right to a speedy trial); People v.

Keating, 183 A.D.3d 595, 161 (2d Dep’t 2020) (finding speedy

trial right was not violated because “while the lengthy delay is

relevant to the consideration of prejudice suffered by the

defendant from said delay, the defendant failed to demonstrate

specific impairment to his defense . . . and the nature of the

charge, murder in the second degree, was very serious”)

(internal quotations omitted).

Further, as respondent argues, there is no evidence

that the People had ulterior motives in delaying the prosecution

of Ms. Ortiz’s murder, and a lengthy delay “may also work

against the prosecution as the passage of time can make it more

difficult for the People to meet their burden of proof.” (Opp.

Mem. at 13 (citing People v. Decker, 13 N.Y.3d 12, 15 (2009);

see also United States v. Marion, 404 U.S. 307, 322 (1971)

(delay poses risk to defendant but “may also weaken the

Government’s case”).)

Thus, though the seven-year lengthy delay is

“presumptively prejudicial,” and requires consideration of the

other factors, it does not by itself demonstrate that

petitioner’s right to speedy trial was violated. Doggett, 505

U.S. at 652; Barker, 407 U.S. at 530-31.

2. Reasons for the Delay

“The second factor, the reason for the delay in

bringing the defendant to trial, asks [the court] to consider

whether the delay was deliberate, neutral, or valid.” United

States v. Black, 918 F.3d 243, 260 (2d Cir. 2019) (citing

Barker, 407 U.S. at 531). Furthermore, a “neutral delay ‘such

as negligence or overcrowded courts’ [is counted] against the

government because ‘the ultimate responsibility for such

circumstances must rest with the government rather than with the

defendant.’” Id. (quoting Barker, 407 U.S. at 531); see also

Doggett, 505 U.S. at 657 (“Although negligence is obviously to

be weighed more lightly than a deliberate intent to harm the

accused’s defense, it still falls on the wrong side of the

divide between acceptable and unacceptable reasons for delaying

a criminal prosecution once it has begun.”).

The court must review trial court determinations of

negligence with “considerable deference.” Doggett, 505 U.S. at

652. Here, Justice Rienzi found that there were “cogent

reasons” for the delay, and the Appellate Division affirmed this

finding as well. (Rienzi Order at 2; App. Div. Decision at 2.)

The court finds that the state courts’ determinations were not

“objectively unreasonable in light of the evidence presented in

the state-court proceeding,” see Miller-El v. Cockrell, 537 U.S.

322, 324 (2003), nor “manifestly contrary to common sense.”

Anderson v. Miller, 346 F.3d 315, 324 (2d Cir. 2003); see also

Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003) (accepting

finding of fact about reasons for delay in speedy trial

context); 28 U.S.C. § 2254(e)(1) (stating a state court's

determinations of fact shall be “presumed to be correct.”)

Petitioner points to several periods of inactivity in

the record,5 which allegedly belie respondent’s assertion that

“[t]he investigation was painstaking, but no less diligent” and,

if anything, indicates negligence in the substantial delay of

bringing petitioner to trial. (Reply at 3.) Asserting

respondent’s “inattentiveness” and misconduct, petitioner points

to: (1) the realization that the dumbbell print was not “of

value” in August 2007, despite it being in the State’s

possession as possible evidence since 1999; and (2) the second

set of wall prints being compared to petitioner’s prints for the

first time in 2007, despite it being in the State’s possession

as potential evidence since 1999. (Reply at 3-4.)

Justice Rienzi found that “the People acted in good

faith when they decided not to initially prosecute” because in

2003, “the People believed that the case was a ‘weak[]

circumstantial case’ because of the palm print on the dumbbell

(Rienzi Order at 6), and there was no evidence suggesting

5 Petitioner points to these periods of inactivity in the record: (1) June

2004 through early 2005; (2) early 2005, when the initial prosecutor

requested a lab report, through 2006; (3) 2006, when the new prosecutor was

assigned and ordered new documents, through 2007; and (4) May 4, 2007 when a

cold case detective picked up the NYPD case file from the basement of the 120

squad; (5) October 6, 2007 when the second palm print was analyzed for the

first time, and the prosecutor declared it “new evidence” when the police had

had this print since 1999; (6) February 2008 through later that year; (7) end

of 2008 through August 2009; (8) August 2009 when the independent

investigator was hired. (Reply at 3-4.)

petitioner’s involvement when the crime first occurred because

“neither his palm prints nor his DNA sample were on file.” (Id.

at 2.) As such, the People’s “investigation at that time could

not go further.” (Id.) On balance, the court agrees.

In an almost factually identical case, the Second

Department found that the “People acted in good faith in

deferring commencement of the prosecution until after they were

able to match the defendant's DNA profile with the one found on

some of the blood-stained items recovered from the crime scene.”

People v. Innab, 182 A.D.3d 142, 145 (2d Dep’t 2020). Though

defendant makes a similar argument that like in Innab, the

testing should have been done years earlier, “there is nothing

to suggest that such tests would have yielded any meaningful

information, as the defendant's own DNA profile was not

available to investigators for comparative purposes until it was

entered into CODIS” in 2003. (Id. at 146; Opp. to Mot. to

Dismiss at 14.)

In 2003, after petitioner’s palm prints were obtained

following his arrest for the unrelated rape charge, the People

did not immediately proceed with the murder case even though

petitioner’s palm prints “allegedly matched the bloody palm

prints from the wall.” (Rienzi Order at 6.) As noted in the

record, the 2003 latent print reports only reference one set of

prints—"One Sheet Rock (TS-9)”—and indicate that they tested

positively when compared against petitioner’s left palm print.

(Attachments at 51.) The later 2007 report indicates that the

latent prints matched with petitioner’s right palm print. (Id.

at 52.)

Respondent has conceded on appeal that “[w]ith the

benefit of hindsight, clearly, the NYPD Major Case Lab compared

one palm print, and after finding a match, simply stopped.”

(Appellate Brief at 35). However, the People had a good reason

for choosing not to proceed with an indictment -the prints did

not match the so-thought crucial “palm print on the dumbbell.”

(Rienzi Order at 6.) Even so, the government still called for

submission of additional suspect prints to test for comparison

to the existing crime scene prints, which demonstrates their

continued interest in pursuing the investigation. (Opp. Mem. at

17.) Accordingly, the court finds that the delays “were not the

result of a ‘deliberate attempt to delay the trial in order to

hamper the defense.’” Smith v. La Clair, 353 F. App’x 486, 488

(2d Cir. 2009) (quoting Barker, 407 U.S. at 531).

Petitioner also asserts that the FARU report from 2005

indicates respondent’s negligence because the ADA should have

realized then that only one palm print had been compared.

(Reply at 4.) As respondent points out, however, this only

confirmed the People’s assumption that the other prints remained

unidentified. (Opp. Mem. at 18.)

In Innab, the court found a pre-indictment delay of 28

years did not violate defendant’s speedy trial right due to the

serious nature of the charge, “the fact that the defendant

remained at liberty for over 28 years—except for brief periods

of incarceration on unrelated convictions—and the defendant's

failure to demonstrate undue prejudice arising from the delay. .

. .” Innab, 182 A.D.3d at 146. Likewise, here, the charge of

murder is very serious, and petitioner remained at liberty for

the entire seven-year delay period save for his “periods of

incarceration on unrelated convictions.” (Opp. to Mot. to

Dismiss at 14.)

What was necessary to implicate petitioner for

decedent’s murder was “a complex investigation . . . requir[ing]

examination of forensic evidence, expert opinion, and crime

scene reconstruction.” (Opp. Mem. at 13.) Between 2007 and

2010, new witness interviews were conducted, the petitioner was

relocated, and the prosecution retained an independent

fingerprint expert. (Opp. Mem. at 18.) As such, the instant

case was one in which “pretrial delay is often both inevitable

and wholly justifiable.” Doggett, 505 U.S. at 656; see also

United States v. Kurti, No. 11-CR-486 (DLI), 2013 WL 1663607, at

*5 (E.D.N.Y. Apr. 17, 2013) (finding good cause for the lengthy

delay “in light of the number of defendants, complexity and

number of charges in the indictment, ongoing plea negotiations,

and substantial amount and complexity of evidence.”).

For the aforementioned reasons, the court finds, on

balance, that the government has shown good cause for the delay.

3. Petitioner’s Assertion of His Speedy Trial Right

“The manner in which a defendant asserts

his speedy trial right—the third Barker factor—is ‘entitled to

strong evidentiary weight in determining whether the defendant

is being deprived of the right.’” United States v. Swinton, 797

F. App'x 589, 595 (2d Cir. 2019) (quoting Barker, 407 U.S. at

531-32) (summary order). The Second Circuit has stated the

“inquiry is a fluid one that concerns itself with whether the

government and the court were ‘put on notice’ that a defendant

has asserted his right to a speedy trial.” United States v.

Black, 918 F.3d 243, 263 (2d Cir. 2019) (quoting United States

v. New Buffalo Amusement Corp., 600 F.2d 368, 378 (2d Cir.

1979)).

Respondent asserts that “petitioner did not assert his

right to a speedy trial until March 30, 2011, well after the

complained-of delay [between 2003 and 2010] had ended.” (ECF

No. 5-1, Opp. Mem. at 19-20.) Moreover, respondent alleges that

petitioner was released with a pending felony complaint during

the seven-year delay and, further, “the prosecutor obtained an

order for permission to obtain a DNA sample from petitioner”

after petitioner was released from incarceration.6 (Id.)

Therefore, respondent contends the instant circumstances

indicate petitioner’s acquiescence to the delay and extenuate

the presumption of prejudice inherent in the delay. (Opp. Mem.

at 20 (citing Doggett, 505 U.S. at 658).)

Petitioner responds that he gave notice in 2003 that

he was not waiving his right to a speedy trial pursuant to CPL §

30.30. (Reply at 6, 11.)7 However, as discussed earlier, CPL

§ 30.30 is inapplicable to a charge of murder, and as such, the

petitioner’s express refusal to waive this right did not

establish nor assert the right to speedy trial. Wiggins, 31

N.Y.3d at 11. Petitioner even conceded this point earlier in

his reply brief. (Reply at 1.)8

6 Petitioner disagrees with respondents’ claim that petitioner’s DNA was

obtained after his release from incarceration. The discrepancy appears to be

based on the fact that the DNA was taken after petitioner was released on the

murder charge with the docket pending, but while petitioner was still

incarcerated for the unrelated rape charge. Petitioner was released on May

1, 2003, with a felony complaint pending in the instant matter. Respondent

has previously asserted that petitioner still remained incarcerated on

unrelated charges and that it obtained the DNA order on May 8, 2003,

presumably during said unrelated incarceration. (See Resp. Opp. to Mot. to

Dismiss at 15-16.)

7 Petitioner attaches the May 23, 2003 proceedings as Exhibit A to his reply

which states in relevant part:

The Court: 30.30, 20 not being waived?

Mr. Duval: Not at this time.

The court finds the reference to § 30.30 to be harmless error by the trial

court.

8 Furthermore, the court notes that “even if petitioner's statutory speedy

trial right was violated, petitioner has failed to raise a constitutional

claim that is cognizable on federal habeas corpus review.” Rodriguez v.

Superintendent, Collins Corr. Facility, 549 F. Supp. 2d 226, 237 (N.D.N.Y.

2008) (quoting Wilson v. Goord, No. 00-Civ-4849 (LTS), 2004 WL 226149, at *4

(S.D.N.Y. Feb.6, 2004)); see also Gibriano v. Atty. Gen. of the State of New

York, 965 F. Supp. 489, 491–92 (S.D.N.Y. 1997) (holding that “Section 30.30

is a statutory time in which the People of New York must be ready for

Petitioner further contends that he “vigorously”

asserted his speedy trial rights, as indicated by his pro se

speedy trial motion in January 2011, petitioner’s second speedy

trial motion in March 2011, and petitioner’s state habeas corpus

petition in December 2011, all of which were denied. (Reply at

6.) The first of these motions was brought seven years after

his initial arrest and release, and one month after the

indictment dated December 2, 2010. Thus, petitioner first

attempted to assert his right to a speedy trial by a motion in

January 2011. See Rayborn, 858 F.2d at 93 (“[T]he lack of

timeliness, vigor, or frequency of [a defendant’s] assertions

militates against according them strong evidentiary weight.”);

see also United States v. Vasquez, 918 F.2d 329, 338 (2d Cir.

1990) (“[B]oth defendants waited roughly 22 months before

advancing their speedy trial claims, and this hardly renders

plausible their contention that an expeditious resolution of

their cases was a matter of pressing constitutional importance

for them.”).

The Second Circuit has previously found it “simply

inconceivable [that] the government was not ‘put on notice’”,

where the defendant “requested his speedy trial so frequently

and vociferously.” Swinton, 797 F. App'x at 595 (quoting U.S.

trial; Section 30.30 is not, as such, a statutory embodiment of the

constitutional guarantee to a speedy trial.”).

v. Tigano, 880 F.3d 602, 617 (2d Cir. 2018)). Unlike in those

cases, petitioner raised the speedy trial issue to the court for

the first time in 2011, seven years after his arrest, during

which time he had been released docket pending, and as such, did

not frequently and vociferously assert his right to

a speedy trial during the time between his arrest and

indictment. Id. (weighing factor in favor of government because

defendant “raised the issue to the court for the first time 53

months after his arrest and who therefore did not frequently and

vociferously assert his right to a speedy trial”).

Therefore, the court concludes that petitioner has not

met his burden to show that he asserted his right to a speedy

trial, and this factor weighs in favor of respondent.

4. Prejudice to Petitioner’s Defense

Justice Rienzi determined that petitioner’s prejudice

claim was “purely speculative,” a finding affirmed by the

Appellate Division. (Rienzi Order at 6; App. Div. Decision at

2.) In Doggett, the Supreme Court identified three principal

types of harm that potentially arise from the “unreasonable

delay” between formal accusation and trial: (1) “oppressive

pretrial incarceration,” (2) “anxiety and concern of the

accused,” and (3) “the possibility that the accused's defense

will be impaired by dimming memories and loss of exculpatory

evidence.” 505 U.S. at 654 (quoting Barker, 407 U.S. at 532)

(brackets omitted). “Where the defendant asserts prejudice,

either general or particularized, as a result of a delay, the

Government has an affirmative burden to rebut that claim.”

United States v. Ostroff, 340 F. Supp. 2d 362, 368 (S.D.N.Y.

2004) (citing Doggett, 505 U.S. at 658).

To the extent that petitioner claims “oppressive

pretrial incarceration,” Doggett, 505 U.S. at 654, he cannot

successfully claim prejudice because petitioner’s incarceration

was concurrent with another sentence. United States v. Lainez-

Leiva, 129 F.3d 89, 92 (2d Cir. 1997) (“Nor can [defendant]

claim prejudice traceable to any oppressive pretrial

incarceration, because he would have been serving his state

sentence in any event.”); see also Rienzi Order at 5-6 (“[E]ven

though [petitioner] was arrested on the subject case in 2003,

his minimal period of incarceration was concurrent with the

separate and unrelated rape case.”); App. Div. Decision at 2

(noting same).

Petitioner further alleges he suffered prejudice due

to “anxiety and concern of the accused.” Doggett, 505 U.S. at

654. Petitioner points to United States v. Dreyer to assert

that the term prejudice includes “any threat to . . . ‘an

accused's significant stakes psychological, physical and

financial in the prompt termination of a proceeding which may

ultimately deprive him of life, liberty or property.” 533 F.2d

112, 115 (3d Cir. 1976) (quoting United States v. Roberts, 515

F.2d 642, 645 (2d Cir. 1975)). Petitioner has not, however,

proffered any tangible evidence to indicate that there was

significant “anxiety and concern” stemming from his 2003 arrest

and the resulting delay beyond a general showing of factors that

“are inevitably present in every [criminal] case to some extent

. . . .” Barker, 407 U.S. at 537 (White, J., concurring).

Regarding the potential impairment of the accused's

defense due to “dimming memories and loss of exculpatory

evidence,” Doggett, 505 U.S. at 654, petitioner alleges that his

defense was impaired “due to lost witnesses and two videos,” one

across the street from the crime scene, and another at the hotel

where petitioner alleges that he was staying, in addition to

“nine kids playing football right outside of the house when I

left, and people on their porches . . . .” (Reply at 7.)

First, petitioner did not allege the existence of this

security footage or witnesses on direct appeal. (See Pet.

Speedy Trial Mot. at 26-27; see also Appellate Brief at 53-54;

Attachments at 53-55 (Respondent attached DD5s containing police

interviews with petitioner in which he made no mention of

potential witnesses nor videos).) Further, petitioner “has not

provided the identity of any alleged witnesses and does not

offer any concrete evidence of any prejudice.” (Rienzi Order at

6.) Second, although petitioner alleged a security video was

lost,9 Justice Rienzi found that “[petitioner] neither details

the video’s location nor explains how he has such

information[,]” and that the allegation is undermined by the

fact that “the originally assigned detectives [] looked for any

surveillance videos and [were] unable to locate any cameras near

the subject location.” (Id. at 6-7.)10

Consequently, the court independently concludes and

also defers to the state courts’ determinations that petitioner

has failed to satisfy the showing of prejudice. See Doggett,

505 U.S. at 656 (finding that a government’s showing of

reasonable diligence could defeat a defendant’s speedy trial

claim “so long as [the defendant] could not show specific

prejudice to his defense”).

5. Balancing the Factors

As previously noted, “none of the four factors

identified [] [are] either a necessary or sufficient condition

to the finding of a deprivation of the right of speedy trial.

Rather, they are related factors and must be considered together

9 “[A] security surveillance video from September 4, 1999, that showed

[petitioner] as he entered and left the apartment and noted the times at

which this occurred.” (Pet. Speedy Trial Mot. at 26-27.)

10 This assertion was not originally evidenced by any exhibits on the record.

Rather, respondent alleged that, “[a]s a known fact, there was no video

anywhere near the apartment of Noemi Ortiz, the murder scene. The detectives

assigned to this case in 1999 and who worked the case till 2003 . . .

originally canvassed the area or eyewitnesses and video that would provide

evidence for this crime. They found neither.” (Opp. to Mot. to Dismiss at

33.)

with such other circumstances as may be relevant.” Barker, 407

U.S. at 533.

Though Justice Rienzi found that the delay was

substantial, the nature of the underlying charge was serious and

the defendant had only been incarcerated for six days,

concurrent with another sentence, prior to indictment. (Rienzi

Order at 5.) The judge afforded considerable weight to

respondent’s “cogent” reasons for the delay and “good faith when

they decided not to initially prosecute this matter,” as well as

the “purely speculative” nature of petitioner’s claimed

prejudice. (Id. at 6.)

Because the court finds that the state courts’

decisions denying petitioner’s speedy trial challenges were not

“contrary to” clearly established Federal law, nor did those

decisions result in a decision that was based on an unreasonable

determination of the facts, the court finds no reason to disturb

the state courts’ decisions. 28 U.S.C. § 2254(d); Innab, 182

A.D.3d at 142.

B. Due Process

i. Legal Standard

“Under certain limited circumstances . . . a pre-

indictment delay may amount to a due process violation” under

the Fifth and Fourteenth Amendments. See United States v.

Brown, No. 18-CR-6119CJS, 2020 WL 2602082, at *7 (W.D.N.Y. May

22, 2020) (citing Marion, 404 U.S. 307, 322 (1971)); see also

United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979).

To establish a due process violation based upon a theory of pre-

indictment delay, a defendant must prove: “(1) that the delay

caused substantial prejudice to their right to a fair trial, and

(2) that the delay was an intentional device to gain tactical

advantage over the accused.” United States v. Oliver, 683 F.

Supp. 35, 40 (E.D.N.Y. 1988) (citing Marion, 404 U.S. at 324);

see also United States v. Snyder, 668 F.2d 686, 689 (2d Cir.

1982). Prejudice means “that sort of deprivation that impairs a

defendant's right to a fair trial,” which “is commonly

demonstrated by the loss of documentary evidence or the

unavailability of a key witness.” See United States v.

Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (citing Elsbery, 602

F.2d at 1059).

ii. Application

Petitioner claims he was deprived of his right to due

process because of the delay between the crime in 1999 and his

subsequent belated arrest in 2003. (Pet. at 1-2.)11 It appears

11 The court notes that petitioner raised this claim in both his 2011 state

court motion and his direct appeal. However, it appears that neither court

discussed it in their decisions. Regardless, the state courts are entitled

to receive deference as to their determinations. See Harrington, 562 U.S. at

99 (“When a federal claim has been presented to a state court and the state

court has denied relief, it may be presumed that the state court adjudicated

the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.”).

that petitioner did not ever raise the argument that the delay

was done intentionally, and Justice Rienzi found that “there was

no indication the prosecution deliberately delayed to gain [a]

tactical advantage.” (Reply at 6.) Rather, petitioner

consistently alleges that respondent was negligent in causing

the delay. (Reply at 1, 4-5.)

The court finds that petitioner’s resounding

accusations of respondent’s negligence are fatal to his due

process claim. To make out a due process violation, a

petitioner must show that it was respondent’s deliberate intent

to delay petitioner’s indictment. See Salcedo v. Phillips, No.

04-CV-7964 (PAC) (GWG), 2007 WL 3097208, at *4 (S.D.N.Y. Oct.

22, 2007) (quoting United States v. Silberstein, No. 02-CR-800

(SWK), 2003 WL 21488024, at *4 (S.D.N.Y. June 27, 2003)) (“Even

assuming the delay was caused entirely by the NYPD's lack of

diligence, rather than [the petitioner’s] own actions, such a

lack of police diligence does not constitute a due process

violation absent ‘evidence that the Government engaged in any

deliberate actions to delay the indictment in this case for its

own benefit.’”); see also Oliver, 683 F. Supp. at 41 (finding no

due process violation even though the prosecution of the case

was “anything but diligent”).

Accordingly, petitioner’s due process claim is

respectfully denied.

II. Denial of Right to a Fair and Impartial Jury

A. Legal Standard

Under the Sixth Amendment, a criminal defendant is

afforded the right to be tried by an “impartial jury.” U.S.

Const. amend. VI. The “right to jury trial has been recognized

by our courts as our ‘most priceless,’” which “guarantees to the

criminally accused a fair trial by a panel of impartial,

indifferent jurors[.]’” United States v. Parse, 789 F.3d 83,

124 (2d Cir. 2015) (Straub, J. concurring) (citing Irvin v.

Dowd, 366 U.S. 717, 722 (1961)). A petitioner must “establish[]

the partiality of the jury that ultimately convicted him . . .

.” United States v. Towne, 870 F.2d 880, 885 (2d Cir. 1989).

Moreover, “‘due process does not require a new trial every time

a juror has been placed in a potentially compromising

situation.’” Garner v. Lee, No. 11-CV-00007 (PKC), 2019 WL

4575377, at *3 (E.D.N.Y. Sept. 20, 2019) (quoting Gouvatsos v.

Ercole, No. 09-CV-1449 (SJF), 2012 WL 3685977, at *13 (E.D.N.Y.

Aug. 23, 2012)).

“Under § 2254(d), the state court is entitled to a

presumption of correctness with respect to its conclusion that

the jury was impartial.” Knapp v. Leonardo, 46 F.3d 170, 176

(2d Cir. 1995) (citing Wheel v. Robinson, 34 F.3d 60, 65 (2d

Cir. 1994). “The touchstone for courts deciding such issues on

federal habeas review is ‘whether there is fair support in the

record for the state court’s conclusion that the jurors in a

trial would be impartial.’” Montanez v. Tynon, No. 18-CV-1766

(JPO) 2018 WL 6268221, at *13 (S.D.N.Y. Nov. 30, 2018) (quoting

Sullivan v. Lee, No. 10-CV-425, 2017 WL 3634598, at *9 (E.D.N.Y.

Aug. 22, 2017)). Accordingly, the United States Supreme Court

has held that “the trial court’s findings of impartiality [may]

be overturned only for ‘manifest error.’” Patton v. Yount, 467

U.S. 1025, 1031 (1984) (quoting Irvin, 366 U.S. at 732); see

also Hicks v. Bellnier, 43 F. Supp. 3d 214, 233–34 (E.D.N.Y.

2014).

B. Application

Petitioner asserts he was denied his constitutional

right to a fair and impartial jury because Justice Collini

refused to discharge the entire jury venire. (Pet. at 2.)

Petitioner argues that the venire included potential jurors who

had been exposed to a news article, which contained prejudicial

information about petitioner's criminal history, including the

unrelated rape case which had been barred from use during his

murder trial. (Id.) Petitioner speculates that, although one

juror admitted that she read the article and discussed it with a

few other prospective jurors, “some of them failed to come

forward” and were permitted to sit on the jury that ultimately

convicted petitioner. (Id.) Respondent asserts that

petitioner’s claims were raised and rejected on appeal, and the

state court findings are now entitled to deference. (Opp. Mem.

at 23 (citing Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir.

2001).) Additionally, respondent argues that: (1) the case does

not involve “pervasive and concentrated” publicity; (2) the

nature of the pretrial publicity was fairly neutral; and (3)

there is no evidence that the article was widely available to

the jurors. (Id. at 23-28.)

With respect to pretrial publicity, the Supreme Court

has held that, “even if pervasive and concentrated, [it] cannot

be regarded as leading automatically and in every kind of

criminal case to an unfair trial.” Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 565 (1976). The Second Circuit has set

forth “general guidelines for a trial judge” where media trial

publicity may be a concern. United States v. Chang An-Lo, 851

F.2d 547, 558 (2d Cir. 1988) (citing United States v. Gaggi, 811

F.2d 47, 51 (2d Cir. 1987)). “The trial judge should first

determine whether the coverage has a potential for unfair

prejudice.” Id.

Here, it is undisputed that the article contained

prejudicial information concerning petitioner’s prior rape

conviction and the case. (Voir Dire at 110-11.) "Next, the

jury should be canvassed to ascertain if they have learned of

the potentially [prejudicial] publicity . . . ." Gaggi, 811

F.2d at 51. In the instant matter, Justice Collini probed

further into the venire’s exposure to the article. (Voir Dire

at 114, 118, 120, 140, 143-44.) Then, if it is discovered that

any juror was exposed to such publicity, he or she “should be

examined individually, out of the presence of the other jurors,

to determine the extent of the exposure and its effect on the

juror's attitude toward the trial.” Chang An-Lo, 851 F.2d at

558 (quoting United States v. Lord, 565 F.2d 831, 838–39 (2d

Cir. 1977)). Justice Collini properly and individually

questioned the potential jurors who gave responses calling into

question their exposure to the article and its effect on their

impartiality. (Id. at 129-135.)

Once these precautionary measures have been taken by

the trial court, “the trial judge can then determine whether any

further steps are necessary to ensure a fair trial.” Lord, 565

F.2d at 839. In response to Justice Collini’s inquiry, Juror

Braggs stated she would be able to decide the case fairly and

impartially. (Voir Dire at 134-35.) Justice Collini even took

further measures to clarify any potential ambiguity concerning

Braggs’ answer. (Id.) Juror Braggs then affirmatively stated

that she would be able to judge the case based solely on the

evidence or lack thereof that she heard in the courtroom. (Id.

at 135.) In the instant case, Justice Collini determined that

her responses were satisfactory. (Voir Dire at 143.) Out of the

eight potential jurors who had admitted that they had been

exposed to the article either directly or indirectly, four

jurors were dismissed for cause and the other four jurors gave

the court unequivocal assurance of their impartiality, which

Justice Collini deemed satisfactory.

Petitioner, both on appeal and presently, has not

proffered “clear and convincing” evidence that any jurors were

not impartial and, instead, merely argues that other jurors may

have been exposed to the prejudicial information. The record

does not indicate that the trial court’s actions constituted

“manifest error.” Hicks, 43 F. Supp. 3d at 234; United

States v. Elfgeeh, 515 F.3d 100, 129 (2d Cir. 2008) (“If

[the Gaggi] process is followed, [courts] may presume, in the

absence of any indication to the contrary, that the jurors have

followed the court's instructions and have rendered their

verdict solely on the basis of the evidence at trial.”); see

also United States v. Cox, 324 F.3d 77, 87 (2d Cir. 2003)

(noting “a court should generally presume that jurors are being

honest”)); United States v. Ashburn, No. 11-CR-303 NGG, 2015 WL

5098607, at *56 (E.D.N.Y. Aug. 31, 2015) (denying relief where

jurors were presumed to be impartial since petitioner proffered

no evidence that the jury failed to follow the court’s

instructions).

Petitioner has not overcome the presumption of

correctness regarding the state court’s impartiality

determinations, and there is no indication that the

determinations were contrary to, or involved an unreasonable

application of federal law. Accordingly, petitioner’s claim

regarding the denial of his right to a fair and impartial jury

is respectfully denied.

III. Ineffective Assistance of Counsel

A. Legal Standard

The Sixth Amendment states that “[i]n all criminal

prosecutions, the accused shall enjoy the right ... to have the

Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

“[T]he right to counsel is the right to the effective assistance

of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14

(1970). Under the prevailing test set forth in Strickland v.

Washington, 466 U.S. 668 (1984), to bring an ineffective

assistance of counsel claim, a plaintiff must show: (1) that

counsel's performance was objectively unreasonable; and (2) that

“but for counsel's unprofessional errors, the result of the

proceeding would have been different.” 466 U.S. 668, 694

(1984).

The bar is set quite high for a defendant seeking to

show objectively unreasonable performance by counsel under the

first requirement. “Constitutionally effective counsel embraces

a ‘wide range of professionally competent assistance,’ and

‘counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.’” Greiner v. Wells, 417 F.3d

305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690);

see also Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009). In

assessing performance, courts are directed to “eliminate the

distorting effects of hindsight,” and apply deference to

counsel’s judgments. Id. As a result, “the defendant must

overcome the presumption that under the circumstances, the

challenged action ‘might be considered sound strategy.’”

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955)).

With respect to the second prong, a petitioner must

show that but for the attorney’s deficient performance, there is

a “reasonable probability” that the result would have been

different. Strickland, 466 U.S. at 693. On the one hand, a

“reasonable probability” of prejudice requires more than a mere

showing that the errors had “some conceivable effect on the

outcome of the proceeding,” as “not every error that conceivably

could have influenced the outcome undermines the reliability of

the result of the proceeding.” Id. On the other hand, a

petitioner need not establish that the attorney’s deficient

performance “more likely than not” altered the outcome.

Gonzalez v. United States, 722 F.3d 118, 130, 135 (2d Cir.

2013).

The Strickland standard is widely understood to be

“highly demanding” and “rigorous,” and the petitioner bears the

burden of proving that both prongs are met. Kimmelman v.

Morrison, 477 U.S. 365, 381-82 (1986); Lindstadt v. Keane, 239

F.3d 191, 199 (2d Cir. 2001) (“The Strickland standard is

rigorous, and the great majority of habeas petitions that allege

constitutionally ineffective counsel founder on that

standard.”).

The Second Circuit has held that, in the context of an

ineffective assistance of counsel claim, the “procedure for

determining whether a hearing is necessary is in part analogous

to a summary judgment proceeding,” in that “[i]f material facts

are in dispute, a hearing should usually be held, and relevant

findings of fact made.” Raysor, 647 F.3d 491, 494 (2d Cir.

2011) (internal quotation marks and alterations omitted). In

assessing whether a hearing is needed, the court looks primarily

to petitioner’s affidavit to determine if the evidence would be

admissible proof entitling him to relief; therefore, “[m]ere

generalities or hearsay statements will not normally entitle the

applicant to a hearing.” D’Ercole v. United States, 361 F.2d

211, 212 (2d Cir. 1967).

In addition, it is well-established that the district

court may decide a petition under 28 U.S.C. § 2255 without an

evidentiary hearing, based on a review of documented accumulated

during pre-conviction litigation, including a trial transcript,

particularly where petitioner does not raise a material issue of

fact. Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001);

United States v. Jennings, 10-CV-6119, 2014 WL 2531951, at *5

(W.D.N.Y. Apr. 19, 2014) (“Following review of transcripts, the

presentence investigation report, and information submitted by

the defendant in support of, and by the government in opposition

to, [2255 petition], the Court determines that no hearing is

warranted.”); Ramirez v. United States, 185 F. Supp. 2d 246, 265

(E.D.N.Y. Nov. 5, 2001) (holding that no evidentiary hearing was

required when court had complete trial transcript and parties’

briefings).

The district court has discretion to make a decision

that “avoid[s] delay, the needless expenditure of judicial

resources, the burden on trial counsel and the government, and

perhaps the encouragement of other prisoners to make similar

baseless claims that would have resulted from a full testimonial

hearing.” Chang, at 86; see also Machibroda v. United States,

368 U.S. 487, 495 (1962) (“[Habeas] statute itself recognizes

that there are times when allegations of facts outside the

record can be fully investigated without requiring the personal

presence of the prisoner.”). In particular, courts have

expressed skepticism regarding the credibility of a defendant’s

post-conviction statements that he would have pleaded guilty to

a tendered plea offer. Purdy v. Zeldes, 337 F.3d 253, 259 (2d

Cir. 2003) (“[I]n most circumstances a convicted felon’s self-

serving testimony is not likely to be credible.”); United States

v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998).

B. Application

i. Performance Prong

Petitioner argues that his counsel’s failure to

peremptorily challenge Juror Braggs deprived petitioner of his

right to effective assistance of counsel. (Pet. at 2.)

Respondent asserts that this claim was raised and rejected on

direct appeal, and should thus be denied because the state

courts’ decisions are entitled to deference. (Opp. Mem. at 23.)

Petitioner’s counsel was present for both of Justice

Collini’s inquiries of Juror Braggs, and had the option of

challenging any prospective juror. See United States v.

Collins, 665 F.3d 454, 463 (2d Cir. 2012) (citing United States

v. Gagnon, 470 U.S. 522, 523–24 (1985) (finding assistance of

counsel was not ineffective where interview with juror narrowly

tailored to address misconduct and juror's ability to be

impartial; counsel present and permitted to question juror).

Petitioner has not articulated a sufficient basis to

find that his counsel’s failure to strike Juror Braggs falls

outside the range of professional competence. “[A]n attorney's

actions during voir dire are considered to be matters of trial

strategy,” Charlemagne v. Goord, No. 05 Civ. 9890 (DAB) (HBP)

2008 WL 2971768, *27 (S.D.N.Y. June 30, 2008), and “courts

afford wide latitude to attorneys who object to some jurors and

not others,” Hicks v. Ercole, No. 09-CV-2531 (AJN), 2015 WL

1266800, at *26 (S.D.N.Y. Mar. 18, 2015). See Guerrero v.

Payant, No. 08-CV-03062 (JFB), 2010 WL 2545818, at *20 (E.D.N.Y.

June 21, 2010) (“The exercise of or failure to exercise a

peremptory challenge may be considered trial strategy employed

by the attorney.”); see also Figueroa v. Heath, No. 10-CV-0121

(JFB), 2011 WL 1838781, at *13 (E.D.N.Y. May 13, 2011) (“[A]

contention that defense counsel was ineffective for failing to

challenge a prospective juror for cause or to exercise a

peremptory challenge with respect to that prospective juror does

not by itself constitute ineffective assistance.” (quoting Jones

v. Poole, No. 05–CV–0886 (VEB), 2010 WL 1949599, at *33

(W.D.N.Y. May 13, 2010))); Doleo v. Reynolds, No. 00–CV–7927,

2002 WL 922260, at *4–5 (S.D.N.Y. May 7, 2002) (“Strategies as

to the exercise of peremptories are matters of counsel's

intuition, and do not rise to the level of constitutional

error.”).

The record shows that petitioner’s counsel

peremptorily challenged three out of the nine prospective

jurors. Moreover, jury selection ended without petitioner’s

counsel exhausting his available peremptory challenges (Voir

Dire at 365-70), which may suggest that “his decision . . . was

part of a trial strategy that might be considered sound.”

Rodriguez v. Breslin, No. 05-CV-1639 (RRM), 2009 WL 424738, at

*9 (E.D.N.Y. Feb. 20, 2009) (citations and internal quotation

marks omitted); see also Nova v. Ercole, 06 CV 562 (NRB), 2007

WL 1280635, at *8 (S.D.N.Y. Apr. 30, 2007) (“Counsel exercised

two peremptory challenges for other prospective jurors ...

[t]his suggests that counsel deliberately chose not to challenge

[the juror in question] as part of trial strategy.”); Guerrero,

2010 WL 2545818, at *21 (“[I]t appears from the voir dire, as a

whole, that defense counsel made a strategic decision [to] not

use peremptory challenges on these two jurors.”). Thus,

petitioner’s counsel’s choice not to exhaust peremptory

challenges suggests a strategic choice that does not clearly

fall outside the wide range of professionally competent

assistance.

Furthermore, petitioner’s counsel specifically

requested that only one of the three prospective jurors be

dismissed for-cause. (Voir Dire at 139.) Though petitioner’s

counsel renewed his request to have the entire venire excused

before specifically requesting that the juror be dismissed for

cause, this does not undermine his decision to keep Juror Braggs

on the panel. See United States v. Martinez-Salazar, 528 U.S.

304, 306 (2000) (“After objecting to the [trial court’s] denial

of his for-cause challenge, [petitioner] had the option of

letting [the juror] sit on the petit jury and, upon conviction,

pursuing a Sixth Amendment challenge on appeal. Instead, he

elected to use a challenge to remove [the juror] . . . . This

was [petitioner’s] choice.”). In the instant matter,

petitioner’s counsel chose not to peremptorily challenge Juror

Braggs. As a matter of law, this choice—to keep Juror Braggs on

the jury—can be construed as a sound “strategic decision.”

Guerrero, 2010 WL 2545818, at *21; Bierenbaum v. Graham, 607

F.3d 36, 50-51 (2010).

Because petitioner has not identified any acts or

omissions on the part of his counsel that were outside the range

of professionally competent assistance, Strickland, 466 U.S. at

690, the court finds that the Appellate Division’s decision was

not constitutionally ineffective.

ii. Prejudice Prong

Because petitioner has failed to allege counsel’s

deficient performance, his ineffective assistance claim must

fail. Gonzalez, 722 F.3d at 130. Nevertheless, the court also

notes that petitioner has failed to satisfy the prejudice prong

under Strickland. Strickland, 466 U.S. at 687.

In the context of a defense counsel’s failure to

exercise a peremptory challenge, a petitioner “must show that

the juror was actually biased against him” in order to show

prejudice. Guerrero, 2010 WL 2545818, at *22.

Petitioner avers that the contents of the article in

question, to which Juror Braggs was indirectly exposed, were

specifically barred from being used at trial by the judge

because “this information was no[t] only related to the case,

[but] it was also highly prejudicial.” (Reply at 8.)

Petitioner, however, does not point to any evidence of Juror

Braggs’ bias towards petitioner and, upon looking at the record,

the court can find none. Juror Braggs asserted that she had not

read the article herself and, rather, had a “brief talk” with

Ms. McInery and “[i]t wasn't like she was on a subject for long.

She just spoke of it briefly.” (Voir Dire at 134.) Further,

petitioner’s counsel additionally inquired as to whether Ms.

McInery had an article or anything in her hands when she spoke

to the three prospective jurors and Juror Braggs responded by

saying “Not that I recall. I don’t remember.” (Id. at 135.)

Furthermore, Juror Braggs expressly asserted that she had not

heard or read anything that would affect her ability to be

impartial. (Id. at 134-35.) Juror Braggs also stated that she

would judge the case based solely on the evidence presented at

trial (id. at 135), and that she "can keep an open mind" when

listening to a witness with past criminal convictions (id. at

219.) Judge Collini found these responses indicated Juror

Braggs’ impartiality, and neither party sought a for-cause

challenge to Juror Braggs. (See id. at 143.)

The aforementioned exchanges reveal no indications of

Juror Braggs’ bias against petitioner and no indication that,

had petitioner’s counsel peremptorily challenged her, “the

result of the proceeding would have been different.”

Strickland, 466 U.S. at 687. Because petitioner fails to

satisfy either Strickland prong, petitioner’s claim for

ineffective assistance of counsel is denied. See Belgrave, 2014

WL 12746908, at *6-7; Nova, 2007 WL 1280635, at *7-9; Figueroa,

2011 WL 1838781, at *13-15; Guerrero, 2010 WL 2545818, at *20-

23.

Conclusion

For the foregoing reasons, petitioner’s petition for a

writ of habeas corpus is respectfully DENIED and DISMISSED. The

court certifies pursuant to 28 U.S.C. Section 1915(a)(3) that

any appeal would not be taken in good faith and, therefore, in

forma pauperis status is denied for the purpose of any appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The

Clerk of the Court is respectfully requested to enter judgment

in favor of respondent and serve a copy of this Memorandum and

Order and the judgment on pro se petitioner, note service on the

docket, and close the case.

SO ORDERED.

______/s/__________________

Kiyo A. Matsumoto

United States District Judge

Dated: August 4, 2020

Brooklyn, New York