Coleman v. Noeth

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DONNELL COLEMAN,

Petitioner,

Memorandum and Order

-against- 18-CV-4498(KAM)

JOSEPH H. NOETH,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Presently before the court is a petition brought by

Donnell Coleman (“Mr. Coleman” or “Petitioner”), acting pro se,

seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254

(“Section 2254”). (See generally ECF No. 1, Petition for a Writ

of Habeas Corpus (“Pet.”).) Mr. Coleman challenges his

conviction and sentence in the Supreme Court of the State of New

York. Mr. Coleman was convicted of gang assault in the first

degree, and sentenced to seventeen years in prison. Pursuant to

that sentence, Mr. Coleman is currently incarcerated at Green

Haven Correctional Facility in Stormville, New York.1

For the reasons herein, Mr. Coleman’s petition is

respectfully DENIED in its entirety.

1 At the time he filed his petition, Mr. Coleman was incarcerated at

Attica Correctional Facility in Attica, New York.

Background

I. Factual Background

In the early morning of November 27, 2010, Petitioner

was with a group of several other people at a nightclub in

Queens County, New York. (ECF No. 6, Respondent’s Opposition to

Petition (“Opp.”), at 12-13.) According to the testimony of

witnesses, a physical altercation broke out between Haroon

Walfall (“Mr. Walfall”) and four to six men, including

Petitioner. (Id. at 13-140.) Shortly after the initial

altercation ended, as Mr. Walfall was being escorted out of the

nightclub, a group of eight to ten men attacked Mr. Walfall.

(Id. at 14-15.) A large fight ensued that lasted for several

minutes. (Id. at 15-16.) One of Mr. Walfall’s cousins, who

witnessed the incident, testified that after the fight was over,

an unidentified individual who had been with Petitioner said,

“That’s what your cousin gets for dancing with somebody else’s

girlfriend.” (Id. at 17; see ECF No. 8, State Court Record,

Trial Transcript (“Tr.”), at 431.)

After the fight, nobody who witnessed the fight called

the police. (See Tr. at 378, 537, 686, 705, 932.) According to

one witness, Mr. Walfall “was a mess,” and there was “blood

everywhere.” (Opp. at 16.) Later that morning, Mr. Walfall’s

cousin took Mr. Walfall to Franklin General Hospital in Valley

Stream, New York. (Id. at 17.) Mr. Walfall died at the

hospital at 3:50 a.m. (Id. at 17-18.) An autopsy revealed that

Mr. Walfall sustained at least eleven blows to the head, and

that he had multiple blunt force injuries to his body. (Id. at

18.)

Petitioner was arrested four months later in

connection with the assault at the nightclub. (Id. at 20.)

Petitioner was charged with manslaughter in the first degree,

gang assault in the first degree, gang assault in the second

degree, and assault in the second degree.

II. The Trial

Petitioner’s trial in Queens County Supreme Court

began with jury selection on February 26, 2013. Petitioner was

tried along with Savann Hemmings (“Mr. Hemmings”), who was also

accused of involvement in the assault on Mr. Walfall.

At trial, the prosecution’s case consisted primarily

of the testimony of eyewitnesses, including bouncers and

nightclub patrons. The prosecution’s theory of the case was

that Petitioner attacked Mr. Walfall because Mr. Walfall had

been dancing with Petitioner’s girlfriend. Two witnesses

testified that they saw Petitioner involved in the initial

altercation with Mr. Walfall. (Tr. at 688-89, 862.) One

witness who saw that incident was unable to say whether

Petitioner was involved. (Id. at 662.) Mr. Walfall’s cousin

testified that Petitioner initiated the subsequent fight by

punching Mr. Walfall (id. at 344-45), and another witness

testified that during that fight, Petitioner was an “aggressor”

who was “kicking and punching [Mr. Walfall] violently” (id. at

675-77).

The prosecution also elicited testimony from Dr. Brian

O’Reilly (“Dr. O’Reilly”), the Deputy Chief Medical Examiner of

the Nassau County Medical Examiner’s Office, who performed the

autopsy on Mr. Walfall. (Id. at 440-46.) Dr. O’Reilly

described the victim’s various injuries, which were primarily

external. (Id. at 445, 447, 450.) It was Dr. O’Reilly’s

opinion that if the victim had lived, none of his injuries would

have required him to remain in the hospital. (Id. at 494.)

Dr. O’Reilly determined that the victim suffered from

a mild form of idiopathic hypertrophic cardiomyopathy (“IHC”),

or an enlarged heart. (Id. at 450, 494, 496.) Dr. O’Reilly

testified that IHC can lead to sudden death, especially after

physical activity, and is the leading cause of heart-related

deaths for people under 30. (Id. at 496—97.) Dr. O’Reilly

further testified that the victim died from cardiac dysrhythmia

or heart attack following blunt force injury to his head, torso,

and extremities, with qualifying conditions of IHC and

sarcoidosis. (Id. at 476—78.) Specifically, Dr. O’Reilly

testified that “the blunt trauma would have caused [the victim]

to become excitable, heart rate increased, blood pressure would

have increased and that precipitated his heart to go into a

dysrhythmia.” (Id. at 481.) Dr. O’Reilly also testified that

the victim would not have died from his injuries but for having

IHC. (Id. at 478.) Thus, Dr. O’Reilly determined that IHC was

not the immediate cause of the victim’s death, but was a

contributing factor. (Id. at 476—78.)

During Dr. O’Reilly’s testimony, the prosecution

introduced into evidence photographs from the victim’s autopsy,

including a photograph of the victim’s bloodied head with his

scalp partially removed. (Id. at 450—52, 465.) Petitioner’s

counsel objected to admission of the photograph on the ground

that its prejudicial impact outweighed its probative value.

(Id. at 452—53.) The state court trial judge allowed the

photograph to be introduced, because it showed the hemorrhage

within the muscle, which the jury might use to determine if the

fight resulted in a serious injury. (Id. at 454.) Petitioner

did not object to the introduction of any of the other autopsy

photographs that were introduced into evidence. (Id. at 455.)

Petitioner’s key piece of evidence at trial was

surveillance video from outside the entrance to the nightclub.

(See Opp. at 20.) The video showed Petitioner leaving the

nightclub at 2:30 a.m., after several people had exited. (Id.)

Petitioner then re-entered the nightclub at 2:32 a.m., retrieved

a shirt or a jacket, and walked back out. (Id.) Petitioner’s

counsel argued that the video showed Petitioner being ejected

from the nightclub after the initial altercation, and then

calmly returning to retrieve his coat, which did not comport

with the actions of somebody who allegedly committed a violent

assault. (Tr. at 1024—25.)

During the prosecution’s summation, the prosecutor

argued to the jury that the case was about Petitioner “taking

umbrage that somebody would have the audacity to dance with his

girlfriend.” (Id. at 1038.) The prosecutor stated that

Petitioner felt it was “[n]ot okay for his property, not okay

for his cattle” to dance with someone else. (Id.) Petitioner’s

counsel objected immediately after the prosecutor’s “cattle”

comment, which was sustained, and the judge told the jury to

disregard the statement. (Id. at 1039.)

At the conclusion of trial, the jury convicted

Petitioner of gang assault in the first degree, and acquitted

him of the other charges. (Opp. at 3.) Petitioner’s co-

defendant, Mr. Hemmings, was convicted of assault in the third

degree. (Id.) On July 11, 2013, the state court sentenced

Petitioner as a second violent felony offender to a term of

imprisonment of eighteen years, to be followed five years of

post-release supervision. (Id.)

III. Post-Conviction Proceedings

Petitioner, through assigned counsel, appealed his

conviction and sentence to the Appellate Division, Second

Department. See generally Brief for Defendant-Appellant, People

v. Coleman, 148 A.D.3d 717 (2d Dept. 2017); (ECF No. 11-1).

First, Petitioner argued on appeal that the jury’s acquittal of

the first-degree manslaughter charge demonstrated that the

evidence was not legally sufficient to show either that: (1) he

had the intent to cause serious physical injury, or (2) he

actually caused serious physical injury. (Id. at 19-27.)

Second, Petitioner argued that the verdict was against the

weight of the evidence. (Id. at 27-31.) Third, Petitioner

argued that the prosecutor’s remarks during summation, that the

case was about Petitioner “taking umbrage that somebody would

have the audacity to dance with his girlfriend” and thought it

was improper for his “cattle” to dance with someone else,

prejudiced the jury. (Id. at 31-32.) Fourth, Petitioner argued

that the trial court improperly allowed the jury to view the

autopsy photograph of the victim. (Id. at 33-37.) Finally,

Petitioner argued that he was improperly sentenced as a second-

time violent felon. (Id. 38-45.)

In a decision dated March 1, 2017, the Appellate

Division rejected the majority of Petitioner’s arguments. See

generally People v. Coleman, 148 A.D.3d 717 (2d Dept. 2017).

The Appellate Division agreed with Petitioner regarding his

sentence, holding that Petitioner “was improperly sentenced as a

second violent felony offender,” because his prior conviction

for possession of a weapon in the third degree did not count as

a violent offense. Id. at 718-19. The case was remanded to the

trial court for re-sentencing. Id. at 719.

Petitioner sought leave to appeal to the New York

Court of Appeals. See generally Leave Application for

Petitioner, People v. Coleman, 29 N.Y.3d 1077 (2017). In his

application, Petitioner asked for the Court of Appeals to review

all of the claims that he raised to the Appellate Division. On

June 26, 2017, the Court of Appeals denied Petitioner’s

application. People v. Coleman, 29 N.Y.3d 1077 (2017).

On May 2, 2017, Petitioner appeared before the Queens

County Supreme Court for re-sentencing. The court imposed a

sentence of seventeen years of imprisonment, one year less than

his original sentence, and five years of post-release

supervision. (Opp. at 7.)

Petitioner moved to reduce his sentence in the

Appellate Division. See generally Leave Application for

Petitioner, People v. Coleman, 162 A.D.3d 787 (2d Dept. 2018).

On June 13, 2018, the Appellate Division denied his motion.

People v. Coleman, 162 A.D.3d 787 (2d Dept. 2018). On September

18, 2018, the Court of Appeals denied Petitioner’s request for

leave to appeal. People v. Coleman, 32 N.Y.3d 1002 (2018).

IV. The Instant Habeas Petition

Proceeding pro se, Petitioner filed the instant

petition on August 6, 2018 for a writ of habeas corpus pursuant

to Section 2254. Petitioner raised many of the same claims that

he previously raised before the Appellate Division: (1) that the

jury’s verdict was not supported by legally sufficient evidence

and was against the weight of the evidence; (2) that the

admission of the autopsy photograph deprived him of a fair

trial; (3) that the prosecutor’s “taking umbrage” and “cattle”

statements during summation deprived him of a fair trial, and

his lawyer failed to properly raise the issue on appeal; and (4)

that his original sentencing as a second violent felony offender

was improper.2 Respondent opposed the petition. (ECF No. 6.)

Petitioner subsequently filed a memorandum of law, which focused

largely on his arguments regarding the sufficiency and weight of

the evidence, and which the court will treat as if it were his

reply brief to Respondent’s opposition. (ECF No. 11, Memorandum

of Law in Support of Petition (“Reply”).)

2 In his petition, Mr. Coleman raises his sentence as the third ground

for relief, and the prosecutor’s statements as the fourth ground.

However, the court will reverse the order and discuss the sentencing

last, and discuss the various stages of the state trial court

proceedings in the temporal order that they occurred.

Legal Standard

Pursuant to Section 2254, a federal district court

shall issue a writ of habeas corpus to an individual in state

custody “only on the ground that he is in custody in violation

of the Constitution or law or treaties of the United States.”

28 U.S.C. § 2254(a). A court may only issue such a writ if the

state court adjudication (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

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

2254(d); see also Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir.

2001).

In reviewing the instant petition, the court is

mindful that Mr. Coleman is proceeding pro se, and thus reviews

his petition “with a lenient eye.” Williams v. Kullman, 722

F.2d 1048, 1050 (2d Cir. 1983); see also Erickson v. Pardus, 551

U.S. 89, 94 (2007) (“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.’”) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)). Therefore, the Court interprets the petition as

raising the strongest arguments it suggests. Harris v. Mills,

572 F.3d 66, 72 (2d Cir. 2009); see also Martin v. United

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

Williams, 722 F.2d at 1050).

Discussion

I. Ground One: Sufficiency of the Evidence

Petitioner first argues that the evidence at trial

“was legally insufficient to prove guilt of first-degree gang

assault,” and the “verdict was against the weight of the

evidence.” (Pet. at 5-6.) Petitioner also made these arguments

to the Appellate Division, which rejected them on the merits,

“find[ing] that [the evidence] was legally sufficient to

establish [Mr. Coleman]’s guilt of gang assault in the first

degree,” and “that the verdict of guilt was not against the

weight of the evidence.” Coleman, 148 A.D.3d at 717. Under the

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

adjudicated on the merits in state court are not to be disturbed

unless the were “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(d)(1); see Sellan v. Kuhlman, 261 F.3d 303, 308 (2d Cir.

2001) (AEDPA “mandates deference to state court decisions”).

Moreover, “[i]t is well established that ‘weight of

the evidence’ claims are not cognizable on federal review

. . . .” Durden v. Greene, 492 F. Supp. 2d 414, 419 (S.D.N.Y.

2007); see also Bey v. Chappius, 2019 WL 4805401, at *3 n.2

(E.D.N.Y. Sept. 30, 2019) (“Thus, a challenge to the weight of

the evidence concerns ‘an error of state law, for which habeas

review is not available,’ because it presents no federal

issue.”) (quoting Douglas v. Portuondo, 232 F. Sup. 2d 106, 116

(S.D.N.Y. 2002)). Petitioner’s “challenge to the legal

sufficiency of the evidence,” however, “is cognizable upon

habeas review.” Durden, 492 F. Supp. 2d at 420.

Sufficiency of the evidence claims in federal habeas

cases “face a high bar,” because they are subject to two layers

of judicial deference. See Coleman v. Johnson, 566 U.S. 650,

651 (2012). First, “evidence is sufficient to support a

conviction whenever, ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.’” Parker v. Matthews, 567 U.S. 37, 43 (2012)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Second, a “state-court decision rejecting a sufficiency

challenge may not be overturned on federal habeas [review]

unless the ‘decision was objectively unreasonable.’” Id.

(quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)).

When reviewing a sufficiency of the evidence claim,

“[a] federal court must look to state law to determine the

elements of the crime.” Quartararo v. Hanslmaier, 186 F.3d 91,

97 (2d Cir. 1999). For an individual to be convicted of gang

assault in the first degree under New York law, the prosecution

must prove that the defendant acted “with intent to cause

serious physical injury to another person and [was] aided by two

or more other persons actually present, [and] he cause[d]

serious physical injury to such person or to a third person.”

N.Y. Penal Law § 120.07. A “serious physical injury” includes

death, a substantial risk of death, or serious protracted

disfigurement, impairment of health, or loss or impairment of

bodily function. N.Y. Penal Law § 10.00(10).

This court acknowledges that the evidence at

Petitioner’s trial was, in some respects, inconsistent. As one

might expect in the case of witnesses who were attempting to

recall a chaotic event that took place years earlier in the

early morning hours at a nightclub, the testimony did not paint

a perfectly clear picture of events. But the court is obliged

to review the evidence in a light most favorable to the

prosecution. In so doing, the court agrees with the Appellate

Division’s determination that there was sufficient evidence for

a reasonable jury to find that Petitioner acted with intent and

with others to cause serious physical injury to Mr. Walfall.

See Coleman, 162 A.D.3d at 717—18.

First, a rational trier of fact could have concluded

that Petitioner intended to cause serious injury to the victim.

The trial evidence included witness testimony that Petitioner

punched, kicked, and stomped on the victim. (Tr. at 345—46,

673.) One bouncer described Petitioner as an “aggressor,”

kicking and punching the victim violently. (Id. at 676—77.)

Thus, the jury was within its discretion to determine that

Petitioner intended to cause serious injury to the victim. Even

if Petitioner left at some point during the fight and only

returned to retrieve his jacket, the testimony regarding his

earlier actions, including that he was an “aggressor” in the

fight, was sufficient for a reasonable jury to determine that he

was acting with intent to cause serious injury.

Second, a rational trier of fact could have found that

Petitioner acted in concert with at least two other people who

were actually present during the assault. Petitioner argues

that, because his co-defendant was convicted only of assault,

but acquitted of gang assault, the two of them could not have

acted in concert. (Reply at 18.) But the trial evidence,

including accounts from several victims, established that

Petitioner and approximately ten other men punched and kicked

the victim throughout the fight. (Tr. at 345—46, 660, 673, 675—

76, 712, 724, 848—51, 886, 893, 909.) A patron described “one

big wall of fighting,” and “pandemonium . . . [where] everyone

[was] throwing blows.” (Id. at 660.) This testimony was

sufficient to establish that Petitioner acted in concert with at

least two others who were present.

Finally, a rational trier of fact could have found

that the victim suffered a serious injury. The injury threshold

for a “serious physical injury” must rise to the level of being

“reasonably substantial.” See, e.g., People v. Askerneese, 93

N.Y.2d 884 (1999) (victim sustained a serious injury where he

received a deep puncture wound in his upper lip that caused

nerve damage, numbness, and lack of control for his upper lip).

Here, testimony at trial established that, following the fight,

the victim was “a mess” with “blood everywhere,” including on

his shirt and in his vicinity on the floor. (Tr. at 661.) The

victim’s cousin observed that the victim was “bleeding a lot”

from his mouth, nose, eyes, and the back of his head. (Id. at

348, 396.) One bouncer observed that the victim appeared

“groggy” and “mumbling,” while another observed that the

victim’s eye was bloodshot and his nose was bleeding. (Id. at

679, 707, 717, 852.) As the victim’s cousin walked the victim

to his car, he observed that the victim was barely conscious and

moaning. (Id. at 350.) In his testimony, Dr. O’Reilly stated

that the victim sustained at least eleven blows and multiple

blunt force injuries to his body, consistent with being punched,

kicked, stomped, and thrown to the floor. (Id. at 445—50, 457—

59, 489—90.) The victim’s injuries included multiple bruises,

contusions, and lacerations on his face and body, including a

half-inch laceration on the back of his head that would have

required stiches. (Id. at 447—48, 456, 460—61, 463, 486—87.)

Petitioner asserts that, given Mr. Walfall’s medical

condition, it was impossible for the prosecution to prove that

any injuries sustained during the fight caused his death. (Pet.

16-17.) But Petitioner was not convicted of murder or

manslaughter; he was convicted of gang assault. The prosecution

was not required to prove that the assault caused the victim’s

death, only that it caused “serious physical injury.” From the

totality of the evidence, a reasonable jury could conclude that

the attack against Mr. Walfall caused serious physical injury.

Accordingly, the Appellate Division did not reach an

objectively unreasonable decision. Rather, the Appellate

Division granted appropriate deference to the jury’s

determination of the facts, and found that the verdict was

supported by sufficient evidence. Petitioner’s challenge to the

sufficiency of the evidence is, therefore, rejected.

II. Ground Two: Admission of the Autopsy Photograph

Petitioner next argues that the “admission [at trial]

of a disturbing bloody autopsy photograph of the victim’s skull

with the scalp removed” deprived him of a fair trial. (Pet. at

7.) This claim was also considered, and rejected, by the

Appellate Division, which held that “[t]he challenged photograph

was neither excessively gruesome nor introduced solely for the

purpose of arousing the jurors’ passions and prejudicing the

defendant . . . .” Coleman, 148 A.D.3d at 718. “Rather, the

photograph was relevant to help illustrate and corroborate the

testimony of the medical examiner regarding the cause of death

. . . .” Id. As the medical examiner testified, the victim’s

injuries suffered during the fight, coupled with his enlarged

heart, caused his death. (Tr. at 476-78.) The state appellate

court’s determination is entitled to deference under the AEDPA.

See Sellan, 261 F.3d at 308.

“State trial court evidentiary rulings generally are

not a basis for habeas relief.” Oliver v. Kirkpatrick, No. 06-

cv-6050, 2012 WL 3113146, at *6 (E.D.N.Y. July 31, 2012) (citing

Vega v. Walsh, 669 F.3d 123, 126 (2d Cir.2012)). “Even if

unfairly prejudicial evidence was erroneously admitted at trial,

to amount to a denial of due process, the evidence must have

been sufficiently material to provide the basis for conviction

or to remove a reasonable doubt that would have existed on the

record without it.” Id. (quotation and alterations omitted).

Here, the court agrees that the autopsy photograph was

probative, because it was relevant to Dr. O’Reilly’s testimony

about the extent of the victim’s injuries. As discussed above,

the extent of the victim’s injuries was an essential element of

the crime for which Petitioner was convicted. The state trial

court made a determination regarding the admissibility of the

photograph, which the Appellate Division upheld. Even if this

court disagreed with the trial court’s decision regarding the

admissibility of the photograph, in order to grant a writ of

habeas corpus, this court would have to find that the photograph

“was ‘so extremely unfair that its admission violated

fundamental conceptions of justice.’” Sandoval v. Lee, No. 14-

cv-5187, 2016 WL 2962205, at *5 (E.D.N.Y. May 20, 2016) (quoting

Dowling v. United States, 493 U.S. 342, 352 (1990)) (alterations

omitted).

Based on the other evidence against Petitioner, the

court cannot find that the introduction of a single photograph

violated his constitutional right to a fair trial. This claim

is therefore, likewise, rejected.

III. Ground Three: Prosecutor’s Statements During Summation

Petitioner also argues that he was denied a fair trial

because the prosecutor, during summation, stated that the case

was about Petitioner “taking umbrage that somebody would have

the audacity to dance with his girlfriend,” and that Petitioner

believed it was “[n]ot okay for his property, not okay for his

cattle” to dance with someone else. (Tr. at 1038; see Pet. at

10.) The Appellate Division found that arguments about the

summation were not preserved, because Petitioner “failed to

object to the statements.” Coleman, 148 A.D.3d at 718.

Nonetheless, the Appellate Division held that, on the merits,

“the prosecutor’s statements in his summation, for the most

part, constituted fair comment on the evidence and the

inferences to be drawn therefrom . . ., and any improper

statements were not ‘so flagrant or pervasive’ as to deprive

[Petitioner] of a fair trial.” Id. (quoting People v. Almonte,

23 A.D.3d 392, 394 (2d Dept. 2005)). Petitioner asserts in his

petition that his counsel rendered ineffective assistance by

failing to properly present the issue on appeal (Pet. at 11),

and notes in his reply brief that his trial counsel did, in

fact, object to the prosecutor’s summation (Reply at 7-8).

Petitioner’s claim that the prosecutor’s summation

violated his rights would generally be barred because the

Appellate Division held that it was not preserved for appellate

review. Where a state court finds that a claim is procedurally

barred, federal habeas review is barred. See Harris v. Reed,

489 U.S. 255, 262 (1989) (“[A]n adequate and independent finding

of procedural default will bar federal habeas review of the

federal claim, unless the habeas petitioner can show cause for

the default and prejudice attributable thereto, or demonstrate

that failure to consider the federal claim will result in a

fundamental miscarriage of justice.”) (quotations and citations

omitted).

Here, the trial transcript reveals that Petitioner’s

counsel did object immediately after the prosecutor used the

word “cattle.” (Tr. at 1039.) The trial court sustained the

objection, and instructed the jury to “disregard” the statement.

(Id.) Thus, Petitioner’s argument that the summation violated

his rights appears to have been preserved, and is not barred.

Petitioner’s argument fails on the merits because there was no

error in the trial court’s handling of the prosecutor’s

statement. The prosecutor’s suggestion, without evidence, that

Petitioner viewed his girlfriend as “cattle” was unfortunate,

but the trial judge sustained defense counsel’s objection and

promptly instructed the jury to disregard the statement. “As

the Supreme Court has frequently observed, the law recognizes a

strong presumption that juries follow limiting instructions.”

United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006). Thus,

because the judge provided a limiting instruction to the jury,

Petitioner’s rights were not violated by the summation.

To the extent Petitioner now claims that he was

rendered ineffective assistace of counsel because his appellate

counsel failed to show that the issue was preserved on appeal,

he must meet the “highly demanding” standard set forth in

Strickland v. Washington, 466 U.S. 688 (1984). See Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986). The court “must indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance,” and “[j]udicial

scrutiny of counsel’s performance must be highly deferential.”

Strickland, 466 U.S. at 89; see also United States v. Cohen, 427

F.3d 164, 167 (2d Cir. 2005).

Under Strickland’s two-prong test for ineffective

assistance of counsel, habeas petitioners must demonstrate (1)

that “counsel’s representation fell below an objective standard

of reasonableness,” and (2) that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

Strickland, 466 U.S. at 688, 703. If a petitioner fails to meet

one prong, the court need not consider the other. See Parker v.

Ercole, 666 F.3d 830, 834 (2d Cir. 2012).

The Appellate Division’s opinion makes clear that,

even if appellate counsel had properly shown that the issue

regarding the prosecutor’s statements during summation was

preserved for appellate review, it would not have changed the

outcome of the appeal. The Appellate Division found it

unpreserved, but nonetheless addressed the issue on the merits,

holding that “the prosecutor’s statements in his summation, for

the most part, constituted fair comment on the evidence and the

inferences to be drawn therefrom . . ., and any improper

statements were not ‘so flagrant or pervasive’ as to deprive

[Petitioner] of a fair trial.” Coleman, 148 A.D.3d at 718.

Thus, even if the issue had been properly presented, the

Appellate Division made clear it would have rejected the issue.

Any error on the part of Petitioner’s counsel was therefore

immaterial to the outcome of the appeal, and so Petitioner’s

claim fails the second prong of the Strickland test.

Petitioner’s contention that his conviction must be

vacated because of the prosecutor’s statements during summation

is thus rejected.

IV. Ground Four: Sentencing

Finally, Petitioner argues that his “adjudication as a

second violent felony offender” was “illegal.” (Pet. at 9.) As

discussed above, Petitioner raised this argument on appeal, and

the Appellate Division agreed and remanded his case to the trial

court for re-sentencing. See Coleman, 148 A.D.3d at 718-19. On

remand, Petitioner was re-arraigned as a second non-violent

felony offender, and re-sentenced to seventeen years in prison,

rather than eighteen years in prison. (Opp. at 7.) Thus,

Petitioner’s argument is effectively moot.

“An excessive sentence claim may not provide grounds

for habeas corpus relief where a petitioner’s sentence is within

the range prescribed by state law.” Taylor v. Connelly, 18 F.

Supp. 3d 242, 268 (E.D.N.Y. 2014); see also White v. Keane, 969

F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional

issues is presented where, as here, the sentence is within the

range prescribed by state law.”). Here, Petitioner was

convicted of gang assault in the first degree, which under New

York law is a class B violent felony. N.Y. Penal Law §

70.02(1)(a); see N.Y. Penal Law § 120.07. The sentence for a

class B violent felony, without any enhancement for a prior

violent felony offense, must be “at least five years and must

not exceed twenty-five years . . . .” N.Y. Penal Law §

70.02(3)(a).

Mr. Coleman’s sentence of seventeen years was within

the range allowed under state law, and thus did not violate his

constitutional rights. Any claims that he could have raised or

did raise regarding his sentence are, therefore, rejected.

Conclusion

For the foregoing reasons, Mr. Coleman’s Section 2254

petition is DENIED and dismissed in its entirety. Because Mr.

Coleman has not made a substantial showing of the denial of a

constitutional right, a certificate of appealability shall not

issue. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

(discussing certificate of appealability standard); Rules

Governing Section 2254 and 2255 Cases, Rule 11 (“The district

court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant.”).

The Clerk of Court is respectfully directed to enter

judgment in favor of Respondent, serve Mr. Coleman with a copy

of this Memorandum and Order and the judgment, note service on

the docket, and close this case.

SO ORDERED.

Dated: Brooklyn, New York

August 14, 2020

__________/s/_______________

Hon. Kiyo A. Matsumoto

United States District Judge