Pinckney v. Lee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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COMFORT PINCKNEY,

Petitioner,

MEMORANDUM & ORDER

-against-

10-CV-01312 (KAM)

WILLIAM LEE, Superintendent of

Green Haven Correctional Facility,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

In 2010, petitioner Comfort Pinckney (“petitioner”),

proceeding pro se, filed this petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, challenging the

constitutionality of his 2003 state court conviction for Murder

in the Second Degree, Criminal Possession of a Weapon in the

Second Degree, and Criminal Possession of a Weapon in the Third

Degree. (ECF No. 1, Petition for Writ of Habeas Corpus (“Pet.”)

1.) William Lee, the nominal respondent (“respondent”), opposes

the petition as procedurally barred and without merit.1 (See ECF

No. 9 (ECF pp. 17-74), Memorandum of Law in Opposition to

Petition (“Opp.”).)

1 Mr. Lee was the Warden of Green Haven Correctional Facility,

petitioner’s place of incarceration when this case commenced. The District

Attorney of Queens County is representing respondent in this matter pursuant

to an agreement with the Attorney General of the State of New York. (ECF No.

9 (ECF pp. 1-16), ADA Ushir Pandit Affidavit in Opposition (“Aff. in Opp.”)

3.) Petitioner filed his reply to respondent’s opposition brief on February

9, 2011. (ECF No. 20, Petitioner’s Traverse to Return (“Reply”).)

On March 6, 2013, the court entered an order staying

proceedings in order to allow petitioner to exhaust his remedies

in state court. (Dkt. Order, dated March 6, 2013.) This case

has been stayed ever since, with only intermittent docket

activity. Petitioner’s efforts to seek relief in state court

remain pending. (ECF No. 67, Status Update Letter, dated Feb.

19, 2020 (“Feb. 19 Ltr.”); ECF No. 72, Status Update Letter,

dated Oct. 19, 2020 (“Oct. 19 Ltr.”).) Nevertheless, as

discussed below, this case is now ripe for adjudication of all

claims asserted. In addition, petitioner moved to amend his

original petition on October 2, 2019. (ECF No. 63, Motion to

Amend Petition, dated Oct. 2, 2019 (“Mot. Amend”).) The court

will address petitioner’s Motion to Amend herein. For the

reasons discussed below, the petition is DISMISSED in its

entirety, and petitioner’s motion to amend his habeas petition

is DENIED.

BACKGROUND

A. The Shooting

Petitioner was convicted for the murder of Michael

Hammonds, who was shot in the face at point blank range. On May

6, 2000, past midnight, Mr. Hammonds met up with his friends,

Carmain Desir and Prague Alexander,2 for a drink at Tony’s Sports

2 On occasion, the record refers to Hammonds, Desir, and Alexander by

their nicknames, Preme, Chronic, and Clifford, respectively.

Bar in Jamaica, Queens. (Trial Tr. 296-97, 345.)3 Desir and

Hammonds went inside the bar, although Alexander did not. (Id.

297-98.) At around 2:00 or 2:30 am, Desir and Hammonds decided

to leave the bar to buy cigarettes at a nearby 24-hour bodega.

(Id. 297-99.) As they were walking down a well-lit street,

toward the store, Desir observed petitioner and another male

“about to fight” across the street. (Id. 300-01.) In his trial

testimony, Desir vividly recalled petitioner’s appearance that

night, specifically his “[l]ow caeser, low, low haircut,” and

“green T shirt with a pocket on the left hand side and black

jeans[.]” (Id. 302.)

Once it became clear the petitioner’s dispute with the

other male had deescalated, Desir and Hammonds turned around to

return to the bar. (Trial Tr. 304-05.) Petitioner, however,

turned his attention to Desir, expressing agitation that Desir

was looking in his direction. (Id. 305.) Petitioner approached

Desir in a belligerent posture, and the two nearly came to

blows. (Id. 305-06.) As petitioner and Desir came face-to-

face, Desir was able to closely observe the petitioner’s

3 Citations to “Trial Tr.” refer to the transcript of petitioner’s

criminal trial proceedings in People v. Pinckney, Indictment No. 1497-2000,

in the New York Supreme Court, Queens County, from January 23 through

February 10, 2003. The 843-page trial transcript begins at ECF No. 68-1 (ECF

p. 109), and continues through ECF Nos. 68-2, 68-3, 68-4, 68-5, and 68-6.

Citations to the trial record correspond to the transcript, not ECF,

pagination. The transcript for the Wade hearing proceedings on December 17,

2001 and May 22, 2002 (collectively, “Wade Hr’g Tr.”), is available at ECF

No. 68-1, ECF pp. 24-40, 61-80, and citations likewise correspond to

transcript pagination.

appearance. (Id. 307-08.) Desir also paid close attention to

petitioner’s hand and arm movements, and noticed him take off a

silver watch with a blue head. (Id. 309.) The two men

exchanged heated words for several minutes, until Hammonds

interceded, at which point Hammonds began to exchange words with

petitioner. (Id. 311-14.)

Just as the confrontation seemed to wane, petitioner

demanded that Desir and Hammonds “wait here.” (Id. 315.)

Petitioner walked to his “American made,” “burgundy four-door

car,” parked down the block from the store. (Id. 315-16.)

According to Desir, petitioner then opened the glove

compartment, removed “something black with a handle” that he

placed in his waist, and walked back towards Desir and Hammonds.

(Id. 315, 317-18.) Petitioner and Hammonds resumed their

argument, which lasted several more minutes, while petitioner

adjusted the object in his waist. (Id. 318-20.) Desir was

“right in their face” during the entirety of the exchange. (Id.

322.) Several parties also tried to intervene and lower the

tension, to no avail. (Id. 322-23.)

Hammonds then asked petitioner “what the fuck” he was

talking about. (Trial Tr. 324.) Petitioner stepped back,

turned around, placed his hands on his waist, and pull out a

black semiautomatic weapon. (Id. 324.) Desir was approximately

three feet from petitioner at the time, but turned and fled the

moment petitioner pulled the weapon from his waist, before any

shots were fired. (Id. 324-26.) As Desir fled, he heard shots

fired, and saw petitioner with his arm extended in a firing

motion, but did not actually see the weapon as it discharged.

(Id. 327-28.) When Desir returned to the scene shortly after, a

crowd had gathered around, and he learned that Hammonds had been

shot. (Id. 329.)

Prior to the shooting, Prague Alexander also

encountered petitioner outside the bodega, and approached him

under the assumption that it was another man, petitioner’s

brother “Unique Pinckney.” (Trial Tr. 447-48.) When petitioner

turned around, Alexander realized that it was Unique Pinckney’s

brother, petitioner. (Id.) Alexander greeted him, and the two

spoke briefly. (Id. 451, 483.) Alexander witnessed part of the

verbal altercation between Desir and petitioner, but knew little

of the situation. (Id. 452-58.) Alexander decided to return to

the bar, but when he realized that Desir and Hammonds were not

following him, he turned around and began heading back to the

bodega. (Id. 457-58.) As he approached the bodega, Alexander

witnessed the petitioner pull a gun out of his waistband, walk

up to Hammonds, and shoot him. (Id. 458-59.) After Hammonds

fell to the ground, petitioner approached Alexander, stuck the

gun in his ribs, and asked him if he had seen anything. (Id.

461.) Alexander said no, and the petitioner left. Thereafter,

Alexander called the police from a payphone. (Id. 461-62.)

Garfield Smith was working as a bouncer at Tony’s

sports bar the night of the shooting. (Trial Tr. 495.) After

hearing a “pop,” Smith left the bar to look outside. (Id. 495-

96.) Smith looked down the block, and saw a milk truck that

would come to the area every night around 2:00 a.m., and two

black men walking away from a motionless body. (Id. 497-98.)

The two men entered a red or maroon Ford Taurus, and drove away

from the scene. (Id. 498-500.) After the car pulled away,

Smith walked down the block to the area outside the bodega,

where a crowd had gathered, and saw Hammonds’ body laying on the

ground. (Id. 495-96.) Smith recalled that Hammonds had been

inside the bar earlier with a friend, and left after only a few

minutes. (Id.)

Smith returned to Tony’s to secure the bar. (Trial.

Tr. 501.) Shortly after, Smith saw a red Ford Taurus, which

“looked very much []like” the car that had pulled away moments

earlier, circle back to the scene. (Id. 502-03.) Although

Smith looked down at the floor to avoid making eye contact with

the vehicle’s occupants, he managed to obtain the first part of

the vehicle’s license plate number: “T11.” (Id. 503-04.) He

also observed that there were no screws to hold down the bottom

of the plate. (Id. 504.)

Vincent Johnson was also present in the area around

the time of the shooting. Johnson was delivering milk to the

bodega, unloading milk onto a handcart, when he heard a “pop.”

(Trial Tr. 415-418.) When he turned around, he saw a man lying

on the ground with blood “coming out of his eye.” (Id. 417-18,

435-36.) Johnson turned away out of fear for his safety, and

therefore, did not have a clear glimpse at the assailant’s face.

(Id. 418, 422.) With his peripheral vision, however, Johnson

saw the gunman put his arm around another person, threatening,

in sum and substance, to shoot him if he spoke to the

authorities. (Id. 418, 422.) He then observed the gunman walk

to a “red or maroon,” four-door Ford vehicle, and enter on the

passenger side. (Id. 423.)

Police and Emergency Medical Services personnel

responded to the shooting, and arrived at the scene outside the

bodega to find Hammonds lying on his back, with a gunshot wound

to his face. (Trial Tr. 236-38, 250-53, 424.) Hammonds was

taken to a local hospital, where doctors determined that he was

brain dead. (Id. 241, 411, 596.) Hammonds died after his

family decided to remove him from life support. (Id.)

B. The Investigation

The police recovered a 9-millimeter bullet and a 9-

millimeter shell casing from the crime scene, leading them to

conclude that a 9-millimeter semi-automatic gun was the murder

weapon. (Trial Tr. 279-80, 402-04.) NYPD Detective John Moeser

was assigned to the case and focused on locating the red getaway

car, based on Smith’s partial description. (Id. 543-44.) After

running the vehicle’s make, model, color, and partial license

plate information through the Department of Motor Vehicles

database, Detective Moeser identified a red Ford Taurus with

license plate T116RC, registered to owner William Campbell.

(Id. 544-47.) Detective Moeser arrived Mr. Campbell’s Brooklyn

address at around 7:00 p.m. on May 6, 2000, and found Mr.

Campbell standing next to the vehicle. (Id. 544-46.) Detective

Moeser also learned that Mr. Campbell’s wife was Shari Pinckney,

petitioner’s sister. (Id. 546-47.) After conversing with Mr.

Campbell and Ms. Pinckney, Detective Moeser had the vehicle

towed back to the garage for the NYPD 105th Precinct. (Id. 546-

48.) Subsequently, Mr. Smith, the bouncer who reported a

partial license plate of the vehicle at the scene of the

shooting, was escorted by the police to the garage, and his

attention was directed to the impounded vehicle. (Id. 504-05.)

After studying the vehicle, Mr. Smith confirmed that it was the

same car he had observed the gunman enter into and leave in.

(Id. 546-48.)

The NYPD arrested petitioner on May 9, 2000, and

escorted him to the 105th Precinct to participate in a line-up

related to the investigation of Hammonds’ shooting. (Trial Tr.

561, 604.) Once petitioner was in custody, Detective Moeser

recovered a “large silver watch with a blue face” from

petitioner’s wrist. (Id. 550.) Desir subsequently identified

petitioner from the line-up as Hammonds’ killer. (Id. 333).

Petitioner was thereafter indicted on two counts of Murder in

the Second Degree, see New York Penal Law (“NYPL”) §§ 125.25(1),

(2), and Criminal Possession of a Weapon in the Second and Third

Degree, see NYPL §§ 265.03(2), 265.02(4). (Aff. in Opp. 4.)

C. Wade Hearing

Petitioner moved to suppress testimony regarding the

line-up identification. Justice Hanophy denied petitioner’s

motion after conducting a Wade hearing on December 17, 2001 and

May 22, 2002.4 (Wade Hr’g Tr. 1, 18.) Detective Walter Panchyn

testified that, on May 9, 2009, he showed Desir a photo array

prepared by the Nassau County Police Department (“Nassau PD”),

which contained petitioner’s picture. (Id. 3, 8.) Sergeant

Frank Libretto, who conducted the line-up at the police

precinct, also testified that he afforded petitioner’s attorney,

Stephen Somerstein, Esq., the opportunity to modify and adjust

the line-up prior to Desir’s identification. (Id. 25.)

Somerstein did, in fact, request that petitioner be permitted to

4 “A Wade hearing is held to determine if a witness’s identification is

tainted by unduly suggestive identification procedures.” Cardova v.

Lavalley, 123 F. Supp. 3d 387, 392 n.1 (E.D.N.Y. 2015) (citing United States

v. Wade, 388 U.S. 218 (1967)).

change from a white tee-shirt to a black tee-shirt, and that the

individuals in the line-up have their positions rearranged,

which requests Sergeant Libretto granted. (Id. 25-27.)

Somerstein also objected that the line-up fillers were heavier

and older than petitioner. (Id. 35; see also Trial Tr. 606,

609, 616.)

D. Trial

At trial, the State presented the testimony of Carmain

Desir and Prague Alexander. Defense counsel, Mr. Scott

Brettschneider, Esq.,5 moved to preclude Alexander’s in-court

confirmatory identification. (Trial Tr. 450.) Justice Joseph

Rosenzweig, presiding, denied the motion to preclude, and

preemptively denied any motion for mistrial based on that

ruling. (Id.) Alexander identified petitioner as Mr. Hammonds’

shooter, although Alexander initially believed it was

petitioner’s brother who was the assailant. (Id. 448.) Desir

also identified petitioner as the shooter, and testified about

the events that culminated in Hammonds’ murder. Namely, Desir

testified that petitioner pulled a gun from his waist and had

earlier removed a silver watch with a blue face from his arm.

(Id. 309, 323-24.) Detective Moeser also testified that he

recovered a silver watch from petitioner’s wrist following the

5 Prior to Mr. Brettschneider’s representation, John Wallenstein, Esq.

replaced Mr. Somerstein as petitioner’s counsel. (ECF No. 71-1 (ECF p. 52),

Attorney Affirmation of Stephen Somerstein, Esq., ¶ 2.)

arrest. (Id. 550.) Somerstein, petitioner’s attorney at the

time of his arrest, confirmed at trial that the police recovered

a silver, blue-face watch from his former client’s wrist. (Id.

611-12.)

E. Sentencing

On February 10, 2003, a jury unanimously convicted

petitioner of Murder in the Second Degree, and Criminal

Possession of a Weapon in the Second and Third Degree. (Trial

Tr. 839-43.) One month later, petitioner successfully moved to

substitute Mr. Brettschneider as counsel. (See ECF No. 68-1

(ECF pp. 87-90), Hearing for Reassignment of Counsel, dated

March 10, 2003.) On March 28, 2003, Justice Rosenzweig denied

as meritless petitioner’s pro se motion, pursuant to New York

Criminal Procedural Law (“CPL”) section 330, to vacate his

conviction on the basis of ineffective assistance of counsel.

(See ECF No. 68-1 (ECF pp. 91-102), March 28, 2003 Hearing.) On

July 2, 2003, Justice Rosenzweig denied petitioner’s second

Section 330 motion, submitted by newly retained counsel Joseph

Defelice, Esq. (ECF No. 68-1 (ECF pp. 54-57), Hearing on § 330

Motion, dated July 2, 2003.) The second motion claimed that

defense counsel rendered ineffective assistance by failing to

file a notice of alibi witnesses, but the court found the claim

beyond the proper scope of a § 330 motion. (Id.; Pet. 17.)

On July 29, 2003, Justice Rosenzweig sentenced

petitioner to concurrent terms as follows: (1) 25 years to life

imprisonment for Murder in the Second Degree; (2) five years’

imprisonment for Criminal Possession of a Weapon in the Second

Degree; and (3) three years’ imprisonment for Criminal

Possession of a Weapon in the Third Degree. (ECF No. 68-1 (ECF

pp. 1-13), Sentencing Transcript dated July 29, 2003 (“Sent.

Tr.”) 11.)

F. Post-Conviction Proceedings

In January 2005, petitioner’s appellate counsel, Lisa

Napoli, Esq., filed a brief appealing Pinckney’s conviction on

the basis that the prosecutor’s comments during summation denied

petitioner a fair trial. (Defendant Comfort Pinckney’s

Appellate Brief, filed January 2005 (“App. Br.”) 2.) On July 1,

2005, petitioner filed a pro se supplemental appellate brief,

asserting: (1) the trial court abused its discretion by

curtailing defense counsel’s cross examination, allowing the

prosecutor to enter into evidence the Nassau PD photo array

without first establishing its authenticity, and because the

trial testimony discredited the Wade hearing evidence; (2) the

disparities inherent in the line-up tainted the identification

procedure; (3) the prosecutor’s failure to preserve three of

four photographs of the line-up for appellate review required

reversing petitioner’s conviction; and (4) the trial court

erroneously denied defense counsel’s motion to preclude a

confirmatory identification. (See generally Pro Se Supplemental

Appellate Brief, dated June 22, 2005 (“Supp. App. Br.”).)6

On March 14, 2006, the Appellate Division, Second

Department affirmed petitioner’s judgment of conviction. People

v. Pinckney, 27 A.D. 3d 581, 582 (N.Y. App Div. 2d Dep’t 2006).

The Appellate Division held, inter alia, that the line-up was

not unduly suggestive, and that the State was not required to

give notice for a confirmatory in-court witness identification.

Id. On May 9, 2006, the New York Court of Appeals denied leave

to appeal. People v. Pinckney, 6 N.Y.3d 897 (N.Y. 2006).

On May 29, 2007, petitioner filed a pro se motion to

vacate judgment pursuant to CPL section 440.10. (Pet. 9.; ECF

No. 71-1 (ECF pp. 9-35), § 440.10 Motion, filed May 29, 2007.)

Petitioner moved on the following grounds:

(1) Trial counsel was ineffective owing to a failure

to conduct a pre-trial investigation, fail[ure] to

interview and present alibi witnesses, fail[ure] to

explore a valid line of defense, and fail[ure] to

mount a challenge to the claim of probable cause for

his arrest; (2) defendant’s right to counsel was

violated when he was arrested and interrogated, and

when a photo array containing his photograph was shown

to witnesses outside of his attorney’s presence at a

time when his attorney was representing him; (3) newly

discovered evidence established that police testimony

was fabricated as to where the police obtained his

photograph that was in the photo array, and that the

District Attorney’s Office should have been aware of

6 Mr. Pinckney’s Appellate Brief and Pro Se Supplemental Appellate Brief

are not available on the electronic docket. Respondent provided the court

with hardcopy versions of these filings. (See ECF No. 11.)

the fabrication; and (4) trial counsel was also

ineffective for failing to request DNA testing of a

cap found at the crime scene, because such testing

would have revealed exculpatory evidence.

(Id.) On March 10, 2008, Robert L. Moore, Esq. filed a reply

brief and affirmation on petitioner’s behalf, in support of his

pro se motion. (ECF No. 71-1 (ECF pp. 70-76), Affirmation of

Robert L Moore, Esq., dated March 7, 2008; ECF No. 71-1 (ECF pp.

77-96), § 440.10 Reply.) Justice Robert C. McGann denied

petitioner’s motion to vacate on June 10, 2008 (see Pet. 15; ECF

No. 71-1 (ECF pp. 120-24), § 440.10 Order), and further denied

petitioner’s application for reargument on March 24, 2009.

(Pet. 22; ECF No. 71-1, Order Denying Motion to Reargue.) On

June 9, 2009, the Appellate Division, Second Department denied

petitioner’s application for leave to appeal Justice McGann’s

June 10, 2008 and March 24, 2009 orders. (Pet. 23.; ECF No. 71-

1 (ECF p. 146), June 9 Order.)

On June 9, 2009, petitioner filed a pro se application

for a writ of error coram nobis. (ECF No. 33-1, Writ of Error

Coram Nobis, dated June 9, 2009.) Petitioner claimed his

appellate counsel, Ms. Napoli, rendered ineffective assistance

by not challenging, on appeal, the performance of petitioner’s

trial counsel. Petitioner specifically asserted that Ms. Napoli

should have (1) asserted error for counsel’s failure to contest

Prague Alexander’s confirmatory in-court identification, and (2)

challenged the legal sufficiency of the evidence presented to

the grand jury, especially after Desir supposedly admitted at

trial that he had testified falsely at the grand jury. (Id.)

The Appellate Division denied defendant’s coram nobis

application on November 24, 2009. People v. Pinckney, 67 A.D.3d

1030 (N.Y. App. Div. 2d Dep’t 2009). On March 4, 2010, the New

York Court of Appeals denied petitioner leave to appeal. People

v. Pinckney, 14 N.Y.2d 804 (N.Y. 2010).7

On March 12, 2018, petitioner filed a successive

motion to vacate pursuant to CPL § 440.10 with the Queens County

Supreme Court. (ECF No. 54, Petitioner’s Status Update Letter,

dated Dec. 10, 2018.) In his successive § 440.10 motion,

petitioner asserted that the prosecution violated his rights

under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United

States, 405 U.S. 150 (1972) by:

1) failing to disclose information, at the Wade

hearing, harmful to the credibility of detective

Walter Panchyn, who testified falsely that Carm[a]in

Desir identified [petitioner] from a photo array on

May 9, 2000, leading to my arrest and line-up

identification, 2) misrepresenting during trial, in

response to defense counsel’s objection to Prague

Alexander’s surprise in-court identification of me as

7 On March 17, 2015, the Appellate Division determined that petitioner’s

application for leave to appeal the lower court’s denial of his application

for DNA testing pursuant to CPL § 440.30(1-a) was unnecessary because an

order denying DNA testing is appealable as of right. (ECF No. 43,

Government’s Status Update Letter, dated Oct. 14, 2015.) On April 9, 2015,

petitioner filed a brief with the Appellate Division appealing the lower

court’s denial of his request for DNA testing pursuant to CPL § 440.30(1-a).

(ECF No. 60, Petitioner’s Status Update, dated April 10, 2019.) To the

court’s knowledge, this appeal remains pending.

of May 6, 2000, and 3) committing fraud upon the court

pertaining to the photographic identification

procedure.

(See Mot. Amend. 1.) “In sum, [petitioner] argued the allege[d]

May 6th and May 9th identification procedures could not have

possibly occurred because the police did not posses my Learner’s

Permit photograph until May 10--the date the photograph bears

upon being retrieved from the DMV’s computer database.” (Id.

2.) As relief, petitioner sought an evidentiary hearing

pursuant to CPL § 440.30(6), in order to resolve “factual

disputes” regarding the “date when the DMV . . . issued the

certificate bearing [petitioner’s] Learner’s permit photograph.”

(Id.) On February 2, 2019, the Supreme Court, Queens County

denied petitioner’s successive § 440.10 motion in its entirety,

including his request for an evidentiary hearing (“February 2019

Order”). (ECF No. 57, Government’s Status Update Letter, dated

April 5, 2019.) The Appellate Division and Court of Appeals

subsequently denied petitioner leave to appeal the lower court’s

denial. (Id.)

G. The Habeas Petition

On March 22, 2010, petitioner filed the instant habeas

petition in the Eastern District of New York. (See Pet. 1.)

Petitioner asserts: (1) ineffective assistance of trial counsel;

(2) denial of due process based on the lower court finding that

trial counsel’s affidavit held greater probative value than the

certified trial transcript; (3) denial of due process and the

right to a fair trial due to “unduly suggestive” police

identification procedures; and (4) ineffective assistance of

appellate counsel. (See generally Pet.)

Further, the respondent construes the petition as

implicitly asserting a claim of “newly discovered evidence.”

(Opp. 41.) Petitioner’s reply confirms the respondent’s

construction. (Reply 13-17.) In short, petitioner asserts he

obtained evidence, back in 2006, that Detective Panchyn lied

about the source of the photo array at the Wade Hearing, and

that this falsehood infringed petitioner’s due process rights by

harming “the integrity of the normal process of adjudication.”

(Reply 15.) In addition, petitioner’s October 2, 2019 Motion to

Amend seeks the evidentiary hearing denied by the February 2019

Order, to resolve the factual disputes raised in his successive

§ 440.10 motion filed in 2018. (See generally Mot. Amend.)

On March 6, 2013, this court granted petitioner’s

request for a stay of proceedings in order to allow him to

exhaust his administrative remedies. (Dkt. Order, dated March

6, 2013.) Petitioner’s further stay requests were also granted

(see ECF Nos. 23, 25), and the stay has been in place since,

with the last extension being ordered on December 3, 2019. The

court now exercises its discretion to lift the stay, and will

resolve petitioner’s habeas claims and his motion to amend.

STANDARD OF REVIEW

Pursuant to Section 2254 of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), a district court shall

issue a writ of habeas corpus for 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 district court may grant a writ of habeas

corpus for claims that were adjudicated on the merits in state

court and if the 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). “A state court adjudicate[s] a state prisoner’s

federal claim on the merits when it (1) disposes of the claim

‘on the merits,’ and (2) reduces its disposition to judgment.”

Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (brackets in

original) (citing 28 U.S.C. § 2254(d)(1)); see also Chandler v.

Girdich, No. 04–CV–432(JTE)(VEB), 2007 WL 1521128, at *3

(W.D.N.Y. Apr. 25, 2007) (citing 28 U.S.C. § 2254(d)(1),(2)).

Dismissal of a habeas claim on the ground that the

claim was procedurally defaulted is a disposition of the claim

on the merits. Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir.

2001). “The United States Supreme Court has held that reliance

by a state court upon an adequate and independent state ground

to decide[] a constitutional claim precludes federal habeas

review of that claim unless the petitioner can show cause for

the default and prejudice attributable thereto, or that the

petitioner is factually innocent such that a fundamental

miscarriage of justice would occur should the federal court

decline to hear the claim.” Mills v. Girdich, 614 F. Supp. 2d

365, 379 (W.D.N.Y. May 15, 2009) (citing Coleman v. Thompson,

501 U.S. 722, 749-50 (1991)). “This procedural default doctrine

and its attendant ‘cause and prejudice’ standard are grounded in

concerns for federalism and comity between the state and federal

sovereigns.” Aparicio, 269 F.3d at 90 (quoting Coleman, 501

U.S. at 730).

A petitioner may fulfill the cause requirement by

demonstrating that “some objective factor, external to

Petitioner’s defense, interfered with his ability to comply with

the state’s procedural rule.” Gutierrez v. Smith, 702 F.3d 103,

111 (2d Cir. 2012) (citing McClesky v. Zant, 499 U.S. 467, 493

(1991)). The petitioner can also establish cause by

demonstrating that “prior state case law has consistently

rejected a particular constitutional claim.” Id. (citing

DiSimone v. Phillips, 461 F.3d 181, 191 (2d Cir. 2006)). In

order to establish prejudice, petitioner must demonstrate that

the alleged error resulted in “actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimensions.” Torres v. Senkowski, 316 F.3d 147,

152 (2d Cir. 2003) (internal quotation marks and citation

omitted).

The procedural default may also be excused if the

petitioner can show that a fundamental miscarriage occurred,

where “in light of new evidence, ‘it is more likely than not

that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.’” Osbourne v. Heath, No. 12-CV-1138

JFB, 2015 WL 1548947, at *8 (E.D.N.Y. Apr. 8, 2015) (citing

House v. Bell, 547 U.S. 518, 537 (2006)). “A miscarriage of

justice is demonstrated only in extraordinary cases, such as

where a constitutional violation results in the conviction of an

individual who is actually innocent.” McCall v. Capra, 102 F.

Supp. 3d 427, 446 (E.D.N.Y. 2015) (citing Osbourne, 2015 WL

1548947, at *8); see also Bousley v. United States, 523 U.S.

614, 623-24 (1998) (“Actual innocence means factual innocence,

not mere legal insufficiency.”).

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); see also

Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (“due to

the pro se petitioner’s general lack of expertise, courts should

review habeas petitions with a lenient eye . . . .”).

Therefore, the court interprets petitioner’s pleadings as

raising the strongest arguments they suggest. 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. Motion to Amend

Petitioner moves to amend “Ground Two” of the petition

on the basis that the state court denied his successive § 440.10

motion without an evidentiary hearing. (See Mot. Amend. 1.)

Petitioner argues that the state court erred in denying his

request for an evidentiary hearing pursuant to CPL § 440.30(6),8

and by leaving unresolved the date on which the DMV provided

“any law enforcement agency” with petitioner’s Learner’s Permit

photograph. (Id. 2.) He now seeks the evidentiary hearing

denied him in state court. (Id.)

A petitioner’s motion to amend is governed under

Federal Rule of Civil Procedure 15(a). See Fed. R. Civ. P.

8 CPL § 440.30(6) states that “the defendant has the burden of proving by

a preponderance of the evidence every fact essential to support the motion”

at an evidentiary hearing pursuant to subsection 440.30(5).

15(a). Where, as here,, a responsive pleading has been served,

the court grants leave to amend “when justice so requires.” Id.

15(a)(2). Although “leave to amend generally should be freely

granted, it may be denied where there is good reason to do so,

such as undue delay, bad faith, dilatory tactics, undue

prejudice to the party to be served with the proposed pleading,

or futility.” Edwards v. Fischer, No. 01Civ.9397(LAK)(THK),

2002 WL 31833237, at *1 (S.D.N.Y. Dec. 16, 2002) (citing Forman

v. Davis, 371 U.S. 178, 182 (1962)). A proposed amendment is

futile “if the proposed claim could not withstand a motion to

dismiss for failure to state a claim upon which relief may be

granted.” Id. (quoting Lucente v. Int’l Bus. Machs. Corp., 310

F.3d 243, 258 (2d Cir. 2002)). “[I]t is well established that

leave to amend a complaint need not be granted when amendment

would be futile.” Ellis v. Chao, 336 F.3d 114, 126 (2d Cir.

2003) (citing Forman, 371 U.S. at 182).

The Second Circuit has held that alleged errors in a

post-conviction proceeding are not grounds for Section 2254

review because “federal law does not require states to provide a

post-conviction mechanism for seeking relief.” Word v. Lord,

648 F.3d 129, 132 (2d Cir. 2011); cf. Lackawanna Cty. Dist.

Att’y v. Coss, 532 U.S. 394, 402 (2001) (“[E]ach State has

created mechanisms for both direct appeal and state

postconviction review . . ., even though there is no

constitutional mandate that they do so.”) (citing Pennsylvania

v. Finley, 481 U.S. 551, 557 (1987)). Petitioner seeks to amend

the petition to challenge the state court’s denial of an

evidentiary hearing in his § 440.10 proceeding as contrary to

CPL § 440.10(6). His proposed amendment does not, however,

challenge “the judgment which provides the basis for his

incarceration.” Antoine v. Ercole, No. 11–CV–00088 (PKC), 2013

WL 4647497, at *17 (E.D.N.Y. Aug. 29, 2013) (quoting Jones v.

Duncan, 162 F. Supp. 2d 204, 218 n.21 (S.D.N.Y. 2001)).

Accordingly, petitioner’s Motion to Amend does not state a

cognizable habeas claim. Id.; see also Hall v. Griener, No.

00Civ.5517(EHP)(HBP), 2004 WL 350759, at *2 (S.D.N.Y. Feb. 24,

2004) (“[A] violation of state law provides no basis for habeas

relief.”). Petitioner’s Motion to Amend is therefore denied as

futile.

II. Ground One: Ineffective Assistance of Trial Counsel

Petitioner asserts his trial counsel committed a

litany of errors, violating his Sixth Amendment right to

effective counsel. (§ 440.10 Motion 3.) The petition does not

allege ineffective assistance of counsel so much as it appends

portions of petitioner’s § 440.10 Motion regarding defense

counsel’s on- and off-the-record actions and omissions.9 (Pet.

9.)

With respect to claims that petitioner raised in his §

440.10 proceeding, petitioner asserts his Sixth Amendment right

to effective assistance of counsel was violated because his

trial counsel: (1) failed to conduct a pre-trial investigation;

(2) failed to interview and present alibi witnesses; (3) failed

to explore a valid line of defense; (4) failed to mount a

challenge to the claim of probable cause for his arrest; and (5)

failed to request DNA testing that would lead to alleged

exculpatory evidence. (Id. 8-9.)

A. Petitioner’s Claim is Not Procedurally Barred

Respondent urges the court to dismiss petitioner’s

claim of ineffective assistance of trial counsel as procedurally

barred. (Opp. 16.) In the § 440.10 Order, Justice McGann

denied petitioner’s ineffective assistance of counsel claims

both on the merits and as procedurally barred under CPL §

440.10(2)(c).10,11 (§ 440.10 Order 3; see also Pet. 17-22.) The

9 Construing the petition in the most liberal manner, the court proceeds

to consider petitioner’s allegations of ineffective assistance of counsel in

his § 440.10 Motion as though they were realleged herein.

10 Justice Robert C. McGann’s March 24, 2009 Memorandum denied

petitioner’s motion to reargue. (Pet. 21; Order Denying Motion to Reargue.)

11 The text of CPL § 440.10(2)(c) provides that a trial court:

[M]ust deny a motion to vacate a judgment when, [a]lthough sufficient

facts appear on the record of the proceedings underlying the judgment

to have permitted, upon appeal from such judgment, adequate review of

the ground or issue raised upon the motion, no such appellate review or

Appellate Division denied petitioner leave to appeal the §

440.10 Order. (Pet. 23; June 9 Order.)

The Second Circuit has stated that a state court’s

reliance on CPL § 440.10(2)(c) to deny an ineffective assistance

of counsel claim, based on petitioner’s failure to raise the

claim on direct appeal, is an independent and adequate state law

ground that precludes federal habeas review. See Reyes v.

Keane, 118 F.3d 136, 140 (2d Cir. 1997). Further, a motion

pursuant to CPL § 440.10 “cannot be used as a vehicle for an

additional appeal or as a substitute for a direct appeal.”

Jones v. Miller, No. 03CIV.6993SHSGWG, 2004 WL 1416589, at *9

(S.D.N.Y. June 25, 2004) (quoting People v. Donovon, 107 A.D.3d

433 (N.Y. App. Div. 2d Dep’t 1985)).

In the present case, however, “some of the

[petitioner]’s allegations of ineffectiveness involve matters

appearing on the record, while other involve matters that are

outside the record,” meaning petitioner “has presented a ‘mixed

claim’ of ineffective assistance.” Pierotti v. Walsh, 834 F.3d

171, 178 (2d Cir. 2016) (quoting People v. Maxwell, 89 A.D.3d

1108, 1109 (N.Y. App. Div. 2d Dep’t 2011) (alteration omitted)).

“Where a defendant presents a mixed claim of ineffective

determination occurred owing to the defendant’s unjustifiable failure

to take or perfect an appeal during the prescribed period or to his

unjustifiable failure to raise such ground or issue upon an appeal

actually perfected by him.

CPL § 440.10(2)(c).

assistance . . . such a mixed claim, presented in a Section

440.10 motion, is not procedurally barred, and the Section

440.10 proceeding is the appropriate forum for reviewing the

claim of ineffectiveness in its entirety.” Id. (quoting

Maxwell, 89 A.D.3d at 1109) (alteration in original, brackets,

and internal quotation marks omitted).

The court finds that CPL § 440.10(2)(c) does not erect

a procedural bar to petitioner’s claims, and, therefore does not

establish grounds for procedural default because a habeas

petitioner may successfully challenge a procedural bar, even a

“firmly established and regularly followed” one, such as CPL §

440.10(2)(c), where the state court’s application of the rule

was “exorbitant,” thus rendering the state ground “inadequate to

stop consideration of a federal question.” Pierotti, 834 F.3d

at 177 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)).

Petitioner’s § 440.10 Motion raised a unified ineffective

assistance of counsel claim that depended partly on facts

appearing in the trial record, as well as facts outside the

record. Therefore, petitioner’s “claim is not procedurally

barred, and the court must review it on the merits.” Hernandez

v. Artus, 09-CV-05694 (KAM), 2020 WL 2769404, at *7 (E.D.N.Y.

May 28, 2020) (citing Anderson v. Lee, No. 19-CV-4488 (BMC),

2020 WL 1682605, at *7 (E.D.N.Y. Apr. 7, 2020)).

B. Legal Standard

A petitioner must meet the “highly demanding” standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984), to

prevail on a claim of ineffective assistance of counsel.

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). The reviewing

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 689.

Under the two-prong Strickland test, a habeas petitioner must

demonstrate (1) that “counsel’s representation fell below an

objective standard of reasonableness,” (the performance prong)

and (2) “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different” (the prejudice prong). Strickland,

466 U.S. at 688, 703; see also Parker v. Ercole, 666 F.3d 830,

834 (2d Cir. 2012) (court need not address both prongs if a

petitioner makes an insufficient showing on one). The

petitioner bears the burden of establishing both that his

counsel was deficient and that he was prejudiced. See United

States v. Birkin, 366 F.3d 95, 100 (2d Cir. 2004) (citing

Strickland, 466 U.S. at 687).

To establish that counsel’s performance was deficient

under the first prong, petitioner must show that counsel’s

representation “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. A court

reviewing an attorney’s performance must be “highly

deferential,” making “every effort . . . to eliminate the

distorting effects of hindsight” and evaluating “the conduct

from counsel’s perspective at the time.” Id. at 689.

Consequently, a reviewing court “must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance[.]” Id.; accord Brown v.

Greene, 577 F.3d 107, 110 (2d Cir. 2009).

To satisfy the second prong—prejudice–a habeas

petitioner must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. Merely alleging that errors “had

some conceivable effect on the outcome of the proceeding” is

insufficient. Id. at 693. Instead, “[c]ounsel’s errors must be

‘so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Harrington v. Richter, 562 U.S. 86,

104 (2011) (quoting Strickland, 466 U.S. at 687). “In assessing

prejudice stemming from the failure to investigate and introduce

certain evidence, a court must consider ‘all the relevant

evidence that the jury would have had before it,’ had the

evidence been introduced, including unfavorable evidence.”

Barnes v. Burge, 372 F. App’x 196, 199 (2d Cir. 2011) (emphasis

in original) (quoting Wong v. Belmontes, 558 U.S. 15, 20 (2009)

(per curiam)).

Further, a habeas petitioner’s ineffective assistance

claim “must overcome a separate hurdle” where a state court has

already specifically determined that counsel’s performance was

not ineffective under Strickland. Bonds v. Keyser, No. 16-CV-

05908 (AMD), 2020 WL 1550575, at *14 (E.D.N.Y. Mar. 31, 2020).

Here, the state court rejected petitioner’s ineffective

assistance claims on both procedural grounds, and the merits.

Thus, under the AEDPA’s “‘unreasonable application’ clause, a

federal habeas court may not issue the writ simply because that

court concludes in its independent judgement that the state-

court decision applied Strickland incorrectly.” Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (citing Bell v. Cone, 535 U.S.

685, 698-699 (2002)). Instead, it is the habeas petitioner’s

“burden to show that the state court applied Strickland to the

facts in an objectively unreasonable manner,” which is

altogether distinct from showing the state court applied federal

law incorrectly. Id. (citing Williams v. Taylor, 529 U.S. 362,

410 (2000)). Because the standards created by Strickland and

the AEDPA are both highly deferential, “when the two apply in

tandem, review is ‘doubly’ [deferential].” Harrington, 562 U.S.

at 105 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123

(2009)). “[T]he question is not whether counsel’s actions were

reasonable,” but rather “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential

standard.” Id. Even if the state court does not explain its

decision, the petitioner still bears the burden of showing that

“there was no reasonable basis for the state court to deny

relief.” Jean v. Greene, 523 F. App’x 744, 747 (2d Cir. 2013)

(quoting Harrington, 562 U.S. at 99).

Accordingly, petitioner must demonstrate that the

state court’s decision was “so lacking in justification that

there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Bonds,

2020 WL 1550575, at *14 (citing Harrington, 562 U.S. at 102-03).

C. Petitioner’s Ineffective Assistance Claims Fail

1. Failure to Conduct a Pre-trial Investigation

Petitioner asserts that “[i]f defense counsel had made

a prior investigation – prior to trial – or if he had paid

sufficient attention to the police reports that were turned over

to him . . . he would have been able to deal significant blows

to the prosecution’s case in several ways.” (§ 440.10 Motion 5-

6.) According to petitioner, his pre-trial counsel, Mr.

Brettschneider, failed to visit the scene of the shooting,

thereby depriving petitioner “of valuable evidence that would

have brought the police investigation into question in the minds

of the jury.” (Id. 6.) Petitioner maintains that had his

counsel visited the crime scene, he could have challenged the

police narrative regarding the direction of the shooting and the

identification of petitioner as the shooter. (Id. 6-7.) For

instance, petitioner suggests that diligent counsel would have

seized on the proximity of the spent shell casing and discharged

projectile found near Mr. Hammonds’ body, and cast doubt on

whether the projectile was the actual discharge that killed

Hammonds. (Id. 6.) Petitioner does not elaborate exactly how

counsel would have, or could have, used this information to

advance petitioner’s defense. Petitioner also notes an apparent

evidentiary conflict between witness accounts that Hammonds was

standing with his back to certain nearby store-fronts when the

shooter discharged the gun in his face, and the otherwise intact

windows and lack of blood spatter on the same store-fronts.12

(Id. 7.) Yet again, however, petitioner does not explain how

these facts, if credited, are mutually exclusive.

The state court’s denial of petitioner’s ineffective

assistance claim on this basis was neither contrary to, nor an

unreasonable application of Strickland. Petitioner fails to

12 Within this argument, petitioner also asserts that Brettschneider

failed to request DNA from a bloodied baseball cap found at the scene of

Hammonds’ murder. (§ 440.10 Motion 8.) Petitioner reiterated the same

argument elsewhere in his motion to vacate, and it is dealt with below.

demonstrate how an investigation of the crime scene by counsel

would have changed the outcome of his trial. The record makes

clear that the prosecution’s case relied principally on

eyewitness identifications of petitioner as the shooter,

specifically Desir and Alexander’s, as well as Detective Moeser

and Garfield Smith’s testimony connecting the getaway vehicle

spotted at the crime scene to petitioner. There is no

indication the prosecution relied on the location of the shell

casings, the bullets, or the victim’s body to advance its case.

Nor does petitioner explain how any crime scene evidence was not

otherwise available to defense counsel, who had access to the

same photographs and reports that were available to, and

utilized by, the prosecution at trial. In addition, petitioner

was arrested only three days after the shooting, and it appears

unlikely that the bullets and shell casings would have remained

at the crime scene for that entire period, and not secured into

evidence by the police.

Although defense counsel had a “duty to make a

reasonable investigation,” or else reasonably determine that

such an investigation was unnecessary, Wiggins v. Smith, 539

U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 690), that

duty was not breached here. Petitioner incredulously suggests

that a diligent attorney would have used a pre-trial

investigation of the crime scene to advance petitioner’s

defense. Based on little more than his own ipse dixit,

petitioner asserts that the bullet’s location near Hammonds’

body renders the police’s theory improbable, and suggests that

the police and prosecutors manufactured an exit wound to support

their theory and overcome the purported incongruity between

immediate medical reports finding no exit wound, and the medical

examiner’s report. (§ 440.10 Motion 7.) Given the utter lack of

evidentiary support for petitioner’s contentions, both in the §

440.10 proceeding and now, Mr. Brettschneider had no duty to

embark on such a patently unreasonable investigation. Rosario

v. Ercole, 601 F.3d 118, 130 (2d Cir. 2010) (emphasis added);

see also Vasquez v. United States, No. 91 CR. 153 (PKL), 1997 WL

148812, at *1-2 (S.D.N.Y. Mar. 28, 1997) (“Petitioner’s

allegations with regard to alleged counsel errors in pre-trial

preparation and investigation and trial advocacy are vague,

conclusory, and unsupported by citation to the record, any

affidavit, or any other source, and, accordingly, the vague and

unsubstantiated nature of the claims defeated petitioner’s claim

of ineffective assistance of counsel.”) (brackets, internal

quotation marks, and ellipses omitted).

In any event, Mr. Brettschneider affirms he did

“visit[] the location of the incident with investigator Kevin

Hinkson,” and at counsel’s direction, “Mr. Hinkson took

photographs of the scene.” (Affirmation of Scott

Brettschneider, Esq. (“Brettschneider Aff.”) ¶ 6.)13 Mr.

Brettschneider further states that he “introduced a videotape

depicting the vantage point – the distance and lighting

conditions – of the People’s witnesses to the murder and the

murderer.” (Id. ¶ 11.) Petitioner’s blanket assertion that Mr.

Brettschneider failed to conduct a pre-trial investigation is,

ultimately, “offered without detail or supporting

documentation,” and such attacks on counsel’s performance “have

been found inadequate to support a claim of ineffective

assistance in the face of a credible and contradictory affidavit

by counsel.” United States v. Rosario, No. 13 CR 514 NRB, 2015

WL 4629453, at *6 (S.D.N.Y. Aug. 4, 2015).

Accordingly, petitioner fails to show that Mr.

Brettschneider rendered ineffective assistance by failing to

conduct a pre-trial investigation and, moreover, fails to show

13 Mr. Brettschneider’s affirmation is not available on the electronic

docket, but was provided to the court in hardcopy. Further, on October 16,

2020, the Second Circuit Court of Appeals affirmed Ms. Brettschneider’s

conviction for conspiracy and making false statements. United States v.

Brettschneider, No. 19-2423-CR, 2020 WL 6112275 (2d Cir. Oct. 16, 2020).

Specifically, the government claimed that Mr. Brettschneider conspired with

one of his legal assistants to lie in a letter to the Bureau of Prisons in an

effort to secure a position for one of Mr. Brettschneider’s clients in a

Residential Drug Abuse Program, even though the client did not have a recent

history of drug or alcohol abuse. Id. Mr. Brettschneider’s conviction does

not impact the court’s analysis. First, petitioner’s arguments fail for

reasons independent of Mr. Brettschneider’s representations, namely

petitioner’s failure to submit sworn testimony and the implausibility of

petitioner’s arguments. Second, the court’s findings in this Memorandum and

Order do not rely solely, or even principally, on Mr. Brettschneider’s

credibility. Third, there is no indication that Mr. Brettschneider’s

criminal conduct impacted his representation of petitioner at trial, much

less rendered it inadequate. Mr. Brettschneider committed the subject

offenses in 2014 and 2015, well over a decade after he represented petitioner

at trial.

that Justice McGann’s rejection of petitioner’s claim on this

basis was contrary to, or an unreasonable application of

Strickland.

2. Failure to Interview and Present Alibi Witnesses

Next, petitioner attacks Mr. Brettschneider’s failure

to present purported alibi witnesses at trial. According to

petitioner, Mr. Brettschneider failed “to at least interview

those witnesses and weigh the value and credibility of their

proposed testimony.” (§ 440.10 Motion 9.)

“The decision whether to call any witnesses on behalf

of the defendant, and if so which witnesses to call, is a

tactical decision of the sort engaged in by defense attorneys in

almost every trial.” Logan v. Ercole, No. 08 CV 407 (JG), 2008

WL 2097439, at *7 (E.D.N.Y. May 20, 2008) (quoting United States

v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)). “Such

decisions ‘fall squarely within the ambit of trial strategy, . .

. and if reasonably made, will not constitute a basis for an

ineffective assistance claim.’” Id. (quoting Nersesian, 824 F.2d

at 1321). On the other hand, a defense attorney’s failure to

contact witnesses as part of an alibi defense may render

counsel’s performance deficient. See Lopez v. Miller, 915 F.

Supp. 2d 373, 420-21 (E.D.N.Y. 2013) (collecting cases); see

also Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir. 2001) (“[A]n

attorney's failure to present available exculpatory evidence is

ordinarily deficient, unless some cogent tactical or other

consideration justified it.”); but see Headley v. Ercole, No.

9:07-CV-979 FJS/GHL, 2010 WL 3808685, at *8 (N.D.N.Y. Sept. 22,

2010) (“The decision to refrain from calling a specific witness,

even one who may offer exculpatory evidence, is ordinarily not

viewed as a lapse in professional representation.”) (citation

omitted). But that is not the case here.

Petitioner’s purported alibi defense rests upon flimsy

documentation, which is wholly insufficient to substantiate his

contention. Petitioner presented the following documents in

state court: (1) affidavits from the two alleged alibi

witnesses, Donte McAllister (ECF No. 71-1 (ECF p. 59),

McAllister Aff.) and Brian Follins (ECF No. 71-1 (ECF p. 60),

Follins Aff.); (2) an affidavit from investigator Kevin Hinkson

(ECF No. 71-1 (ECF p. 61), Hinkson Aff.), who was hired by

petitioner’s mother; (3) an affidavit from petitioner’s mother,

Sonia Pinckney (ECF No. 71-1 (ECF p. 53), Pinckney Aff.); and

(4) an affidavit from petitioner’s attorney at the time of

arrest, Mr. Somerstein (ECF No. 71-1 (ECF p. 52), Somerstein

Aff.).14 (See generally § 440.10 Motion, Affidavits in Support.)

Not one of the aforementioned documents reasonably suggests that

14 In addition, Mr. Defelice, the court-appointed attorney who represented

petitioner in connection with his § 330 Motion, provided an affirmation

summarizing the supporting affidavits. (ECF No. 71-1 (ECF pp. 49-51),

Defelice Aff.) Mr. Defelice’s affirmation, filed in support of petitioner’s

2003 § 330 Motion, appears to have been reproduced in support of petitioner’s

§ 440.10 Motion as well.

petitioner’s trial counsel failed to interview and/or present a

viable or credible alibi witness.

First and foremost, the McAllister and Follins

affidavits are bereft of details and lack indicia of

reliability. Even a surface-level review of the affidavits

immediately triggers doubts about their credibility: the

affidavits are verbatim replicas of one another, save for

substitution of the affiants’ names.15 Each affidavit reads

exactly as follows, with the lone exception of the affiant’s

name:

I would have, if called upon, went to court and

testified on behalf of Comfort Pinckney at trial,

Indictment #1497/2000. Mr. Pinckney’s trial attorney

never contacted me, nor interviewed me concerning this

incident.

Mr. Pinckney is not the person who committed the crime

of murder pending against him. Furthermore, Mr.

Pinckney was not in Queens on the date and time of

this incident. I spoke to a Private Investigator,

Kevin Hinkson who was working on Mr. Pinckney’s case

and informed him that a friend and I drove Mr.

Pinckney to Brooklyn that night. Therefore, he could

not have committed the crime of murder of which he was

accused.

When called upon, I went to court and spoke to Mr.

Pinckney’s attorney – Mr. Joseph Defelice, however, I

15 Respondent surmises that petitioner has tailored the affidavits so that

the affiants could swear to them without the threat of perjury liability.

(Opp. 34-35.) For example, both affiants state that they drove petitioner to

Brooklyn “on the date and time of the incident,” but this phrasing gives the

affiants wiggle room to assert that their sworn statement refers to a time

other than the early morning hours of May 6, 2000. The respondent’s theory

seems plausible, to say the least, but the court has relied on other factors

in rejecting petitioner’s ineffective assistance claim.

was not allowed to address the court. The case was

before Judge Joseph Rosenweig[sic].

(See generally McAllister Aff.; Follins Aff.)

The affidavits are also silent with respect to critical

details that would tend to carry exculpatory weight. For

example, the affiants do not explain their relationship to

petitioner. See Read v. Thompson, No. 13CV3661KMKPED, 2016 WL

165715, at *10 (S.D.N.Y. Jan. 13, 2016) (collecting cases

assigning little or no weight to alibi testimony where witness

or affiant was a family member or friend of defendant); cf.

McCray v. Bennet, No. 02-CV-839, 2005 WL 3182051, at *4

(S.D.N.Y. Nov. 22, 2005) (discrediting affidavit of petitioner's

“good friend” where, among other things, the affiant “waited

until after [the] [p]etitioner[’]s conviction to come forward

with his testimony”). Nor do the affidavits: identify which

“friend” accompanied the affiant and petitioner to Brooklyn the

night of the murder; explain why or where in Brooklyn they were

driving petitioner that night; or explain how or why McAllister

and Fallon were both driving petitioner to Brooklyn that night.

Most importantly, neither affidavit states which

“night” the affiant drove petitioner to Brooklyn, and moreover,

approximately what time of night the trip took place. (See

generally McAllister Aff.; Follins Aff.) Did “that night” refer

to May 5, 2000, hours before Hammonds was killed in the early

morning hours of May 6? And if so, what time of night? Or did

“that night” refer to the evening of May 6, well over twelve

hours after Hammonds was shot? Neither affidavit says, and

thus, neither meaningfully exculpates petitioner. In sum, aside

from the affiants’ conclusory statement that petitioner could

not have killed Hammonds, no facts asserted by either affidavit

are mutually exclusive with the facts establishing petitioner’s

guilt. Even if Mr. Follins or Mr. McAllister drove petitioner

to Brooklyn on the evening of May 5 or May 6, 2000, nothing

about that fact materially diminishes, much less precludes, the

possibility that petitioner ventured into Queens past midnight

on May 6, and was in a position to kill Hammonds at point blank

range.

Second, Mr. Hinkson’s affidavit states only that he

“interviewed the three witnesses and prepared interview reports

that contained their detailed statements,” and that he forwarded

copies of the reports to Mr. Brettschneider containing “the

address and telephone number of the witnesses, Brian Follins,

Donte McAllister, and Brenda Caroll.” (Hinkson Aff.) Notably,

Mr. Hinkson did not provide any details regarding the witnesses’

statements, or the contents of their alibi accounts. Moreover,

the witness statements themselves are conspicuously absent from

the record, and Mr. Hinkson appears not to have appended them to

his own affidavit. In Mr. Defelice’s 2003 affirmation, he

recalls Mr. Hinkson telling him that he was searching for the

statements in his records. (Defelice Aff. ¶ 4.) Petitioner

still hadn’t produced these records in 2007, when he filed his §

440.10 Motion, nor has he submitted them in connection with this

habeas proceeding. The court can safely assume, seventeen years

after Mr. Hinkson purportedly began searching for the witness

statements, that the records either never existed, or are lost

to time.

Third, petitioner’s mother, Ms. Sonia Pinckney, states

in her affidavit that she “personally requested that Mr.

Brettschneider interview these [alibi] witnesses and file an

alibi notice with the courts but he failed to do so.” (Sonia

Pinckney Aff.) Ms. Pinckney does not say when she informed

counsel about the purported alibi witnesses, or what potentially

exculpatory information she conveyed to Mr. Brettschneider. She

claims that “Ms[.] Caroll informed [Ms. Pinckney] that Comfort

Pinckney was with her at her residence in South Brooklyn, on the

date and time of this incident.” (Id.) As with Mr. Fallon and

Mr. McAllister’s alibi statements, however, Ms. Pinckney’s

hearsay recollection of Ms. Caroll’s alibi account is wholly

lacking in exculpatory details. And leaving aside the

threadbare nature of Ms. Pinckney’s account, there is no

indication that petitioner has made the slightest effort to

track down his alibi witnesses, and urged them to come forward

with their exculpatory evidence.

Fourth, Mr. Somerstein, petitioner’s pre-trial

counsel, stated that he “spoke to a Brenda Caroll,” and she told

him “that she was with the defendant at or about the time of the

commission of the crime and she appeared to be an alibi

witness.” (Somerstein Aff.) Somerstein states that because “he

did not continue with this case, [he] did not file an alibi

notice but the information concerning [Brenda Caroll] was left

in the file which [he] surrendered when he was [relieved].”

(Id.) Mr. Somerstein was replaced by Mr. Wallenstein, who was

subsequently replaced by Mr. Brettschneider. Mr. Wallenstein

did not provide an affidavit to the court record and, therefore,

it is unknown what record was provided to Mr. Brettschneider,

though Ms. Pinckney asserts that she informed him of these

witnesses. (Sonia Pinckney Aff.)

In his affidavit, Brettschneider insists that “[n]ever

during any of my conversations with either defendant or his

mother did either one of them inform me about potential alibi

witnesses.” (Brettschneider Aff. ¶ 4.) Further, Brettschneider

states that petitioner never told him that “he was in Brooklyn

on the night of the murder or that he could produce witnesses to

that effect.” (Id. ¶ 14.) The trial record does show that

Brettschneider identified Brenda Caroll, Donte McAllister, and

Brian Follins as potential witnesses for trial, but not as alibi

witnesses. (Trial Tr. 76-78.) Although it is impossible to

verify whether petitioner or his mother actually informed

Brettschneider that these witnesses could credibly provide alibi

testimony, it bears mention that petitioner did not file his own

sworn statement refuting Brettschneider’s account. In addition,

neither petitioner nor Mr. Defelice filed a late notice of

alibi, a reasonable action to expect if indeed there was an

expectation that Mr. McAllister, Mr. Fallon, or Ms. Caroll had

information to provide in support of an alibi defense.

At bottom, the court affords due deference to the

state court’s denial of petitioner’s ineffective assistance

claim, and even if no such deference were extended, petitioner

fails to allege under Strickland that his trial counsel erred by

not filing an alibi notice. There is no credible inference that

the purported alibi witnesses were in possession of any

legitimately exculpatory information, that their testimony would

changed the trial’s outcome, or that securing their attendance

at trial would have merited trial counsel’s time and effort.

3. Failure to Explore a Valid Line of Defense

The court can readily reject petitioner’s claim that

Brettschneider rendered ineffective assistance of counsel for

pursuing a defense of “complete innocence,” rather than

“presenting evidence in the nature of a wrong man defense.” (§

440.10 Motion 11, 13.) Petitioner asserted in his § 440.10

Motion that one of the prosecution’s eyewitnesses, Vincent

Johnson, who observed and described the getaway car, also

initially identified a different person as Hammonds’ killer.

(Id. 13-14.)

Preliminarily, petitioner’s contention is a

paradigmatic second-guessing of counsel’s trial strategy. See

Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) (“Actions or

omissions by counsel that might be considered sound trial

strategy do not constitute ineffective assistance.”) (internal

quotation marks omitted). Rarely, if ever, does such a claim

pass muster under Strickland. This case is no exception. Mr.

Brettschneider states in his affidavit that he “determined that

misidentification was the best trial strategy to pursue in this

case,” and that petitioner and his mother were in “full

agreement and participated in this decision.” (Brettschneider

Aff. ¶¶ 10, 11.) Neither petitioner nor his mother submitted a

sworn statement to the contrary. And contrary to petitioner’s

assertion, the record clearly shows that Brettschneider cross-

examined Johnson at trial, and successfully elicited Johnson’s

testimony that he originally identified the photo of a Mark

Perry as the shooter, and not the petitioner. (Trial Tr. 438.)

Brettschneider also challenged the line-up procedure as unduly

suggestive at the Wade hearing, and emphasized that the

witnesses’ descriptions were limited. (See generally Wade Hr’g

Tr.; Trial Tr. 695, 700). In addition, Brettschneider

introduced videotape evidence to persuade the jury that the

witnesses could have misidentified the shooter due to the

lighting at the time of the shooting. (Brettschneider Aff. ¶

11.)

In reading the record, the court finds Brettschneider

vigorously pursued a wrong man defense. Petitioner’s unsworn

assertions to the contrary do not warrant second-guessing this

strategy. See Jones v. Fischer, No. 05 CV 24, 2006 WL 2583206

at *7 (E.D.N.Y. Sept. 6, 2006) (“Allegations with regard to pre-

trial preparation and trial advocacy that ‘are vague,

conclusory, and unsupported by citation to the record, any

affidavit, or any other source . . . do not permit the [c]ourt

to conclude that the charged errors reflect performance falling

below an objective standard of reasonableness or that but for

the errors the result would have been different.’”).

Accordingly, petitioner’s ineffective assistance claim in this

respect fails.

4. Failure to Challenge Probable Cause for Arrest

Petitioner further alleges that Brettschneider

rendered ineffective assistance of counsel because he failed to

challenge whether probable cause existed to justify petitioner’s

arrest. (§ 440.10 Motion 14-21.) Specifically, petitioner

asserts that, on May 6, 2000, the “police received an anonymous

call from an unknown female,” who informed the police that “she

heard several people talking in the street who were discussing

the shooting, mentioned an individual known as Comfort Pinckney

as the shooter.” (Id. 15-16.)

There is zero record support for petitioner’s

contention that the police obtained probable cause to arrest him

based on a tip from an anonymous female individual. Both the

petition and § 440.10 Motion are bereft of record citations

substantiating this claim, and petitioner wholly ignores other,

independent sources of probable cause that justified his arrest,

namely, a police investigation that included multiple

eyewitnesses who identified petitioner as Hammonds’ shooter.

(See Opp. 21.) The sequence of events that culminated in

petitioner’s arrest thoroughly refutes his ineffective

assistance claim. Garfield Smith, who was working as the

bouncer at Tony’s bar on May 6, 2000, informed the police that

the gunman had fled the scene of the shooting in a red or maroon

car, and provided authorities with a partial license plate

number. (Trial Tr. 496-98, 502-04.) Police eventually traced

the license plate to a car registered in the name of

petitioner’s brother-in-law. (Id. 545-47.) On May 9, 2000,

Desir identified petitioner in a photograph array at the 105th

Precinct. Petitioner was arrested shortly thereafter, and once

in custody, Desir identified him in a line-up.

The record also reflects that Brettschneider

strenuously challenged the sufficiency of probable cause to

arrest petitioner by arguing that the line-up was unduly

suggestive. (Wade Hr’g Tr. 29-37.) It is not clear how

Brettschneider can be criticized for not predicating

petitioner’s Wade argument on the anonymous call, when there is

no indication anywhere in the record that such a call ever took

place, much less served as the basis for petitioner’s arrest.

At a minimum, petitioner has failed to show that his counsel’s

performance fell below an objective standard of reasonableness

under the first Strickland prong, much less under the AEDPA’s

doubly deferential standard. See Jackson v. Kirkpatrick, No.

16-CV-3973 (JFB), 2019 WL 102098, at *8 (E.D.N.Y. Jan. 4, 2019)

(denying petitioner’s ineffective assistance of counsel claim

because petitioner was mistaken in the basis of probable cause

and counsel properly challenged the identification procedures as

being unduly suggestive). Accordingly, petitioner’s ineffective

assistance claim based on trial counsel’s strategy of

challenging the probable cause for petitioner’s arrest, must be

dismissed.

5. Failure to Request DNA Testing

i. Exhaustion

Petitioner contends that his counsel failed to request

exculpatory evidence. (Pet. 9.) This presumably refers to the

petitioner’s request in his § 440.10 Motion to have a baseball

cap found at the scene of Mr. Hammonds’ shooting tested for

exculpatory DNA evidence pursuant to CPL § 440.30(1-a), and his

concomitant claim that counsel was ineffective for failing to

have pursued DNA testing in furtherance of a “wrong man

defense.” (See § 440.10 Motion 23-26.) In denying petitioner’s

motion, Justice McGann found that DNA testing would “not give

rise to a reasonable probability that the result of defendant’s

trial would have been different” because there was “not

testimony at the trial which links the cap either to the shooter

or to anyone else at the scene.” (§ 440.10 Order 5.) On August

19, 2020, respondent informed the court that the New York

Appellate Division, Second Department, had granted petitioner’s

request for poor person relief and the assignment of counsel in

connection with his appeal of Justice McGann’s order denying his

request for DNA testing pursuant to CPL § 440.30(1-a). (Feb. 19

Ltr. 1.) Petitioner’s appeal remains pending. (Oct. 19 Ltr.)

Although petitioner’s motion to test for DNA evidence

is unexhausted, the court has determined that the time is now

ripe to consider and resolve the merits of petitioner’s

allegations. Petitioner’s § 440.10 Motion to test DNA evidence

shares a common nucleus of fact with his claim that defense

counsel’s performance fell below Constitutionally acceptable

standards. The court also finds that petitioner’s ineffective

assistance claim can be discerned from petitioner’s pending

appeal of Justice McGann’s refusal to allow DNA testing. To be

clear, by deliberating the merits of the ineffective assistance

claim, the court does not seek to prejudge the merits of

petitioner’s pending state court appeal. The sole issue this

court considers regarding DNA testing is whether petitioner’s

Sixth Amendment rights were trampled by counsel’s decision not

to pursue DNA evidence relating to the baseball cap, and whether

the § 440.10 Order applied the appropriate standards in

rejecting petitioner’s challenge to counsel’s decision.16

16 Even if these claims were not distinct, the court has “discretion to

deny unexhausted claims on the merits, although it is not required to do so.”

Velazquez v. Poole, 614 F. Supp. 2d 284, 311 (E.D.N.Y. 2011) (citing 28

U.S.C. § 2254(b)(2)). “The Second Circuit . . . concluded that a court

‘should exercise discretion either to dismiss the unexhausted claims and stay

further proceedings on the remaining exhausted portion of the petition or to

dismiss the petition in its entirety.’” Id. (citing Zarvela v. Artuz, 254

F.3d 374, 380 (2d Cir. 2001) (brackets omitted). The court is also mindful

of the Supreme Court’s warning that “[s]tay and abeyance, if employed too

frequently, has the potential to undermine the[] twin purposes” of the AEDPA.

Rhines v. Weber, 544 U.S. 269, 277 (2005). Where, as here, the “unexhausted

claims are plainly meritless,” “the district court would abuse its discretion

if it were to grant [petitioner] a stay,” even if there is good cause for

petitioner’s failure to exhaust his state remedies. Id. Simply put, this

federal habeas case is over ten years old, and concerns a seventeen-year-old

conviction. It is ripe for disposition, and the pendency of a lone, plainly

meritless claim should pose no bar to resolution. The court thus exercises

its discretion to review the ineffective assistance of counsel claims in

their entirety.

ii. Merits

Petitioner asserted in his § 440.10 Motion that

counsel erred by not “recognizing the importance of the bloodied

baseball cap recovered at the scene” and that this “piece of

evidence [] was crucial to the ‘wrong man’ defense that should

have been offered.” (§ 440.10 Motion 8, 26.) As support,

petitioner cited the following police investigation notes, which

appear to capture Mr. Desir’s description of a hat: “Hat THG.

Green turqu[oui]se shirt.” (Id., Ex. 8 (NYPD Investigation

Notes, 3).)17 Indeed, police did recover a “gray baseball cap .

. . with blood on it” during a review of the crime scene. (Id.,

Ex. 10 (NYPD Crime Scene Unit Recap Sheet).)18

Respectfully, the DNA evidence to which petitioner

attaches such significance is little more than a red herring.

Petitioner generally insists, without specifics, that if

“counsel reviewed those police notes that were provided as part

of the discovery materials, the import of the bloodied baseball

cap would have been manifest and exculpatory.” (§ 440.10 Motion

8.) Petitioner presumably believes that if DNA testing of the

hat were to reveal genetic material belonging to another

individual, that evidence would have an exculpatory impact. But

17 The NYPD Investigation Notes are available on the docket at ECF No. 71-

1, ECF pp. 41-43.

18 The Crime Scene Unit Recap Sheet is available on the docket at ECF No.

71-1, ECF p. 45.

this presumes that Hammonds’ shooter was actually wearing a

baseball cap. Absent some evidence or testimony linking the

shooter to the cap, the composition of any DNA on the cap is

neither here nor there.

The record demonstrates that no baseball cap was

entered into evidence, nor did the prosecution rely on it in any

form. More importantly, not one witness testified to having

seen the shooter adorn any kind of head covering on the night of

the shooting. In fact, Desir testified at trial that the

shooter, whom he identified as petitioner, had a “low Caeser,

low, low haircut.” (Trial Tr. 302.)19 This observation suggests

the shooter’s hairline was visible, and not concealed by a

baseball cap, as petitioner implies. Desir’s credibility was

bolstered at trial when the prosecution corroborated his

testimony that the shooter had removed a “silver watch with a

blue head” shortly before the fatal shooting. (See § 440.10

Motion, Ex. 8 (NYPD Investigation Notes, 2); Trial Tr. 309,

334.) The police recovered a watch matching Desir’s description

from petitioner after he was placed in custody. (Trial Tr.

550.)

At trial, Prague Alexander also identified petitioner

as the shooter, and Garfield Smith’s testimony linked petitioner

19 During trial, Desir identified petitioner as the shooter, even though

petitioner had grown out his hair and braided it since the time of the

shooting. (Id. 301-02.)

to the crime scene. As with Desir, Alexander did not describe

petitioner as wearing a baseball cap, although he generally was

unable to describe what petitioner was wearing the night of the

shooting. (Trial Tr. 448, 483.) Alexander further stated that

he “wasn’t too far away,” when he saw petitioner fire his weapon

at close range while pointing it at Hammonds’ face, whereupon

Hammonds’ “body dropped.” (Id. 460.) Smith identified the

partial license plate of the vehicle the gunman entered and fled

in, which police linked to petitioner’s brother-in-law. (Id.

496-98.) Collectively, the two eyewitness accounts identifying

petitioner as the shooter, along with other reliable

corroboration, dispel any claim that petitioner may have been

prejudiced by counsel’s failure to pursue DNA testing of a

baseball cap with no clear connection to the crime itself. See

Jackson v. Conway, 763 F.3d 115, 154 (2d Cir. 2014) (holding

that counsel’s alleged failure to introduce DNA reports was not

ineffective assistance because, “while they may have been

helpful to the defense they ‘did not have [any] exceptional

value’ in light of the victim’s testimony . . . .”); see also

Yount v. Maddock, 44 F. App’x 279, 279 (9th Cir. 2002) (“In

light of the strength of the evidence presented at trial and

[petitioner’s] failure to show a reasonable likelihood that the

DNA tests would have yielded exculpatory evidence, he cannot

establish the requisite prejudice.”) (citing Strickland, 466

U.S. at 694).

Critically, petitioner does not acknowledge the

significant downside risk that he would have borne had counsel

pursued DNA testing. The reasonableness of trial counsel’s

omission cannot be fairly assessed without considering the risks

of the action petitioner demands from the vantage of hindsight.

Had testing revealed that the cap contained DNA matching

petitioner’s, he would have been definitively linked to the

crime scene, and his defense strategy would have been

eviscerated. By contrast, a negative result would not have been

dispositive of petitioner’s innocence, given the overwhelming

evidence against him and the prosecution’s non-reliance on DNA

evidence. See, e.g., Manino v. Artus, No. 06-CV-3078ARRJO, 2009

WL 1117301, at *18 (E.D.N.Y. Apr. 24, 2009) (“Here, trial

counsel’s decision not to test the bandana for DNA was

reasonable in light of the other evidence tending to identify

Manino as McCloskey’s assailant, as the results may have further

incriminated Manino.”); Hayes v. Harry, No. 18-CV-0199, 2018 WL

9345577, at *12 (E.D. Pa. Sept. 28, 2018), report and

recommendation adopted, No. 2:18-CV-00199, 2019 WL 3802022 (E.D.

Pa. Aug. 13, 2019) (“DNA testing that excluded petitioner as a

source of DNA [on hooded sweatshirt found at the crime scene]

would not have established petitioner’s innocence in light of

other evidence and testimony against him.”).

In short, petitioner fails to show that counsel’s

decision not to pursue DNA testing was unreasonable or

prejudicial under Strickland. Accordingly, petitioner fails to

state a claim for ineffective assistance of counsel, both under

Strickland and the AEDPA’s doubly deferential standard.

III. Ground Two: Denial of Due Process Due to Lower Court

Finding that Trial Counsel’s Affidavit Held Greater

Probative Value Than the Certified Trial Transcript

Petitioner asserts the state court denied his due

process rights in his § 440.10 proceeding by improperly

assigning greater probative value to his trial counsel’s

affidavit than the certified trial transcript, and denying

petitioner due process without a hearing. (Pet. 24.)

Specifically, petitioner claims he was denied “compulsory

process to call witness[es] on his behalf,” and that the state

court erred by affording greater weight to Brettschneider’s

representation in his affidavit that he was never informed about

the purported alibi witnesses, than the certified trial record,

in which Mr. Brettschneider submitted the names of Brenda

Carroll, Dontay McAllister, and Brian Follins as potential

witnesses. (Id.) For the reasons below, this claim is

meritless.

A. Petitioner’s Due Process Claim is Procedurally Barred

The “AEDPA requires that petitioners first exhaust all

available remedies in state court before bringing their claims

in federal court.” Vega v. Griffin, No. 14-CV-7479-KAM-SJB,

2020 WL 2738229, at *7 (E.D.N.Y. Apr. 13, 2020) (citing 28

U.S.C. § 2254(a)). A habeas petitioner does not need to “cite

chapter and verse,” but the petitioner must “alert the state

court to the claim’s . . . nature.” Jackson, 763 F.3d at 133.

Therefore, “[t]he exhaustion requirement is not satisfied unless

the federal claim has been presented to the state courts,”

requiring that the petitioner have “informed the state court of

both the factual and the legal premises of the claim he

asserts.” Lopez v. Graham, No. 10-CV-0468 NGG, 2012 WL 1865502,

at *1 (E.D.N.Y. May 22, 2012), aff’d, 519 F. App’x 52 (2d Cir.

2013) (internal quotation marks omitted) (quoting Daye v. Att’y

Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982)). The

burden is on the petitioner “to raise these claims to the state

courts ‘even if the state court could have identified and

addressed the federal question without its being raised.’”

Vega, 2020 WL 2738229, at *7 (citing Bell v. Cone, 543 U.S. 447,

451 n.3 (2005)).

Although a federal habeas court will generally abstain

from reviewing unexhausted claims, “if, at the time a state

prisoner applied for federal relief, the claim is unexhausted

and it is clear that the state court would hold the claim

procedurally barred, the claim is deemed exhausted.” Rivera v.

Artus, No. CIV.A.CV04-5050(DGT), 2007 WL 3124558, at *4

(E.D.N.Y. Oct. 25, 2007); see Williams v. Goord, 277 F. Supp. 2d

309, 316 (S.D.N.Y. 2003) (“When a petitioner fails to ‘fairly

present’ his claim to each level of the state courts to which he

is entitled to seek relief and is subsequently barred from

presenting the claims to the highest court of the state, the

petitioner’s claims are not properly exhausted for purposes of

federal habeas review.”) (citing Coleman, 501 U.S. at 731-32,

735 n. 1); Ramirez v. Att’y Gen. of State of N.Y., 280 F.3d 87,

94 (2d Cir. 2001) (“Even if a federal claim has not been

presented to the highest state court or preserved in lower state

courts under state law, it will be deemed exhausted if it is, as

a result, then procedurally barred under state law.”); Grey v.

Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (same).

Respondent urges the court to dismiss petitioner’s

claim as unexhausted but procedurally barred. According to

respondent, petitioner “never presented his due process claim in

the state court and now raises these claims for the first time

in the habeas petition.” (Opp. 39.) Moreover, petitioner “no

longer has a forum to raise his alleged due process violation.”

(Id.) Upon a review of the record, respondent’s account bears

out. Accordingly, petitioner’s claim is unexhausted, but also

procedurally barred because his time to move to reargue his §

440.10 Motion has long since passed.20

That does not end matters, however. State procedural

default will not foreclose habeas review where a petitioner can

(1) establish cause for his default and actual prejudice

resulting from the alleged violation of federal law, or (2)

demonstrate that the failure to consider the petitioner’s claims

would result in a fundamental miscarriage of justice. See

Gutierrez, 702 F.3d at 111; Carvajal v. Artus, 633 F.3d 95, 104

(2d Cir. 2011). But petitioner does not remotely allude to any

cause justifying his failure to raise the instant due process

claim in state court, either in his petition or his reply. (See

generally Pet.; Reply.)

Petitioner’s default may still be excused, absent a

dual showing of cause and prejudice, if he can show that a

20 Petitioner no longer has the right to raise his due process claim

under New York law, either on direct appeal or on collateral review. For

example, he is time-barred from making a motion for reargument to the

Appellate Division, Second Department. N.Y. App. Div., Second Dep’t, Rules

of Practice, § 1250.16(d)(1) (“A motion for reargument of or leave to appeal

to the Court of Appeals from an order of the court shall be made within 30

days after service of the order of the court with notice of entry.”).

Petitioner is also precluded from raising this claim in a new § 440.10

motion. CPL § 440.10(3)(c) (“The court may deny a motion to vacate a

judgment when . . . [u]pon a previous motion made pursuant to this section,

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

underlying the present motion but did not do so.”). Finally, he is time-

barred from making a motion for reargument or reconsideration to the Court of

Appeals of its denial of his leave to appeal. 22 N.Y.C.R.R. § 500.20(d)

(“Unless otherwise permitted by the assigned Judge, the reargument or

reconsideration request shall be served not later than 30 days after the date

of the certificate determining the application of which reargument or

reconsideration is sought.”). Thus, the unpresented claims are now

procedurally barred under New York law, and, therefore, deemed exhausted for

federal habeas purposes. See Ramirez, 280 F.3d at 94; Grey, 933 F.2d at 120.

fundamental miscarriage of justice would result, i.e., “that he

is actually innocent of the crime for which he has been

convicted,” Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002)

(citations omitted). “‘[A]ctual innocence’ means factual

innocence, not mere legal insufficiency.” Id. (quoting Bousley,

523 U.S. at 623) (alteration in original, internal quotation

marks omitted). As discussed above, there is overwhelming

evidence placing petitioner at the scene of the crime and

identifying him as the person who shot and killed Hammonds. To

the extent any purported procedural error contributed to the

omission of certain alibi testimony, there is nothing in the

record to suggest the witnesses possessed any material

exculpatory information that would have potentially changed the

outcome of petitioner’s trial. Thus, petitioner’s due process

claim is procedurally barred.

B. Petitioner’s Due Process Claim Lacks Merit

Petitioner’s due process claim also fails on the

merits. Petitioner asserts that the state court’s “denial of

his claim on the merits, based on his trial attorney’s

affidavit, was unreasonable since the decision disregarded the

trial record . . . [in light of] Pinckney’s trial attorney

placing the alibi witnesses’ names (Dante McAllister, Brian

Follins, and Br[e]nda C[a]rroll) on the record during voir

dire.” (Reply 6 (citing Trial Tr. 76).) But the record makes

clear that Brettschneider announced Mr. McAllister, Mr. Follins,

and Ms. Carroll only as potential defense witnesses, not

potential alibi witnesses. As discussed above, Brettschneider

also specifically attested that petitioner and his mother never

informed him about the potential alibi witnesses.

Moreover, petitioner’s claim relating to alleged

errors in a state post-conviction proceeding is not cognizable

on federal habeas review. See, e.g., Guzman v. Coutore, No.

99CIV11316(RMB)(HBP), 2003 WL 165746, at *13 (S.D.N.Y. Jan. 22,

2003) (“[C]laims relat[ing] to alleged deficiencies in [the

state’s] post-conviction procedures, fail [ ] to present a

viable habeas claim.”) (citation omitted, alterations in

original); Jones v. Duncan, 162 F. Supp. 2d 204, 219 (S.D.N.Y.

2001) (Petitioner’s “assertion that the failure to hold a

hearing on his CPL §§ 440.10 and 330.30 newly discovered

evidence motions violated due process is not cognizable on

federal habeas review.”); Diaz v. Greiner, 110 F. Supp. 2d 225,

235 (S.D.N.Y. 2000) (“Petitioner’s unsupported assertion that

the trial court denied his (third) CPL § 440.10 motion without a

hearing violated due process is not cognizable on federal habeas

review.”); Franza v. Stinson, 58 F. Supp. 2d 124, 152 (S.D.N.Y.

1999) (Petitioner's “vague assertion that the trial court’s

denial of his CPL § 440.10 motion violated due process and equal

protection is not cognizable on federal habeas review.”).

Accordingly, petitioner’s due process claim is dismissed.

IV. Ground Three: Denial of Due Process and Right to A Fair

Trial Due to “Unduly Suggestive” Police Investigative

Procedures

Petitioner asserts that his due process and fair trial

rights were violated by the “unduly suggestive” police-conducted

line-up, in which Desir identified him as the shooter. (Pet.

27.) The petition alleges:

Petitioner was placed in a line up with fillers

visibly older smaller and with full facial hair, where

petitioner was a two hundred and twenty pound male in

his early twenties. The description of the

perpetrator was a young male in his early twenties,

two hundred pounds, and petitioner was the only one in

the line up who fit that description. Further, the

police told the witness the shooter would be in the

line up. Therefore, petitioner stood out in the

unnecessarily suggestive line up.

(Id.)

On March 14, 2006, the Appellate Division, Second

Department denied petitioner’s claim, asserted in his pro se

supplemental brief, that the line-up conducted by police on May

9, 2000 was “unduly suggestive.” Pinckney, 27 A.D. 3d at 582.

Petitioner sought to challenge the validity of the allegedly

suggestive line-up based on statements made at trial without

seeking to reopen the Wade hearing. (See Pro Se Supp. App. Br.

1-13.) The Appellate Division stated that “[c]ontrary to the

defendant’s contention in his supplemental pro se brief, the

lineup was not unduly suggestive, and the hearing court,

therefore, properly denied that branch of the defendant’s

omnibus motion which was to suppress identification testimony .

. . .” (Id.)21

For the reasons that follow, the court agrees with the

Appellate Division and finds that petitioner partook in a

Constitutionally-permissible pre-trial identification procedure.

A. Legal Standard

“[E]rroneous evidentiary rulings do not automatically

rise to the level of constitutional error sufficient to warrant

issuance of a writ of habeas.” Rojas v. Woods, No. 07 CIV 6687

DAB GWG, 2008 WL 2875082, at *9 (S.D.N.Y. July 25, 2008), report

and recommendation adopted, No. 07 CIV. 6687 (DAB), 2009 WL

4639620 (S.D.N.Y. Dec. 3, 2009) (quoting Taylor v. Curry, 708

F.2d 886, 891 (2d Cir. 1983)). Rather, an erroneous ruling

rises to a federal constitutional violation “only where

petitioner can show the error deprived her of a fundamentally

fair trial.” Id. Further, “[t]he Supreme Court has made clear

that a federal court may not grant habeas review on the basis

that a state court erred in applying state law.” Tyrell v. Lee,

No. 11CIV3348CSLMS, 2015 WL 9666334, at *6 (S.D.N.Y. Dec. 14,

2015) (citing Estelle v. McGuire, 502 U.S. 62 (1991)).

21 The New York Court of Appeals affirmed the Appellate Division’s

decision on May 9, 2006. See People v. Pinckney, 6 N.Y.3d 897 (N.Y. 2006).

To prevail on a claim that an erroneous state-law

evidentiary ruling deprived a petitioner of due process under

the Fourteenth Amendment, a petitioner must show that “the

erroneously admitted evidence, viewed objectively in light of

the entire record before the jury, was sufficiently material to

provide the basis for conviction or to remove a reasonable doubt

that would have existed on the record without it.” Collins v.

Scully, 755 F.2d 16, 19 (2d Cir. 1985). Thus, the error “must

have been crucial, critical, highly significant.” Id. (citing

Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982)).

In Simmons v. United States, the Supreme Court held

that after considering a conviction “on its own facts,” courts

may set the conviction aside “only if the photographic

identification procedure was so impermissibly suggestive as to

give rise to a very substantial likelihood of irreparable

misidentification.” Dunlap v. Burge, 160, 165 (2d Cir. 2009)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

The more “general the rule, the more leeway courts have in

reaching outcomes in case-by-case determinations,” and as

Simmons set forth a general rule, the state court is afforded

significant discretion. Id. at 166 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). A line-up is “unduly

suggestive as to a given defendant if he meets the description

of the perpetrator previously given by the witness and the other

lineup participants obviously do not.” Raheem v. Kelly, 257

F.3d 122, 134 (2d Cir. 2001); see also Perry v. New Hampshire,

132 S. Ct. 716, 724 (2012).

Even if pre-trial procedures have been unduly

suggestive, “a court may nonetheless admit in-court

identification testimony if the court determines it to be

independently reliable.” United States v. Wong, 40 F.3d 1347,

1359 (2d Cir. 1994) (citing Manson v. Brathwaite, 432 U.S. 98,

114 (1977)). “[T]he independent reliability of the witnesses’

testimony guards against a ‘very substantial likelihood of

irreparable misidentification.’” Alonge v. Chappius, No. 12-CV-

542 (KAM), 2019 WL 1642449, at *6 (E.D.N.Y. Apr. 16, 2019)

(citing Neil v. Biggers, 409 U.S. 188, 198 (1972)).

B. Physical Characteristics of the Fillers

Petitioner argues that “he was identified based on an

unduly suggestive lineup” because the fillers were “visibly

older[,] smaller and with full facial hair, where petitioner was

a two hundred and twenty pound male in his early twenties,” and

he was the “only one in the line up who fit [the perpetrator’s]

description.” (Pet. 27.) Petitioner characteristically does

not substantiate his claim with citation to the record or other

documentation.

“A lineup is unduly suggestive as to a given defendant

if he meets the description of the perpetrator previously given

by the witness and the other lineup participants obviously do

not.” United States v. Wilson, 493 F. Supp. 2d 469, 472

(E.D.N.Y. 2006) (quoting Raheem, 257 F.3d at 134). A line-up

may be unduly suggestive where the “defendant is the only

participant who meets the particular description of the

perpetrator given by eyewitnesses,” though “federal law does not

mandate ‘total uniformity of appearance.’” Alonge, 2019 WL

1642449, at *7 (quoting Piper v. Portuondo, 82 F. App’x 51, 52

(2d Cir. 2003)). “The focus of the inquiry is not whether the

suspect has a distinctive feature not shared by the other

participants, but whether that feature matches the description

provided by the witness.” West v. Greiner, No. 01 CV 1267(JG),

2004 WL 315247, at *15 (E.D.N.Y. Feb. 12, 2004) (where

witnesses’ descriptions of perpetrator did not include grey

hair, the fact that petitioner was the only person in the line-

up with grey hair did not render the procedure unfairly

suggestive); compare Solomon v. Smith, 645 F.2d 1179, 1182-84

(2d Cir. 1981) (line-up suggestive where suspect was only person

meeting height and weight descriptions provided by witness),

with United States v. Jacobetz, 955 F.2d 786, 803 (2d Cir. 1992)

(line-up not suggestive despite fact that suspect had smallest

mustache where witness had described suspect as having no facial

hair at all).

Petitioner asserts that he was the only one who fit

the description of the perpetrator as a “young male in his early

twenties, two hundred pounds.” (Pet. 27.) However, it does not

appear from the record that the description given to the police

focused on the age or weight of the perpetrator. Brettschneider

argued at trial that “the only description [the police] were

given is the shooter had a silver watch on.” (Trial Tr. 700.)

Further, Brettschneider said that the only description Desir had

given of the shooter’s clothing during his testimony was that he

was wearing a “green T shirt with a pocket on the left side and

black jeans.” (Id. 695.) The police investigation notes

reflecting Desir’s description do not refer to the perpetrator’s

physical characteristics, but only what he was wearing. (§

440.10 Motion, Ex. 8 (NYPD Investigation Notes, 2-3).) During

the line-up, petitioner wore neither a green shirt (Wade Hr’g

Tr. 25-26), nor his watch (Trial Tr. 180).

The crux of petitioner’s argument is that the line-up

fillers were so dissimilar that petitioner stood out. Because

the line-up photographs were not preserved for appellate review,

they are not present within the record. (Pro Se Supp. App. Br.

15-16.) The court will not infer suggestiveness, however, based

on the fact that the line-up photographs have been misplaced.

See Ranta v. Bennett, No. 97 CV 2169, 2000 WL 1100082, at *39

(E.D.N.Y. May 23, 2000) (noting that “the mere fact that line-up

identification photographs were inadvertently lost after trial

does not require that a presumption of suggestiveness be

applied,” and indicating that the “appropriate focus” is whether

the loss of the exhibit was a “result of bad faith”) (internal

citations and quotation marks omitted), aff’d, 189 F. App’x 54

(2d Cir. 2006). There is no indication that the line-up

photographs were lost due to bad faith, and it remains the

petitioner’s burden “to present clear and convincing evidence

that the state court’s factual determination was erroneous.”

Velazquez v. Poole, 614 F. Supp. 2d 284, 325 n.32 (E.D.N.Y.

2007) (citation omitted).

The transcript of petitioner’s Wade hearing does not

clarify the extent of the weight and age disparities between

petitioner and the line-up fillers. In his pro se supplemental

appellate brief, petitioner maintained that the “fillers ranged

in age from Forty-five (45) to Sixty (60) years old,” “[o]ne of

the fillers even walked with a cane, also these fillers weighed

approximately one hundred and thirty (130) pounds.” (Pro Se

Supp. App. Br. 14.) In contrast, Sergeant Libretto testified

that some of the five men involved in the line-up appeared to be

in their twenties. (Wade Hr’g Tr. 31-32.) Although Sergeant

Libretto acknowledged that Mr. Somerstein, petitioner’s attorney

at the time of the line-up, objected to the fillers’ weights and

ages, the specifics of the objection were not elaborated upon at

the Wade hearing, or elsewhere in the record. (See id. 35.)

Sergeant Libretto did testify, notably, that petitioner and the

fillers were seated during the line-up. (Id. 22.) Sergeant

Libretto also noted that the police granted Somerstein’s

requests to modify the line-up, including a request to change

petitioner’s attire to a black shirt, and switching his position

in the line-up.22 (Id. 25-26.)

Courts within the Second Circuit will tolerate

significant weight disparities in a police line-up, particularly

where the participants are seated, before the threshold for

suggestiveness is met. See, e.g., Perkins v. Comm’r of Corr.

Servs., 218 F. App’x 24, 25 (2d Cir. 2007) (finding that

“[d]espite certain age and weight disparities, the fillers were

sufficiently similar to the defendant in appearance so that he

was not singled out for identification”); Stallings v. Heath,

No. 11 CIV. 4894 DLC AJP, 2012 WL 735399, at *11 (S.D.N.Y. Mar.

7, 2012), report and recommendation adopted, No. 11 CIV. 4894

DLC, 2012 WL 1538513 (S.D.N.Y. May 2, 2012) (where line-up

participants were seated, line-up not suggestive even though

fillers were between 20 to 123 pounds heavier than defendant);

Velazquez, 614 F. Supp. 2d at 328 (variations in weight

neutralized where line-up participants were seated); Jackson v.

22 Petitioner asserts the line-up was unduly suggestive because the

fillers had “full facial hair,” (Pet. 27), but the record reflects no such

objection by his counsel. (See generally Wade Hr’g Tr.)

Ross, No. CIV. 89-0591, 1989 WL 88008, at *2 (E.D.N.Y. July 26,

1989) (weight discrepancy largely eliminated because line-up

participants were seated); United States v. Porter, 430 F. Supp.

208, 211 (W.D.N.Y. 1977) (line-up not invalid although defendant

weighed 150 pounds and all fillers weighed over 190 pounds).

Relatedly, discrepancies in age alone are not dispositive.

Alonge, 2019 WL 1642449, at *8. The burden is squarely on

petitioner to present clear and convincing evidence that the

totality of circumstances rendered a pre-trial identification

procedure unduly suggestive, and made him stand out so as to

suggest he was the culprit. See Velazquez, 614 F. Supp. 2d at

325 & n.32; see also Piper, 82 F. App’x at 52 (“The critical

question is whether a defendant’s appearance made him ‘so

[stand] out’ from the others in the lineup as to suggest

unfairly that he ‘was more likely to be the culprit.’”) (quoting

Jarrett, 802 F.2d at 41).

Petitioner falls far short of demonstrating, by clear

and convincing evidence, that the line-up was unduly suggestive,

and fails to substantiate his assertions that the line-up

fillers were so much older, heavier, or otherwise distinct in

appearance as to make petitioner stand out as the suspect. The

description of Hammonds’ shooter did not include any relevant

physical characteristics that would have made petitioner stand

out in the line-up in violation of the Constitution. Moreover,

petitioner did not wear his wristwatch during the line-up, a

distinctive feature that might have hastened Desir’s

identification of the shooter. Thus, the court defers to the

state court’s finding that the line-up was not unduly

suggestive. Before dismissing petitioner’s claim, however, the

court will delve further into the circumstances of the line-up

to determine if other circumstances tainted the identification

procedure. These circumstances include comments by Sergeant

Libretto and other officers in Desir’s presence, as well as

Desir’s own reliability.

C. Informing Witness That Shooter Was Present in Line-up

Petitioner claims that the “police told [Desir] the

shooter would be in the line up.” (Pet. 27.) Generally,

remarks and other actions by law enforcement personnel

conducting an out-of-court identification procedure “may render

an otherwise fair [identification procedure] impermissibly

suggestive.” Velazquez, 614 F. Supp. 2d at 323 (citing United

States v. Thai, 29 F.3d at 808, 810 (2d Cir. 1994)). Here,

however, petitioner offers no specific support for his claim,

and the record evinces no such improperly suggestive comments or

actions in connection with the line-up by Sergeant Libretto or

other officers at the 105th Precinct.

According to Desir, the identifying witness, the

officers who conducted the line-up told him “that they got

somebody they believe was a suspect, to see if I see him in the

lineup, you know, the guy that shot Preme [i.e. Hammonds] that

night basically.” (Trial Tr. 332.) This comment did not taint

the line-up or Desir’s subsequent identification of petitioner

as the shooter. “[I]t is implicit in the display of a line-up

that a suspect is among the persons viewed, and stating this

fact to a witness is thus insufficient to create a substantial

likelihood of misidentification.” Green v. Connell, No. 05 CV

5795 CBA, 2006 WL 3388656, at *8 (E.D.N.Y. Nov. 21, 2006)

(citation omitted); see Hodge v. Henderson, 761 F. Supp. 993,

1007-08 (S.D.N.Y. 1990) (“[I]t is implicit in the viewing of a

lineup that a suspect might appear . . . . Such information does

not predispose the viewer of the lineup to select any particular

person[.]”), aff’d, 929 F.2d 61 (2d Cir. 1991) (per curiam).

Otherwise, there is no indication of improperly suggestive

comments in the record that may have tainted the line-up.

D. Independently Reliable Identification

Assuming, arguendo, the line-up procedure was tainted,

petitioner still cannot succeed on his claim because the

witness’s visual identification was ultimately independently

reliable. “Even if an identification procedure is unduly

suggestive, the out-of-court identification may nonetheless be

admissible if other factors indicate that the identification is

independently reliable.” Brisco v. Ercole, 565 F.3d 80, 89 (2d

Cir. 2009). The Supreme Court has held that “reliability is the

linchpin in determining the admissibility of identification

testimony.” Alonge, 2019 WL 1642449, at *9 (quoting Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)).

The five-factor test set forth in Neil v. Biggers, 409

U.S. 188, 199-200 (1972), governs whether a witness’s in-court

identification is reliable. Those factors are: “(1) the

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

the crime, (2) the witness’ degree of attention, (3) the

accuracy of the witness’ prior description of the criminal, (4)

the level of certainty demonstrated by the witness at the

confrontation, and (5) the length of time between the crime and

confrontation.” Brisco, 565 F.3d at 89 (citing Biggers, 409

U.S. at 199-200). “A good or poor rating with respect to any

one of these factors will generally not be dispositive, and in

each case, the question of independent reliability must be

assessed in light of the totality of the circumstances.”

Raheem, 257 F.3d at 135 (internal citations omitted).

Weighing the totality of the Biggers factors, the

court finds that Desir’s identification was independently

reliable and thus properly admitted. Regarding the first two

factors, it is clear from Desir’s trial testimony that he had

ample opportunity to closely observe petitioner’s face and other

physical features in the period immediately preceding the

shooting. Desir testified that he had observed petitioner

fighting with another individual for two to five minutes from a

few feet away. (Trial Tr. 304.) Shortly after, Desir found

himself arguing face-to-face with petitioner for several minutes

(id. 307), during which time he closely observed petitioner,

“trying to see how his face looked.” (Id. 307-08.) Thereafter,

Desir slowly backed away from petitioner and observed him remove

his wristwatch. (Id. 309.) Hammonds then interposed himself

between Desir and petitioner, leading to an argument between the

three men that lasted around three minutes. (Id.) Desir then

noticed petitioner “open the glove compartment [of his car], put

something in his waist, close the glove compartment, close the

door, [and] come[] back,” with an object that appeared “black

with a handle” tucked near petitioner’s waist. (Id. 317-18.)

Desir was just feet away when petitioner, standing face-to-face

with Hammonds, pulled out a gun, which prompted Desir to flee.

(Id. 323-25.) In all, Mr. Desir’s testimony establishes that

the first two Biggers factors weigh strongly in favor of

reliability. See Gonzales v. Smith, No. 09-CV-5507 CBA, 2010 WL

6540402, at *11 (E.D.N.Y. July 30, 2010), report and

recommendation adopted sub nom. Gonzalez v. Smith, No. 09-CV-

5507 CBA RLM, 2011 WL 1542824 (E.D.N.Y. Apr. 22, 2011) (finding

that witnesses’ descriptions of the encounter “make clear that

they each had sufficient time to view the assailant” even though

one witness was seeking “refuge behind a parked car.”) (citing

Mysholowsky v. People of State of N.Y., 535 F.2d 194, 198 (2d

Cir. 1976)).

The third Biggers factor is neutral because Desir did

not provide the police with a description of the shooter before

the May 9, 2000 line-up. The fourth factor favors Desir’s

reliability because he identified petitioner as the culprit at

the line-up, and there is no indication he possessed doubts

about his identification. (Trial Tr. 333-34.) Finally, the

fifth factor also supports finding that Desir’s identification

was independently reliable because he identified petitioner only

three days after the shooting. (Id. 331-34); see Alonge, 2019 WL

1642449, at *9 (identification was independently reliable where

“a very short time elapsed between the crimes committed against

each complainant and the identification: Jean-Baptiste’s

identification occurred four days after the incident with her

assailant, and Stuger’s identification occurred only two days

after the incident with her assailant.”).

In sum, considering the totality of the circumstances,

Desir’s identification was independently reliable, and the line-

up as a whole was not unduly suggestive. Petitioner has not

mustered a scintilla of evidence that would raise doubts about

the Constitutional propriety of the line-up, much less clear and

convincing evidence to that effect. Therefore, petitioner’s

habeas challenge to the pre-trial identification procedure is

denied and dismissed.

V. Ground Four: Ineffective Assistance of Appellate Counsel

Petitioner argues that his appellate counsel, Ms.

Napoli, rendered ineffective assistance on direct appeal by

failing to adequately challenge the performance of petitioner’s

trial counsel. (Pet. 29.) For the reasons set forth below,

this claim is denied.

A. Petitioner’s Ineffective Assistance of Appellate

Counsel Claims were Adjudicated on the Merits

Under the AEDPA, “a federal court may not grant a

habeas petition” on a claim that has been adjudicated on the

merits by a state court “unless that adjudication ‘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.’” Aparicio, 269 F.3d

at 93. Therefore, “to invoke the deferential standards of

AEDPA, the state court need only dispose of the petitioner’s

federal claim on substantive grounds, and reduce that

disposition to judgment.” Id. at 93-94.

First, petitioner previously raised his ineffective

assistance of appellate counsel claim in a writ of error coram

nobis. He has, therefore, exhausted this claim. See Sweet v.

Bennett, 353 F.3d 135, 141 n.7 (2d Cir. 2003) (“In New York,

coram nobis is the appropriate remedy for ineffective assistance

of appellate counsel.”). Second, the Appellate Division’s

denial of petitioner’s claim was an adjudication on the merits.

The Appellate Division stated that “[t]he appellant has failed

to establish that he was denied the effective assistance of

counsel.” See Pinckney, 67 A.D.3d 1030. As “there is nothing

in [the Appellate Division’s] decision to indicate that the

claims were decided on anything but substantive grounds,”

Aparicio, 269 F.3d 78 at 94, the court applies AEDPA “double”

deference in reviewing petitioner’s ineffective assistance of

appellate counsel claim. Harrington, 562 U.S. at 105 (quoting

Knowles, 556 U.S. at 123).

B. Petitioner’s Claim Lacks Merit

1. Legal Standard

In considering an ineffective assistance of appellate

counsel claim, courts apply Strickland’s two-prong test.

Aparicio, 269 F.3d at 95 (“Although it was born in the context

of ineffective assistance of counsel, Strickland’s two-prong

test applies equally to claims of ineffective assistance of

appellate counsel on a defendant’s first appeal as of right.”)

(citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)). It is

not sufficient for the habeas petitioner “to show merely that

[appellate] counsel omitted a nonfrivolous argument,” as

“[c]ounsel is not obliged to advance every nonfrivolous argument

that could be made.” Id. (citation omitted). “Accordingly,

when reviewing the performance of appellate counsel, courts

should refrain from ‘second-guess[ing] reasonable professional

judgment and impos[ing] on . . . counsel a duty to raise every

colorable claim on appeal.” Alston v. Phillips, 703 F.Supp.2d

150, 185 (E.D.N.Y. 2010) (quoting Jackson v. Leonardo, 162 F.3d

81, 85 (2d Cir. 1998)).

In analyzing Strickland through the lens of appellate

performance, petitioner can only show that appellate counsel’s

performance was deficient “if petitioner shows that counsel

omitted significant and obvious issues while pursuing issues

that were clearly and significantly weaker.” Joyce v.

Martuscello, No. 11 CIV. 5265 LBS, 2012 WL 4219615, at *7

(S.D.N.Y. Sept. 20, 2012) (brackets omitted) (quoting Ramchair

v. Conway, 601 F.3d 66, 73 (2d Cir. 2010)). As to prejudice, a

petitioner must demonstrate that “there was a reasonable

probability that petitioner’s appeal would have been successful

before the state’s highest court.” Anderson v. Keane, 283 F.

Supp. 2d 936, 941 (S.D.N.Y. 2003) (citing Smith v. Robbins, U.S.

259, 285 (2000)).

2. Appeal of Trial Counsel’s Alleged Failure to Object

to “Surprise In-Court Identification”

Petitioner alleges that appellate counsel erred by not

challenging trial counsel’s failure to object to the trial

court’s “ruling permitting prosecution witness Prague Alexander

to make a ‘surprise in-court identification of appellant based

on a purported C.P.L. 710.30 confirmatory identification notice,

which confirmatory identification Alexander denied making on

cross examination.” (Pet. 29.) This assertion is without

merit. CPL 710.30(1)(b) provides, in relevant part, that when

the prosecution intends to offer at a trial, “testimony

regarding an observation of the defendant either at the time or

place of the commission of the offense or upon some other

occasion relevant to the case, to be given by a witness who has

previously identified him as such, they must serve upon the

defendant a notice of such intention, specifying the evidence

intended to be offered.” CPL § 710.30(1)(b). This section, is

“by its terms, limited to ‘police arranged confrontations.’”

Welch v. Artus, No. 04-CV-205 S, 2007 WL 949652, at *29

(W.D.N.Y. Mar. 29, 2007).

At trial, Alexander testified on behalf of the

prosecution that, just before the murder, he saw petitioner

standing on the street and, assuming it was actually

petitioner’s brother, approached him to say hello. (Trial Tr.

468-70.) Petitioner turned around after Alexander tapped him on

the shoulder, which allowed Alexander to recognize him. (Id.)

Alexander also identified petitioner at trial. (Id. 448.)

Immediately after the identification, petitioner’s trial

counsel, Mr. Brettschneider, moved to preclude Alexander’s

testimony, contending petitioner had never received notice that

Alexander knew defendant, or that there had been an

identification procedure. (Id. 450.) The prosecutor responded

that the State was not required to serve a CPL § 710.30(1)(b)

notice because the identification was merely confirmatory.

(Id.) Moreover, the State demonstrated that it had nonetheless

provided notice ten months earlier to both the state court and

defense counsel. (Id.) Justice Rosenzweig agreed that no

notice was required for a confirmatory identification, and

denied petitioner’s motion to preclude. (Id.) Brettschneider

did not move again to preclude Alexander’s testimony.

In directly appealing petitioner’s conviction,

petitioner’s appellate counsel, Ms. Napoli, did not assert that

the trial court erred by admitting Alexander’s testimony, or

allege that trial counsel was ineffective for not moving a

second time to preclude Alexander’s trial identification after

his first motion was denied. This decision was not

unreasonable, in light of the relevant statute and case law,

which holds that the strictures of CPL § 710.30 need not be

adhered to where no pre-trial identification has taken place.

See Welch, 2007 WL 949652, at *29; see, e.g., People v.

Zambrano, Indictment No. 00208-03, 2003 WL 22922437, at *8 (N.Y.

Sup. Ct. Nov. 24, 2003) (“The evidence introduced at the hearing

establishes that the police did nothing to ‘arrange’

identifications of any of the defendants by these witnesses. The

‘point out’ identifications which did occur were the spontaneous

product of an accidental encounter between the witnesses and the

suspects. There being no governmental action involved there

exists no basis for the suppression of any of the identification

testimony[.]”) (citing People v. Dixon, 647 N.E.2d 1321 (N.Y.

1995), and People v. Capel, 232 A.D.2d 415 (N.Y. App. Div. 1st

Dep’t 1995)).

It also hard to fathom how petitioner was prejudiced

by appellate counsel’s decision to omit the CPL § 710.30 issue

in the opening appellate brief. After all, petitioner himself

raised this very issue in his pro se supplemental appellate

brief. (Pro Se Supp. App. Br. 17.) Petitioner asserted therein

that the trial court’s summary denial of defense counsel’s

motion to preclude an alleged confirmatory identification was

erroneous as a matter of law. The Appellate Division rejected

petitioner’s argument, finding “the People were not required to

give prior notice of the in-court identification of the

defendant by a witness who had not previously identified him

out-of-court.” Pinckney, 27 A.D. 3d at 582. The New York Court

of Appeals subsequently denied petitioner leave to appeal.

Pinckney, 6 N.Y.3d at 897.

In conclusion, petitioner fails to demonstrate that

his appellate counsel fell short of the Strickland standard, and

likewise fails to show that the state court’s decision rejecting

his coram nobis application involved an “unreasonable

application” of the Strickland test. 28 U.S.C. § 2254(d).

3. Trial Counsel’s Failure to Challenge the Legal

Sufficiency of Evidence Presented for Indictment

Petitioner also asserts that appellate counsel failed

to raise on direct appeal trial counsel’s alleged failure “to

challenge the legal sufficiency of the evidence of appellant’s

indictment in light of Desir’s trial testimony that he lied to

the grand jury when he testified to actually seeing appellant

shoot Hammonds when, in fact, he only heard shots after fleeing

the scene.” (Pet. 29.) This assertion cannot succeed in

showing prejudice.

CPL Section 210.30(6) states that, the “validity of an

order denying any motion made pursuant to this section is not

reviewable upon an appeal from an ensuing judgment of conviction

based upon legally sufficient trial evidence.” CPL § 210.30(6).

Because petitioner’s allegation does not challenge the legal

sufficiency of trial evidence for a judgment of conviction,

rather, only the sufficient evidence to support a grand jury

indictment, it would not have been reviewable on appeal. See

Brown v. Filion, No. 03CIV5391DLCGWG, 2005 WL 1388053, at *17

(S.D.N.Y. June 13, 2005), report and recommendation adopted, No.

03 CIV.5391 DLC, 2005 WL 2159675 (S.D.N.Y. Sept. 6, 2005)

(citing People v. Huston, 88 N.Y.2d 400, 411 (1996)). The

Appellate Division would have been required to dismiss this

claim and, therefore, no prejudice can stem from appellate

counsel’s decision not to engage in a futile exercise.

Further, “it is well settled that claims of

deficiencies in state grand jury proceedings are not cognizable

on federal habeas review.” Louis v. Fischer, No.

04CV2887(NGG)(KAM), 2007 WL 4198255, at *23 (E.D.N.Y. June 25,

2007) (citing Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989)).

In United States v. Mechanik, the Supreme Court held that a

“jury’s subsequent guilty verdict means not only that there was

probable cause to believe that the defendants were guilty as

charged, but also that they are in fact guilty as charged beyond

a reasonable doubt.” 475 U.S. 66, 106 (1986). Therefore, “any

error in the grand jury proceeding connected with the charging

decision [is] harmless beyond a reasonable doubt,” and appellate

counsel’s alleged failure to raise this claim cannot be said to

have prejudiced the petitioner. Id. at 70; see also Thompson v.

Kelly, No. 97-CV-258H, 1999 WL 166820, at *2 (W.D.N.Y. Feb. 4,

1999) (“It necessarily follows as a matter of law that

[petitioner] cannot establish that any errors made by his trial

counsel with respect to the grand jury proceeding prejudiced

him, thereby foreclosing the possibility of a Sixth Amendment

violation.”) (quoting Velez v. New York, 941 F. Supp. 300, 316

(E.D.N.Y. 1996)).

At bottom, petitioner fails to show that his appellate

counsel’s performance was deficient, or that such performance

prejudiced him, and provides the court with no reason to believe

the state court applied Strickland unreasonably when it rejected

his ineffective assistance claim. The court defers to the state

court’s finding, and dismisses petitioner’s ineffective

assistance of appellate counsel claim.

VI. Claim of Newly Discovered Evidence

Finally, the government’s opposition refers to

petitioner’s “claim of newly discovered evidence.” (Opp. 41; see

also Reply 13-17.) In December 2001, at the Wade hearing, NYPD

Detective Walter Panchyn testified that he had procured a

photograph of the petitioner from the Nassau PD headquarters,

which he used for the photo array shown to Desir. (Wade Hr’g

Tr. 1-14.) In 2006, petitioner submitted a request to Nassau

PD, pursuant to New York’s Freedom of Information Law (“FOIL”),

for any records relating to his “arrest photo(s) and reports

pertaining to any and all charges [petitioner has] been arrested

[] under or by your Police Department in Nassau County

Jurisdiction.” (ECF No. 71-1 (ECF p. 64), Petitioner’s FOIL

Request, dated July 31, 2006 (“FOIL Request”).) On August 14,

2006, Nassau PD responded it was “unable to locate records

pertaining to [petitioner’s] request.” (ECF No. 71-1 (ECF p.

65), Nassau PD FOIL Request Response, dated Aug. 14, 2006 (“FOIL

Response”).) Throughout 2006 and 2007, petitioner submitted

further requests to Nassau PD for the same records, each time

receiving the same response. Petitioner construes Nassau PD’s

statements as “newly discovered” evidence, and in 2007, asserted

in his § 440.10 Motion that it constituted grounds to vacate his

conviction. Petitioner argued then, as now, that the FOIL

Response showed that Detective Panchyn’s testimony about the

source of the photo array photograph was fabricated. (§ 440.10

Motion 21-23; Reply 15.) In the instant proceeding, petitioner

likewise states that Detective Panchyn’s false testimony

“seriously affected the integrity of [the] normal process of

adjudication,” though exactly how is not stated. (Reply 15.)

Just as Justice McGann rejected this contention in petitioner’s

§ 440.10 proceeding, this court also finds petitioner’s claim

without merit. (See § 440.10 Order 5.)

As an initial matter, “[a] claim based on newly

discovered evidence has never been held to state a ground for

federal habeas relief absent an independent constitutional

violation occurring in the underlying state criminal

proceeding.” Dotsenko v. Joseph, No. 18-CV-1640 (WFK), 2019 WL

4917952, at *5 (E.D.N.Y. Oct. 4, 2019) (internal quotation marks

and brackets omitted) (quoting Herrera v. Collins, 506 U.S. 390,

400 (1993)). Even if the court were to consider the FOIL

Response newly discovered evidence, a constitutional violation

must have occurred to qualify for habeas relief. The court

detects no independent constitutional violation.

Moreover, the FOIL Response is not newly discovered

evidence, as defined by the CPL. Under CPL § 440.10(1)(g), a

defendant can move to vacate a judgment based on newly

discovered evidence under certain circumstances. Newly

discovered evidence must satisfy the following requirements in

order to justify vacatur:

1. It must be such as will probably change the result

if a new trial is granted; 2. It must have been

discovered since the trial; 3. It must be such as

could have not been discovered before the trial by the

exercise of due diligence; 4. It must be material to

the issue; 5. It must not be cumulative to the former

issue; and 6. It must not be merely impeaching or

contradicting the former evidence.

People v. Deacon, 946 N.Y.S. 2d 613, 617 (N.Y. App. Div. 2d

Dep’t 2012) (quoting People v. Salemi, 309 N.Y. 208, 216 (N.Y.

1955)).

The FOIL Response does not conform to the criteria for

newly discovered evidence in several respects. First, the

source of petitioner’s photograph for the photo array was a non-

material issue at the Wade hearing, the subject of which was

whether the pre-trial identification procedures, in which Desir

identified petitioner as the shooter, were unduly suggestive.

If, as petitioner’s insists, Detective Panchyn lied about the

source of petitioner’s photo, it’s not clear what difference the

purported truth of the photo’s source would have made to the

Wade hearing outcome, much less the trial itself. As discussed

above, at length, the evidence against petitioner was

overwhelming, and included two eyewitness identifications.

Accordingly, petitioner cannot credibly claim that the first or

fourth requirements under CPL § 440.10(1)(g) are satisfied.

In addition, petitioner offers no justification for

waiting until 2006, more than three years after his trial began,

to first seek the records relating to the photograph.

Petitioner surely would have recalled at the time of the Wade

hearing, if not the trial, and certainly before 2006, whether he

had indeed been arrested or otherwise had an encounter with the

Nassau PD. If, as petitioner claims, there was no reason to

believe Nassau PD would have a police file for him, this surely

dawned on him well before 2007. CPL § 440.10(1)(g) required him

to pursue this matter diligently, but the time that elapsed

between the Wade hearing and petitioner’s FOIL Request very much

evinces a lack of diligence.

The court therefore denies petitioner relief to the

extent he asserts a habeas claim based upon newly discovered

evidence.

CONCLUSION

For the foregoing reasons, the petition for a writ of

habeas corpus is DENIED in its entirety. Petitioner’s motion to

amend is likewise DENIED as futile. Accordingly, this case is

DISMISSED with prejudice. A certificate of appealability shall

not issue because petitioner has not made a substantial showing

of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2).

The clerk is respectfully directed to enter judgment

in favor of respondent, close this case, and send a copy of this

Memorandum and Order and the judgment to the petitioner at his

last known address and note service on the docket.

SO ORDERED.

Dated: October 19, 2020

Brooklyn, New York

/s/

Hon. Kiyo A. Matsumoto

United States District Judge