Jackson v. Perez

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------x

WILLIE JACKSON,

Petitioner, MEMORANDUM & ORDER

15-CV-1403(EK)(LB)

-against-

ADA PEREZ, Superintendent,

Respondent.

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ERIC KOMITEE, United States District Judge:

Table of Contents

I. Introduction .............................................. 2

II. Factual Background ....................................... 3

III. Procedural History ...................................... 6

A. Pre-Trial Suppression Hearing ........................... 6

B. Suppression Hearing Reopened ........................... 12

C. Pre-Trial Hearings ..................................... 15

D. Trial .................................................. 16

1. The State’s Case ...................................... 16

2. The Defense Renews Its Request to Suppress Evidence ... 20

3. Petitioner’s Testimony ................................ 21

4. Conviction and Sentencing ............................. 23

E. Direct Appeal and Post-Conviction Relief ............... 23

IV. Standard of Review ..................................... 26

V. Discussion ............................................... 27

A. Ground One: Denial of Right to Self-Representation ..... 27

B. Ground Two: Prosecutorial Misconduct ................... 33

1. Applicable Law ........................................ 35

a. Brady v. Maryland ................................... 35

b. Use of False Testimony .............................. 35

2. Failure to Turn Over Witness Statements Regarding the

Alleged Identification Procedure ........................ 36

3. Failure to Identify the 60th Precinct Officers and Turn

Over the “Log Sheet” ..................................... 39

4. Failure to Correct the Testimony of the 61st Precinct

Officers ................................................. 40

5. Failure to Produce the 911 Call Record and to Correct the

Testimony of Sarine Gabay ................................ 42

6. Alteration of the Videotaped Confession ............... 42

C. Ground Three: Ineffective Assistance of Counsel ........ 44

D. Ground Four: Failure to Reopen the Suppression

Hearing ................................................... 48

VI. Evidentiary Hearing .................................... 52

VII. Conclusion ............................................. 53

I. Introduction

Willie Jackson, proceeding pro se, petitions this

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

On March 9, 2010, following a bench trial, Petitioner was found

guilty of burglary in the third degree, criminal mischief in the

fourth degree, petit larceny, and criminal possession of stolen

property in the fifth degree. He was sentenced to a term of

imprisonment of fifteen years to life, and is currently

incarcerated.

The petition asserts four grounds for habeas relief:

(1) the state court denied Petitioner’s request to represent

himself at a hearing on his motion to suppress certain evidence,

in violation of the Sixth Amendment; (2) the prosecution

committed misconduct by, among other things, failing to turn

over exculpatory evidence pursuant to Brady and failing to

correct false testimony at the suppression hearing and trial;

(3) his counsel rendered constitutionally ineffective

assistance; and (4) the trial court violated his due process

rights by refusing to reopen the suppression hearing following

certain trial testimony. Petitioner also requests an

evidentiary hearing.

For the reasons set forth below, the request for an

evidentiary hearing is denied, and the petition is denied in its

entirety on the merits.

II. Factual Background

Police officers arrested Petitioner on October 4, 2007

at approximately 1:20 a.m. for breaking a window at the Carvel

store at 2733 Coney Island Avenue in Brooklyn, New York, and

stealing the cash register. The following facts, taken from the

state court trial record (unless otherwise noted), are

summarized “in the light most favorable to the verdict.”

Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).

Officers Adam Rothman and Jon-Kristian Rzonca — both

from the 61st Precinct of the New York City Police Department —

were on patrol when they received a radio transmission reporting

a burglary in progress at the corner of Avenue Y and Coney

Island Avenue. Trial Tr.1 23:9-21 (Rothman); 163:3-14 (Rzonca).

After the officers responded, they saw Petitioner walking down

Avenue Y; as they approached, they witnessed him put a large box

on the ground and walk away from it. Id. 27:6-17 (Rothman);

167:11-20 (Rzonca). Moments later, they saw that the box was a

cash register. Id. 28:11-24 (Rothman); 169:23-170:7 (Rzonca).

As discussed below, officers from both the 60th and 61st

Precincts responded, and recollections about which set of

officers reached Petitioner first varied somewhat between the

suppression hearing testimony and the trial testimony. Shortly

after the stop, though, Officer Rothman searched the Petitioner

and recovered a set of keys from his pocket, which were later

determined to fit the cash register. H1 Tr. 14:6-13; 16:12-19

(Rothman). The 60th Precinct officers then took Petitioner to

their station. Trial Tr. 63:8-9 (Rothman). After visiting the

Carvel store, Officers Rothman and Rzonca picked up Petitioner

from the 60th Precinct station and brought him to the 61st. Id.

63:14-64:7 (Rothman). There, he confessed to stealing the cash

1 “Trial Tr.” is the trial transcript from March 2, 2010 to March 9,

2010. “H1 Tr.” is the suppression hearing transcript from January 20, 2009

and January 21, 2009. “H2 Tr.” is the transcript from the February 17, 2009

hearing in which Justice Konviser read her opinion on the suppression motion

into the record. “H3 Tr.” is the transcript from the reopened suppression

hearing on June 11, 2009. “H4 Tr.” is the July 29, 2009 hearing transcript

in which Justice Konviser read her opinion into the record regarding the

reopened suppression hearing. “H5 Tr.” and “H6 Tr.” are pretrial conference

transcripts from July 30, 2009 and October 2, 2009, respectively.

“Sentencing Tr.” is the sentencing transcript from April 23, 2010.

register in a statement to Detective Marcia Baughan, which she

recorded in writing, and also in an oral statement given on

video to Assistant District Attorney (“ADA”) John Giannotti,

during which Officer Rothman was also present. Id. 72:20-21

(Rothman).

Petitioner maintains that the events in question

transpired very differently. According to him, this is a case

of mistaken identity; he claims that he never broke into the

store, never had a cash register, and never even saw Officers

Rothman or Rzonca until they appeared at his pretrial

suppression hearing, despite their extensive testimony about

responding to the radio call, searching Petitioner, recovering

the cash register, arresting him, transporting him after the

arrest, and sitting through his confession. Petitioner

acknowledges he was arrested near the Carvel on the night in

question, but claims the arresting officers were only from the

60th Precinct, and they obtained important proof of his innocence

when they conducted a “showup identification procedure” “at the

crime scene.” Petition at 3.2 He claims that during this

identification procedure, a series of bystanders — purportedly

eyewitnesses to the crime — confirmed he “was not the

perpetrator.” Petitioner’s Br. at 4, ECF No. 1-2; see also

2 Citations to a given page of the Petition refer to the pagination

assigned by ECF, rather than the document’s internal pagination.

Petitioner’s Reply Br. at 11, ECF No. 10. These exculpatory

statements, Petitioner contends, are lost to posterity because

of the State’s inability to identify the witnesses in question

or the officers from the 60th Precinct who purportedly conducted

the identification procedure. In support of these claims, the

Petitioner has proffered only his own testimony. See Trial Tr.

236-87.

III. Procedural History

A. Pre-Trial Suppression Hearing

Prior to trial, Petitioner moved to suppress

(1) certain physical evidence — the cash register and its keys —

seized around the time of his arrest, on the ground that there

was no probable cause for the search or seizure; and (2) his

written and videotaped confessions, on the ground that they were

involuntarily made. In response to these requests, the state

court conducted a two-day Dunaway / Mapp / Huntley hearing3 on

January 20 and 21, 2009 before Justice Jill Konviser. See

H1 Tr. Three witnesses testified: Officers Rothman and Rzonca,

and Detective Marcia Baughan from the 61st Precinct.

3 A hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979)

addresses whether a defendant’s statement subsequent to arrest must be

suppressed due to lack of probable cause for the arrest. A hearing pursuant

to People v. Huntley, 15 N.Y.2d 72 (1965) is used to determine the

voluntariness of a defendant’s statement. And a Mapp hearing addresses

whether physical evidence should be suppressed. Mapp v. Ohio, 367 U.S. 643

(1961).

On the first day of the hearing (January 20, 2009),

Officer Rothman testified that around 1:20 a.m. on October 4,

2007, he and his partner Officer Rzonca were on patrol when they

received a radio alert of a burglary in progress on Coney Island

Avenue at Avenue Y. Id. 10:9-11:5. Rothman testified that the

radio alert described a “black male, carrying a box heading

westbound towards Ocean Parkway on Avenue Y.” Id. 11:1-5.

They drove east on Avenue Y and saw a man, later

identified as Petitioner, about a block away carrying a large

box. Id. 11:22-12:10. The officers then saw him put the box

down on the street and continue walking. Id. 13:1-3. They

pulled up and stopped Petitioner, who was then a block away from

the Carvel. Id. 19:11-14. The officers then “walked him” to

“another patrol car [that] had pulled up.” Id. 14:2-4. Once at

that patrol car, Rothman handcuffed Petitioner and frisked him

and, feeling a hard object in his pocket, removed that object,

which turned out to be a set of keys. Id. 14:6-13; 16:12-19.

Rothman and Rzonca then “put him in the other officers’ car who

were there to secure him.” Id. 20:20-23. After Petitioner was

”secure,” Rothman saw that the box Petitioner discarded was a

cash register. Id. 16:24-7:3; 19:22-25.

Rothman and Rzonca then proceeded to the Carvel, id.

20:20-21:21, while the 60th Precinct officers took Petitioner to

“the stationhouse,” id. 38:4-9. Officers Rothman and Rzonca

interviewed the Carvel owner Patrick Aceto, who had just arrived

at the scene, and confirmed that the store’s cash register had

been stolen and the seized keys fit the register’s drawer lock.

Id. 21:17-22:6; 23:15-20. Rothman testified on cross-

examination that he never conducted an identification procedure,

nor did he know of any other officer who did. Id. 43:10-17.

The court next heard testimony from Detective Marcia

Baughan, who had taken and transcribed Petitioner’s first

confession at the 61st Precinct stationhouse. She testified

that, before taking his statement, she read Petitioner his

Miranda rights from a form, which he signed and initialed next

to every right. Id. 50:3-15; 54:23-25. The prosecution

introduced Petitioner’s transcribed statement into evidence

through Detective Baughan. It read as follows:

I was on the boardwalk in Coney Island on Wednesday night.

I went for a walk. I saw a Carvel and there were kids

inside working. Then I thought, do I want to stay out or

go back to jail? I don’t want to hurt anyone to go back.

I wait until the store closed. The employees left. I made

sure that they were gone and went to the side window where

the picnic tables were and I kicked the window. I went

inside and took the cash register. I climbed back out the

same window with the cash register and walked westbound on

Avenue Y, then the police came and stopped me, then I was

arrested.

Id. 59:2-12. Detective Baughan, too, denied having knowledge of

any officer conducting an identification procedure and stated

there was no information in Petitioner’s case file concerning

such a procedure. Id. 63:24-64:13.

At the end of the first day of suppression-hearing

testimony, defense counsel Ivan Vogel announced that Petitioner

wanted him “relieved” as counsel. Id. 83:1-2. This revelation

came immediately after Justice Konviser decided sua sponte to

call Officer Rzonca to testify the following day. Id. 83:13-16

(“This hearing is going to continue tomorrow. I am going to ask

you to have the partner of Officer Rothman available first thing

in the morning.”). Justice Konviser’s initial response to the

request that counsel be relieved was “No.” Id. 83:3.

Petitioner then stated, “I am going pro se, your Honor.” Id.

83:4-5. Justice Konviser answered, “You are not going pro se

unless I say you are going pro se. Who’s the Judge in this

courtroom?” Id. 83:6-8. She continued:

I do see from your file you had another very good lawyer

who also asked to get relieved early on from Legal Aid

Society. You have another very good lawyer standing next

to you. And you have a right to have a lawyer, a good one,

and you have that. You don’t have the right to the lawyer

of your choice, unless you want to hire someone, sir.

That’s the rules.

Id. 83:18-24. Petitioner explained that he was dissatisfied

with Mr. Vogel’s failure to object to Officer Rothman’s

testimony that the radio alert described the suspect as a “black

male,” when the transmission had not, in fact, mentioned race.

Id. 84:1-3. The day’s proceeding then adjourned.

On the following day (January 21), Mr. Vogel continued

to represent Petitioner at the suppression hearing without any

mention of the representation issue. Rzonca’s testimony at this

hearing was substantially similar to Officer Rothman’s the day

before. He testified to the same sequence of events regarding

the stop and arrest, stating that the 60th Precinct officers

arrived on the scene “simultaneously.” Id. 102:9-14; 106:3-4.

Rzonca’s testimony also clarified certain points. He stated

that it was about three to four minutes after arresting

Petitioner that the officers received confirmation that the

burglary involved a stolen cash register from the nearby Carvel.

Id. 107:6-108:15. He also testified that the 60th Precinct

officers initially took Petitioner back to their stationhouse,

and that after visiting the crime scene, he and Rothman picked

the Petitioner up there and transported him to the 61st Precinct.

Id. 115:24-25.

The representation issue came up again near the end of

the hearing. Following Rzonca’s testimony, Justice Konviser

asked the parties to “step up on scheduling” and held a sidebar

off the record. Id. 134:19-21. Following that discussion,

Justice Konviser stated:

[L]et me just put this all on the record . . . .

Yesterday, when you left here, you indicated that perhaps

you wanted to go pro se or handle this case without the

assistance of Mr. Vogel, and now your attorney tells me you

want to think about it, you are not so sure . . . so the

record is clear, I did see you conferring with Mr. Vogel

today as he was going through the process here today, in

terms of the hearing.

Id. 135:3-16.

Justice Konviser then informed Petitioner of his right

to self-representation. She advised him that “before you decide

whether or not you’re going to ask me that you want to go pro se

. . . you need to understand” the level of training required of

lawyers to try cases effectively. Id. 135:17-136:5. Justice

Konviser concluded, “You can think about it, let me know. If

you do, I will go over everything with you and you let me know

what you want to do.” Id. 136:3-5. The suppression hearing

then concluded.

Several weeks later, on February 17, 2009, Justice

Konviser denied the motion to suppress. She found that (1) the

officers had reasonable suspicion to stop Petitioner, H2 Tr.

10:14-15; (2) they had probable cause for his arrest (once the

officers saw the cash register and, minutes later, learned that

a cash register had been stolen from the Carvel), id. 12:2-18;

(3) the cash register was lawfully seized because Petitioner

“abandoned” it by “dropp[ing] it to the ground” and “walk[ing]

away from it,” id. 15:9-13; (4) Petitioner’s transcribed and

video-recorded confessions were made “freely and voluntarily,”

id. 16:1-3; and (5) he validly waived his Miranda rights in

advance of those confessions, id. 16:6-25. The court did,

however, grant Petitioner’s motion to suppress the keys to the

cash register, because Officer Rothman acknowledged he did not

believe they were a weapon when he removed them from

Petitioner’s pocket during the initial frisk. Id. 14:18-15:8.

After this ruling, Petitioner expressed

dissatisfaction with his lawyer yet again. Following a sidebar,

H2 Tr. 20:17-18, Justice Konviser confirmed, without mentioning

Petitioner’s prior pro se requests, that he was now seeking the

appointment of a new lawyer rather than to proceed pro se. She

stated: “As I understand, Mr. Jackson, the last time you were

here you were unhappy with your lawyer. Obviously, you have now

won part of your [suppression] motion that he made on your

behalf, but is this what you want to do, sir?” Id. 20:19-23.

Petitioner replied, “Yes.” Id. 20:24. Justice Konviser

concluded, “Okay. This is the last chance you are going to get

. . . The next lawyer is the lawyer you are going to get. This

is the last time I am going to have this discussion.”

Id. 20:25-21:4. The court then assigned Petitioner his third

lawyer, Kleon Andreadis. Id. 21:5-7.

B. Suppression Hearing Reopened

Petitioner’s counsel asked the court to reopen the

suppression hearing to allow Mr. Jackson to testify on his own

behalf. H3 Tr. 1:10-13. On April 13, 2009, Justice Konviser

granted this request, and Petitioner testified on June 11, 2009.

Id.

Petitioner testified as follows. At around 1:30 a.m.

on October 4, 2007, he had walked from a 7-11 store to the

picnic benches behind the Carvel, where he was planning to sleep

because he had lost his bed at a homeless shelter. Id. 4:3-22.

While walking to the picnic benches, he observed a woman walking

her dog and five teenaged employees outside the Carvel. Id.

5:10-6:15. He then heard a siren go off from inside the store.

Id. 6:18-22. A few minutes later, an unmarked police car pulled

up and a detective asked Petitioner what he was doing there.

Id. 7:6-12; 46:17-18. When Petitioner replied he was looking

for a place to sleep, the detective handcuffed him and placed

him in the police car. Id. The detective then drove the car to

the front of the Carvel, where the alleged identification

procedure took place:

[H]e [the unidentified officer] asked the female could she

recognize me or identify me . . . She told him, no. Also,

the three teens, he asked them the same thing, and they

said no. After that, about ten minutes, ten, 15 minutes

later, the other two teens came back to the store . . . But

I think it was the owner, the same van that picked them up

. . . [c]ame back . . . . So the detective asked all

three of them could they identify me, and they said, no.

Id. 7:14-8:11.

Officers then took Petitioner to a police station,

which he believed was the 61st Precinct. Id. 9:2-9. Petitioner

did not provide any other information about these officers or

indicate whether they worked for the 60th or 61st Precinct.

Petitioner did, however, testify that Rothman and Rzonca were

not the arresting officers and, despite their extended testimony

about the night in question, Petitioner said he had never seen

them before the suppression hearing. Id. 19:6-9.

At the station, Petitioner testified, he asked to

speak with his attorney before making his first inculpatory

statement. Id. 10:9-13; 58:19-59:5. But he acknowledged he did

not ask for a lawyer during the subsequent videotaped confession

he made there, or any time thereafter. Id. 49:15-50:4.

Petitioner also testified that he only made these statements

because Detective Baughan promised him placement in a “program”

in exchange for his confession. Id. 11:25-12:12.

Several weeks later, the court affirmed its prior

rulings on suppression, H4 Tr. 3:6-15, finding Petitioner’s

testimony “incredible and unworthy of belief,” id. 7:23-25.

Justice Konviser went on to reiterate that she found the

testimony of Officers Rothman and Rzonca to be “detailed” and

“credible,” and that Petitioner had offered no “credible reasons

why these two officers . . . offered perjurous testimony.” Id.

8:3-11.

After Justice Konviser read this order into the

record, Petitioner renewed his request to proceed pro se. Mr.

Andreadis informed the court that Petitioner “is going to

proceed pro se in this case” and no longer wanted

representation. H4 Tr. 10:12-20. Justice Konviser asked

Petitioner, “Is that what you want to do, Mr. Jackson?” Id.

11:1-2. He replied, “Yes, ma’am.” Id. 11:3. Justice Konviser

then informed Petitioner once again of the risks associated with

self-representation. During this conversation, Petitioner

stated that he only wanted a Black attorney, and would represent

himself if one were not assigned. Id. 36:11-12. Also during

this exchange, Mr. Andreadis complained that Petitioner wanted

him to “chase down a prim rose path of suspicion” relating to

Petitioner’s contention that the videotaped confession had been

tampered with. Id. 34:1-7. The hearing was then adjourned.

C. Pre-Trial Hearings

The next day, July 30, 2009, Justice Konviser

explained that she adjourned to give Petitioner “a chance to

really think about . . . the dangers and disadvantages of self-

representation.” H5 Tr. 2:10-16. She advised, “I’m going to

tell you that if you really want to represent yourself, I’m

going to let you do that. That’s your right.” Id. 2:17-19.

Justice Konviser then explained that Petitioner had two options:

he could either proceed as his own attorney or she would assign

new counsel. Id. 54:25-55:4. Petitioner stated, “Yes, I’ll

take another one.” Id. 5:5. Justice Konviser relieved

Andreadis. Id. 5:6-7.

At the next pre-trial hearing, on October 2, 2009,

Petitioner’s fourth lawyer, Martin Goldberg, informed Justice

Konviser that Petitioner wanted to proceed pro se at trial.

H6 Tr. 2:21-22. After once again confirming Petitioner

understood the disadvantages of proceeding pro se, the judge

granted Petitioner’s request to represent himself, with Goldberg

to be present at trial as an “advisor.” Id. 15:2-17.

D. Trial

Petitioner opted for a bench trial. The trial

commenced in front of Justice Danny Chun on March 2, 2010.

Petitioner began the trial representing himself — delivering the

defense’s opening statement and cross-examining Officer Rothman

himself, among other things. At the start of the second day,

however, Mr. Goldberg told Justice Chun that Petitioner again

wanted legal representation. Trial Tr. 88:19-89:8. Justice

Chun confirmed with Petitioner that he no longer wanted to

proceed pro se, and Mr. Goldberg resumed representation for the

remainder of trial. Id.

1. The State’s Case

The State presented the following evidence in its

case-in-chief. Sarine Gabay testified that she lived near the

Carvel and was awoken in the early hours of October 4, 2007 by a

loud noise. Trial Tr. 214:24-215:13. She observed through her

window that the Carvel was surrounded by shattered glass and saw

a person leave the store carrying something. Id. 216:1-217:10.

Ms. Gabay called 911 to report the burglary and reported the

direction in which the suspect was heading, which matched the

path Petitioner traveled. Id. 216:17-18, 217:21-218:5.

Officers Rzonca and Rothman testified to the

circumstances of the stop and arrest, as they did at the

suppression hearing, but their rendition of which officers

stopped the Petitioner first diverged somewhat from their

suppression-hearing testimony. At trial, they testified that

the unidentified officers from the 60th Precinct reached

Petitioner simultaneously or first. Rzonca testified that

“there was a plainclothes unit from the 60 Precinct that came up

behind [Petitioner], and we pretty much simultaneously pulled up

on him,” id. 168:3-5, but that the 60th Precinct officers might

have arrived a “couple of seconds before us,” id. 171:1-3; see

also 180:9-11 (it was a “[m]atter of seconds”). Rothman

testified that by the time he and Rzonca got out of the car,

Petitioner “was already stopped, with his hands on the back of

[an] unmarked police car” from the 60th Precinct. Id. 36:22-25.4

4 Compare Rothman’s testimony at the suppression hearing, in which he

stated that when he and Rzonca stopped Petitioner, “another patrol car had

pulled up, so we walked him to that patrol car with our hands on him.” H1

Tr. 14:2-4.

Rzonca could not remember who told Petitioner to “stop” — it

could have been either him, Rothman, or the 60th Precinct

officers. Id. 186:23-25. Neither Rothman nor Rzonca knew the

60th Precinct officers’ names. Id. 61:18-19, 62:12-15 (Rothman);

170:17-23 (Rzonca).

Petitioner, still proceeding pro se at this point,

asked Rothman a number of questions about the alleged

identification procedure. Rothman denied asking the Carvel

owner to identify the perpetrator, id. 57:23-58:2; 59:16-22,

denied making a report concerning the description of the

perpetrator from speaking to anyone at the scene, id. 58:10-16,

and denied putting Petitioner in a “lineup,” id. 74:25-75:13.

Pursuing his theory — advanced in opening argument — that the

officers “covered” up the identification procedure “by saying

that they took me to the 60 [sic] Precinct for half an hour,”

id. 19:5-10, Petitioner asked Rothman whether he had had to log

Petitioner in or out of the 60th Precinct. Rothman replied

simply, “No.” Id. 64:11-14.

The owner of the Carvel, Patrick Aceto, also

testified. He stated that around 1:30 in the morning of October

4, 2007, his alarm company alerted him of the break-in; he then

went to the Carvel store, arriving between 1:45 and 2:00 a.m.

Id. 102:20-103:12. On cross-examination, Aceto testified that

he did not recall any officer asking him to “look at anybody at

that time,” and that he was not asked to “look at pictures of

anybody” or at a “lineup.” Id. 113:10-13; 113:23-114:3. Aceto

went on to testify that he had never seen Petitioner before the

day of his testimony. Id. 108:25-109:3; 116:5-6.

The State again called Detective Baughan, who

transcribed Petitioner’s oral statement, id. 128:17-130:10, and

ADA Giannotti, who interviewed Petitioner during his videotaped

confession, id. 201:15-25; 204:9-11. The State introduced the

videotaped confession and played it in its entirety. Id. 206:2-

207:10. Although Petitioner had claimed, in his opening

argument, that the videotape was “altered, tampered with,” id.

19:20-22, ADA Giannotti testified that the videotape “accurately

represent[ed] the conversation that took place” on October 4

between him and Petitioner, id. 206:9-15, and that there were no

“additions, deletions or alterations of any kind,” id. 206:16-

18.

Detective Baughan testified that Petitioner told her

he stole the cash register because he wanted to go back to jail.

Id. 129:7-8. She denied “suggest[ing] to him perhaps that he

should enter a program that might be of some use to him[.]” Id.

140:1-6.

2. The Defense Renews Its Request to Suppress

Evidence

After Rothman testified at trial that officers from

the 60th Precinct reached Petitioner first, defense counsel moved

to reopen the suppression hearing on the ground that Rothman and

Rzonca had lied about arresting him themselves. Trial Tr.

89:12-91:5. Counsel argued that Rothman and Rzonca had told a

“totally different stor[y]” at the suppression hearing — namely,

that they stopped Petitioner before the 60th Precinct vehicle

arrived. Id. 89:17-90:6.

The court denied the application to reopen the

suppression hearing. Trial Tr. 90:7. Defense counsel then

moved to “suppress everything because the wrong officers

testified at the hearing.” Id. 90:20-91:2. That application

was also denied. Id. 91:13. Justice Chun stated that the

defense had an opportunity to cross-examine Rothman while he was

on the stand and “confront him with the alleged or apparent

inconsistencies,” but Petitioner “was going pro se and he either

chose not to, or he deliberately did not, or he neglected to.

Either way, the opportunity has come and gone.” Id. 91:14-23.

After Rzonca’s testimony on the third day of trial,

defense counsel again moved for the court to “grant the

suppression motion” because “the wrong officers testified at the

hearing.” Id. 198:3-7. That request was also denied. Id.

198:8.

3. Petitioner’s Testimony

Petitioner took the stand; he was the defense’s only

witness. He testified that at around 1:30 a.m. on October 4,

2007, he was walking from a 7-11 store to the picnic benches at

Carvel, and when he was about a half-block away from the Carvel,

he heard its siren go off. Trial Tr. 236:12-237:22. He was

carrying a cup of coffee, a suitcase, and a backpack. Id.

247:23-25. Outside of the Carvel at that time were three

teenagers and a “female” who was “walking the dogs.” Id.

237:23-238:10. An unmarked police car then pulled up and two

detectives in plain clothes arrested him. Id. 238:20-24;

241:6-18. After being detained in the unmarked car for about

five to ten minutes, he saw a van pull up to the Carvel, which

picked up two of the teens. Id. 240:2-14. He testified that

these detectives then took him to the 61st Precinct station — not

the 60th Precinct, as the State’s witnesses claimed. Id.

241:6-18. At the 61st Precinct, he used information he overheard

on the radio in the detectives’ patrol car to craft his

confession, because Detective Baughan promised in return to help

him get into a drug treatment program. Id. 242:14-244:4.

Towards the conclusion of his direct testimony,

Petitioner repeated his claim that he had never seen Rothman or

Rzonca before the suppression hearing. Id. 240:21-241:5; see

also id. 273:23-274:1. Petitioner did not mention anything

about the alleged identification procedure during his direct

testimony, despite having presented the theory in his opening

argument. Id. 19:5-7 (stating, in his opening argument, “these

cops . . . [t]hey put me in a lineup — show-up lineup”).

On cross-examination, Petitioner testified about the

alleged “showup.” He stated that unnamed detectives brought him

to the front of the Carvel, where they “[t]ried to get me []

identified as the person who went inside that place,” id.

265:24-266:1; and brought the “two kids” and “the individual

that brought them back to the store” (presumably the owner,

based on prior testimony)5 “down to try and identify me,” id.

263:12-17. Petitioner also stated that “when they went and got

the individual to identify me — when the cop went and got the

person to try to identify me as the person who stole the cash

register, the female” — presumably the woman walking her dog —

5 At the suppression hearing, Petitioner had testified that he thought

it was the Carvel owner that drove the two teens in the van. H3 Tr. 7:14-

8:11. And at trial, he testified that “the individual that brought [the two

kids] back to the store” drove a van, Trial Tr. 263:12-23, and that he

believed the van driver was “affiliated with the Carvel,” id. 239:13-16.

“told the officer I didn’t have no cash register in my

possession.” Id. 284:12-16.

4. Conviction and Sentencing

Trial concluded on March 9, 2010. On that same day,

before returning the verdict, Justice Chun gave himself a

“missing witness charge as to the anti-crime officers [from the

60th Precinct] not being called,” and he drew “the inference that

if they were called, they may have testified somewhat

unfavorabl[y] to the People.” Trial Tr. 322:18-25. The judge

then found Petitioner guilty of burglary in the third degree,

criminal mischief in the fourth degree, petit larceny, and

criminal possession of stolen property in the fifth degree. Id.

324:1-7.

The case proceeded to sentencing on April 23, 2010.

There, Justice Chun found that Petitioner qualified as a

“persistent felony offender” under Section 70.01 of the New York

Penal Code due to his criminal history, which included prior

felony convictions for grand larceny, burglary, and attempted

burglary. Sentencing Tr. 5:21-7:16. In light of this

designation, the judge sentenced Mr. Jackson to a term of

imprisonment of fifteen years to life. Id. 10:19-23.

E. Direct Appeal and Post-Conviction Relief

Petitioner appealed the judgment of conviction to the

Appellate Division. On appeal, his counsel argued the trial

court violated Petitioner’s right to self-representation at the

suppression hearing. See ECF No. 7-7 at 16-21. Petitioner also

submitted a pro se supplemental brief, claiming that the

prosecution had withheld Brady material including the names of

the 60th Precinct officers who he claims arrested him and

evidence of the alleged identification procedure. See ECF No.

7-7 at 45-54. He also argued that the State knew Officers

Rothman and Rzonca testified falsely at the hearing (in that

they claimed they were the ones who arrested Petitioner), and

the trial court erred in denying his request to reopen the

suppression hearing in light of this false testimony. Id. The

Appellate Division affirmed his conviction, People v. Jackson,

947 N.Y.S.2d 613 (N.Y. App. Div. 2012), and Petitioner was

denied leave to appeal to the New York Court of Appeals, People

v. Jackson, 20 N.Y.3d 1100 (2013).

On May 7, 2013, Petitioner filed a pro se petition in

this District for a writ of habeas corpus. Jackson v. Perez,

No. 13-CV-3043 (E.D.N.Y.) (SLT), ECF No. 1. By order dated

September 25, 2013, however, Judge Townes granted Petitioner

permission to withdraw that petition in order to exhaust his

ineffective assistance of counsel claim in state court. Id.,

ECF No. 10.

Petitioner then moved to vacate his conviction

pursuant to New York Criminal Procedure Section 440.10 in the

Supreme Court, Kings County based on the ineffective assistance

claim. That motion was denied on June 27, 2014, People v.

Jackson, Ind. No. 9802/07 (N.Y. Sup. Ct. June 27, 2014), ECF No.

7-8 at 69, and on December 5, 2014, he was denied leave to

appeal to the Appellate Division, People v. Jackson, Ind. No.

9802/07 (N.Y. App. Div. Dec. 5, 2014), ECF No. 7-8 at 77.

On March 17, 2015, Petitioner filed the instant

petition for a writ of habeas corpus. Petition, ECF No. 1.

Petitioner asserts four grounds for relief: First, the state

court deprived him of his constitutional right to self-

representation at the suppression hearing. Second, the

prosecution violated its Brady obligations by failing to

disclose, among other things, the names of the purported

eyewitnesses to the burglary who denied that Petitioner

committed it; Petitioner also claims, relatedly, that the

prosecutors failed to correct false testimony and altered his

videotaped confession. Third, his counsel rendered ineffective

assistance at the suppression hearing and at trial by failing to

investigate and interview the exculpatory eyewitnesses and the

unidentified officers from the 60th Precinct who allegedly

questioned them. Fourth, the state court failed to reopen the

suppression hearing following the officers’ testimony at trial,

in violation of the Due Process Clause of the Fourteenth

Amendment.

This Court held oral argument (but not an evidentiary

hearing) on the petition on October 26, 2020.

IV. Standard of Review

28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), governs an

application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a state court. Under the

AEDPA, a petitioner challenging a determination that was

“adjudicated on the merits” in state court must demonstrate that

the state decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or was “based on an unreasonable determination of

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

§ 2254(d)(2). A violation of constitutional rights must be

demonstrated by a preponderance of the evidence, Epps v. Poole,

687 F.3d 46, 50 (2d Cir. 2012), while a petitioner must rebut

the presumption that the state court correctly determined a

factual issue by clear and convincing evidence, 28 U.S.C.

§ 2254(e)(1).

A legal conclusion by a state court is “contrary to”

clearly established federal law under Section 2254(d)(1) if it

“applies a rule that contradicts the governing law set forth in

the [Supreme Court’s] cases or if it confronts a set of facts

that are materially indistinguishable from a decision” of the

Supreme Court, yet “arrives at a result different from [that]

precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (citing

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (internal

quotations omitted)). And a decision involves an “unreasonable

application” of federal law under the same sub-section “if the

state court identifies the correct governing legal principle

from [the Supreme Court’s] decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Williams,

529 U.S. at 413.

A “federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, it is the

habeas applicant’s burden to show that the state court applied

[that case] to the facts of his case in an objectively

unreasonable manner.” Price, 538 U.S. at 641 (cleaned up).

Because the petition was filed pro se, the Court

construes it liberally. Thompson v. Choinski, 525 F.3d 205, 209

(2d Cir. 2008).

V. Discussion

A. Ground One: Denial of Right to Self-Representation

Petitioner’s first asserted ground for relief is that

the trial court violated his right to self-representation by

declining to allow him to proceed pro se for what amounted to

one day of his pretrial suppression hearing. This claim is

without merit. Petitioner cannot establish even a momentary

violation, as he cites no “clearly established” Supreme Court

precedent forbidding a trial court from so briefly postponing

consideration of a criminal defendant’s request to proceed pro

se. Moreover, as the state court noted, he waived the request

before the court had a chance to decide it.

The Sixth Amendment guarantees a criminal defendant

the right to self-representation. Faretta v. California, 422

U.S. 806, 819–21 (1975). A criminal defendant may invoke this

right only by a “knowing, voluntary, and unequivocal waiver of

the right to appointed counsel.” Johnstone v. Kelly, 808 F.2d

214, 216 (2d Cir. 1986) (discussing Faretta, 422 U.S. at 835-

36).

At the end of the first day of the suppression

hearing, Petitioner asked to proceed pro se. He now alleges

that Justice Konviser violated his rights when she denied this

request “without conducting an appropriate inquiry.” Petition

at 3. On direct appeal, the Appellate Division found that

Petitioner’s “initial request to proceed pro se was not

unequivocal because it was made in the context of expressing

dissatisfaction with counsel’s failure to highlight certain

evidence at the suppression hearing, and did not reflect an

affirmative desire for self-representation.” People v. Jackson,

947 N.Y.S.2d 613, 613-14 (N.Y. App. Div. 2012) (internal

quotations and citations omitted). The appellate court went on

to hold that “[i]n any event, the defendant abandoned his

request by subsequently acting in a manner indicating his

satisfaction with counsel.” Id. at 614.

Notwithstanding the state court’s finding,

Petitioner’s initial assertion, “I am going pro se, your Honor,”

does appear unequivocal even though it was made in the context

of expressing dissatisfaction with his lawyer. See Wilson v.

Walker, 204 F.3d 33, 38 n.3 (2d Cir. 2000) (“Even assuming that

[the petitioner’s] principal reason for seeking to proceed pro

se was dissatisfaction with [his counsel’s] representation and

that [the petitioner] might have been satisfied with a

substitution of counsel, his requests were clear and

unequivocal.”). “[A] defendant is not deemed to have

equivocated in his desire for self-representation merely because

he expresses that view in the alternative, simultaneously

requests the appointment of new counsel, or uses it as a threat

to obtain private counsel.” Williams v. Bartlett, 44 F.3d 95,

100 (2d Cir. 1994).

Despite the Appellate Division’s partial reliance on

this observation, the denial of Petitioner’s Sixth Amendment

claim was not contrary to, or an unreasonable application of,

clearly established federal law. Petitioner cites no Supreme

Court case holding that a judge must stop all proceedings and

decide immediately whether to grant a request to proceed pro se,

and this Court is aware of none. Faretta does not require it.

Instead, Faretta requires the defendant’s decision to be

knowing, voluntary, and unequivocal, 422 U.S. at 835-36; and

given this requirement, district courts routinely direct

defendants considering self-representation to spend some time

thinking about the risks inherent in that course. Second

Circuit case law — which can guide the Court in determining what

constitutes “an unreasonable application” of “clearly

established law,” see Wilson v. McGinnis, 413 F.3d 196, 199 (2d

Cir. 2005) — supports the notion that self-representation need

not begin instantaneously. The Second Circuit has affirmed the

denial of a habeas petition where it was apparent the defendant

and judge both considered the pro se request “open for

discussion,” even though the judge’s initial reaction “could be

construed as a ‘clear denial.’” Wilson, 204 F.3d at 38; see

also United States v. Barnes, 693 F.3d 261, 272 (2d Cir. 2012)

(no violation where the judge made clear “at the first pretrial

conference following the court’s receipt of [defendant’s]

request to proceed pro se” that the court would “have to have a

hearing” on the “application to represent himself”).

Like in Wilson, Petitioner’s request to proceed pro se

remained “open for discussion” even though Justice Konviser

declined to grant it on the spot. She did not categorically

deny Petitioner’s request on January 20, 2009. When Petitioner

stated, “I am going pro se, your Honor,” Justice Konviser

answered, “You are not going pro se unless I say you are going

pro se. Who’s the Judge in this courtroom?” This conditional

denial is best read, in context, as a response to Petitioner’s

unilateral declaration of a right that must be granted by the

court to become effective. It was also made at what would have

been the end of the suppression hearing, had Justice Konviser

not decided, sua sponte, to call for Rzonca’s testimony on the

following day.

Petitioner then waived the request. “[G]iven the

court’s failure to enter a clear and conclusive denial, it was

incumbent upon [Petitioner] to reassert his desire to proceed

pro se” when proceedings resumed the next day. Barnes, 693 F.3d

at 273 (quoting Wilson, 204 F.3d at 38) (cleaned up). Instead,

he let Mr. Vogel represent him the next day, throughout Officer

Rzonca’s testimony, without raising the issue. See Wilson, 204

F.3d at 39 (finding petitioner waived his right to self-

representation in part because of Petitioner’s “apparent

cooperation” with counsel); cf. McKaskle v. Wiggins, 465 U.S.

168, 182 (1984) (“Even when [a defendant] insists that he is not

waiving his Faretta rights, a pro se defendant's solicitation of

or acquiescence in certain types of participation by [standby]

counsel substantially undermines later protestations that

counsel interfered unacceptably.”). And at the end of Rzonca’s

testimony, Vogel reported that Petitioner was “not sure” about

his representation request, and that he wanted some time to

“think about” it. This equivocal conduct, taken together,

amounts to waiver. See Barnes, 693 F.3d at 272 (“Where there

has been no clear denial of the request to proceed pro se and

the question of self-representation [i]s left open for possible

further discussion, the defendant’s failure to reassert his

desire to proceed pro se and his apparent cooperation with his

appointed counsel . . . constitute[s] a waiver of his previously

asserted Sixth Amendment right to proceed pro se.” (internal

quotations omitted)).

Even so, Justice Konviser still initiated an inquiry

into whether Petitioner’s waiver of counsel was knowing, and

again left the request open for further discussion when she told

him after the second day of suppression-hearing testimony to

“think about it.” H1 Tr. 136:3-5. Then, on the next hearing

date, February 17, 2009, for reasons unclear on the record,

Petitioner outright abandoned the request — confirming with

Justice Konviser that he wanted new counsel, rather than to

represent himself. Justice Konviser replaced Vogel with

Andreadis, who represented Petitioner at the reopened

suppression hearing on June 11, 2009.

It bears noting that Justice Konviser also considered

Petitioner’s later pro se requests of July 29 and 30, 2009, and

indeed granted Petitioner the right to proceed pro se on October

2, 2009. Petitioner began the trial pro se, but turned back to

counsel after the first day.

For these reasons, the Court finds that the state

court did not act contrary to, or unreasonably apply, clearly

established federal law in rejecting Petitioner’s Sixth

Amendment claim.

B. Ground Two: Prosecutorial Misconduct

Petitioner alleges next that the State engaged in

misconduct by failing to disclose exculpatory evidence under

Brady v. Maryland, 373 U.S. 82 (1967), and failing to correct

false testimony. Both claims arise primarily from Petitioner’s

theory that the testifying officers were not the ones who

arrested him, and that the officers who did would have testified

to the exculpatory lineup they allegedly conducted.

Petitioner’s Br. at 4; see also Petition at 10. He also claims

the State failed to identify the true 911 caller and to correct

the testimony of Sarine Gabay, because the 911 call records show

that the call came from a telephone registered to someone named

“Mier Gabay,” not Sarine Gabay. Finally, he alleges that the

State doctored his videotaped confession, because the tape

played at trial did not show him requesting an attorney or

describing the exculpatory identification procedure.

The Court considers the merits of these misconduct

claims, despite the Respondent’s contention that they are

procedurally barred.6 I apply the deferential AEDPA standard,

given that the state court rejected these claims on the merits.7

Applying that standard, the claims for relief on prosecutorial

misconduct grounds must be denied, for the reasons that follow.

6 I reach the merits of Petitioner’s prosecutorial misconduct claims

despite the Appellate Division’s conclusion that they were “largely

unpreserved.” People v. Jackson, 947 N.Y.S.2d 613 (N.Y. App. Div. 2012)

(citations omitted). Respondent urges that this determination constitutes an

independent and adequate state-law bar to habeas review. Respondent’s Br. at

5-6. However, to preclude habeas review, a state court’s reliance on a

procedural bar must be “unambiguous,” and “when in doubt, courts should

presume that the state court adjudicated the claim on the merits.” Garner v.

Lee, 908 F.3d 845, 859 (2d Cir. 2018). Numerous courts in this circuit have

held that the ambiguous phrase “largely unpreserved” does not preclude habeas

review. See, e.g., Castaldi v. Poole, No. 07-CV-1420, 2013 WL 789986, at *3

(E.D.N.Y. Mar. 1, 2013).

7 In addition to labelling Petitioner’s prosecutorial misconduct claims

“largely unpreserved,” the Appellate Division found them to be “without

merit.” People v. Jackson, 947 N.Y.S.2d 613 (N.Y. App. Div. 2012). Although

the Appellate Division provided no reasoning in support of this finding, this

phrase still qualifies as an “adjudication on the merits” for the purposes of

28 U.S.C. § 2254(d). See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)

(“Nothing in the phrase ‘adjudicated on the merits’ [in 28 U.S.C. § 2254(d)]

requires the state court to have explained its reasoning process.”).

1. Applicable Law

a. Brady v. Maryland

The prosecution has a constitutional obligation to

disclose exculpatory evidence that “is material either to guilt

or to punishment.” Brady, 373 U.S. at 87. This obligation

“covers not only exculpatory material, but also information that

could be used to impeach a key government witness.” See United

States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Giglio

v. United States, 405 U.S. 150, 154 (1972)). Exculpatory

evidence is considered “material” only “if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

b. Use of False Testimony

To challenge a conviction based on a prosecutor’s use

of false testimony, a defendant must establish that “(1) there

was false testimony, (2) the Government knew or should have

known that the testimony was false, and (3) there was ‘any

reasonable likelihood that the false testimony could have

affected the judgment of the jury.’” United States v. Helmsley,

985 F.2d 1202, 1205–06 (2d Cir. 1993) (quoting United States v.

Agurs, 427 U.S. 97, 103 (1976)).

2. Failure to Turn Over Witness Statements

Regarding the Alleged Identification

Procedure

The Petitioner’s claims regarding the exculpatory

identification procedure do not provide a basis for habeas

relief, because Petitioner has not adequately established a

likelihood that the procedure actually occurred. See, e.g.,

Mannino v. Graham, No. 06-CV-6371, 2009 WL 2058791, at *9

(E.D.N.Y. July 15, 2009) (“[T]o establish a Brady violation, a

petitioner must initially establish that the evidence sought, in

fact, existed.”) (internal quotations omitted). The only

evidence suggesting that an identification procedure occurred

was Petitioner’s testimony at trial. There are many reasons in

the record, however, to doubt Petitioner’s claim. Accordingly,

his testimony does not constitute the “clear and convincing

evidence” required to overcome the presumption that the state

court’s factual determination was correct. See 28 U.S.C.

§ 2254(e)(1).

First, one of the supposed Brady witnesses identified

by the Petitioner — the owner of the Carvel store, Patrick Aceto

— actually did testify, and he denied any recollection that

police officers conducted, or he participated in, the purported

identification procedure. Compare Trial Tr. 113:10-114:3 (Mr.

Aceto testifies that he was not asked to “look at any pictures

of anybody” or to “look at a lineup”), with Petitioner’s Reply

Br. at 11 (contending that the Carvel owner was among the

exculpatory witnesses at the “showup”). Mr. Aceto testified

that he arrived at the Carvel store after the burglary had

occurred, id. 102:20-103:12, and thus was never in a position to

identify the culprit. Indeed, Aceto stated that he had never

seen Petitioner before the trial. Id. 108:25-109:1; 116:5-6.

This testimony from a largely disinterested witness directly

contradicts Petitioner’s Brady argument.

Second, neither of the arresting officers recalled any

on-scene identification procedure, and two state judges found

their testimony credible.

Third, the state court not only found that the

officers’ testimony was credible; it also ruled that

Petitioner’s rendition of the “show-up” was not. Justice

Konviser found explicitly that Petitioner’s suppression hearing

testimony — including about the circumstances of his arrest —

was “incredible and unworthy of belief.” H4 Tr. 7:23-25. And

Justice Chun necessarily rejected Petitioner’s testimony about

the “show-up” in convicting him. Had Justice Chun found it

credible that multiple eyewitnesses — perhaps as many as seven —

all said that they saw the perpetrator of the robbery, and all

denied that Petitioner was him, it is difficult to envision how

he could then go on to conclude that the Petitioner was guilty

beyond a reasonable doubt. See Vera v. Woods, No. 06-CV-1684,

2008 WL 2157112, at *9 (E.D.N.Y. May 21, 2008) (a federal habeas

court must “resolve all issues of credibility in favor of” the

verdict) (citing United States v. Reyes, 157 F.3d 949, 955 (2d

Cir. 1998)). A state court’s credibility findings “are entitled

to great deference” on habeas review. DeBerry v. Portuondo, 403

F.3d 57, 68 (2d Cir. 2005). Here, Petitioner has not carried

the heavy burden of producing clear and convincing evidence to

overcome the presumption that the state court’s factual

determination was correct. See 28 U.S.C. § 2254(e)(1).

Without establishing the existence of the information

alleged, there can be no Brady violation. See, e.g., Bullock v.

Grassiano, No. 13-CV-5081, 2013 WL 5774870, at *9 (E.D.N.Y. Oct.

24, 2013) (a court “cannot find an unreasonable application

of Brady where there is nothing but conjecture as to whether

such material even exists”) (collecting cases); Morris v.

Kikendall, No. 07-CV-2422, 2009 WL 1097922, at *6 (E.D.N.Y. Apr.

23, 2009) (“[N]othing in the state court record provides

credible evidence that the [exculpatory evidence] ever existed

and petitioner's uncorroborated testimony at trial, which was

considered by the jury, does not provide a basis for habeas

relief.”); Russell v. Rock, No. 08-CV-1894, 2009 WL 1024714, at

*4 (E.D.N.Y. Apr. 15, 2009) (“[T]here is no indication in the

record that the claimed exculpatory [] evidence even exists, and

thus this evidence cannot form the basis for a Brady claim.”).

Therefore, the alleged identification procedure provides no

basis for habeas relief.

3. Failure to Identify the 60th Precinct

Officers and Turn Over the “Log Sheet”

Petitioner also claims the State violated Brady by

withholding the names of the 60th Precinct officers, who would

have testified to the exculpatory lineup. However, without

sufficient evidence that the lineup actually occurred,

Petitioner cannot establish that these officers’ testimony would

have been favorable.

For the same reasons, Petitioner’s claim that the

State violated Brady by not disclosing the 60th Precinct “log in

and log out sheet” also fails. Petition at 10. At trial,

Petitioner claimed in his opening argument that Officers Rothman

and Rzonca “covered [up]” the alleged identification procedure

“by saying that they took me to the 60 Precinct for half an

hour” before transporting Petitioner to the 61st Precinct. Trial

Tr. 19:5-10. Petitioner presumably believes that the log sheet

would have supported his version of events. However, this claim

falters for the same reasons discussed above; without

establishing that the exculpatory identification procedure

occurred, it cannot be the basis of a Brady violation.

4. Failure to Correct the Testimony of the 61st

Precinct Officers

Petitioner alleges that Officers Rothman and Rzonca

falsely testified at the suppression hearing and trial to the

circumstances surrounding his arrest because they were not the

arresting officers. Petition at 7-8, 11; Petitioner’s Br. at

10; see also Trial Tr. 273:19-274:1 (testifying that he had

never seen Rothman or Rzonca before trial). In light of their

extensive testimony at the suppression hearing and at trial,

however, as well as the respective judges’ findings that they

were credible, the Court finds that the Appellate Division’s

rejection of this claim was neither an unreasonable

determination of the facts nor an unreasonable application of

federal law.

Petitioner asserts other false-testimony claims

against Rothman and Rzonca because of some relatively minor

inconsistences between their testimony at the suppression

hearing and trial. In particular, Petitioner challenges the

State’s failure to correct Rothman and Rzonca when they

testified at the suppression hearing that they initially stopped

Petitioner (when, according to their testimony at trial, 60th

Precinct officers had apprehended Petitioner moments earlier).

This is a minor point, however; and the suppression-hearing

testimony on this issue was more overlapping than contradictory.

At the suppression hearing, Rzonca testified that when they

approached Petitioner, “simultaneously the 60 Anticrime Unit

pulled up on the scene as well.” H1 Tr. 102:9-14; see also

106:3-4 (“The 60 Crime sergeant and Anticrime Unit were on the

scene.”). Rothman testified that when they stopped Petitioner,

“another patrol car had pulled up.” Id. 14:1-4. And at trial,

the officers testified that “there was a plainclothes unit from

the 60 Precinct that came up behind [Petitioner], and we pretty

much simultaneously pulled up on him,” Trial Tr. 168:3-5

(Rzonca), but that the 60th Precinct officers might have arrived

a “couple of seconds before us,” id. 171:1-3 (Rzonca), and that

by the time Rothman and Rzonca got out of the car, Petitioner

was “already stopped,” id. 36:22-25 (Rothman).

Minor differences in recollection regarding the

relative times of arrival of the two sets of NYPD officers do

not amount to perjury. See, e.g., United States v. Monteleone,

257 F.3d 210, 219 (2d Cir. 2001) (“Simple inaccuracies or

inconsistencies in testimony do not rise to the level of

perjury.”); United States v. Sanchez, 969 F.2d 1409, 1415 (2d

Cir. 1992) (“Differences in recollection alone do not add up to

perjury.”); Torres v. Ercole, 06-CV-0674, 2009 WL 4067281, at

*15 (S.D.N.Y. Nov. 24, 2009) (denying habeas relief on false

testimony claim because “any discrepancy between [the witness’s]

testimony at the first trial and at the Huntley hearing resulted

from his lack of recollection”), aff'd 421 F. App’x 6 (2d Cir.

2011). On these facts, Petitioner has not established that the

officers’ testimony was materially false.

5. Failure to Produce the 911 Call Record and

to Correct the Testimony of Sarine Gabay

Petitioner also claims the prosecution failed to

produce the “prior statement” that Sarine Gabay (the 911 caller

who testified at trial) made to the police. Petition at 10.

The Court understands this allegation to refer to Sarine Gabay’s

911 call record; however, the 911 call log was, in fact,

produced to Petitioner before trial. Respondent’s Br. at 9; see

also H1 Tr. 6:25-7:4. Petitioner disputes this because the name

shown on the call record is “Mier Gabay.” Petitioner’s Br. at

7. This argument, however, defies the common-sense conclusion

that persons with the same last name often live together and

share a phone line or bill. For the same reason, the Court

finds Petitioner’s additional claim that Sarine Gabay falsely

testified that she was the 911 caller, Petition at 3, 10, to be

without merit.

6. Alteration of the Videotaped Confession

Petitioner alleges that the prosecution introduced an

altered version of his videotaped confession into evidence. He

claims that the complete tape would have shown (a) the

detectives denying his request for an attorney and (b)

Petitioner explaining that he was arrested by two detectives in

front of the Carvel and that eyewitnesses were unable to

identify him as the perpetrator. Petition at 10, 13;

Petitioner’s Br. at 29. However, the record reveals that the

video was played in its entirety at trial. Trial Tr. 206:16-

207:10. And ADA Giannotti testified at trial that no

“additions, deletions or alterations of any kind” had been made

to the video. Id. 206:16-18. Petitioner claims ADA Giannotti’s

testimony was false, but there is no support in the record for

that claim. See, e.g., Brown v. Menifee, No. 99-CV-1258, 2004

WL 1810341, at *6 (E.D.N.Y. Aug. 9, 2004) (denying petitioner’s

prosecutorial misconduct claim where there was no evidence that

the State witness’s testimony was false or that the alleged

police-communication tape existed); Morris, 2009 WL 1097922, at

*15 (“[T]here is absolutely no basis in the record to conclude

that the government destroyed or suppressed any evidence (such

as a video or logbook), nor any basis to conclude that the

government tampered with evidence. . . .”). In addition, this

claim is inconsistent with Petitioner’s admission at the

suppression hearing that he did not ask for a lawyer during the

videotaped confession. H3 Tr. 49:15-50:4.

* * * * *

For these reasons, the Appellate Division’s decision

that the prosecutorial misconduct claims were without merit was

not predicated on an unreasonable determination of the facts nor

an unreasonable application of federal law.

C. Ground Three: Ineffective Assistance of Counsel

Petitioner alleges that the attorneys representing him

at the suppression hearing and trial violated his Sixth

Amendment right to effective assistance of counsel because they

failed to pursue his theories related to the alleged exculpatory

witnesses, the 911 call, and Petitioner’s written and videotaped

confessions. The appropriate inquiry on habeas review is

whether the state court’s ineffective-assistance determination

was contrary to, or an unreasonable application of, Strickland

v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529

U.S. 362, 390 (2000). Pursuant to Strickland, an individual

claiming ineffective assistance (1) “must show that counsel’s

performance was deficient,” such that “in light of all the

circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance,” and

(2) “that the deficient performance prejudiced the defense” in

the sense that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Bennett v. United States, 663 F.3d

71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 687).

“[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Strickland, 466 U.S. at 690.

Combined with the deference built into the AEDPA, habeas review

of ineffective assistance claims becomes “doubly deferential.”

Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

Petitioner does not establish that the state court’s

decision to deny his ineffective assistance claims on Section

440 review was an unreasonable application of Strickland or

based on an unreasonable determination of the facts.8

First, as the state Supreme Court noted, certain of

Petitioner’s claims are contradicted by the record. Petitioner

claims his counsel failed to move to suppress his confessions as

involuntary and in violation of Miranda, Petitioner’s Br. at 4,

28; but the record of the suppression hearing clearly indicates

defense counsel did move to suppress on this basis pursuant to

People v. Huntley, 15 N.Y.2d 72 (1965). See, e.g., H1 Tr. 3:24-

4:2.

With respect to the 911 call, Petitioner asserts that

counsel failed to: investigate the 911 recording contents or

interview Sarine Gabay, Petitioner’s Br. at 3; challenge the

testimony of Sarine Gabay, id. at 17; interview Mier Gabay, id.

8 Also, pursuant to Second Circuit precedent, the state Supreme Court’s

application of New York’s “meaningful representation” standard in evaluating

Petitioner’s ineffective assistance of counsel claims was not contrary to the

Strickland standard. See, e.g., Eze v. Senkowski, 321 F.3d 110, 123-24 (2d

Cir. 2003).

at 7; and assert at trial that Mier Gabay made the 911 call, id.

at 17. The Supreme Court found these claims to be “unsupported

speculation proffered solely by the defendant,” and concluded

that “it is evident from the record as a whole that the

defendant’s speculation is inaccurate.” People v. Jackson, Ind.

No. 9802/07 (N.Y. Sup. Ct. June 27, 2014), at 4. As set forth

above, there is no basis to conclude that someone other than

Sarine Gabay made the 911 call. In addition, the record shows

that the 911 call was produced to Petitioner’s counsel before

trial. H1 Tr. 6:25-7:4.

With respect to the videotaped confession, Petitioner

asserts that counsel failed to: introduce into evidence a

complete copy of the videotaped statement, Petitioner’s Br. at

14, 31; investigate and cross-examine ADA Giannotti regarding

whether the videotape was altered, Petitioner’s Br. at 3, 22; or

object to ADA Giannotti’s testimony that the videotape played at

trial was complete and accurate, Petition at 7. The Supreme

Court found these claims to be “contradicted by the record” and

“unreasonable,” and concluded that defense counsel’s inaction

therefore “could be attributed to tactical trial decisions.”

People v. Jackson, Ind. No. 9802/07 (N.Y. Sup. Ct. June 27,

2014), at 4-5. Once again, this Court finds no reason to

believe the videotape was altered, and the record shows that the

entire videotape was indeed admitted. Trial Tr. 206:16-207:10.

Therefore, counsel’s decision not to pursue this line of

questioning was well within the bounds of professional judgment.

See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (“The

failure to include a meritless argument does not fall outside

the wide range of professionally competent assistance to which

Petitioner was entitled.” (internal quotations omitted)).

Finally, Petitioner claims that his counsel was

ineffective for failing to investigate and interview the

unidentified officers from the 60th Precinct and the eyewitnesses

who allegedly participated in the exculpatory identification

procedure. Petitioner’s Br. at 3. The Appellate Division found

these claims to be without merit, relying in part on an

affidavit from trial counsel Martin Goldberg, dated October 17,

2013, in which he averred that he did not believe that any

“show-up identification” occurred. ECF No. 17. Mr. Goldberg’s

doubts are eminently reasonable for the reasons stated in

Section V.B.2, above, that call Petitioner’s allegations about

the identification procedure into doubt.

Given that Petitioner has not shown by clear and

convincing evidence that the identification procedure occurred,

he cannot establish that counsel exercised unreasonable

professional judgment by failing to expend additional efforts

locating the alleged participants. “Under Strickland . . .

‘strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.

In other words, counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.’” Hinton v. Alabama, 571

U.S. 263, 274 (2014) (quoting Strickland, 466 U.S. at 690–91).

The state court’s decision to deny Petitioner’s

ineffective assistance claims was not an unreasonable

application of Strickland or based on an unreasonable

determination of the facts.

D. Ground Four: Failure to Reopen the Suppression

Hearing

Petitioner alleges that the state court deprived him

of due process and a fair trial when it denied his motion — made

mid-trial — to reopen the suppression hearing. Petition at 15.

Defense counsel moved to reopen the hearing following Rothman’s

trial testimony that officers from the 60th Precinct stopped and

arrested Petitioner, which Petitioner claimed contradicted

Rothman’s and Rzonca’s testimony at the suppression hearing that

they were the arresting officers.

This claim, however, is not cognizable on habeas

review. Petitioner is not alleging a constitutional violation,

but is instead challenging a decision that the trial court made

on state-law grounds. See, e.g., McCrary v. Lee, No. 12-CV-

2867, 2016 WL 1029493, at *3 (E.D.N.Y. Mar. 15, 2016) (“[T]he

state court’s denial of Petitioner’s request to reopen the

suppression hearing constituted a state-law evidentiary ruling

not within the scope of federal habeas review.”); Woodard v.

Chappius, No. 13-CV-6123, 2014 WL 122359, at *7 (W.D.N.Y. Jan.

13, 2014) (“[Petitioner’s] claim regarding the denial of his

motion to reopen the suppression hearing presents solely a

matter of state law.”), aff'd 631 F. App'x 65 (2d Cir. 2016).

It is axiomatic that “it is not the province of a federal habeas

court to reexamine state-court determinations on state-law

questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

In any event, the Appellate Division found the trial

court had not abused its discretion in refusing to reopen the

suppression hearing, pursuant to Section 710.40(4) of the New

York Criminal Procedure Law, because Petitioner “failed to show

that these officers would have testified to new facts, not

discoverable with reasonable diligence before the determination

of the motion, that would have affected the court’s ultimate

determination of the issue of probable cause.” People v.

Jackson, 97 A.D.3d 693, 694 (2012). Section 710.40(4) is

founded on a presumption that a criminal defendant “know[s] the

circumstances of his or her own arrest and therefore is capable

of eliciting evidence of those circumstances at a pretrial

hearing.” People v. Velez, 829 N.Y.S.2d 209, 212 (N.Y. App.

Div. Feb. 6, 2007).

In addition to requesting to reopen the suppression

hearing, defense counsel also moved twice during trial to

suppress evidence, arguing in support that the arresting

officers from the 60th Precinct did not testify at the

suppression hearing. To the extent Petitioner’s habeas claim is

premised on the argument that these motions should have been

granted, and the evidence excluded at trial, it is precluded by

Stone v. Powell, 428 U.S. 465 (1976). In Stone, the Supreme

Court held that “where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.” Id. at 494; see also

Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992)

(“[F]ederal courts have approved New York’s procedure for

litigating Fourth Amendment claims . . . .”). Following Stone,

the Second Circuit limited habeas review of Fourth Amendment

claims to two scenarios: (1) where “the state [] provided no

corrective procedures at all to redress the alleged fourth

amendment violations” or (2) where “the state [] provided a

corrective mechanism, but the defendant was precluded from using

that mechanism because of an unconscionable breakdown in the

underlying process.” Capellan, 975 F.2d at 70. The focus of

the inquiry into whether there was an “unconscionable breakdown”

in the state corrective process is on “the existence and

application of the corrective procedures themselves” rather than

on the “outcome resulting from the application of adequate state

court corrective procedures.” Id. at 71.

Petitioner makes no showing that there was “an

unconscionable breakdown in the underlying process” here. A

two-day Dunaway / Mapp / Huntley hearing was held, at which two

officers and one detective from the 61st Precinct testified. The

officers, who were subject to cross-examination, testified that

officers from the 60th Precinct were at the scene

“simultaneously,” that Petitioner was placed in the back of the

60th Precinct car, and that he was first taken back to the 60th

Precinct. Petitioner had ample opportunity at this hearing to

inquire into the identity and role of the 60th Precinct officers.

Indeed, defense counsel asked on cross examination if Rothman

knew the names of those officers. The court then issued a

reasoned ruling addressing each of Petitioner’s claims, and in

fact granted his motion to suppress the keys. See, e.g., Hicks

v. Bellnier, 43 F. Supp. 3d 214, 231 (E.D.N.Y. 2014)

(“Petitioner would be hard-pressed” to establish such “an

unconscionable breakdown” where “the trial court held an

evidentiary hearing, allowed Petitioner to present a case in

support of his motion, and issued a reasoned ruling that there

was reasonable suspicion to stop Petitioner and that the

resulting evidence would be admissible at trial”).

When Petitioner moved to reopen the suppression

hearing so that he could testify, that request was granted, and

the court heard an additional day of testimony on the

suppression issue. Thereafter, the court again issued a

reasoned opinion summarizing and addressing Petitioner’s version

of events, ultimately finding them “unworthy of belief.” In

addition, post-trial, Petitioner took advantage of state appeal

procedures. See, e.g., Singh v. Miller, 104 F. App'x 770, 772

(2d Cir. 2004) (finding no unconscionable breakdown occurred

where petitioner raised his Fourth Amendment claims at a

suppression hearing and on appeal).

Petitioner is therefore not entitled to habeas relief

on this ground.

VI. Evidentiary Hearing

Petitioner requests an evidentiary hearing on all

grounds. Petition at 20. In particular, he seeks to “develop

the evidence necessary to establish that petitioner was denied

due process and that he was denied the right to counsel.”

Petitioner’s Br. at 19. However, 28 U.S.C. § 2254(e)(2)(A)

precludes an evidentiary hearing because Petitioner has not

shown that his claims rely upon “a new rule of constitutional

law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or a factual

predicate that could not have been previously discovered through

the exercise of due diligence.” Id. Moreover, a district court

is not required to hold an evidentiary hearing “if the record

refutes the applicant’s factual allegations.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007). Therefore, the Court

denies Petitioner’s request for an evidentiary hearing in its

entirety.

VII. Conclusion

For the reasons stated, the petition for a writ of

habeas corpus is denied. Because Petitioner has not made a

substantial showing of the denial of a constitutional right, no

certificate of appealability will issue. See 28 U.S.C.

§ 2253(c). The Court certifies pursuant to 28 U.S.C.

§ 1915(a)(3) that any appeal would not be taken in good faith

and in forma pauperis status is therefore denied for purposes of

an appeal. Coppedge v. United States, 369 U.S. 438, 444-45

(1962).

The Clerk of the Court is directed to mail a copy of

this Order to the pro se Petitioner.

SO ORDERED.

_/s Eric Komitee____________

ERIC KOMITEE

United States District Judge

Dated: December 4, 2020

Brooklyn, New York