Smith v. Keyser

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RORY SMITH,

Petitioner, MEMORANDUM AND ORDER

17-CV-557 (RRM)

-against-

WILLIAM KEYSER, JR., Superintendent,

Sullivan Correctional Facility,

Respondent.

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ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Rory Smith, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254, asserting that his February 7, 2012, conviction for attempted murder in the

second degree and assault in the third degree was unconstitutional. For the reasons set forth

below, Smith’s petition for a writ of habeas corpus is denied and this action is dismissed.

BACKGROUND

On July 27, 2010, Smith punched George McDuffie in the face, breaking the bones

around his eye. (Resp’t Resp. to Order Show Cause (“Resp’t Resp.”) (Doc. No. 9) at 1–2.)1 On

August 10, 2010, Smith shot at McDuffie eleven times, hitting McDuffie in his hand, arm, and

leg. (Id. at 2.) McDuffie escaped on his motorcycle and called 911. (Id.) Smith was

subsequently charged with attempted murder in the second degree, N.Y. PENAL LAW §§ 110.00,

125.25(1), assault in the first degree, § 120.10(1), attempted assault in the first degree, §§

110.00, 120.10(1), and two counts each of assault in the second degree, § 120.05(2), assault in

third degree, § 120.10, criminal possession of a weapon in the second degree, § 265.03(3),

(3)(1)(b), and criminal possession of a weapon in the fourth degree, § 265.01(1), (2).

1 Unless otherwise noted, all page numbers correspond to ECF pagination.

A. Pretrial Hearing

On January 30, 2012, the trial court held a pretrial evidentiary hearing. (Trial Tr. Ex. 3 to

Resp’t Resp. (“Ex. 3”) (Doc. No. 9-3) at 44–66.) At the hearing, the People sought to have the

court admit into evidence two phone calls made by Smith while detained on Rikers Island to be

used in its case-in-chief; the prosecution additionally stated that it possessed other phone calls

made by Smith while at Rikers Island (collectively the “Rikers calls”), which it intended to use

to impeach the defendant should the opportunity present itself. (Ex. 3 at 47.) One of these

impeachment calls involved an uncharged crime and therefore required the prosecution to seek a

Sandoval ruling.2

The first call the People sought to introduce (the “Ratchet Call”), took place on

December 2, 2010. In that call, Smith said that he was “thankful [to be] alive still” because he

could have been on the “other side of the ratchet.” (Ex. 3 at 49.) The “ratchet,” the People

argued, is “common vernacular for gun in Bedford Stuyvesant,” which it claimed it could prove

through the testimony of a detective. (Id.) The prosecution argued that this call was an

admission of guilt because “[what] he is talking about is the event that got him into jail.” (Ex. 3

at 49–50.) The defense argued that “any indicia of guilt by Mr. Smith … [was] speculative at

best.” The court agreed and excluded the Ratchet Call. (Ex. 3 at 51.)

The second call (the “Statement Call”) occurred on September 14, 2010. In that call,

Smith asked Tamika Daniels, Smith’s domestic partner, to instruct Darlene Powell, an

eyewitness, to “take a couple of dollars and make [George McDuffie] sign a statement, and say it

wasn’t me.” (Ex. 3 at 52.) The People argued that this was an admission of guilt; however, the

2 A Sandoval ruling is a New York trial court’s determination as to whether the government will be permitted to

inquire into a criminal defendant’s prior conviction(s) in the event that the defendant testifies at trial. See People

v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (N.Y. 1974); see also Harris v. Kuhlmann, 346

F.3d 330, 337 (2d Cir. 2003) (describing the nature of a “Sandoval” ruling).

defense argued that the statement was not an admission of guilt because, on the call, Smith also

stated that “me and him had a fist fight, but now he is realizing it wasn’t me because I didn’t

shoot him…. [McDuffie] is only saying that because he don’t like me.” (Id.) The court

admitted this call, finding that it was probative and an admission in two regards. (Ex. 3 at 56.)

First, Smith was instructing the individual on the phone to contact Powell, whom Smith was

prohibited from contacting both directly and indirectly by an outstanding order of protection.

(Id. at 52–53.) Second, Smith was attempting to instruct a witness to change his testimony. (Id.

at 53.)

The defense requested that, if the Statement Call be admitted, a separate Rikers call,

placed on September 13, 2010, be admitted as well under the “doctrine of completeness.” (Id. at

55.) In the September 13 call, Smith stated “I didn’t shoot nobody.” (Id.) The defense argued

that this call showed “clear indication from Mr. Smith that he was not involved in the shooting”

and that taking the Statement Call out of context “is clearly prejudicial.” (Id.) The court found

that there was no nexus between the two statements, that the September 13 statement was self-

serving, and denied the defense’s application to admit the September 13 call. (Id.)

The trial court then conducted a Sandoval hearing to determine the admissibility of

Smith’s prior convictions and other uncharged crimes as impeachment material should the

defendant testify. (Ex. 3 at 57–66.) Turning to Smith’s prior convictions, the prosecution sought

permission to cross-examine Smith on the following prior crimes: a 2006 false impersonation

conviction and a 1992 conviction for criminal possession of a controlled substance in the fourth

degree. (Id. at 57–60.) Defense counsel argued that the 1992 conviction was remote and

prejudicial, and the 2006 conviction was likewise prejudicial. (Id. at 62–64.) The trial court

ruled that the 1992 drug conviction was too remote but allowed the prosecution to question

Smith on his conviction for false impersonation. (Id. at 64–65.)

Additionally, the prosecution sought to have the court admit into evidence a September 7,

2010, Rikers call (the “Forgery Call”) should the defendant testify. (Id. at 60–63.) In this call,

Smith told his aunt that he had a “legitimate way to get money right now. The check is not fully

in my name. So, but it’s in a male’s name. I have the I.D. and all of that. I can’t sign nothing

over.” (Id. at 61.) The trial court found these statements too speculative and prohibited the

prosecution from inquiring about the Forgery Call. (Id. at 65–66.)

B. Voir Dire

The prosecution used nine peremptory challenges and the defense used two of their

fifteen available challenges. (Ex. 3 at 188, 194, 198.) Although two individuals indicated some

concern with the use of a gun in the case, defense counsel did not move to strike them. For

example, the defense did not strike Ms. Brown, who stated that “guns really scare[] me” and

whose cousin had died in a shootout the year before, but who maintained that she would “try

[her] best in this case” and would be fair. (Ex. 3 at 133.) Similarly, the defense did not strike

Mr. Chiu, who stated that he did not “like the people [who] carry guns except the police” but

who maintained that he would “try [his] best” to be fair. (Ex. 3 at 135–36.)

C. The People’s Case

Although twelve witnesses testified for the prosecution at trial, only two of them –

Powell and McDuffie – were eyewitnesses to the assault and the shooting. The first witness,

Powell, the mother of McDuffie’s daughter and a tenant at 656 MacDonough Street where both

events happened, was compelled to testify by a material witness order. (Trial Tr. Ex. 4 to Resp’t

Resp. (“Ex. 4”) (Doc. No. 9-4) at 11–13.) As to the assault that occurred on July 27, Powell

testified that she was arguing with her first-floor neighbor, Tamika Daniels, Smith’s girlfriend,

when McDuffie appeared with their daughter and also began arguing with Daniels. (Id. at 52–

54.) Eventually, as the argument grew more heated, Smith came out of the apartment and joined

the argument. (Id. at 54.)

As they moved from the building stoop to the street, Powell testified that Smith walked

away only to return to hit McDuffie in the eye from behind. As McDuffie struggled to walk up

the steps back into the apartment building, Smith “came up the steps and started hitting him

again.” (Id. at 57–58.) Powell testified that the building superintendent, Marlon Prescott, who

also witnessed the fight, called the police. On cross-examination, Powell testified that it was

McDuffie who called Smith out to fight on August 27, but that Smith punched McDuffie from

behind and McDuffie did not return the punch because he could not see. (Id. at 91, 97–99.)

As to the shooting on August 10, Powell testified that she woke up because she heard

gunshots. From her apartment windows, Powell observed Smith “shooting at [McDuffie]” while

McDuffie was on his motorcycle. (Id. at 60–61.) She further testified that “[a]s George was

riding past, [Smith] was shooting. (Id. at 62.) He was going down the steps, like, to keep

shooting as he was going. Then he ran back in the building” and ran back out and left in his van.

(Id.) Powell testified that she called police. (Id.) She later identified Smith at a lineup at the

police precinct. (Id. at 71.) On cross-examination, Powell testified that she could see Smith

shooting from the doorway of the building from two windows in her apartment even though one

window had an air conditioner and the other window had window guards. (Id. at 105–06.)

The prosecution called several police officers to testify as to the two events. Officer

Seymour testified that she responded to “an assault in progress” on July 27, 2010, and “took a

complaint report.” (Trial Tr., Ex. 6 to Resp’t Resp. (“Ex. 6”) (Doc. No. 9-6) at 112, 115.) At the

scene, Officer Seymour spoke to the super, McDuffie, and two adult females. (Ex. 6 at 113.)

However, the prosecution was not able to produce the police report or any documentation for the

July 27, 2010, incident, indicating that it was lost. (Trial Tr., Ex. 5 to Resp’t Resp. (“Ex. 5”)

(Doc. No. 9-5) at 103.)

Officer Wing testified that he arrived on the scene on August 10, 2010, found spent shell

casings at 656 MacDonough Street, and spoke to Powell and Daniels. (Ex. 6 at 12–14, 18.) On

cross-examination, Wing testified that he did not speak to Powell in person, but over the phone,

and that she said she heard yelling, not gunshots. (Id. at 22–24.)

Officer Riviezzo, who was part of the evidence collection team dispatched to the scene

on August 10, testified that he collected eleven 9-millimeter shell casings and a portion of a

bullet from the front of, or near the vicinity of, 654 MacDonough Street. (Ex. 4 at 129–30.) On

cross-examination, Riviezzo testified that he did not look for bullet impact marks or look for the

remaining bullets. (Id. at 141.)

The prosecution then called Sergeant Blackmon who testified that he responded to

several calls related to the shooting, including McDuffie’s call. (Id. at 148–49.) Blackmon

testified that he observed McDuffie with “his hands bleeding” from “what appeared to be a

gunshot wound to his hands” and that McDuffie’s motorcycle windshield and gas tank side was

damaged. (Id. at 150, 160.) Blackmon also testified that “11 shell casings” were found in front

of 656 MacDonough Street. (Id. at 151.) On cross-examination, Blackmon testified that he

could not recall if the damage to the motorcycle “came as a result of any gun fire.” (Id. at 170.)

Blackmon also testified that although McDuffie did not identify the person who shot him, he

provided a description and an address for the shooter. (Id. at 153, 166, 170–72.)

Officer Kwok testified that he rode McDuffie’s motorcycle to the precinct and observed

“a couple of bullet holes in it” and a flat tire. (Ex. 6 at 98.) Detective McDonald testified that he

spoke to McDuffie at Kings County Hospital and that McDuffie identified the shooter as Rory

Smith. (Id. at 28–29.) He further testified that they conducted surveillance and spoke to Daniels

in order to find Smith and that Smith was apprehended on August 30, 2010. (Id. at 31–39.)

Detective McDonald also testified that he conducted a lineup and that McDuffie, Powell

and Prescott all identified Smith and that Smith was arrested. (Id. at 40–46.) On cross-

examination, McDonald testified that Smith admitted to having a fight with McDuffie but denied

shooting him. (Id. at 62.)

Detective Heaney, an expert in ballistics, testified that the shell casings came from the

same gun because they “all had the same type of markings” and determined that the shell casings

came from a semi-automatic 9-millimeter Luger pistol. (Id. at 78, 81.) On cross-examination,

Detective Heaney testified that he made a mistake in indicating that there were twelve casings

when there were only eleven. (Id. at 91–93.)

The prosecution also called Regina Ward, a tech tape 911 operator, to authenticate the

911 calls regarding the shooting on August 10. (Ex. 5 at 6–16.) Ward testified that the caller

who made the first 911 call hung up. (Id. at 21.) Amy Lowe, an investigator with the New York

City Department of Corrections, was called to authenticate the calls made while Smith was

detained on Rikers Island and explained that all inmate calls are recorded. (Ex. 6 at 141–44.)

Lowe further testified that inmates are notified that the phone calls are recorded through posters

around the phones, in the inmate handbook, and on the recording on the receiver. (Id. at 144.)

Ciara Pack, employed by T-Mobile, testified that she provided information pursuant to a

subpoena for a prepaid account created on August 10, 2010. (Id. at 134–36.) On cross-

examination, Pack testified that once a prepaid phone is purchased it can be passed on to another

person and there is no way for T-Mobile to know who is using the phone. (Id. at 137–38.)

The prosecution then called George McDuffie, the victim of the assault and the shooting.

He testified that he only knew Smith from seeing him at 656 MacDonough Street where his

daughter lived with her mother and did not know his name. (Ex. 5 at 43.) McDuffie testified

that on July 27, he was at 656 MacDonough Street to take his daughter to the dentist and became

involved in an argument that Powell was having with the first-floor neighbor, Daniels. (Id. at

45–49.)

McDuffie testified that Powell did not want Daniels cursing at their daughter for looking

into her first-floor window. (Id.) Eventually Daniels’s husband, Smith, came out of their

apartment and started arguing with McDuffie too. (Id. at 50–51.) McDuffie testified that they

went down the stairs in front of the building and continued arguing but that Smith then “walked

off, walked down the block.” (Id. at 54.) As he was talking to the super, McDuffie testified that

Smith “came behind me and punched me” in the eye two times. (Id. at 56.) McDuffie further

testified that he could not see and that Smith continued to punch him from behind before leaving

again. (Id. at 57–58.) McDuffie testified that he spoke to the police, but declined an ambulance.

(Id. at 59.) Later, his face “started to swell up” and he could not open his jaw and he went to the

hospital where he was diagnosed with an eye fracture that would require surgery. (Id. at 61,

64−66.)

McDuffie also testified that he was outside of Powell’s apartment building on the

morning of August 10 after his work shift finished, when Smith arrived in his van, looked at him,

and entered the building. McDuffie testified that Smith “came right back out,” went straight to

him, and accused him of taking his son’s bike. (Id. at 59–61.) According to McDuffie, Smith

also said that he hated him and that McDuffie would “bleed soon.” Smith then walked back to

the building only to emerge shooting at him from the top of the stairs. (Id. at 72–74.) McDuffie

testified that bullets grazed his hand, arm and leg and also hit his motorcycle. (Id. at 75.)

McDuffie was able to start his motorcycle with some difficulty because the tire was flat and

leave the scene, with Smith still shooting at him. (Id. at 75–76.) McDuffie parked his

motorcycle a few blocks away, walked to a laundromat, and called police. (Id. at 76–79.)

McDuffie also testified that he had initially called the police when Smith first approached, but

hung up because Smith had walked away. (Id. at 80–81, 150.)

McDuffie testified that he told police the shooter was the “guy from the building” but he

did not know his name. (Id. at 83.) He also identified Smith from a lineup at the precinct. (Id.

at 85.) On cross-examination, McDuffie testified that he could see who was standing on the

stairs from Powell’s windows, but not if the person was standing “all the way back.” (Id. at 118–

19.) McDuffie also disputed that he instigated the fight with Smith on July 27, testifying that

Smith “walked down the stairs first” and called him out to fight. (Id. at 137–38.) McDuffie

reiterated that Smith punched him from behind, that he turned toward the steps but could not see,

and that Smith continued to punch him on his back and head while on the steps. (Id. at 140–41.)

The prosecution’s final witness, Adeola Koiki, the emergency medical technician who

tended to McDuffie’s wounds on August 10, testified that McDuffie was “bleeding from his

wrist, his left arm and his right leg,” and that he concluded that McDuffie had been shot. (Trial

Tr., Ex. 7 to Resp’t Resp. (“Ex. 7”) (Doc. No. 9-7) at 11–12, 18.)

D. The Defense Case

Defense counsel attempted to call Kevin Hinkson, who would have contradicted Powell’s

earlier testimony that she could see Smith shooting from the doorway of the building because it

was not visible from her window. (Ex. 7 at 26–28.) The trial judge did not allow Hinkson to

testify, finding that it “would be an improper attempt to have a layperson testify as to an

opinion.” (Id. at 31.) Defense counsel objected and argued that his client was being deprived of

his right to present a defense. (Id. at 32–33.)

Defense counsel called Chorn Grandison, a neighbor, who testified that he knew

McDuffie, Smith, Powell, and Daniels and that he witnessed the argument and fight on July 27.

(Id. at 34–39.) Grandison testified that McDuffie was “screaming at Tamika” and that McDuffie

instigated the fight with Smith. (Id. at 41.) On cross-examination, Grandison testified that

McDuffie never hit Smith and that Smith only threw one punch at McDuffie. (Id. at 48–49.)

Defense counsel then called Smith who testified that on July 27, he heard McDuffie

“yelling at Tamika” and he came out of the apartment and that McDuffie invited him to fight.

(Id. at 61–63.) Observing that McDuffie was bigger than he, Smith swung at him as soon as they

reached the bottom of the steps. (Id. at 63.) Smith also testified that he could not recall where he

was on August 10, but that he did not shoot at McDuffie or “anyone at any time.” (Id. at 66–67.)

Smith also testified that he worked odd maintenance jobs and produced a song, that he was

convicted of false impersonation when he “told a police officer a wrong name because [his]

license was suspended,” and denied that he tried to bribe McDuffie or Powell. (Id. at 56.) On

cross-examination, however, Smith testified that on July 27, he didn’t throw the first punch

because McDuffie “started swinging and I beat him to it” and that Smith was “facing him

directly” when he hit McDuffie in the face. (Id. at 108–09.)

The prosecution then questioned Smith regarding nine Rikers calls, which included the

three calls – the Forgery Call, the Statement Call, and the Ratchet Call – ruled upon in the

pretrial/Sandoval hearing. (Ex. 7 at 113–16, 127–35.) The prosecution inquired about a call

placed September 6, 2010, (hereafter, the “Charges Call”), where Smith told Daniels that

McDuffie “pressed charges … for the fight, but the police be pressing charges for the other

stuff.” (Ex. 7 at 112–14.) This call was introduced in response to Smith’s testimony that

McDuffie refused to press charges for the assault. (Id.) Defense counsel did not

contemporaneously object to the prosecution’s use of this call.

The prosecution also inquired about calls placed on September 6, 2010, (the “Driving

Call”); September 11, 2010, (the “First Clothes Call”), and September 14, 2010, (the “Second

Clothes Call”). (Ex. 7 at 114–15, 121–22, 127–30.) In the Driving Call, Daniels told Smith that

he was “caught up driving [Tamika’s] car” and Smith claimed: “what happened is the only way

I’m back in contact with her.” (Id. at 121–22.) In both the First and Second Clothes calls, Smith

and Daniels discussed arrangements to have Daniels pick up clothes from a woman named

Tisha’s residence and deliver them to either his grandmother’s residence or Daniel’s residence.

(Id. at 114–15, 127–30.) Defense counsel did not contemporaneously object to any of these calls

being used by the prosecution.

Additionally, the prosecution inquired about two separate calls, both placed on

September 15, 2010. In the first call (the “Fifth Amendment Call”), between Smith and Daniels,

Smith stated that he hadn’t testified to the grand jury though he had wanted to, stating “I was

pleading the fifth on the shooting in the first place.” (Ex. 7 at 130–33.) Smith claimed that he

did not recall saying that he was intending to plead the fifth, and that he fired his previous

attorney for waiving his right to testify before the grand jury without his consent. (Id.) Defense

counsel did not contemporaneously object to the prosecution’s use of this call.

On the second call (the “Income Call”), between Smith and Daniels, Smith told Daniels

that women would pay him “thirty or forty to drop them there and pick them up.” (Id. at 78–82.)

This call was introduced in response to Smith’s testimony that his only source of income was

through music production and “odd jobs,” which included minor sheet rocking, flooring, and

garbage handling. (Id. at 75–82.) Defense counsel contemporaneously objected to the

prosecution’s use of this call; however, the court overruled the objection, reprimanded defense

counsel in camera for making frivolous objections, and noted that the prosecution’s use of the

call was proper because it adversely affected Smith credibility by showing that he was “either …

acting as a pimp or lying to the woman he’s living with about his activities.” (Id at 81, 92.)

On re-direct, Smith explained that on one of the calls he attempted to set up an alibi with

Tamika Clark, a friend, because he spent a lot of time at her home and she may have known

where he was on August 10. He also explained that he did not pay McDuffie or Powell to

change their testimony and only mentioned it to Daniels “out of desperation.” (Id. at 142–42.)

E. The Verdict and Sentence

Justice Del Giudice submitted to the jury only three of the counts charged in the

indictment – assault in the third degree, attempted murder in the second degree, and attempted

assault in the first degree – and he directed the jury to consider the attempted assault in the first

degree only if it found defendant not guilty of the murder count. On February 7, 2012, the jury

found Smith guilty of assault in the third degree and attempted murder in the second degree.

(Trial Tr., Ex. 8 to Resp’t Resp. (“Ex. 8”) (Doc. No. 9-8) at 143.) On March 8, 2012, Justice Del

Giudice adjudicated Smith a second felony offender and sentenced him to one year’s

imprisonment for the assault in the third degree and 23 years’ imprisonment for the attempted

murder in the second degree, plus five years post-release supervision. (Ex. 8 at 156, 164–65.)

F. Direct Appeal

On appeal, Smith’s appellate counsel raised four points on his behalf. First, appellate

counsel argued that Smith’s due process rights were violated when the prosecutor improperly

cross-examined Smith about phone calls that were ruled inadmissible by the trial court in the

pretrial Sandoval hearing. (Br. Def.-Appellant, Ex. 1 to Resp’t Resp. (Doc. No. 9-1) at 40–62.)

Second, appellate counsel raised ineffective assistance of counsel, faulting defense counsel’s

lack of preparation, his use of pejorative language to describe Smith, his failure to effectively

challenge prospective jurors, and his failure to request effective limiting instructions after the

Rikers calls were introduced. (Id. at 56–73.) Third, appellate counsel argued that the trial court

deprived Smith of his right to present a defense when it did not allow an investigator to testify as

to what could be seen from Powell’s bedroom. (Id. at 74–78.) Fourth, appellate counsel argued

that the 23-year sentence was excessive. (Id. at 78–80.)

In their response, the People argued that the claim regarding the phone calls were

unpreserved for appellate review, that Smith received effective assistance of counsel, and that his

sentence was not excessive. The People conceded that Smith should have been allowed to call

the investigator as part of his defense, but claimed that this error was harmless.

In a Decision and Order issued on September 30, 2015, a divided panel of the Appellate

Division affirmed Smith’s judgment of conviction. People v. Smith, 131 A.D.3d 1270 (N.Y.

App. Div. 2015). The majority found that Smith was not deprived of a fair trial because the

evidence of Smith’s guilt was overwhelming and any errors that were made during the trial were

harmless. Id. at 1273. It further noted “that many of the alleged errors complained of by the

defendant are not errors at all or are unpreserved for appellate review, as the defendant failed to

object to them at trial when any error could have been corrected by the trial court.” Id.

Although defense counsel did not object to the alleged errors, the Appellate Division found that

“such inaction did not deprive the defendant of the effective assistance of counsel.” Id. at 1274–

75 (citing Strickland v Washington, 466 US 668 (1984)). It also found that the sentence was not

excessive. Id. at 1275.

The Honorable Sylvia O. Hinds-Radix dissented. Justice Hinds-Radix found that Smith

was deprived of a fair trial when the court refused to allow Smith’s investigator to testify and

when it altered “the Sandoval ruling to permit cross-examination of the defendant about alleged

misconduct which was not authorized by the Sandoval ruling and/or explicitly precluded by

the Sandoval ruling after the defendant had already taken the stand.” Id. at 1279. The dissent

also found that questioning Smith “about a telephone conversation that he had with his girlfriend

wherein he stated he wanted to testify before the grand jury but had not,” “was highly prejudicial

and in violation of the defendant’s constitutional right against the use of his post arrest silence to

impeach his credibility” as were certain comments made by the prosecutor during summation.

Id. at 1280. Leave to appeal to the New York Court of Appeals, raising all of the same grounds

raised in his brief, was denied on March 2, 2016. People v. Smith, 27 N.Y.3d 969 (2016).

G. The Instant Petition

On January 24, 2017, Smith commenced this timely action by placing his petition for a

writ of habeas corpus in his prison mailbox. Smith raises the same grounds raised by appellate

counsel on his direct appeal. (Pet. (Doc. No. 1).) Smith additionally argues that the prosecution

improperly used his right to remain silent against him at trial by discussing the Fifth Amendment

Call, and the court improperly excluded him from sidebar discussions where the

pretrial/Sandoval rulings regarding the Rikers calls were modified. (Pet. at 8.) This Court

granted Smith’s application to proceed in forma pauperis and ordered Respondent to show cause

as to why a writ of habeas corpus should not issue. (Order to Show Cause (Doc. No. 7).)

Respondent filed a response that the writ should not be granted because Smith’s claim

concerning the phone calls was procedurally barred, the state court’s decision was not contrary to

or an unreasonable application of federal law, Smith received effective assistance of counsel, and

the length of Smith’s sentence did not present a federal claim. (Resp’t Resp.)

In his reply (Pet’r Reply. Br. (Doc. No. 11)), Smith reiterates the arguments made on his

direct appeal and argues that he was denied a fair opportunity to make an informed decision to

take the stand because the prosecution did not seek an advanced ruling regarding, nor disclose

the substance of, the six Rikers calls not discussed in the pretrial hearing. (Id. at 10.) Smith

further argues that the prosecution’s use of the Rikers calls improperly prejudiced him by

attacking his character. (Id. at 14–15.)

STANDARD OF REVIEW

A federal court may review a petition for a writ of habeas corpus only to the extent that

the petitioner has “exhausted the remedies available in the courts of the State.” 28 U.S.C. §

2254(b)(1)(A); see also Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). This means that

each legal and factual allegation underlying a claim must first have been fairly presented to a

state court. Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991). A petitioner may obtain

federal habeas review of a procedurally defaulted claim only where petitioner demonstrates

either “cause for the default and prejudice,” or that “failure to consider the claims will result in a

miscarriage of justice (i.e., the petitioner is actually innocent).” Aparicio v. Artuz, 269 F.3d 78,

90 (2d Cir. 2001) (citing Coleman, 501 U.S. at 748–50).

Under 28 U.S.C. § 2254(d), “[a]n application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings unless the adjudication of

the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254. “‘Clearly established Federal law’ means ‘the holdings, as opposed to the

dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.’”

Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362,

412 (2000)). A decision is “contrary to” clearly established Federal law “if the state court arrives

at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the

state court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 413. A decision is an “unreasonable application”

of clearly established Federal law if a state court “identifies the correct governing legal principle

from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a]

prisoner’s case.” Id.

Not all federal constitutional errors require automatic reversal. Chapman v. California,

386 U.S. 18, 22 (1967). The Supreme Court has divided constitutional errors into two classes:

trial errors and structural errors. United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006).

Trial errors are those which occur “during the presentation of the case to the jury,” and may “be

quantitatively assessed in the context of other evidence presented in order to determine whether

its admission was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279,

307–08 (1991). Structural errors are “structural defects in the constitution of the trial

mechanism, which defy analysis by ‘harmless-error’ standards.” Id. at 309.

“[A]n error is harmless unless it ‘had substantial and injurious effect or influence in

determining the jury’s verdict.’” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 631 (1993)). “[W]hen a state court determines that a constitutional

violation is harmless, a federal court may not award habeas relief under § 2254 unless the

harmlessness determination itself was unreasonable.” Fry, 551 U.S. at 119 (citing Mitchell v.

Esparza, 540 U.S. 12 (2003)). “And a state-court decision is not unreasonable if ‘fairminded

jurists could disagree on its correctness.’” Spencer v. Capra, 788 F. App’x 21, 23 (2d Cir. 2019)

(quoting Davis, 576 U.S. at 269).

In addition, federal courts have no authority to review state court decisions that rest upon

“independent and adequate” state law grounds. Lee v. Kemna, 534 U.S. 362, 375 (2002); see

also Green, 414 F.3d at 294 (“A federal habeas court lacks jurisdiction to evaluate questions of

federal law decided by a state court where the state court judgment ‘rests on a state law ground

that is independent of the federal question and adequate to support the judgment.’”) (quoting

Coleman v. Thompson, 501 U.S. 722, 729 (1991)). Generally, a state law ground will be

considered adequate to preclude habeas review if it is “firmly established and regularly followed

by the state in question.” Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Garcia v.

Lewis, 188 F.3d 71, 77 (2d Cir. 1999)). Federal habeas review is foreclosed when the state court

expressly relied on the petitioner’s procedural default at trial as an independent and adequate

state law ground. Green, 414 F.3d at 294; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

DISCUSSION

A. Denial of Right to Present Defense

Smith alleges that the trial court deprived him of his right to present a defense when it

failed to allow his investigator to testify. (Pet. at 5.) Specifically, Smith alleges that the

investigator would have testified that it was impossible to see the doorway or the steps from the

third-floor window, which contradicted the testimony of the prosecution’s eyewitness, Darlene

Powell. (Id.) Smith argues that the trial court’s ruling deprived him of his right to present a

defense in violation of the Sixth and Fourteenth Amendments of the United States Constitution.

(Id.) This claim was fairly presented to the state court in Smith’s direct appeal and in Smith’s

request for leave to appeal to the New York Court of Appeals.

The People conceded and the Appellate Division agreed that “the Supreme Court should

not have denied [Smith’s] request to introduce evidence from a private investigator” but that “the

error was harmless.” Smith, 131 A.D.3d at 1273. The Appellate Division found that the

investigator’s testimony would have refuted only a portion of Powell’s testimony and because

Powell was cross-examined by defense counsel “that issue was before the jury for

consideration.” Smith, 131 A.D.3d at 1273. The claim was thus adjudicated on the merits, and

Smith is entitled to habeas relief only if he can demonstrate that the state court adjudication

“resulted in a decision that was based upon an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding,” or “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[.]” 28 U.S.C. § 2254(d)(1), (2).

A trial court’s erroneous exclusion of a defense witness is a trial error subject to harmless

error review. Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (finding that the exclusion of

testimony is a trial error “subject to lenient harmless error review.”). Here, the exclusion of the

investigator’s testimony did not have a substantial and injurious effect or influence in

determining the jury’s verdict against Smith. Even if defense counsel had been successful in

impeaching part of Powell’s testimony with the investigator’s testimony, McDuffie’s testimony

and the ballistic evidence would have remained unimpeached. See, e.g., Zimmerman, 492

F.Supp.2d at 193–94 (finding the exclusion of two witnesses harmless because their limited

testimony would not have altered the jury’s verdict). Smith’s guilt was established through the

testimony of the victim, George McDuffie, and eyewitness Darlene Powell, both of whom knew

Smith. McDuffie identified Smith as the person who shot him and Powell testified that she could

see Smith firing a gun at McDuffie from her third-floor window. (Ex. 4 at 61–62; Ex. 5 at 73–

74.) Smith’s investigator would have testified that neither the doorway nor the stoop was visible

from Powell’s windows. (Ex. 6 at 61–62; Ex. 7 at 26–27.) However, Powell also testified that

Smith continued to fire while he “was going down the steps” and that Smith “walked down some

of the front steps toward the gate.” (Ex. 4 at 62, 69.) McDuffie and Powell’s testimony was

corroborated by “the shell casings the police found that led from the doorway to the street.”

Smith, 131 A.D.3d at 1272. Although Powell may not have had a clear view of the entire

shooting, there was no dispute as to whether she could see the street from the window and

therefore could see Smith as he continued to shoot at McDuffie. Powell also testified that she

saw Smith run into the building, run back out, and leave the scene in a van. (Ex. 4 at 62, 113.)

The only part of Powell’s testimony that the investigator would have refuted was whether Powell

could see Smith shooting from the doorway or the stoop, an area of questioning which was

covered by Smith’s defense counsel on cross-examination. (Ex. 4 at 104–06, 122–23.)

Moreover, unlike Powell, McDuffie had a clear view of Smith and he identified Smith as the

shooter. (Ex. 5 at 73–74.)

Even if the Court found that the trial court wrongfully precluded the investigator’s

testimony and committed constitutional error, the Court agrees with the Appellate Division’s

holding that the error was harmless. Accordingly, Smith’s claim that he was deprived of his

constitutional right to present a defense fails on the merits.

B. Denial of Right to Due Process and a Fair Trial

Smith alleges that he was denied due process and a fair trial in violation of the Fifth,

Sixth, and Fourteenth Amendments. (Pet. at 7–8.) Specifically, Smith alleges that the trial court

erroneously permitted the prosecutor to attack his credibility and character by questioning him

regarding the nine Rikers calls and failed to issue a limiting instruction to counteract this error.

(Id. at 7–8.) Smith argues that the prosecution’s use of the Fifth Amendment Call violated his

right to remain silent and encouraged the jury to draw impermissible inferences. (Br. Def.-

Appellant at 7; Criminal Leave Appl. at 8; Pet. at 7.) Additionally, Smith argues that he was

deprived of due process by being excluded from the sidebar discussions where the court altered

its initial pretrial/Sandoval rulings. (Pet. at 7; Pet’r Reply Br. at 10.)

i. Procedural Bar

The Appellate Division held that “many of the alleged errors complained of by the

defendant are not errors at all or are unpreserved for appellate review, as the defendant failed to

object to them at trial when any error could have been corrected by the trial court.” Smith, 131

A.D.3d at 1273. The Second Circuit has held that generalized language that does not identify

which claims are unpreserved does not effectuate a procedural bar. See Fama v. Comm’r of

Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000) (“[W]hen a state court uses language such as ‘the

defendant’s remaining contentions are either unpreserved for appellate review or without merit,’

the validity of the claim is preserved and is subject to federal review.”). Here, the Appellate

Division did use generalized language, but it likewise provided specificity as to certain claims –

i.e., claims regarding errors that “the defendant failed to object to … at trial.” Smith, 131 A.D.3d

at 1273.

The New York State procedural rule regarding contemporaneous objections, N.Y. CRIM.

PROC. LAW § 470.05(2), states that all parties must make a specific contemporaneous objection

at trial in order to preserve an issue for appellate review. See Gonzalez v. Cunningham, 670 F.

Supp. 2d 254, 261 (S.D.N.Y. 2009) (The “Second Circuit recognizes New York’s

contemporaneous objection rule as an independent and adequate state procedural rule barring

habeas review.”). This rule is an independent and adequate state law ground that, if violated,

serves as a procedural bar to preclude habeas review. Downs v. Lane, 657 F.3d 97, 102 (2d Cir.

2011); Whitley, 642 F.3d at 286–87. Smith admits that his attorney failed to “object to the

prosecutor’s misuse of the calls” and “failed to request any limiting instructions.” (Pet. at 8.)

Therefore, Smith’s claims regarding several of the Rikers calls were unpreserved for appellate

review.

Smith’s defense counsel did not contemporaneously object to the Fifth Amendment Call,

the First Clothes Call, the Second Clothes Call, the Driving Call, or the Charges Call. However,

out of these five unobjected calls – although petitioner has repeatedly contested the prosecution’s

use of all nine Rikers calls – only the Fifth Amendment Call has been argued as being

prejudicial. (Br. Def-Appellant at 46.) The remaining four Rikers calls – the Alibi Call, the

Forgery Call, the Ratchet Call, and the Income Call – were contemporaneously objected to at

trial, raised on direct appeal, and therefore preserved.

The Appellate Division regarded errors that were unobjected to at trial as unpreserved.

The Fifth Amendment Call was unobjected to and therefore was expressly regarded as

unpreserved by the Appellate Division, which effectuates a procedural bar. Thompson v. Griffin,

No. 14-CV-1641 (DLI), 2019 WL 1368995, at *4 (E.D.N.Y. Mar. 25, 2019) (quoting Butler v.

Cunningham, 313 F. App’x 400, 401 (2d Cir. 2009) (summary order) (“When a state court

concludes that a claim is unpreserved for appellate review, this is ‘an independent and adequate

state ground that bars a federal court from granting habeas relief.’”) Additionally, the argument

that Smith was deprived of due process by being excluded from the sidebar discussions regarding

the pretrial/Sandoval rulings was neither raised on direct appeal nor contemporaneously objected

to and is likewise procedurally barred.

A petitioner can overcome this bar only if he can “demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750.

To establish “cause” for the default, a habeas petitioner must show that “some objective factor

external to the defense” impeded the petitioner’s ability to present the claim. Coleman, 501 U.S.

at 753. Examples of such a scenario would be “that the factual or legal basis for a claim was not

reasonably available to counsel … or that some interference by officials … made compliance

impracticable.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To establish

“prejudice,” a petitioner must show that “‘there is a reasonable probability’ that the result of the

trial would have been different” absent the alleged constitutional violation. Stickler v. Greene,

527 U.S. 263, 289 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

Here, Smith makes no argument of cause or prejudice sufficient to overcome this

procedural bar. Nevertheless, even if Smith’s unpreserved claims could be reviewed by this

Court on the merits, they would be denied.

ii. Harmless Error Review

Smith argues that the trial court erred when it allowed the prosecutor to use the Rikers

calls, two of which had been excluded in the pretrial hearing, in cross-examining Smith, and

erred when it failed to issue a limiting instruction to the jury to counteract this error. The

Appellate Division held that two calls, the Income Call and the Forgery Call, were properly

admitted as impeachment material and relevant to credibility, respectively. Smith, 131 A.D.3d at

1274. The Appellate Division further held that “[o]ther phone calls made by the defendant from

Rikers Island were properly admitted to show the defendant’s consciousness of guilt,” but failed

to identify precisely which calls were included in this category. Id. The Appellate Division then

provided a catch-all, holding: “To the extent that the court’s admission of other phone calls made

by the defendant was error, the error was harmless.” Id. This harmlessness determination was

not itself unreasonable; therefore, petitioner’s habeas petition must be denied on these grounds.

Without deciding this issue, there may have been error involved in the prosecution’s use

of the Rikers calls. The Ratchet Call “had been excluded prior to trial … and [arguably] nothing

in [Smith’s] direct testimony justified [the prosecution’s] use of the call.” (Pet’r Reply Br. at

13.) Additionally, the prosecution’s use of the Fifth Amendment Call is concerning. The

Forgery Call, like the Ratchet Call, was explicitly excluded by the trial court during the pretrial

hearing but nevertheless used by the prosecution during cross-examination. (Ex. 3 at 65–66.)

Though Smith may be correct in asserting that the “prosecutor’s use of most of the calls violated

the ban on the use of extrinsic evidence to impeach on collateral matters,” this Court is not

weighing these errors’ impact on the trial in the first instance, but rather whether the Appellate

Division reasonably determined the errors were harmless. The Appellate Division held that:

The evidence as to the identity of the defendant as the perpetrator in both instances

was overwhelming. The testimony of both the complainant and Powell, and their

respective familiarity with the defendant, established the identification of the

defendant as the perpetrator beyond a reasonable doubt []. As to the assault, the

defendant did not deny that the incident occurred; rather, his testimony that the

complainant was the aggressor and that he was defending himself was rejected by

the jury. Immediately after the shooting incident, both the complainant and Powell

identified the defendant as the perpetrator to the police and identified him at trial as

the individual who shot at and who had, on the earlier date, assaulted the

complainant …. The complainant testified at the trial that the defendant assaulted

him during the first incident and, thereafter, on August 10, he saw the defendant

and spoke to him before the defendant told the complainant he hated him and

intended to kill him. The complainant testified that, after he heard the gunshots, he

realized he was bleeding, looked over his shoulder and saw the defendant firing a

gun at him …. Powell also testified that the defendant was the person who, during

the first incident, assaulted the complainant, and who shot at and wounded the

complainant during the second incident. Powell was familiar with the defendant

because she had spent time with both Daniels and the defendant in their apartment

…. Powell’s testimony that she could see the defendant shooting from the doorway

was corroborated by the path of shell casings the police found that led from the

doorway to the street …. The contention of our dissenting colleague that the

evidence was not overwhelming ignores the physical evidence that corroborated

the testimony of the witnesses.

Smith, 131 A.D.3d at 1272–73.

The majority did not individualize its harmlessness analysis to every call used by the

prosecution, instead opting to blanketly categorize all the “other calls” as harmless. Smith, 131

A.D.3d at 1274. And undoubtedly, reasonable minds may differ on whether the remaining, non-

erroneous evidence was “overwhelming” as the Appellate Division majority described it.

However, it is precisely because “fairminded jurists could disagree on [the] correctness” of the

harmlessness determination that proves the Appellate Division’s determination was not itself

unreasonable. Spencer v. Capra, 788 F. App’x 21, 23 (2d Cir. 2019). Thus, habeas relief must

be denied on these claims.

Smith also makes two other arguments that likewise fail. First, Smith asserts that the

prosecution’s use of the Fifth Amendment call violated his right to remain silent. (Pet. at 7.)

Second, he argues that the trial court’s admission of the Rikers calls is compounded by the fact

that he was not permitted to attend the sidebar discussions where the court modified its

pretrial/Sandoval rulings that initially excluded two of the Rikers calls. (Pet. at 7; Pet’r Reply

Br. at 10.)

Mentioning a defendant’s post-Miranda silence at trial is subject to harmlessness review.

See Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding that reference to post-Miranda silence

is a constitutional trial error), superseded by statute on other grounds, Antiterrorism and

Effective Death Penalty Act, Pub. L. No. 104–132, 110 Stat. 1214 (1996), as recognized in

Gutierrez v. McGinnis, 389 F.3d 300 (2d Cir. 2004). Thus, since the Appellate Division, as

discussed above, held that any errors were harmless – and this conclusion is not itself

unreasonable – this claim fails on the merits as well.

Additionally, it is not a federal constitutional violation for a defendant to be absent from

sidebar discussions addressing purely legal questions, such as the admissibility of evidence. See

Wilson v. Bennett, 188 F. Supp. 2d 347 (S.D.N.Y. 2001) (finding no Confrontation Clause

violation where defendant was not present for sidebars addressing admissibility of evidence on

cross-examination); see also Persaud v. Mantello, 99-CV-1861 (NG), 2002 U.S. Dist. LEXIS

12079, at *5 (E.D.N.Y. July 2, 2002) (“[T]here is no constitutional right to be present at sidebar

conferences dealing only with legal questions.”) (citing United States v. Rubin, 37 F.3d 49, 54

(2d Cir. 1994)). Thus, habeas relief is likewise denied on this claim.

C. Ineffective Assistance of Counsel

Smith alleges that he was deprived of effective assistance of counsel in violation of the

Sixth and Fourteenth Amendments. (Pet. at 7, 9–11.) Specifically, Smith alleges that his

defense counsel: (i) failed to object to the Rikers calls or request a limiting instruction, (ii) failed

to challenge two prospective jurors and only used two peremptory challenges, (iii) failed to

present a defense to the top charge of attempted murder in the second degree and instead focused

on the lesser count of assault in the third degree, (iv) displayed a lack of understanding of the

applicable law, (v) failed to review the victim’s medical records so as to impeach the victim’s

testimony, and (vi) used inflammatory and derogatory language. (Id. at 7, 9–11.) The Appellate

Division held that defense counsel’s failure to object did not deprive Smith of the effective

assistance of counsel and that “the record reveals that defense counsel otherwise provided

meaningful representation.” Smith, 131 A.D.3d at 1274 (citing Strickland v. Washington, 466

U.S. 668 (1984)).

“Because the state appellate division adjudicated the petitioner’s ineffective assistance

claim on the merits, … the issue for this court is whether the state court unreasonably applied the

Strickland standard.” Davis v. Mantello, 42 F. App’x 488, 491 (2d Cir. 2002) (citing Lindstadt v.

Keane, 239 F.3d 191, 198 (2d Cir. 2001); Loliscio v. Goord, 263 F.3d 178, 193 (2d Cir. 2001)).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged

test for deciding ineffective assistance claims. To satisfy the first prong, “the defendant must

show that counsel’s representation fell below an objective standard of reasonableness” and “must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 688–89. To satisfy the second prong, a

petitioner must demonstrate “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The

Supreme Court defines “reasonable probability” as “a probability sufficient to undermine

confidence in the outcome.” Id. As the Second Circuit has stated, “[t]he level of prejudice the

defendant need demonstrate lies between prejudice that ‘had some conceivable effect’ and

prejudice that ‘more likely than not altered the outcome in the case.’” Linstadt, 239 F.3d at 204

(quoting Strickland, 466 U.S. at 693).

Moreover, the Supreme Court has emphasized that when a petitioner brings a claim

for ineffective assistance of counsel, “AEDPA review is doubly deferential, because counsel is

strongly presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Woods v. Etherton, 136 S.Ct. 1149, 1151

(2016); Burt v. Titlow, 571 U.S. 12, 15 (2013) (explaining that the doubly deferential standard of

review must give “both the state court and the defense attorney the benefit of the doubt”).

In arguing that his attorney provided ineffective assistance of counsel, Smith alleges that

his lawyer failed to object to the use of the Rikers calls to impeach him, failed to request a

limiting instruction, failed to challenge two jurors during voir dire, and focused his defense on

the lesser count of assault. These claims can be attributed to defense counsel’s trial strategy,

which is entitled to the “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Acevedo v. Capra, 600 F. App’x 801, 802–03 (2d Cir.

2015). “Actions or omissions by counsel that ‘might be considered sound trial strategy’ do not

constitute ineffective assistance.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)

(quoting Strickland, 466 U.S. at 689); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (“counsel

must have ‘wide latitude’ in making tactical decisions”) (citing Strickland, 466 U.S. at 489).

Smith has failed to overcome the “strong presumption” that his counsel’s failure to

object, failure to request a limiting instruction, or failure to challenge two jurors “derived …

from trial strategy.” Acevedo, 600 F. App’x at 802–03. Indeed, “decisions such as when to

object and on what grounds are primarily matters of trial strategy and tactics, and thus are

virtually unchallengeable absent exceptional grounds for doing so.” Broxmeyer v. United

States, 661 F. App’x 744, 748 (2d Cir. 2016) (quoting United States v. Cohen, 427 F.3d 164, 170

(2d Cir. 2005)). Smith cannot prevail on this claim simply because he disagrees with the specific

trial tactics his attorney used. Smith’s argument that his attorney focused on the assault charge

rather than the attempted murder charge was also a trial strategy entitled to deference. “When

counsel focuses on some issues to the exclusion of others, there is a strong presumption that he

did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1,

5 (2003) (citing Strickland, 466 U.S. at 690).

Smith’s argument that his defense counsel “displayed a lack of understanding of law as it

applied” is not supported by the record. Smith’s attorney referred to the incorrect standard only

once during the trial and he apologized to the court for doing so. (Ex. 7 at 147.) Furthermore,

the record reflects that defense counsel made sound objections and arguments at Smith’s pretrial

hearings and at trial. Defense counsel obtained a favorable Sandoval ruling, (Ex. 3 at 62–79,)

effectively cross-examined the People’s witnesses, requested an adverse inference charge, (Ex. 6

at 153–55,) called an eyewitness who testified that Smith did not instigate the fight, (Ex. 7 at 34–

43,) sought to put on an investigator to refute the testimony of an eyewitness, (Ex. 7 at 25–31,)

and made both an opening statement and a summation that urged the jury to reject the testimony

of the eyewitnesses and to find Smith not guilty. (Ex. 4 at 41–42; Ex. 8 at 17–46.) Furthermore,

defense counsel repeatedly argued to have Smith’s bail status reinstated.3 (Ex. 4 at 2–4; Ex. 6 at

2–3; Ex. 7 at 49–51.) Defense counsel also argued at sentencing that Smith had not received a

fair trial because he was not allowed to call a witness to challenge Powell’s testimony and argued

for a lesser sentence. (Ex. 8 at 149–51, 159–62.)

3 Smith was out on bail during the initial pretrial proceedings, but the trial judge revoked his bail when Smith

showed up to court 15 minutes late after a lunch break. (Ex. 3 at 206–08.)

Smith’s argument that his attorney failed to review McDuffie’s medical records in which

McDuffie “stated he was not sure if the gun was a regular gun or a BB gun,” and used derogatory

language, such as “perp,” “punk,” “philanderer,” and “pigeon” in reference to Smith, do not

support his claim of ineffective assistance of counsel. See Edwards v. Greiner, No. 03-CV-6124

(NGG), 2006 WL 2355845, at *10 (E.D.N.Y. Aug. 15, 2006) (“Petitioner’s claim that his

counsel at sentencing was ineffective for making comments that undermined his purported plea

for leniency and disparaged his client is without merit because his counsel’s comments at

sentencing, considered in their totality, were not professionally unreasonable.”). Smith has failed

to show how defense counsel’s purported errors would have changed the outcome of the trial,

especially given the testimony of two eyewitnesses and the ballistics evidence supporting his

conviction. Defense counsel’s conduct was not outside the wide range of professional competent

assistance. Nor were counsel’s errors, if any, “so serious that counsel was not functioning as

‘counsel’ guaranteed by the Sixth Amendment.” See Strickland, 466 U.S. at 687. The Appellate

Court found that Smith’s defense counsel “provided meaningful representation,” Smith, 131

A.D.3d at 1274, and the Court does not find that conclusion unreasonable. Accordingly, Smith

fails to establish that he received ineffective assistance of counsel.

D. Excessive Sentence

Smith alleges that his sentence of 23 years’ incarceration and five years of post-release

supervision exceeds the 25-year statutory maximum for attempted murder in the second degree

in violation of the Eighth and Fourteenth Amendments. (Pet. at 12.) The Appellate Division held

that the sentence imposed was not excessive. Smith, 131 A.D.3d at 1275.

As an initial matter, this claim is unexhausted because any constitutional challenges to

Smith’s sentencing were not “fairly presented” to the state courts on direct appeal. Smith’s

appellate brief presented a challenge to his sentence in terms of state law, specifically arguing

that N.Y. CRIM. PROC. § 470.15(3)(c) permits the state court to modify the sentence “in the

interest of justice” and he did not challenge his sentence at all in his leave application. (Br. Def.

Appellant; Criminal Leave Appl., Ex. 2 to Resp’t Resp. (Doc. No. 9-2).) It is well-established

“that a petitioner’s reliance on a state procedural law granting courts discretionary authority to

reduce sentences does not fairly present a federal constitutional claim in state court.” Bell v.

Ercole, 631 F. Supp. 2d 406, 418 (S.D.N.Y. 2009) (collecting cases); White v. Keane, 969 F.2d

1381, 1383 (2d Cir. 1992) (per curiam) (holding that a claim is unexhausted where a petitioner

alleges his prison sentence violated a federal constitutional right but failed to assert the claim

first in state court). Therefore, this claim is unexhausted.

Furthermore, even if addressed on its merits, Smith’s claim of excessive punishment fails

because his sentence fell within the range permitted under New York State law. See White, 969

F.2d at 1383 (“No federal constitutional issue is presented where … the sentence is within the

range prescribed by state law.”) Smith was convicted of attempted murder in the second degree

– a class B violent felony, see N.Y. Penal Law § 70.02(a)(1) – and assault in the third degree – a

class A misdemeanor, see N.Y. Penal Law § 120.00. He was sentenced to concurrent

determinate terms totaling 23 years’ imprisonment and five years of post-release supervision.

(Ex. 8 at 164–65.) Smith was sentenced as a second felony offender pursuant to N.Y. Penal Law

§70.06(6)(a), which provides in relevant part:

When the court has found, pursuant to the provisions of the criminal procedure

law, that a person is a second felony offender and the sentence to be imposed on

such person is for a violent felony offense, as defined in subdivision one of

section 70.02, the court must impose a determinate sentence of imprisonment the

term of which must be fixed by the court as follows:

(a) For a class B violent felony offense, the term must be at least

eight years and must not exceed twenty-five years ….

N.Y. Penal Law § 70.06(6). Prior to April 1, 2019, the maximum term for a class A

misdemeanor was one year. See NY Penal Law § 70.15(1).

Smith’s 23-year sentence with five years of post-release supervision fell within the range

permitted by New York law. See Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); Dotsenko v.

Joseph, No. 18-CV-1640 (WFK), 2019 WL 4917952, at *5-6 (E.D.N.Y. Oct. 4, 2019) (rejecting

petitioner’s Eighth Amendment excessive sentence claim because sentence fell within New

York’s sentencing guidelines); Ocasio v. Brown, No. 09-CV-6592T (MAT), 2011 WL 1988787,

at *2 (W.D.N.Y. May 23, 2011) (rejecting petitioner’s claim that the imposition of a five-year

period of post release supervision combined with his term of imprisonment exceeded the

statutory maximum prison term in violation of his federal constitutional rights); Frazier v.

Marshall, No. 08-CV-1737 (RRM), 2012 WL 3800828, at *8 (E.D.N.Y. Sept. 2, 2012)

(“sentence was appropriately based on [petitioner’s] classification as a second felony offender”);

Thigpen v. Brown, No. 06-CV-3110 (NG) (VVP), 2008 WL 5110890, at *13 (E.D.N.Y. Dec. 2,

2008) (“When a sentence imposed is within the range prescribed by law, ‘a claim of excessive

punishment does not present a constitutional question necessary for habeas corpus reversal.’”)

(quoting Underwood v. Kelly, 692 F.Supp. 146, 152 (E.D.N.Y. 1988)). Thus, Smith suffered no

federal constitutional violation and his excessive sentence claim is denied.

CONCLUSION

For the reasons set forth above, the instant petition for a writ of habeas corpus is denied

and this action is dismissed. A certificate of appealability shall not issue because Smith has not

made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

The Clerk of Court is directed to enter judgment in accordance with this Memorandum and

Order, mail a copy of the judgment and this Memorandum and Order to Smith, note the mailing

on the docket sheet, and close this case.

SO ORDERED.

Dated: Brooklyn, New York

January 11, 2021 Roslynn R. Mauskopf

____________________________________

ROSLYNN R. MAUSKOPF

Chief United States District Judge