Robinson v. Morton

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Christopher Robinson,

Petitioner,

MEMORANDUM & ORDER

-against-

18-cv-3214 (KAM)

Robert Morton,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Petitioner Christopher Robinson (“Petitioner”),

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

habeas corpus on January 3, 2020, challenging the

constitutionality of his March 3, 2013 state court conviction in

the Supreme Court of Nassau County, for robbery in the first

degree, burglary in the first degree, robbery in the second

degree, criminal possession of a weapon in the second degree,

burglary in the second degree, criminal possession of a weapon

in the third degree, and assault in the second degree. (ECF No.

16, Amended Petition for Writ of Habeas Corpus (“Am. Pet.”).)

On April 17, 2013, Robinson was sentenced to concurrent terms of

imprisonment, aggregating twelve years, followed by five years

of post-release supervision. (ECF No. 5-17, Sentencing Hearing

Minutes at 12-13.) The petitioner asserts that the conviction

violates his constitutional rights because: (1) the suggestive

show-up1 identification procedures conducted in his case were

impermissible and contrary to Supreme Court precedent in United

States v. Wade, 388 U.S. 218 (1967) and Foster v. California,

394 U.S. 440 (1969); (2) trial counsel failed to raise the

issues of perjury and a violation of Brady v. Maryland, 373 U.S.

83 (1963); (3) petitioner received ineffective assistance of

trial counsel; (4) petitioner received ineffective assistance of

appellate counsel; and (5) trial counsel was ineffective in

notifying petitioner of a favorable plea offer. (Am. Pet. at 5-

14; 40.) Robert Morton, the nominal respondent (“Respondent”),

opposes the motion as not cognizable, procedurally barred, and

without merit. (See generally, ECF No. 19, Memorandum in

Opposition to Amended Petition for Writ of Habeas Corpus

(“Opp.”).) The court agrees with Respondent. For the foregoing

reasons, the petition is respectfully denied in its entirety.

BACKGROUND

I. Factual Background

Petitioner was convicted in connection with a burglary

committed on the evening of December 27, 2011. (ECF No. 5-16,

Trial Transcript, 1647-1654.)2 Wallace Jackson and Tanajia

1 “A show-up is an identification procedure in which, unlike in a lineup or

photo array, the suspect is presented singly to the crime victim.” Michael D.

Cicchini & Joseph G. Easton, Reforming the Law on Show-Up Identifications,

100 J. Crim. L. & Criminology 381 (2010).

2 The trial transcript is available on the docket at ECF Nos. 5-3, 5-4, 5-5,

5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 5-12, 5-13, 5-14, 5-15, 5-16, and

Levins, the two victims of the crime, were in Jackson’s second-

floor bedroom watching a basketball game when Jackson heard

noise coming from downstairs. (ECF No. 5-9, Trial Transcript,

687-688.) Jackson called his sister, Denise, to ask if she was

home, before he started walking down the stairs. (Id. at 688-

689.) Jackson was on the phone with his sister when he saw

someone on the first floor of the house. (Id. at 689-690.)

Jackson told his sister there was someone in the house and that

she should call the police. (Id. at 690.) Jackson then ran up

the stairs to his room and locked the door as he heard someone

follow him up the stairs. (Id. at 690-691.)

Petitioner and co-defendant Theodore Jerry began

banging and kicking on Jackson’s locked bedroom door. (Id. at

691.) After they burst through the door, Petitioner and Jerry

told Jackson and Levins to lay on the floor, face down. (Id. at

695.) Petitioner and Jerry then began ransacking the room,

flipping boxes, opening drawers, and demanding money from

Jackson. (Id. at 697.) Petitioner struck Jackson in the head

with his weapon multiple times, while Jerry held Levins at

gunpoint. (Id. at 699-701.) Petitioner ordered Jackson to

empty his pockets, taking $1,130 and to surrender his earrings.

(Id. at 697-699.) Jerry and Petitioner covered both Jackson and

continuously paginated from pages 1 – 1660. The court will hereinafter

reference the transcript by the caption “Tr.”

Levins with a mattress before heading downstairs and leaving the

house. (Id. 704-705.)

Minutes after responding to the 911 call from Denise

(Jackson’s sister), Police Officers Vincent Conlon and Gerald

Estime saw the Petitioner and Jerry leaving the house. (ECF No.

5-7, 358; 361-390.) Officer Estime began a pursuit on foot,

while Officer Conlon remained at the house. (Id. 361-390.)

Officer Conlon transmitted information via radio about the

incident from his cruiser and spoke briefly to Jackson and

Levins outside the home. (Id. 390-391.) Once apprehended,

Petitioner was found to be in possession of the same amount of

money that was stolen and was identified as the owner of the gun

that had been tossed while fleeing the scene. (ECF No. 5-8,

641-648.) Jerry was also apprehended, and police found a loaded

gun as well as Levins’ cell phone on him. (Id. 519-531.)

After Petitioner and Jerry were apprehended, the

police conducted a showup, which took place thirty minutes after

police arrived at the scene of the crime. (ECF No. 5-7, 392-

393; ECF No. 5-8, 484.) An officer brought Jackson to where

Petitioner had been arrested and Jackson identified Petitioner

as one of the men who broke into his home. (ECF No. 5-9, 714-

716.) Officer Conlon brought Levins to the scene of the arrest,

but she did not make an identification because it was too

bright. (ECF No. 5-8, 472-476; 485.) Shortly thereafter,

Officer Conlon brought Levins back to the location where

Petitioner was arrested and Levins was able to identify

Petitioner while he was handcuffed, standing next to a police

car. (ECF No. 5-8, 472-485; ECF No. 5-11, 1078-1081.)

Following a jury trial in Nassau County Supreme Court,

Petitioner was convicted on March 3, 2013 of robbery in the

first degree, burglary in the first degree, robbery in the

second degree, criminal possession of a weapon in the second

degree, burglary in the second degree, criminal possession of a

weapon in the third degree, and assault in the second degree.

(ECF No. 5-16, 1647-1654.) On April 17, 2013, he was sentenced,

as a repeat violent felony offender, to concurrent terms of

imprisonment aggregating twelve years, followed by five years of

post-release supervision. (ECF No. 5-17, Sentencing Hearing

Minutes at 12.)

II. The Direct Appeal

On March 24, 2015, Petitioner appealed his verdict to

the New York Supreme Court, Appellate Division, Second

Department (“Appellate Division”). (See ECF No. 5-18, Brief for

Appellant.) Petitioner alleged the following: (1) he was denied

due process and deprived of a fair trial because the prosecution

failed to disclose, prior to the suppression hearing, that one

of the complainants had seen, but failed to identify Petitioner

during the first of two showup procedures; (2) the trial court

erred in failing to reopen the Wade hearing; (3) the prosecution

improperly shifted the burden during summation; (4) testimony by

a police witness constituted improper bolstering; (5) a police

witness committed perjury and the prosecutor suborned the

prejured testimony; (6) the verdict was against the weight of

the of the evidence; and (7) certain counts in the indictment

were multiplicitious. (See Id. at 1-3.)

On April 6, 2016, the Appellate Division affirmed the

judgment of the Nassau County Supreme Court. (ECF No. 5-21,

Appellate Division Decision.) The Appellate Division ruled that

Petitioner improperly relied on trial testimony to challenge the

Nassau County Supreme Court’s determination denying suppression

of the showup identification evidence. (Id. at 1.) Petitioner

contended that he was denied due process and deprived of a fair

trial because the prosecution failed to disclose, prior to the

suppression hearing, that one of the complainants failed to

identify the petitioner during the first of the two showup

procedures. (Id. at 1-2.) The Appellate Division determined

that the evidence of Petitioner’s guilt, even without the

testimony of the victim’s identification at the second showup,

was “overwhelming,” and thus the error was harmless beyond a

reasonable doubt because “there was no reasonable possibility

that the error might have contributed to the defendant’s

conviction.” (Id. at 2.)

As to Petitioner’s claim that his trial counsel was

ineffective because he failed to introduce Tanajia Levins’ grand

jury testimony into evidence, which allegedly would have led to

a mistrial, the Appellate Division ruled that a mistrial was not

warranted and that Petitioner failed to preserve this argument

for appellate review. (Id.) The Appellate Division further

held that Petitioner failed to preserve for appellate review the

following arguments: that the trial court erred in failing to

re-open the Wade hearing; that certain testimony by a police

witness constituted improper bolstering; that a police witness

committed perjury and that the prosecutor suborned it; and that

certain counts in the indictment were multiplicitous. (Id. at

1-3.)

On May 3, 2016, Petitioner moved for leave to appeal

to the New York Court of Appeals (“Court of Appeals”), where he

raised six grounds for review by the court and requested an oral

hearing on his application via telephone. (See ECF No. 5-22,

Criminal Leave Application.) On September 26, 2016, the Court

of Appeals denied leave to appeal. (See ECF No. 5-24, Order

Denying Leave.)

III. Writ of Error Coram Nobis Motion

On September 5, 2017, Petitioner filed a pro se motion

for a writ of error coram nobis in the Appellate Division,

alleging that he was denied effective assistance of appellate

counsel. (See ECF No. 5-25, Notice of Motion.) Petitioner

argued that his appellate counsel was ineffective because he

failed to raise the following arguments against Petitioner’s

trial counsel: failure to re-open the Wade hearing, (Id. ¶¶ 11-

16), failing to call Levins as a witness at the Wade hearing,

(Id. ¶¶ 17-22), and failing to preserve for appellate review

certain “trial errors,” which had the cumulative effect of

denying Petitioner a fair trial. (Id. ¶¶ 23-24.) On January

24, 2018, the Appellate Division denied Petitioner’s ineffective

assistance of counsel claim. (See ECF No. 5-28, Decision and

Order.) On April 30, 2018, the Court of Appeals denied leave to

appeal from the Appellate Division’s decision. (See ECF No. 5-

30, Order Denying Leave.)

IV. Writ of Habeas Corpus

On May 30, 2018, Petitioner filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2254. (See generally

Pet.) Petitioner asserted his constitutional rights were

violated because: (1) he was denied due process in violation of

his Fifth and Fourteenth Amendment rights because of police and

prosecutorial misconduct, Brady violations, and C.P.L. § 710.30

violations; (2) he was denied effective assistance of counsel in

violation of the Sixth Amendment; and (3) the police lacked

probable cause to arrest Petitioner in violation of the Fourth

Amendment. (Id.) Respondent opposed this motion. (See ECF No.

5, Memorandum of Law in Opposition.) On September 27, 2018,

Petitioner requested that this court hold the habeas corpus

proceedings in abeyance while he attempted to raise two new

claims related to his ineffective assistance of counsel claim

and prosecutorial misconduct claim in state court. (See ECF No.

4, Motion to Compel the Court to Issue an Order Holding the

Petition for Habeas Corpus in Abeyance.) On May 1, 2019, the

Petitioner’s request for a stay was granted and the Court

directed Petitioner to file his motion under § 440.10 in state

court. (Dkt. Order, 5/1/2019.)

V. 440.10 Motion

In January 2019, Petitioner filed a motion to vacate

his conviction and sentence pursuant to C.P.L. § 440.10 on three

grounds. (See ECF No. 19-1.) Specifically, Petitioner

contended that: (1) his due process rights were violated because

of police and prosecutorial misconduct, Brady violations, and

C.P.L. § 710.30 violations, (Id. at 7-9); (2) Petitioner’s trial

counsel failed to consult with Petitioner regarding a favorable

plea offer prior to rejecting said offer, (Id. at 9-10); and

(3) Petitioner’s counsel was ineffective after the victim

testified in a way defendant believed to be inconsistent with

her grand jury testimony and counsel's sole action was to move

for the preclusion of the victim's in-court identification.

(Id. at 6-8.) Petitioner attempted to support his second

contention regarding the plea offer with affidavits from his

brother, mother, and friend, all of whom claimed that they heard

Petitioner’s trial counsel reject the plea offer without

consulting with Petitioner. (See ECF No. 19-2. at 20-22.)

Respondent opposed the § 440.10 motion, arguing that

two of the Petitioner’s claims were procedurally barred and all

lacked merit. (ECF No. 19-3, Opposition at ¶ 25.) Respondent

argued that although defense counsel declined to submit an

affirmation against his former client, defense counsel had not

rejected any plea offer without consulting his client. (Id. at

¶ 26.) Further, Assistant District Attorney Brian Lee, who

tried the case, affirmed that he would not have authorized the

alleged plea offer to defendant. (Id.)

On March 22, 2019, the Nassau County Supreme Court

denied Petitioner’s motion. (See generally ECF No. 19-17,

Decision and Order.) The court held Petitioner had not

establish he was denied effective assistance of counsel and that

he was procedurally barred from pursuing claims already raised

pursuant to C.P.L. § 440.10 (2)(a). (Id. at 3.) On August 26,

2019, the Appellate Division denied leave to appeal. (See ECF

No. 19-35, Decision and Order on Application.) On November 14,

2019, the Court of Appeals dismissed Petitioner’s attempt to

appeal the Appellate Division’s denial. (See ECF No. 19-37,

Order Dismissing Leave.)

VI. Amended Writ of Habeas Corpus

On January 3, 2020, Petitioner filed the instant

amended petition for habeas relief under U.S.C. § 2554. (See

generally Am. Pet.) The Petitioner asserts his conviction

violated his constitutional rights because: (1) the suggestive

show-up identification procedures conducted in his case were

impermissible and contrary to Supreme Court precedent in United

States v. Wade, 388 U.S. 218 (1967) and Foster v. California,

394 U.S. 440 (1969); (2) trial counsel failed to raise the

issues of perjury and a violation of Brady v. Maryland, 373 U.S.

83 (1963); (3) petitioner received ineffective assistance of

trial counsel; (4) petitioner received ineffective assistance of

appellate counsel; and (5) trial counsel was ineffective in

notifying petitioner of a favorable plea offer. (Am. Pet. at 5-

14; 40.) On August 27, 2020, respondent filed an affidavit and

memorandum of law in opposition to the petition, arguing that

petitioner’s claims are procedurally barred and entirely without

merit. (See generally Opp.) Petitioner replied to Respondent’s

Opposition on September 23, 2020. (ECF No. 20, Petitioner’s

Reply.)

LEGAL STANDARD

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

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

an application for a writ of habeas corpus by a person in

custody pursuant to a state court judgment may only be brought

on the grounds that his or her custody is “in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). A habeas petitioner is required to show that

the state court decision, having been adjudicated on the merits,

is either “contrary to, or involved an unreasonable application

of, clearly established Federal law” or was “based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d);

see also Johnson v. Williams, 568 U.S. 289 (2013).

For the purposes of federal habeas review, “clearly

established law” is defined as “the holdings, as opposed to the

dicta, of [the Supreme] Court’s decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S.

362, 412 (2000). A state court decision is “contrary to,” or an

“unreasonable application of,” clearly established law if the

decision: (1) is contrary to Supreme Court precedent on a

question of law; (2) arrives at a conclusion different than that

reached by the Supreme Court on “materially indistinguishable”

facts; or (3) identifies the correct governing legal rule but

unreasonably applies it to the facts of the petitioner’s

case. Id. at 412-13. Factual determinations made by the state

court are presumed to be correct, and the petitioner bears the

burden of rebutting the presumption of correctness by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

State procedural default or failure to exhaust state

court remedies will operate as a bar to review unless the

petitioner can (1) establish cause for his default and actual

prejudice resulting from the alleged violation of federal law,

or (2) demonstrate that the failure to consider the petitioner's

claims would result in a fundamental miscarriage of justice. See

Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012); Carvajal

v. Artus, 633 F.3d 95, 104 (2d Cir. 2011).

A petitioner may fulfill the cause requirement in two

related ways. First, the petitioner can demonstrate that “some

objective factor, external to Petitioner’s defense, interfered

with his ability to comply with the state’s procedural rule.”

Gutierrez, 702 F.3d at 111 (citing McClesky v. Zant, 499 U.S.

467, 493 (1991)). Alternatively, the petitioner can establish

cause by demonstrating futility — specifically, that “prior

state case law has consistently rejected a particular

constitutional claim.” Id. (citing DiSimone v. Phillips, 461

F.3d 181, 191 (2d Cir. 2006)). To establish prejudice, the

petitioner must demonstrate that the alleged error resulted in

“actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions.” Torres v. Senkowski,

316 F.3d 147, 152 (2d Cir. 2003) (internal quotation marks and

citation omitted).

Even if the petitioner is unable to establish cause

and prejudice, the court may excuse the procedural default if

petitioner can show that a fundamental miscarriage of justice

would result, i.e., “that he is actually innocent of the crime

for which he has been convicted.” Dunham v. Travis, 313 F.3d

724, 730 (2d Cir. 2002) (citations omitted). “‘[A]ctual

innocence’ means factual innocence, not mere legal

insufficiency.” Id. (quoting Bousley v. United States, 523 U.S.

614, 623 (1998)) (alteration in original, internal quotation

marks omitted).

In reviewing the instant petition, the court is

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

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

must be held to less stringent standards than formal pleadings

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

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

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

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

Consequently, the court is obliged to interpret petitioner’s

pleadings as raising the strongest arguments they suggest.

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

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

Williams, 722 F.2d at 1050).

DISCUSSION

I. Suggestive Show-Up Identification

Petitioner’s claim that the showup was impermissible

and contrary to Supreme Court precedent in United States v.

Wade, 388 U.S. 218 (1967), and Foster v. California, 394 U.S.

440 (1969), fails as the state appellate court’s determination

on independent and adequate state law grounds bars review.

“[I]t is a well-established principle of federalism that a state

decision resting on an adequate foundation of state substantive

law is immune from review in the federal courts.” Wainwright v.

Sykes, 433 U.S. 72, 81 (1977). In Harris v. Reed, the Supreme

Court held that a court shall not consider an issue of federal

law on direct review of a state court judgment in federal habeas

corpus proceedings pursuant to 28 U.S.C. § 2254 if that judgment

rests on a state-law ground that is both “independent” of the

merits of the federal claim and an “adequate” basis for the

court’s decision. Harris v. Reed, 489 U.S. 255, 261-62 (1989).

On direct appeal, the Appellate Division found that

Petitioner was not denied a fair trial despite the People’s

failure to disclose, prior to the suppression hearing, that one

of the victims had seen him, but failed to identify Petitioner

during the first of two showup procedures. (See ECF No. 5-21 at

1-2.) The Appellate Division held that the People had violated

the provisions of C.P.L. 710.30 by not providing Petitioner with

notice of the first showup procedure, but reasoned that the

violation was harmless beyond a reasonable doubt, because the

evidence of Petitioner’s guilt, without the testimony of the

victim’s identification at the second showup, was overwhelming.

(Id.; citing People v. Lopez, 84 N.Y.S.2d 425.) Accordingly,

petitioner’s claim with respect to the suggestiveness of the

showup was decided on independent and adequate state law

grounds, and this court is barred from reviewing it in the

instant habeas action.

Petitioner also asserted that the trial court erred in

failing to re-open the Wade hearing or declaring a mistrial due

to the suggestiveness of the showup identification. (Id.) The

Appellate Division rejected petitioner’s claim, ruling that “the

defendant ‘failed to demonstrate that he discovered additional

facts, not discoverable with reasonable diligence before the

determination of the motion, that would have affected the

court’s ultimate determination of the suppression motion.’”

(Id.) (citing People v. Ekwegbalu, 15 N.Y.S.3d 847; People v.

Clark, 88 N.Y.S.2d 552, 555; People v. Fuentes, 53 N.Y.S.2d 892,

894; CPL § 710.40[4].) Based on the Appellate Division’s

determination, this court is procedurally barred from reviewing

the suggestiveness of the showup claim.

Even if the suggestive showup claim were reviewable by

this court, it is meritless. Evaluating a pretrial

identification procedure requires a two-step analysis. (See

United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994.) Under

the first prong, a court must determine whether the

identification process was impermissibly suggestive. (Id.) The

second prong requires the court to determine if the

identification process was impermissibly suggestive, whether it

was so suggestive as to raise a very substantial likelihood of

irreparable misidentification. (Id.) In sum, the

identification evidence will be admissible if the procedures

were not suggestive, or the identification has an independent

basis. (See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil

v. Biggers, 409 U.S. 188, 199 (1972).)

The court looks generally to the factors set out in

Biggers in determining whether an identification is reliable

including: (1) the opportunity of the witness to view the

criminal at the time of the crime; (2) the witness’ degree of

attention; (3) the accuracy of witness’ prior description of the

criminal; (4) the level of certainty demonstrated at the

confrontation; (5) and the length of time between the crime and

the confrontation. (Id.) The Petitioner argues that after

weighing these factors, the identification of Ms. Lewis and Mr.

Jackson have no independent reliability. (See Am. Pet. at 20.)

Specifically, Petitioner contends that because he was

handcuffed, surrounded by as many as six uniform police

officers, and placed next to a marked police vehicle and

standing in a spotlight, the show-up procedure was unduly

suggestive. (Am. Pet. at 18.) Officer Conlon first brought Ms.

Levins to Petitioner’s location where he was arrested, but

Conlon testified the location was too chaotic and that it was

too bright for Ms. Levins to make an identification. (ECF No.

5-8, Tr. 472-476; 485.) It was only shortly after when the

second show-up occurred that both victims were able to see

clearly and identify the Petitioner. (Id.) Showup procedures

are not rendered unduly suggestive as a matter of law merely

because a defendant is handcuffed and surrounded by police. See

United States v. Bautista, 23 F.3d 726, 730 (2d Cir.1994) (“The

fact that the suspects were handcuffed, in the custody of law

enforcement officers, and illuminated by flashlights also did

not render the pretrial identification procedure unnecessarily

suggestive.”).

Moreover, the showup identification procedure was

conducted in relatively close temporal and geographic proximity

to the crime. Officer Leone chased Petitioner from the scene of

the crime, and Petitioner threw his gun on the ground as he

fled. (ECF No. 5-10, 951-959.) Officer Leone was able to

apprehend Petitioner a few blocks away from the victim’s home as

Petitioner tried to clear a fence and Officer Leone recovered a

“bundle of cash” from Petitioner, as well as a phone, hat, and

gloves. (Id. 951-965.) Petitioner’s consciousness of guilt

demonstrated by his attempt to flee and fight the police

strongly supported his conviction. See United States v. Al-

Sadawi, 432 F.3d 419, 425 (2d Cir. 2005) (quoting United States

v. Silverman, 861 F.2d 571, 582 n. 4 (9th Cir.1988) (“[e]vidence

that a defendant fled immediately after a crime was committed

supports an inference that the flight was motivated by a

consciousness of guilt of that crime.”). The Appellate Division

held “this was not a case where all of the evidence of guilt

comes from a single prosecution witness who gives irreconcilable

testimony pointing to both guilt and innocence, and where the

jury is left without basis, other than impermissible

speculation, for its determination of either.” (See ECF No. 5-

21 at 2.) In fact, the Appellate Division further held the

evidence against Petitioner was so overwhelming even if there

had been error related to Ms. Levins’ identification, it was

harmless. (Id.) Therefore, the state court's decision that the

showup identification was not unduly suggestive is entitled to

deference.

Finally, Petitioner’s reliance on United States v.

Wade, 388 U.S. 218 (1967) and Foster v. California, 394 U.S. 440

(1969) to support his contention that the showup was unduly

suggestive, is misguided. Petitioner’s Amended Complaint does

not articulate why the lower’s court decision is contrary to the

precedent set forth in Wade. The court assumes that Petitioner

takes issue with trial counsel’s alleged failure to re-open the

Wade hearing.

“Under New York law, the trial court has discretion to

reopen a Wade hearing if additional pertinent facts are

discovered that could not have been discovered with reasonable

diligence before the Wade determination and that go to the issue

of official suggestiveness such that they would materially

affect or have affected the earlier Wade determination.” Lynn v.

Bliden, 443 F.3d 238, 249 (2d Cir.2006) (internal quotation

marks and citations omitted). Moreover, “[i]n prior habeas

cases in which there were claims of ineffective assistance of

counsel for failing to request a Wade hearing, [the Second

Circuit] has demanded some showing of the likelihood for success

at the hearing.” Id. As already determined by the Appellate

Division, there is nothing in the record to suggest that, had

the Wade hearing been reopened due to new evidence, the court

would have suppressed evidence related to Petitioner's arrest

and/or identification due to improper police procedure. See,

e.g., id. Furthermore, Petitioner cannot establish that he was

prejudiced by trial counsel's failure to move to re-open

the Wade hearing because, as previously discussed, the show-up

identification was not unduly suggestive thereby giving police

probable cause to arrest Petitioner.

Petitioner appears to refer to Foster v. California to

support his argument that “the Courts of this State should not

condone such a suggestive practice [showup identifications] that

has a dangerous propensity to create a false identification.”

(Am. Pet. at 1.) In Foster, the Supreme Court held that an

identification procedure is suggestive where it “in effect ...

says to the witness ‘This is the man.’” Foster v. California,

394 U.S. 440, 443 (1969). The Appellate Division explained “the

identification testimony was not incredible as a matter of law”

and even if the showup was suggestive, “this was not a case

where all of the evidence of guilt comes from a single

prosecution witness who gives irreconcilable testimony pointing

to both guilt and innocence.” (ECF No. 5-21 at 2.) For the

reasons stated, Petitioner’s claim of a suggestive showup

identification fails.

II. Brady Determination

On direct appeal, the Appellate Division found that

there was no violation of Brady v. Maryland, 373 U.S. 83 (1963)

because the failure to disclose, prior to the suppression

hearing, that one of the complainants had seen him but failed to

identify him during the first of two show-up procedures, would

not have affected the ultimate issues in question. (See ECF No.

5-21 at 1-2.) Petitioner urges this court to overturn the

Appellate Division’s finding that there was no Brady violation,

and that even though the Appellate Division acknowledged the

People violated C.P.L. 710.30, no recourse was given to

Petitioner. (Am. Pet. at 7.) The Respondent argues that the

court should uphold the Appellate Division’s ruling. (Opp. ¶

29.)

In a criminal matter, the prosecution has the

obligation to disclose exculpatory evidence to the defendant.

Brady v. Maryland, 373 U.S. 83 (1967); Giglio v. United States,

405 U.S. 150, 154 (1972). A Brady violation consists of three

factors: (1) “[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory or impeaching;” (2)

“that evidence must have been suppressed by the State, either

willfully or inadvertently;” and (3) “prejudice must have

ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material and prejudice results 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).

Nondisclosure merits relief only if it “undermines confidence in

the outcome of the trial.” Kyles v. Whitly, 514 U.S. 419, 434

(1995) (citation and internal quotation marks omitted).

Construing the petition liberally, petitioner asserts

a claim pursuant to Brady regarding the People’s alleged failure

to notify Petitioner of the first show-up procedure in violation

of C.P.L. 710.30. (Am. Pet. at 6-7.) This claim is exhausted,

procedurally barred, and meritless. Petitioner already

unsuccessfully raised this Brady claim in his direct appeal and

in his CPL § 440.10 application, thus procedurally barring the

claim. Regardless, his claim is meritless because, as discussed

above, the evidence of Petitioner’s guilt, excluding the showup

identification, was overwhelming, and there was no reasonable

possibility “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).

III. Ineffective Assistance of Trial Counsel

Petitioner claims that he received ineffective

assistance of trial counsel. (Am. Pet. at. 23.) He argues his

trial counsel rendered deficient assistance that prejudiced the

result of his trial chiefly by not moving to reopen the Wade

hearing in addition to failing to adequately cross-examine

several prosecution witnesses, failing to preserve meritorious

arguments for appellate review, and an overall failure to employ

basic principles of criminal law. (Id.)

Petitioner already raised this claim in his direct

appeal and in his C.P.L. § 440.10 application. The Court

considers claims of ineffective assistance of counsel upon de

novo review. “In order to prevail, [petitioner] must first

satisfy the prongs of Strickland on de novo review on the

merits.” Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010.)

A court reviewing a claim for ineffective assistance of counsel

on a writ of habeas corpus evaluates the two-part test. To

prevail on an ineffective assistance of counsel claim, a

petitioner must demonstrate: (1) that his counsel’s performance

was so deficient that it was objectively unreasonable under

professional standards prevailing at the time; and (2) that his

counsel’s deficient performance was prejudicial to the

petitioner’s case. Strickland v. Washington, 466 U.S. 668, 687.

Petitioner may prove the first prong by showing that

counsel’s representation “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. However, a

reviewing court must be “highly deferential” and avoid “second

guess[ing]” counsel’s decisions so long as they are within the

“wide range of reasonable professional assistance.” Id. at 689.

Petitioner can demonstrate prejudice by establishing “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694. As explained above, Petitioner has failed to show

that counsel’s alleged error to not re-open the Wade hearing was

prejudicial and, thus, his claim fails. See supra at 19-20.

IV. Ineffective Assistance of Appellate Counsel

Petitioner claims that he received ineffective

assistance of appellate counsel. (Am. Pet. at. 28.) He argues

that his appellate counsel rendered deficient assistance because

he raised five claims, which were unpreserved for appellate

review. (Id. at 29.) Further, Petitioner argues his appellate

counsel challenged the conviction based, in part, on trial

testimony despite New York law establishing the impermissibility

of using trial testimony to challenge a trial court’s

determination on direct appeal. (Id.) This claim was raised in

Petitioner’s coram nobis petition, and on January 24, 2018, the

Appellate Division denied the petition because the Petitioner

“failed to establish that he was denied the effective assistance

of appellate counsel.” (See ECF No. 5-28.)

The Strickland test applies to appellate as well as

trial counsel; a petitioner alleging ineffective assistance of

appellate counsel must prove both that appellate counsel was

objectively unreasonable in failing to raise a particular issue

on appeal, and that absent counsel’s deficient performance there

was a reasonable probability that defendant’s appeal would have

been successful. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533

(2d Cir. 1994). Appellate counsel is not required to raise

every colorable claim urged by the client, but is entitled to

focus on key issues while “winnowing out weaker arguments.” See

e.g., Jones v. Barnes, 463 U.S. 745, 751–53 (1983). Reviewing

courts should not second guess the reasonable professional

judgments of appellate counsel as to the most promising appeal

issues. Id. at 754. A habeas petitioner may establish

constitutionally inadequate performance of appellate counsel

only by showing that appellate counsel “omitted significant and

obvious issues while pursuing issues that were clearly and

significantly weaker.” Mayo, 13 F.3d at 533.

On direct appeal, appellate counsel argued that trial

counsel was ineffective because he failed to: raise issues of

perjury, raise a Brady violation, move for a mistrial, and move

for dismissal of numerous counts in the indictment as

multiplicitous. (See ECF No. 5-18 at 57.) The claims that

Petitioner now argues should have been raised on appeal are

devoid of merit or unpreserved for appellate review. Jones v.

Barnes, 463 U.S. 745 (1983) (holding that no “defendant has a

constitutional right to compel appointed counsel to press

nonfrivolous points requested by the client, if counsel, as a

matter of professional judgment, decides not to present those

points”). In fact, the Supreme Court has “recognized the

superior ability of trained counsel in the examination into the

record, research of the law, and marshalling of arguments on

[the appellant's] behalf” and noted that experienced appellate

advocates understand “the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if

possible, or at most on a few key issues.” Id. at 751–52.

In sum, the Appellate Division’s holding that

Petitioner did not receive ineffective assistance of appellate

counsel when his attorney did not raise all of the issues

Petitioner sought to appeal was neither contrary to nor an

unreasonable applicable of Supreme Court precedent.

Petitioner's ineffective assistance of appellate counsel claim

is accordingly denied.

V. Plea Bargaining

Petitioner claims that his trial counsel improperly

failed to advise him a favorable plea offer and failed to

consult with him before rejecting the offer. (Am. Pet. at 40-

41.) Petitioner contends on or about February 13, 2013, the

Hon. Tammy Robbins conveyed a plea offer to defense counsel in

which the court offered an opportunity for Petitioner to plead

guilty to the minimum sentence on the weapon charge, which would

have been considerably less time than the previous offer of ten

years. (Id. at 41.) Petitioner argues he would have accepted

the plea offer and that his trial counsel rejected the offer

without consulting Petitioner or putting the offer on the

record. (Id.)

“[A]s a general rule,” failure to relay a plea offer

constitutes ineffective assistance of counsel. Missouri v.

Frye, 566 U.S. 134, 145 (2012). Petitioner provided affidavits

from his family and friend who said they witnessed the offer

being made. (See ECF No. 19-2. at 20-22.) Petitioner has not

produced a supporting statement from his former attorney, Andrew

Monteleone, Esq., to whom the offer was allegedly made. Mr.

Monteleone declined to address the allegations in a signed

affirmation against a former client, but Respondent asserts that

Mr. Monteleone refuted the allegations in a conversation with

the prosecutor’s office. (Opp. at 9.) Petitioner has failed to

produce any further evidence that the this considerably

favorable plea offer was ever made. Further, the Assistant

District Attorney, Brian Lee, the prosecutor who tried the case,

affirmed he would not have consented to such a plea offer, and

that if such an offer had been discussed in his presence, he

would have objected to it and insisted that the parties go on

record. (Id. at 10.) Plea deals are left to the discretion of

the prosecutor and, according to the prosecutor, Petitioner was

not entitled to receive a plea bargain. Lafler v. Cooper, 566

U.S. 156, 167, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398 (2012);

United States v. Fernandez–Dilone, 668 F. Supp. 245, 249

(S.D.N.Y. 1987).

Therefore, Petitioner has failed to meet his burden to

demonstrate that the plea offer was made, and that if it was

made, that his counsel failed to properly advise him of the

offer.

CONCLUSION

For the forgoing reasons, the petition for a writ of

habeas corpus is DENIED in its entirety. A certificate of

appealability shall not issue because petitioner has not made a

substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2). The clerk is respectfully directed to enter

judgment in favor of respondent, close this case, and send a

copy of this Memorandum and Order and the judgment to the

petitioner at his last known address and note service on the

docket.

SO ORDERED.

Dated: July 22, 2021

Brooklyn, New York

/s/

Hon. Kiyo A. Matsumoto

United States District Judge