# Huger v. Bell

> District Court, E.D. New York · January 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10307370

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
KEVIN HUGER,

Petitioner, MEMORANDUM & ORDER

- against – 20-cv-1196 (KAM)

E. BELL,

Respondent.
----------------------------------------X
MATSUMOTO, United States District Judge:
Pro se Petitioner Kevin Huger (“Petitioner”) is
incarcerated pursuant to a judgment of the Supreme Court, Kings
County, convicting him of kidnapping in the second degree (N.Y.
Penal Law § 135.20) and menacing in the third degree (N.Y. Penal
Law § 120.15). (See ECF No. 1, Petition for Writ of Habeas Corpus
(“Pet.”), at 1.) Petitioner filed this action on February 28,
2020, seeking habeas relief pursuant to 28 U.S.C. § 2254. (See
id.) For the reasons set forth below, Mr. Huger’s petition is
respectfully DENIED.
BACKGROUND
I. Facts
On March 11, 2010, at approximately 4:30 p.m.,

Petitioner went to Jalesa Rivers’s home in Brooklyn to retrieve
his belongings. (Trial Tr. at 69–71.)1 Rivers had ended their
year-and-a-half-long relationship the day before. (Id. at 61,
64.)
When Petitioner arrived, he and Rivers went upstairs to
speak privately. (Id. at 70-72.) Petitioner asked Rivers if she
and a man named Carl Ramah, a childhood friend of Rivers, were
dating. (Id. at 72, 276.) At some point during the conversation,
Ramah stopped by Rivers’s house. (Id. at 72–73.)
At trial, the jury was presented with two versions of
events that took place during Ramah’s visit. According to Rivers’s
trial testimony, Ramah initially remained downstairs while
Petitioner and Rivers continued to talk upstairs. (Id. at 72–73.)

Rivers testified that she and Petitioner then began to argue
because Petitioner accused her of cheating on him with Ramah. (Id.
at 73.) Rivers further testified that Ramah and Rivers’s mother,
upon hearing their argument, came upstairs to see what was going
on, at which point Petitioner threatened to kill Ramah, accusing

1 Numbers in parentheses preceded by “Trial Tr.” refers to pages of the Trial
Transcript. (ECF Nos. 8-1, 9, 10, 11, and 12, Trial Transcript.) Numbers in
parentheses preceded by “S.H. Tr.” refers to pages of the transcript of the
Sandoval hearing, dated June 26, 2012. (ECF No. 8, Sandoval Hearing
Transcript.)
Ramah of “l[ying] and disrespect[ing]” him. (Id. at 74.) Rivers
testified that Petitioner eventually left, and Ramah also left
about an hour thereafter. (Id. at 75–76.) Ramah, on the other

hand, testified that he was at Rivers’s house for less than five
minutes and that he did not hear any argument between Rivers and
Petitioner. (Id. at 324‒27.)
About two hours after leaving Rivers’s house, Petitioner
called Rivers and asked her to come outside to talk, and Rivers
agreed. (Id. at 77.) Approximately ten minutes later, Petitioner
arrived outside of Rivers’s house with his friend, Kevin Williams,
in Williams’s blue SUV with tinted windows. (Id. at 65–66; 77–
78; 125.) Petitioner was sitting in the front passenger seat and
Williams was driving. (Id. at 78–79.) Rivers got into the back
of the vehicle, and Williams drove away. (Id.)
As they were driving around, Petitioner told Rivers that
she had “one chance to explain [her]self.” (Id. at 79.) Rivers

told Petitioner that she had not lied to him nor cheated on him
with Ramah, but Petitioner did not believe Rivers. (Id.) Williams
then stopped the car and Petitioner stepped out to get in the back
with Rivers. (Id.) Petitioner grabbed Rivers by the neck, choked
her, and told her that he was going to kill her. (Id. at 79–80.)
At that point, Williams handed Petitioner a sock, from which
Petitioner pulled out a silver gun. (Id. at 80–81.) Petitioner,
while holding the gun, threatened to kill Rivers and dump her body
in Prospect Park. (Id. at 81.)
While Rivers was still riding in the SUV with Petitioner

and Williams, Ramah called her to ask if he could pick up his
jacket that he had left at her house. (Id. at 82.) Rivers told
Ramah that he could get it later and hung up the phone. (Id.)
Petitioner then instructed Rivers to call Ramah back and tell him
to come pick up his jacket, and Rivers complied.2 (Id. at 150‒
51.) Williams drove them back to Rivers’s house, where the three
waited outside for Ramah to arrive. (Id. at 84.)
When Ramah approached the house, Petitioner walked up to
him, grabbed him by the shirt, and told him, “we’re going to go
for a ride.” (Id. at 283–84.) Ramah resisted, and Petitioner
pulled out the silver gun from his pocket, put the gun against
Ramah’s head, and began to drag Ramah across the street towards

the SUV, at which point Rivers ran into her house to call 911.
(Id. at 284–86.) Once he had dragged Ramah to the SUV, Petitioner
opened a rear passenger door. (Id. at 286‒87.) Ramah continued
to struggle to break free, and Petitioner struck him on the back
of the head with the gun, knocking him unconscious. (Id.)

2 Rivers testified on direct that she called Ramah back, per Petitioner’s
instruction. (Id. at 83.) However, on cross, upon being shown the written
statement she made at the police precinct later that day, Rivers testified that
it was in fact Petitioner who called Ramah back and told him to come pick up
his jacket at Rivers’s house. (Id. at 148‒50.) Ramah testified, both on direct
and cross, that it was Rivers who called him back. (Id. at 281‒82; 327‒28.)
When Ramah came to, he was in the back of the SUV next
to Petitioner. (Id. at 287‒88.) Petitioner told Ramah that he
“messed up” and “need[ed] to pay for what [he] did.” (Id. at 289.)

Petitioner continued to threaten Ramah, telling him he was “not
going home tonight” and that his body would be dumped in Prospect
Park. (Id. at 290.) Petitioner also hit Ramah four or five times
in the face, neck, and chest. (Id. at 290–92.) After about twenty
minutes, Petitioner told Ramah that he would let Ramah go, and
Williams drove them back to Rivers’s house. (Id. at 291–92.)
Williams parked the SUV at the intersection of Lott Avenue and
Rockaway Avenue, approximately one block from Rivers’s house. (Id.
at 292–93.) Petitioner then called Rivers to tell her to meet
them where they were parked.3 (Id.)
Meanwhile, at approximately 8:00 p.m., Sergeant
Florencio Arquer and Police Officers Martinez and Shook reported
to Rivers’s house in response to 911 calls. (Id. at 200–01, 363–

64.) As Rivers was speaking with Sergeant Arquer, Petitioner
called Rivers and asked her to meet him at the intersection of
Rockaway Avenue and Livonia Avenue by the train station. (Id. at

3 Rivers testified on direct and cross that it was Petitioner who called to tell
her where to pick up Ramah. (Id. at 95‒98; 172.) Ramah testified on direct
that he called Rivers and told her to meet them at Lott and Rockaway. (Id. at
292‒93.) On cross, Ramah initially testified that while he was riding in the
SUV with Petitioner and Williams, Petitioner did not call Rivers. However,
upon his memory being refreshed with the transcript of his grand jury testimony,
Ramah testified that it was Petitioner who called Rivers to tell her where to
meet them. (Id. at 341‒42.)
95–96; 202–04.) Rivers passed this information on to Sergeant
Arquer. (Id.) Sergeant Arquer and other officers, along with
Rivers, canvassed for about half an hour the vicinity of Rockaway

and Livonia and Rivers’s house in unmarked cars, looking for the
SUV. (Id. at 204–08, 399–401.) After the search proved
unsuccessful, Sergeant Arquer decided to have Rivers call
Petitioner and meet with him, while Officers Martinez and Montas
trailed her on foot. (Id. at 205–09.) Sergeant Arquer instructed
Rivers to not enter the vehicle, no matter what happens, and
dropped her off. (Id. at 98; 209‒11.) After retrieving Ramah’s
jacket from her house, Rivers walked towards the corner of Lott
and Rockaway Avenues, where the SUV was parked. (Id. at 98‒99;
211.)
At first, Rivers stood outside the SUV, talking to
Petitioner, who was still sitting in the back with Ramah, through
an open window. (Id. at 102; 211–12; 343.) Petitioner told Rivers

to get in the car, so she got into the front passenger seat and
Williams drove off. (Id. at 102‒03; 174–75.) Officer Montas
informed Sergeant Arquer of what had happened, and Sergeant Arquer
immediately drove towards the intersection of Rockaway and Lott
Avenues. (Id. at 212‒13.) Sergeant Arquer saw the SUV stopped at
a red light and effectuated a car stop. (Id. at 213–14.) After
Williams pulled over, all four occupants of the SUV were taken out
of the car and detained. (Id. at 175–77, 213–18, 295–96.) Officer
Gonzalez searched the SUV and found the gun, which was loaded with
five rounds, under the front passenger seat. (Id. at 403–05.)
Rivers, Ramah, Williams, and Petitioner were arrested and taken to
the 73rd Precinct. (Id. at 296–97.)
II. The Trial

Petitioner was charged, on an acting in concert theory,
under Kings County Indictment Number 2177/2010, with kidnapping in
the second degree (N.Y. Penal Law § 135.20), unlawful imprisonment
in the second degree (N.Y. Penal Law § 135.05), criminal possession
of a weapon in the second degree (N.Y. Penal Law § 265.03(3)), two
counts of menacing in the second degree (N.Y. Penal Law §
120.14(1)), two counts of menacing in the third degree (N.Y. Penal
Law § 120.15), criminal possession of a weapon in the fourth degree
(N.Y. Penal Law § 265.01(1)), criminal possession of a weapon in
the third degree (N.Y. Penal Law § 265.02(1)), and unlawful
possession of marijuana (N.Y. Penal Law § 221.05). (See ECF No.

13-1, Respondent’s Habeas Exhibit D, at 5‒6.)4
A. Petitioner’s N.Y. Crim. Proc. Law § 30.30 Motion
On September 6, 2011, Petitioner filed a motion to
dismiss the indictment under New York Crim. Proc. Law § 30.30 (“§
30.30 motion”), asserting that the State should be charged with:
(1) the 61 days from his arraignment on March 13, 2010 to when the

4 For ease of reference, the page numbers used in citations to Respondent’s
Exhibits follow ECF pagination.
State filed their statement for readiness for trial on May 13,
2010; and (2) the 171 days from March 8, 2011, the date the State
moved to obtain a buccal swab sample from Petitioner, to August

26, 2011 when the test result comparing Petitioner’s DNA to the
DNA from the firearm found at the time of Petitioner’s arrest
became available. (See ECF No. 13-3, Respondent’s Habeas Exhibit
F (“Resp’t Exhibit F”), at 66‒68.) In his motion, Petitioner
argued that the State had inexcusably waited for more than nine
months after declaring it was ready for trial to obtain his DNA
sample. (Id.)
The State opposed the § 30.30 motion by arguing that
there was no delay in filing the motion for the buccal swab sample
because the State had been waiting on test results from the Office
of the Chief Medical Examiner (“OCME”) that would determine whether
there was sufficient DNA on the firearm to be compared against
Petitioner’s DNA. (Id. at 84.) According to the State, it “did
not receive the results from OCME until March 2011.” (Id.)

The trial court denied Petitioner’s motion to dismiss
the indictment, having found that only the 61 days from March 13
to May 13, 2010 were “includable time.” (Id. at 104.) As to the
171 days Petitioner argued should also be charged to the State,
the court, relying on the representations made by the People in
their opposition papers, held that “there was nothing to suggest
that the People delayed requesting DNA testing; rather, it appears
that the People had to wait until a DNA profile was generated by
OCME . . . .” (Id. at 103.)
B. Sandoval Hearing
Before trial, Petitioner requested a Sandoval hearing,

seeking an order barring the prosecution from cross-examining
Petitioner about his prior convictions should he testify at trial.
(S.H. Tr. at 8.) Specifically, Petitioner sought to prevent the
prosecution from referring to his six prior convictions in New
York, including a 2009 conviction for possession of marijuana, a
1996 conviction for attempted criminal possession of a weapon in
the third degree, a conviction for criminal possession of a
controlled substance in the seventh degree, a 1988 conviction for
attempted first-degree robbery, a 1988 conviction for attempted
second-degree robbery, and a conviction for second-degree robbery.
(Id. at 8–15.) Additionally, Petitioner sought to prevent the

prosecution from introducing his three prior convictions in
Virginia for grand larceny, obtaining money by false pretenses,
and possession of a controlled substance. (Id.)
At the Sandoval hearing, held on July 26, 2012, defense
counsel argued that Petitioner’s prior convictions lack probative
value and that a ruling by the trial court permitting the
prosecution to cross-examine Petitioner on his prior convictions
would be “highly prejudicial” and “tantamount to telling him [that
he] can’t testify in this particular case.” (Id. at 16–17.) The
court ruled that the prosecution may cross-examine Petitioner on
his Virginia convictions for grand larceny and obtaining money by
false pretenses because those are “crimes which go to credibility.”
(Id. at 17–18.) However, the court prohibited the prosecution

from inquiring about the underlying facts of those convictions.
(Id.) As for Petitioner’s 1996 conviction for attempted criminal
possession of a weapon in the third degree, the court permitted
the prosecution to introduce both the conviction and its underlying
facts, reasoning that “illegal possession of a handgun . . .
clearly is an instance of placing one’s own interest above that of
society.” (Id. at 18.) Next, the court permitted the prosecution
to inquire about Petitioner’s 1988 convictions for attempted
robbery in the first and second degrees because “robbery and
attempted robbery are most salient crimes on the issue of
credibility on the issue of placing one’s own interest above that
of society.” (Id. at 19.) However, the court only allowed the

prosecution to inquire into the underlying facts of the first-
degree attempted robbery conviction. (Id. at 19‒20.) Finally,
the court permitted inquiry into the conviction for second-degree
robbery and its underlying facts. (Id. at 20.) The court
precluded the prosecution from asking about Petitioner’s
convictions for possession of controlled substances. (Id. at 17–
19.)
C. Jury Instructions and Verdict
Instructing the jury regarding the elements of
kidnapping in the second degree, the trial court charged that the
jury could find Petitioner guilty if it found, inter alia, that

the prosecution had established beyond a reasonable doubt that
“[Petitioner] restrained Carl Ramah with intent to prevent Carl
Ramah’s liberation either by secreting or holding him in a place
where he was not likely to be found or by using or threatening to
use deadly physical force.” (Trial Tr. at 658.) At the end of
the jury charge, the court asked counsel whether they had any
exceptions or additional requests to the charge. (Id. at 671.)
Defense counsel answered that he had neither exceptions nor
additional requests. (Id.)
The jury found Petitioner guilty of kidnapping in the
second degree and the count of menacing in the third degree
pertaining to Ramah. (Id. at 697.) The jury found Petitioner not

guilty of criminal possession of a weapon in the second degree and
the count of menacing in the third degree pertaining to Rivers.
(Id.) Upon hearing the verdict, the court instructed the jury
that “kidnapping in the second degree requires the use or
threatened use of deadly physical force” and given the
prosecution’s argument that the use or threatened use of deadly
physical force was “done by the way of the handgun, the revolver,”
“in order for [Petitioner] to be guilty of kidnapping in the second
degree, he would also have to be guilty of criminal possession of
a weapon in the second degree because that’s the only means of
using or threatening to use deadly physical force . . . .” (Id.

at 699‒700.) The court then subsequently clarified for the jury
that because it had found Petitioner not guilty of the weapon
possession charge, it could now only find Petitioner guilty of
kidnapping in the second degree if it found that Petitioner had
restrained Ramah “with intent to prevent his liberation by
secreting him in a place where he was not likely to be found.”
(Id. at 705-06.) Notably, defense counsel did not make any
objections to these instructions. (Id. at 703.) Thereafter, the
jury again found Petitioner guilty of kidnapping in the second
degree. (Id. at 710.)
III. State Post-Conviction Proceedings
A. Direct Appeal

Petitioner appealed his judgment of conviction to the
Appellate Division, Second Department, arguing that: (1) the State
failed to prove kidnapping in the second degree beyond a reasonable
doubt because the evidence was not legally sufficient to establish
that Petitioner restrained Ramah with intent to prevent his
liberation by secreting or holding him in a place where he was not
likely to be found; (2) his trial counsel was ineffective in
failing to object to the court’s instruction that the jury could
still find Petitioner guilty of kidnapping in the second degree if
it found that Petitioner restrained Ramah with intent to prevent
his liberation by secreting or holding him in a place where he was
unlikely to be found; and (3) he was deprived of his due process
right to a fair trial by the trial court’s Sandoval ruling, which

allowed the prosecution to introduce certain of Petitioner’s prior
convictions, as well as the underlying facts of some of them,
should Petitioner choose to testify. (See ECF No. 13, Respondent’s
Habeas Exhibit C (“Resp’t Exhibit C”), at 28‒54.)
On February 16, 2016, the Appellate Division affirmed
Petitioner’s conviction. People v. Huger, 26 N.Y.S.3d 131 (2d
Dep’t 2016). The Appellate Division held that (1) Petitioner’s
first argument was not preserved and, in any event, the evidence
was legally sufficient to establish his guilt of kidnapping in the
second degree beyond a reasonable doubt; (2) Petitioner’s trial
counsel was not ineffective for the alleged failure to object to

the court’s instruction because “[t]he instruction given was not
improper” and “[a] defendant is not denied effective assistance of
counsel merely because counsel does not make a motion or argument
that has little or no chance of success”; and (3) the trial court’s
Sandoval ruling was proper because the court weighed the probative
value against the prejudicial effect for each of Petitioner’s prior
convictions, and Petitioner failed to demonstrate that exclusion
was warranted because the prejudicial effect so outweighed the
probative value. Id. at 132‒33. On May 11, 2016, the New York
Court of Appeals denied Petitioner’s leave to appeal. People v.
Huger, 60 N.E.3d 1206 (N.Y. 2016).
B. Petitioner’s N.Y. Crim. Proc. Law § 440.10 Motion

On September 2, 2015, Petitioner filed a motion under
New York Crim. Proc. Law § 440.10(1)(b) and (h) to vacate his
judgment of conviction and dismiss the underlying indictment (Ҥ
440.10 motion”). (Resp’t Exhibit F at 1‒28.) Petitioner asserted
that new information showed that the State had misrepresented
material facts which the trial court had relied on in denying his
§ 30.30 motion. (Id. at 9‒13.) Specifically, documents obtained
by Petitioner’s appellate counsel from the OCME and the Kings
County District Attorney’s Office pursuant to Freedom of
Information Law requests demonstrated that, in contrast to the
State’s representation that it was not until March 2011 that it
received test results from the OCME that the firearm contained a

DNA sample suitable for comparison against Petitioner’s DNA, in
fact, the OCME had sent the test results to the State on May 12,
2010. (Id.) Therefore, Petitioner argued, the trial court should
have charged additional 128 days—from April 20, 2011, when the
buccal swab sample was taken from Petitioner, to August 26, 2011,
when the DNA comparison result became available—to the State. (Id.
at 26‒27.) And because the total delay attributable to the State
would have been 189 days, 128 days plus the 61 days the court found
chargeable to the State, Petitioner argued, the court should have
granted his § 30.30 motion. (Id. at 27.)
In response, the State, though conceding that the

representation it had made to the court was incorrect, argued that
the court’s decision would have been the same. (See ECF No. 13-
4, Respondent’s Habeas Exhibit G, at 10‒11.) Specifically, the
State contended that the 37 days between July 20 to August 26,
2011 were excludable pursuant to New York Crim. Proc. Law §
30.30(4)(b), (d), and (f) because Petitioner’s counsel and
Williams’ counsel did not appear in court on July 20, 2011 due to
their engagement in other matters. (Id.) The State argued that
it therefore was chargeable with at most 152 days, the 61 days
from March 13 to May 13, 2010 and the 91 days from April 20 to
July 20, 2011, below the statutory limitation period of 183 days.
(Id.)

By its Decision and Order, dated May 30, 2017, the trial
court granted Petitioner’s § 440.10 motion. (See ECF No. 13-9,
Respondent’s Habeas Exhibit L, at 5‒7.) Thereafter, the State
filed a motion to reargue, which was granted, and upon reargument,
the court denied the § 440.10 motion, holding that the 37 days
from July 20 to August 26 were excludable under New York Crim.
Proc. Law § 30.30(4)(f) because time is excluded from the speedy
trial calculation if defense counsel is not present, “almost
without regard to the status of the People’s state of (post)
readiness.” (See ECF No. 13-9, Respondent’s Habeas Exhibit O, at
1‒2.)
Petitioner then sought leave to appeal the denial of his
§ 440.10 motion to the Appellate Division, which was granted. (Id.

at ¶ 42.) On December 26, 2018, the Appellate Division affirmed
the trial court’s decision, holding that the exclusion provided by
New York Crim. Proc. Law § 30.30(4)(f) “is applicable
notwithstanding the People’s own lack of readiness.” People v.
Huger, 91 N.Y.S.3d 161, 163 (2d Dep’t 2018). Petitioner sought
leave to appeal from the Appellate Division’s decision, which was
denied on March 21, 2019. People v. Huger, 123 N.E.3d 865 (N.Y.
2019). Defendant then submitted a letter requesting
reconsideration of his application for leave to appeal, which was
once again denied on May 31, 2019. People v. Huger, 126 N.E.3d
155 (N.Y. 2019).
IV. The Instant Petition

On February 25, 2020, Petitioner filed the instant
application seeking a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (See generally Pet.) Petitioner raises the same claims
from his direct appeal and § 440.10 motion. (Id.) On April 22,
2020, Respondent submitted his memorandum of law in opposition and
the exhibits attached thereto. (See ECF Nos. 7‒13-15.)
STANDARD OF REVIEW
A writ of habeas corpus filed by an individual in state
custody is governed by, inter alia, the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Section 2254 of AEDPA
provides that a district court shall issue a writ of habeas corpus
for a petitioner in state custody “only on the ground that he is
in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a). Section 2244 provides
that a one-year statute of limitations applies to “an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2244(d)(1); see generally
28 U.S.C. § 2244(d).
A district court shall not grant a writ of habeas corpus
unless “the applicant has exhausted the remedies available in the
courts of the State,” “there is an absence of available State

corrective process,” or “circumstances exist that render [such
State corrective] process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1)(A), (B). Even if a petitioner
has not exhausted all state remedies, a district court may deny
his application for a writ of habeas corpus on the merits. 28
U.S.C. § 2254(b)(2).
A district court may grant a writ of habeas corpus for
claims that were adjudicated on the merits in state court and the
adjudication produced 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). “A state court ‘adjudicate[s]’ a state

prisoner’s federal claim on the merits when it (1) disposes of the
claim ‘on the merits,’ and (2) reduces its disposition to
judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)
(alteration in original) (citing 28 U.S.C. § 2254(d)(1)); see also
Reznikov v. David, Nos. 05-cv-1006, 05-cv-1008(RRM), 2009 WL
424742, at *3 (E.D.N.Y. Feb. 20, 2009) (“Under AEDPA, a proper
merits adjudication requires only that (a) a federal claim be
raised, and (b) that it be disposed of on substantive, rather than
procedural grounds.”). “When a state court [adjudicates a federal
claim on the merits], a federal habeas court must defer in the
manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court’s
decision on the federal claim—even if the state court does not

explicitly refer to either the federal claim or to relevant federal
case law.” Sellan, 261 F.3d at 312.
Clearly established federal law refers to the holdings
of the Supreme Court’s decisions at the time of the relevant state
court decision. Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005)
(citation omitted). The “contrary to” and “unreasonable
application” clauses of § 2254(d)(1) are analyzed independently.
Stultz v. Artus, No. 04-cv-3170(RRM), 2013 WL 937830, at *5
(E.D.N.Y. Mar. 8, 2013). A state court’s decision is contrary to
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 v.
Taylor, 529 U.S. 362, 413 (2000) (O’Connor, J., concurring and

writing for the majority in this part). An unreasonable
application of law occurs when “the state court identifies the
correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Id. A district court “may overturn a state
court’s application of federal law only if it is so erroneous that
there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [Supreme Court] precedents.”
Nevada v. Jackson, 569 U.S. 505, 508‒09 (2013) (per curiam)
(citation and internal quotation marks omitted). If a district

court determines a state court’s application of law was
unreasonable, “it must next consider whether such error was
harmless.” Stultz, 2013 WL 937830, at *5 (citation and internal
quotation marks omitted).
Apart from a state court’s decision contrary to or
unreasonable application of federal law, a district court may grant
a writ of habeas corpus when the state court decision “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)(2). State court determinations of facts are presumed
correct, however, and the petitioner bears the burden of “rebutting
the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1).
In the instant action, Petitioner is proceeding pro se.
A pro se petitioner’s pleadings are held to “less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation
marks omitted), and are construed “to raise the strongest arguments
that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006). “Nonetheless, a pro se [litigant] is not
exempt from compliance with relevant rules of procedural and
substantive law.” Rivera v. United States, No. 06-cv-5140(SJF),
2006 WL 3337511, at *1 (E.D.N.Y. Oct. 4, 2006) (citing Faretta v.
California, 422 U.S. 806, 834 n.36 (1975)). The instant petition

is evaluated accordingly.
DISCUSSION
I. Sufficiency of the Evidence
First, Petitioner argues that the evidence at trial was
not legally sufficient to establish his guilt of kidnapping in the
second degree beyond a reasonable doubt because the prosecution
failed to prove that Petitioner intended to prevent Ramah’s
liberation by secreting or holding him in a place where he was not
likely to be found.
As an initial matter, the Court finds that this claim is
not reviewable because it is procedurally barred. Federal courts
lack authority to review a state court decision that rests on
“independent and adequate” state law grounds. Lee v. Kemna, 534

U.S. 362, 375 (2002). This rule applies equally regardless of
whether the state law ground is substantive or procedural. Id.
(citing Coleman v. Thompson, 501 U.S. 722, 729 (1991). On direct
appeal, the Appellate Division affirmed Petitioner’s conviction
and held that “[t]he defendant’s contention that the evidence was
legally insufficient to support his conviction of kidnapping in
the second degree is unpreserved for appellate review.” Huger, 26
N.Y.S.3d at 132.
Thus, the state law ground on which the Appellate
Division denied Petitioner’s claim was a violation of New York’s
preservation rule, which requires a contemporaneous objection to

any alleged legal error by defense counsel at a criminal trial.
N.Y. Crim. Proc. Law § 470.05(2). New York’s preservation rule
suffices as an independent state law ground, Richardson v. Greene,
497 F.3d 212, 217 (2d Cir. 2007), but the remaining issue is
whether it is “adequate” to prevent federal collateral review.
Id. at 218. A state preservation rule is “only adequate to support
the judgment and foreclose review of a federal claim if it is
‘firmly established and regularly followed’ in the state,” but
“even firmly established and regularly followed state rules will
not foreclose review of a federal claim if the application of the
rule in a particular case is ‘exorbitant.’” Garvey v. Duncan, 485
F.3d 709, 713‒14 (2d Cir. 2007) (citation omitted).

The Second Circuit has found New York’s contemporaneous
objection rule to be firmly established and regularly followed by
New York courts. Garcia v. Lewis, 188 F.3d 71, 78‒79 (1999). See
also Yara v. Ercole, 558 F. Supp. 2d 329, 336 (E.D.N.Y. 2008);
Dozier v. McGinnis, 558 F. Supp. 2d 340, 349 (E.D.N.Y. 2008).
Therefore, whether the Petitioner’s legal sufficiency claim is
procedurally barred by § 470.05(2) turns on whether it would be
exorbitant to apply the rule in the instant case. The Court looks
to the guideposts provided by the United States Supreme Court in
Lee, 534 U.S. at 381-85, to help federal courts determine whether
the application of a firmly established and regularly followed
state preservation rule would be exorbitant:

(1) whether the alleged procedural violation
was actually relied on in the trial court, and
whether perfect compliance with the state rule
would have changed the trial court’s decision;

(2) whether state caselaw indicated that
compliance with the rule was demanded in the
specific circumstances presented; and

(3) whether petitioner had “substantially
complied” with the rule given “the realities
of trial,” and, therefore, whether demanding
perfect compliance with the rule would serve
a legitimate governmental interest.
Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee,
534 U.S. at 381-85).
Turning to the first Lee factor, the trial court could

not have relied on Petitioner's violation of the contemporaneous
objection rule because such a violation, by definition, cannot
occur until a party attempts to raise an unpreserved argument on
appeal. The question remains, however, whether perfect compliance
with the rule might have changed the trial court’s decision. The
Court finds that the trial court likely would not have changed its
decision even if Petitioner had timely objected and argued that
the verdict did not possess sufficient evidence to support
kidnapping in the second degree beyond a reasonable doubt because
the prosecution failed to prove that he intended to prevent Ramah’s
liberation by secreting or holding him in a place where he was not
likely to be found. Nevertheless, unlike in Lee, where even

perfect adherence to the relevant procedural rule would not have
convinced the trial judge to grant a continuance because the judge
had stated that personal obligations and another scheduled trial
prevented him from doing so, 534 U.S. at 381, because it is
conceivable that perfect compliance with the preservation rule
might have affected the ultimate outcome here, the first Lee factor
does not give Petitioner support for finding that applying the
rule would be exorbitant.
Under the second Lee factor, the Court considers New
York law and finds that the contemporaneous objection rule is
firmly established and regularly followed in the particular

circumstances of Petitioner’s case, i.e., where defense counsel
timely moved for a trial order of dismissal for a different offense
but not the offense at issue on appeal. It is well-established
that New York courts will not review unpreserved claims of legal
insufficiency. People v. Gray, 652 N.E.2d 919, 921 (N.Y. 1995).
See also People v. Oguntunji, 988 N.Y.S.2d 901, 901 (2d Dep’t 2014)
(“The defendant’s challenge to the legal sufficiency of the
evidence supporting his conviction for robbery in the third degree
is unpreserved for appellate review, as the defendant never moved
for a trial order of dismissal of that count . . . .”). Thus, the
second Lee factor likewise provides no support for finding that
applying the contemporaneous objection rule would be exorbitant.

The final and “most important” consideration noted by
the Supreme Court in Lee asks whether Petitioner “substantially
complied” with § 470.05(2) given the realities of trial. 534 U.S.
at 382. Where, as here, a defendant makes no objection to the
legal sufficiency of the evidence supporting a charge during trial
but makes a sufficiency challenge later on appeal, that defendant
cannot be said to have substantially complied with § 470.05(2).
Accordingly, the factors from Lee provide no support for finding
the Appellate Division's application of the contemporaneous
objection rule exorbitant. The Court holds that New York’s
preservation rule constituted an adequate ground of decision
independent of Petitioner's federal claim and Petitioner’s

sufficiency of the evidence claim is therefore procedurally
barred.
Even if the claim was not procedurally barred, it would
still be denied because there was sufficient evidence to support
Petitioner’s guilt of kidnapping in the second degree. Habeas
relief is warranted on a sufficiency of the evidence claim only
if, viewing the evidence in the light most favorable to the State,
“no rational trier of fact could find proof of guilt beyond a
reasonable doubt based on the evidence adduced at trial.”
Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citing
Jackson v. Virginia, 443 U.S. 307, 324 (1979)). Under this
“rigorous standard,” “all possible inferences that may be drawn

from the evidence must be construed in the prosecution’s favor.”
Smith v. Lee, No. 12-cv-6215(PGG), 2015 WL 5011422, at *12
(S.D.N.Y. Aug. 21, 2015) (citations omitted). To evaluate this
claim, “[a] federal court must look to state law to determine the
elements of the crime.” Quartararo v. Hanslmaier, 186 F.3d 91, 97
(2d Cir. 1999).
Under New York law, a person commits kidnapping in the
second degree when he or she “restrain[s] a person with intent to
prevent his liberation by . . . secreting or holding him in a place
where he is not likely to be found.” N.Y. Pen. Law §§ 135.20,
135.00(2). Here, construing the evidence in the light most
favorable to the prosecution, and drawing all reasonable

inferences therefrom, a rational jury could have concluded that
Petitioner restrained Ramah with the intent to prevent his
liberation by “secreting or holding him in a place where he [was]
not likely to be found,” in violation of New York Penal Law §
135.20. Specifically, a rational jury could have credited the
trial testimonies of Rivers and Ramah that Petitioner, acting in
concert with Williams, forced Ramah, against his will, into a place
where he was not likely to be found, the back seat of an SUV with
tinted windows that was moving through the streets of Brooklyn.
See People v. Barnette, 55 N.Y.S.3d 364, 364 (2d Dep’t 2017)
(finding the evidence was legally sufficient to support a second-
degree kidnapping conviction where defendant “restrained the

complainant with intent to prevent her liberation by secreting her
in a place where she was unlikely to be found, i.e., a car with
tinted windows traveling through Brooklyn”); People v. Cole, 33
N.Y.S.3d 466, 466 (2d Dep’t 2016) (same). Therefore, the Court
finds that a rational jury could have found proof of guilt beyond
a reasonable doubt based on the evidence adduced at trial.
III. Ineffective Assistance of Counsel
Next, the Court turns to Petitioner’s argument that his
trial counsel was ineffective for failing to object to the trial

court’s instruction that the jury could convict Petitioner of
kidnapping in the second degree if it found, beyond a reasonable
doubt, that Petitioner restrained Ramah “with intent to prevent
his liberation by secreting him in a place where he was not likely
to be found.” (Trial Tr. at 705-06.)
Under the Sixth Amendment, a criminal defendant is
afforded “the right . . . to have the assistance of counsel for
his defense.” U.S. Const. amend. VI. This right does not
guarantee a defendant “perfect counsel,” but rather, “effective
assistance of counsel.” Constant v. Martuscello, 119 F. Supp. 3d
87, 142 (E.D.N.Y. 2015) (internal quotation marks omitted)
(quoting Burt v. Titlow, 571 U.S. 12, 24 (2013); McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)).

To establish a claim of ineffective assistance of
counsel, a petitioner must satisfy the two-prong test set forth by
the United States Supreme Court in Strickland v. Washington, 466
U.S. 668, 687‒96 (1984). A petitioner must show that: (1)
counsel’s performance was deficient, meaning that it “fell below
an objective standard of reasonableness,” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 688, 694. A court assessing an ineffective assistance claim
is not required “to address both components of the inquiry if the
defendant makes an insufficient showing on one.” Id. at 697.

“Reasonableness” under the first prong is measured by
the “prevailing professional norms.” Id. at 688. Generally,
“there is a strong presumption that counsel’s actions ‘might be
considered sound trial strategy.’” Stultz, 2013 WL 937830, at *7
(quoting Strickland, 466 U.S. at 688-89). And “the fact that
counsel is prepared and familiar with the relevant facts and legal
principles is usually sufficient to defeat a claim that trial
counsel was ineffective.” Brown v. Phillips, No. 03-cv-0361(DGT),
2006 WL 656973, at *8 (E.D.N.Y. Mar. 12, 2006) (internal quotation
marks omitted) (quoting Farrington v. Senkowski, 19 F. Supp. 2d
176, 179 (S.D.N.Y. 1998)). Under the second prong, prejudice, a
“reasonable probability” is one “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “A court

hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury,” id. at 695, and the petitioner
must “affirmatively prove prejudice arising from counsel’s
allegedly deficient representation,” Carrion v. Smith, 549 F.3d
583, 588 (2d Cir. 2008) (citations and internal quotation marks
omitted).
“[T]he standard for judging counsel’s representation is
a most deferential one.” Harrington v. Richter, 562 U.S. 86, 105
(2011). Due to the heightened deference under AEDPA, “[a] federal
court reviewing a state court’s determination regarding
ineffective assistance of counsel has been characterized as
‘doubly’ deferential by the Supreme Court.” Constant, 119 F. Supp.
3d at 143 (quoting Harrington, 562 U.S. at 105). Thus, “[w]hen §

2254(d) applies, the question is not whether counsel’s actions
were reasonable” but rather “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.” Harrington, 562 U.S. at 105.
Here, Petitioner argues that his trial counsel was
ineffective for failing to object to the instructions the trial
court gave the jury on kidnapping in the second degree after the
jury had acquitted him of the weapon possession charge, because
those instructions “chang[ed] the theory in the indictment.” (Pet.
at 6-7.) Generally, a defendant’s counsel’s failure to object to

a jury instruction is unreasonably deficient performance “only
when the trial court’s instruction contained ‘clear and previously
identified errors.’” Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir.
2001) (quoting Bloomer v. United States, 162 F.3d 187, 193 (2d
Cir. 1998)). “[W]hen a trial court’s instruction is legally
correct as given,” counsel’s failure to object “does not constitute
deficient performance.” Id. (quoting United States v. Brooks, 82
F.3d 50, 54 (2d Cir. 1996)). Based on the record, the Court finds
that the indictment5 and the bill of particulars did not limit the
State’s theory on kidnapping in the second degree to Petitioner’s
use or threatened use of deadly physical force. (See ECF No. 7,

Respondent’s Memorandum of Law, at 12.) See also People v.
Vasquez, 73 N.Y.S.3d 449, 450 (2d Dep’t 2018) (“Where the
prosecution is limited by the indictment or bill of particulars to
a certain theory or theories, the court must hold the prosecution
to such narrower theory or theories”) (citing People v. Grega, 531
N.E.2d 279, 282 (N.Y. 1988)). Therefore, the trial court properly
instructed the jury on the alternative of finding intent to
restrain by secreting or holding Ramah in a place where he was not
likely to be found, and because the instructions were proper, the
trial counsel’s performance was not deficient for failing to object
and Petitioner was not prejudiced by such lack of objection.
Accordingly, Petitioner’s ineffective assistance of counsel claim

is denied.
IV. Petitioner’s Sandoval Claim
Petitioner argues that he was deprived of his due process
right to a fair trial by the trial court’s Sandoval ruling, which
allowed the prosecution to introduce certain of Petitioner’s prior
convictions, as well as the underlying facts of some of them,

5 Notably, Petitioner conceded in his opening brief on direct appeal before the
Appellate Division that the indictment did not specify any particular theory as
to kidnapping in the second degree. (Resp’t Exhibit C at 36 (“As charged in
the indictment, the second-degree kidnapping count alleged only that
[Petitioner] ‘abducted Carl Ramah’ (Indictment).”).)
should Petitioner choose to testify. Petitioner alleges that he
did not testify as a result of the Sandoval ruling.
“Federal review of a state court conviction is limited

to errors of constitutional magnitude which denied a criminal
defendant the right to a fundamentally fair trial.” Jenkins v.
Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citations omitted).
Generally, “erroneous evidentiary rulings of a state trial court
do not rise to the level of a constitutional deprivation upon which
a writ of habeas corpus may be issued,” id. (citations omitted),
and a Sandoval decision is considered an evidentiary ruling. Ayala
v. Ercole, No. 06-cv-1747(JFB), 2007 WL 1135560, at *14 (E.D.N.Y.
Apr. 17, 2007). Thus, erroneous Sandoval rulings do not usually
provide grounds for granting a habeas petition, unless the ruling
denied the defendant a fair trial or violated “‘fundamental
conceptions of justice.’” Gouvatsos v. Ercole, No. 08-cv-

2049(SJF), 2010 WL 5173569, at *13 (E.D.N.Y. Dec. 13, 2010)
(quoting Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998)); see
also Ayala, 2007 WL 1135560, at *14. Therefore, regardless of
whether the trial judge erred in allowing the admission of the
Petitioner’s prior convictions, Petitioner’s Sandoval claim is
only cognizable under federal habeas review if such admission
denied Petitioner a fair trial.
The United States Supreme Court established that “to
raise and preserve for review the claim of improper impeachment
with a prior conviction, a defendant must testify.” Luce v. United
States, 469 U.S. 38, 43 (1984). In Luce, the Supreme Court
explained that when a defendant does not testify, “[a]ny possible
harm flowing from a district court’s in limine ruling is wholly
speculative.” Id. at 41. Although Luce involved review of an in
limine ruling by a federal trial court pursuant to Rule 609 of the

Federal Rules of Evidence, “the Luce rationale is equally
applicable” a federal court’s collateral review of a state trial
court’s Sandoval ruling. Carroll v. Hoke, 695 F. Supp. 1435, 1440
(E.D.N.Y. 1988). This is because “both procedures involve a pre-
trial hearing on the admissibility of a defendant’s prior
convictions for impeachment purposes, and both procedures involve
a weighing of the prejudicial impact of the convictions against
the interest in impeachment of testimony.” Nieves-Delgado v. New
York, No. 00-cv-1397(LTS), 2003 WL 21310815, at *2 (S.D.N.Y. June

9, 2003). Thus, the Second Circuit has “created a bright line
rule . . . barring habeas relief for allegedly erroneous Sandoval
rulings where a defendant elects not [to] testify.” Shannon v.
Senkowski, No. 00-cv-2865(NRB), 2000 WL 1683448, at *6 (S.D.N.Y.
Nov. 9, 2000)).
Here, Petitioner’s decision not to testify is fatal,
because without his testimony, the impact of the trial court’s
Sandoval ruling is purely speculative. See Luce, 469 U.S. at 41.
Accordingly, the trial court’s Sandoval ruling did not deprive
Petitioner of a fundamentally fair trial, and his claim on this
point is not cognizable on federal habeas review.
V. Speedy Trial Claim

Finally, Petitioner argues that the state court
improperly denied his § 30.30 motion. The AEDPA permits federal
habeas review of state court adjudications only where a “violation
of the Constitution or law or treaties of the United States” has
occurred. 28 U.S.C. § 2254(a). A federal habeas court may not
grant habeas relief based on state courts’ errors of state law,
because “it is not the province of a federal habeas court to
reexamine state court determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 63 (1991). Therefore,
Petitioner’s claim that his § 30.30 motion should have been granted
is not cognizable on habeas review because it is based on an issue
of pure state law.
CONCLUSION
For the foregoing reasons, the instant petition for a
writ of habeas corpus is denied and dismissed. The Clerk of Court

is respectfully requested to serve a copy of this Memorandum and
Order on pro se Petitioner, note service on the docket, and close
the case.
The Court certifies pursuant to 28 U.S.C. 1915(a)(3)
that any appeal from this order would not be taken in good faith,
and therefore in forma pauperis status is denied for purposes of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444‒45
(1962).

SO ORDERED.

Dated: January 5, 2022
Brooklyn, New York

________/s/___________________
KIYO A. MATSUMOTO
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307370. Public record. Not legal advice.