Patel v. Smith

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

AMIT PATEL,

Petitioner,

MEMORANDUM & ORDER

-against-

21-CV-992

21-CV-993

BRANDON J. SMITH,

Respondent.

-----------------------------------X

KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

Petitioner Amit Patel is incarcerated pursuant to two

judgments of conviction imposed in New York State Supreme Court,

Queens County. Petitioner seeks a writ of habeas corpus pursuant

to 28 U.S.C. § 2254, alleging that his state custody from each

conviction violates his federal statutory and constitutional

rights. (21-CV-992, ECF No. 1 (“First Pet.”); 21-CV-993, ECF No.

1 (“Second Pet.”).) For the reasons set forth below, the petitions

are respectfully DENIED.

BACKGROUND

I. Petitioner’s First Conviction

On December 13, 2013, Petitioner was convicted by a jury

for operating a vehicle while under the influence of alcohol in

violation of New York Vehicle and Traffic Law (“V.T.L.”) § 1192(3)

and was acquitted of aggravated driving while intoxicated under

V.T.L. § 1192(2). (21-CV-992, ECF No. 11-2 (“2012 Indictment

Transcripts”) at 456.).1 On October 14, 2014, Petitioner was

sentenced to an indeterminate sentence of two to six years in

prison. (Id. at 476.)

II. Direct Appeal

Petitioner appealed his conviction to the Appellate

Division, Second Department. Petitioner argued his conviction was

against the weight of the evidence and that he was denied a fair

trial because the arresting officer was allowed to testify about

a portable breathalyzer test (PBT) taken on a personal device.

(21-CV-992, ECF No. 11-1 (“State Court Records”) at 1-25.) On

February 20, 2019, the Appellate Division affirmed the conviction.

People v. Patel, 169 A.D.3d 934 (2d Dep’t 2019). On May 1, 2019,

the Court of Appeals denied leave to appeal. People v. Patel, 33

N.Y.3d 1034 (2019).

III. Petitioner’s Second Conviction

On April 1, 2015, Petitioner was convicted of operating

a motor vehicle while under the influence of alcohol, in violation

of V.T.L. § 1192(3); aggravated unlicensed operation of a motor

vehicle in the second degree, in violation of V.T.L. § 511(2); and

operating a motor vehicle without a license, in violation of V.T.L.

§ 509(1). (21-CV-992, ECF No. 11-3 (“2013 Indictment Transcripts”)

at 865-66.) On April 20, 2015, Petitioner was sentenced to an

1 All pin citations refer to the page number assigned by the court’s CM/ECF

system.

indeterminate term of 2 and 1/3 to 7 years of incarceration for

operating under the influence in violation of V.T.L. § 1192(3), to

run consecutive to the sentence for Petitioner’s prior conviction.

(Id. at 900.) Petitioner was also sentenced to five years of

probation and to pay a $2,000 fine, along with certain court costs.

(Id.) With respect to the remaining two counts, Petitioner

received concurrent sentences of 180 days and 15 days,

respectively. (Id.)

IV. Second Direct Appeal

Petitioner challenged his 2015 conviction in the

Appellate Division, Second Department. Petitioner argued that he

received ineffective assistance from his trial counsel and that

the court erred in failing to suppress evidence of his refusal to

take a breathalyzer test. (State Court Records at 444-86.) On

February 20, 2019, the Appellate Division affirmed the conviction.

People v. Patel, 169 A.D.3d 935 (2d Dep’t 2019). On May 1, 2019,

the Court of Appeals denied leave to appeal. People v. Patel, 33

N.Y.3d 1034 (2019).

V. Motion to Vacate

On April 21, 2019, Petitioner filed a pro se motion to

vacate his convictions pursuant to New York Criminal Procedure Law

§ 440.10. (State Court Records at 76-132.) Petitioner argued he

received ineffective assistance of counsel with respect to his

first conviction because his trial counsel, Todd Greenberg, was

allegedly working as an Assistant District Attorney while he

represented Petitioner. (Id. at 104-10.) Petitioner also argued

that he was denied a fair trial during his second trial because

prosecutors failed to turn over unredacted versions of police memo

books and online booking system sheets. (Id. at 111-17.)

Petitioner’s motions were denied in separate decisions dated

September 16, 2019. (Id. at 273-79, 759-63.) The Appellate

Division denied leave to appeal in each case on February 6, 2020.

(Id. at 320.)

VI. Writ of Coram Nobis

On June 12, 2019, Petitioner filed a pro se motion for

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

Department. With respect to his first conviction, Petitioner

argued that his appellate counsel was ineffective for failing to

argue that his arraignment and trial counsel were ineffective.

(Id. at 323-32, 356-58, 386-87.) With respect to his second

conviction, Petitioner argued that his appellate counsel was

ineffective for failing to argue that the police lacked probable

cause to stop him and that the prosecution failed to establish his

guilt beyond a reasonable doubt. (Id. at 333-43, 387-88.) The

Appellate Division denied the motion in separate orders dated

January 29, 2020. People v. Patel, 179 A.D.3d 1097 (2d Dep’t

2020); People v. Patel, 179 A.D.3d 1098 (2d Dep’t 2020). The Court

of Appeals denied leave to appeal on May 7, 2020. People v. Patel,

35 N.Y.3d 994 (2020).

VII. Writ of Habeas Corpus

On January 27, 2021, Petitioner filed a petition for a

writ of habeas corpus for each conviction pursuant to 28 U.S.C. §

2254. (First Pet.; Second Pet.) Because the petitions assert 81

nearly identical grounds for relief, the court considers them

together.

STANDARD OF REVIEW

A petitioner in custody pursuant to a state court

judgment may seek a writ of habeas corpus under Section 2254 “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). Rule 2(c) of the Rules Governing Section 2254 Cases

requires a petition to specify all of the petitioner’s available

grounds for relief, setting forth the facts supporting each of the

specified grounds and stating the relief requested. See also Mayle

v. Felix, 545 U.S. 644, 655-56 (2005) (explaining that the pleading

standard under Rule 2(c) is “more demanding” than the ordinary

civil case and requires petitioners to “plead with

particularity”). If a claim is “unintelligible,” it will be

dismissed under Rule 2(c). Jackson v. Albany Appeal Bureau Unit,

442 F.3d 51, 54 (2d Cir. 2006); see also, e.g., Antrobus v. N.Y.

State Dep’t of Corr. & Comm., 2021 WL 1091637, at *2 (E.D.N.Y.

Mar. 22, 2021) (“A petition for federal habeas corpus relief must

permit the Court and the respondent to comprehend both the

petitioner’s grounds for relief and the underlying facts and legal

theory supporting each ground so that the issues presented in the

petition may be adjudicated.”).

In addition, a habeas petition shall not be granted

unless the petitioner “has exhausted the remedies available in the

courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Exhaustion

“requires that the prisoner ‘fairly present’ his constitutional

claim to the state courts, which he accomplishes ‘by presenting

the essential factual and legal premises of his federal

constitutional claim to the highest state court capable of

reviewing it.’” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir.

2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005));

see also, e.g., Ramirez v. Att’y Gen. of N.Y., 280 F.3d 87, 94 (2d

Cir. 2001). “If a habeas applicant fails to exhaust state remedies

by failing to adequately present his federal claim to the state

courts so that the state courts would deem the claim procedurally

barred, [the court] ‘must deem the claim [] procedurally

defaulted.’” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)

(second alteration in original) (quoting Aparicio v. Artuz, 269

F.3d 78, 90 (2d Cir. 2001)). “An applicant seeking habeas relief

may escape dismissal on the merits of a procedurally defaulted

claim only by demonstrating ‘cause for the default and prejudice’

or by showing that he is ‘actually innocent’ of the crime for which

he was convicted.” Id. (quoting Aparicio, 269 F.3d at 90).

When a claim has been adjudicated on the merits in state

court, the Antiterrorism and Effective Death Penalty Act (AEDPA)

“demands that state-court decisions be given the benefit of the

doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citation

omitted). Under AEDPA, a federal court may grant habeas relief

only where the state court’s adjudication of the federal claim

resulted in a decision that was either: (1) “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States,” or (2) “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). A state court 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] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413

(2000). A state court decision involves “an unreasonable

application of” clearly established law when the state court

“identifies the correct governing legal principle from [the]

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id.; see also, e.g., Harrington v.

Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination

that a claim lacks merit precludes federal habeas relief so long

as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” (citation omitted)).

In reviewing the instant petition, this 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) (quotations

and citations omitted); see also Williams v. Kullman, 722 F.2d

1048, 1050 (2d Cir. 1983) (noting that “courts should review habeas

petitions with a lenient eye”). Therefore, the court interprets

Petitioner's pleadings as raising the strongest arguments they

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

also, e.g., Martin v. United States, 834 F. Supp. 2d 115, 118 n.1

(E.D.N.Y. 2011) (citing Williams, 722 F.2d at 1050).

DISCUSSION

I. Petitioner’s Fourth Amendment Claim

Petitioner first claims that he was “unreasonably and

unlawfully stopped, searched and seized” in violation of the Fourth

Amendment. (First. Pet. at 5; Second Pet. at 5.) This claim is

both procedurally defaulted and not cognizable on federal habeas

corpus review.

First, Petitioner failed to raise a Fourth Amendment

claim in either of his direct appeals and did not raise the claim

in his collateral motion to vacate the conviction under N.Y. C.P.L.

§ 440.10. (See State Court Records at 1-25, 76-132, 444-86.)

Although Petitioner invoked the Fourth Amendment in his coram nobis

petition (see id. at 333-40), “the writ of error coram nobis lies

. . . only to vacate an order determining an appeal on the ground

that the defendant was deprived of the effective assistance of

appellate counsel.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir.

2001) (citation omitted); see also, e.g., Valerio v. Phillips,

2008 WL 305007, at *10 (W.D.N.Y. Feb. 1, 2008) (“Courts in this

Circuit are in agreement . . . that a writ of error coram nobis is

not the appropriate procedural vehicle for exhausting any claims

other than claims of ineffective assistance of appellate

counsel.”); Reyes v. Artus, 2015 WL 13745784, at *22 n.18 (S.D.N.Y.

Mar. 12, 2015) (similar); Lawson v. McGinnis, 2013 WL 789173, at

*16 (E.D.N.Y. Mar. 1, 2013) (similar). In addition, “a claim for

ineffective assistance of counsel for failing to raise an

underlying claim does not exhaust the underlying claim.” Khan v.

Capra, 2020 WL 6581855, at *7 (E.D.N.Y. Nov. 10, 2020) (citation

omitted). Accordingly, Petitioner’s Fourth Amendment claim is

unexhausted. Moreover, because Petitioner has already filed

direct appeals and a motion to vacate both convictions, he could

not return to state court to exhaust a Fourth Amendment claim,

resulting in a procedural default. See Carvajal, 633 F.3d at 104.

Petitioner fails to demonstrate cause and prejudice for his

procedural default or that he is actually innocent. See id. As

a result, Petitioner’s procedural default precludes the court from

granting habeas relief.

Second, even if it were not procedurally defaulted,

Petitioner’s Fourth Amendment claim is not cognizable on habeas

review. “[W]here the State has provided an opportunity for full

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

may not be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was

introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494

(1976) (citation omitted). “In this Circuit, ‘review of Fourth

Amendment claims in habeas petitions [may] be undertaken in only

. . . two instances: (a) if the state has provided no corrective

procedures at all to redress the alleged [F]ourth [A]mendment

violations; or (b) if the state has provided a corrective

mechanism, but the defendant was precluded from using that

mechanism because of an unconscionable breakdown in the underlying

process.’” Cutts v. Miller, 2021 WL 242891, at *6 (S.D.N.Y. Jan.

25, 2021) (first alteration in original) (quoting Capellan v.

Riley, 975 F.2d 67, 70 (2d Cir. 1992)).

“New York has provided corrective procedures to redress

Fourth Amendment violations.” Id. (collecting cases).

Specifically, “New York provides criminal defendants an

opportunity to litigate Fourth Amendment search and seizure issues

before trial through a suppression hearing under N.Y. Crim. Proc.

Law 710.30.” Cepeda v. Morton, 2020 WL 6382052, at *4 (S.D.N.Y.

Oct. 30, 2020) (quotations and citation omitted). Here, the state

trial court conducted a hearing prior to each of Petitioner’s

trials. (2012 Indictment Transcripts at 1-39; 2013 Indictment

Transcripts at 1-14.) Petitioner makes no argument as to any

breakdown in the underlying process and the record does not include

anything that would indicate Petitioner was prevented from using

the appropriate procedures to litigate his Fourth Amendment

claims. Accordingly, Petitioner’s Fourth Amendment claims are

denied.

II. Petitioner’s Brady Claims

Petitioner also claims that the prosecution withheld

exculpatory evidence in violation of Brady v. Maryland, 373 U.S.

83 (1963). (See, e.g., First Pet. at 10-19; Second Pet. at 10-

19.)2 Petitioner did not raise a Brady claim with respect to his

first conviction, whether before the trial court, on direct appeal,

in his post-conviction motion, or in his coram nobis petition.

2 Petitioner also invokes People v. Rosario, which “entitles the defense to

examine a witness’[s] prior testimony, whether or not it varies from his

testimony on the stand.” 9 N.Y.2d 286, 289 (N.Y. 1961). However, alleged

“Rosario violations are not cognizable in habeas corpus proceedings because

they are purely errors of state law.” Ward v. Lee, 2020 WL 6784195, at *12

(E.D.N.Y. Nov. 18, 2020) (collecting cases). If Petitioner “had brought a claim

under the equivalent federal statute to Rosario” – the Jencks Act – “it would

not be cognizable either.” Id. (collecting cases).

Accordingly, any such claim is unexhausted and procedurally

barred. Even if Petitioner had exhausted a Brady claim with

respect to his first conviction, the petition fails to provide any

factual basis for an alleged Brady violation and thus fails to

comply with Rule 2(c).

Similarly, the petition challenging Petitioner’s second

conviction does not provide any factual basis for an alleged Brady

violation. The court notes that in his motion to vacate,

Petitioner did argue that prosecutors violated their state law

obligations under Rosario by failing to disclose arrest paperwork

including online booking system worksheets and unredacted versions

of police memo books. (State Court Records at 111-17.) Raising

a state law Rosario claim, however, is insufficient to exhaust a

Brady claim. See, e.g., Hill v. Senkowski, 409 F. Supp. 2d 222,

232 (W.D.N.Y. 2006). Although Petitioner later invoked Brady in

his application for leave to appeal the denial of his motion to

vacate (State Court Records at 773, 780), “[p]resenting a claim

for the first time to a state court of discretionary review is

insufficient to exhaust the claim unless the court considers it.”

Hurdle v. Sheehan, 2013 WL 6859866, at *7 (E.D.N.Y. Dec. 30, 2013)

(quoting Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000)).

Because the Appellate Division did not consider Petitioner’s Brady

claim in denying leave to appeal (see State Court Records at 320),

the claim is unexhausted and procedurally barred.

In any event, Petitioner’s Brady claim is meritless. In

his motion to vacate, Petitioner claimed that the documents would

have shown that Petitioner was parked on 134th Street rather than

Liberty Avenue. (State Court Records at 111-17.) To establish a

Brady violation, however, Petitioner must demonstrate prejudice,

i.e., “a reasonable probability that . . . the result of the

proceeding would have been different.” Licasusi v. Griffin, 460

F. Supp. 3d 242, 260 (E.D.N.Y. May 19, 2020) (quoting Cone v. Bell,

556 U.S. 449, 470 (2009)). As the state court found when rejecting

his Rosario claim, Petitioner “failed to make a sufficient showing

that he was actually prejudiced by redactions to the officer’s

memo book or by the unspecified online booking/work sheets.”

(State Court Records at 762.)

The evidence cited by Petitioner indicated that

Petitioner was parked at the intersection of 134th Street and

Liberty Avenue. (See, e.g., id. at 128.) At trial, a police

officer testified that she observed Petitioner’s vehicle on

Liberty Avenue “right after” 134th Street. (2013 Indictment

Transcripts at 488.) Although the memo books and online bookings

systems sheets conceivably could have been used to impeach the

officer on where exactly she saw Petitioner’s vehicle – i.e.,

whether it was on 134th Street at the intersection of Liberty

Avenue, or whether it was on Liberty Avenue just past 134th Street

– the “minimal” impeachment value of this evidence is insufficient

to demonstrate prejudice. Chen v. Warden of GreenHaven Corr.

Facility, 2022 WL 657406, at *7 (E.D.N.Y. Mar. 4, 2022). There

was significant evidence of Petitioner’s guilt, including evidence

that (1) Petitioner was sleeping behind the wheel of a running

car; (2) officers noticed a smell of alcohol coming from Petitioner

and his vehicle; (3) Petitioner’s speech was “very slurred”; and

(4) Petitioner fell when he attempted to stand up. (See, e.g.,

2013 Indictment Transcripts at 491-92, 495-96.) Thus, in addition

to being procedurally defaulted, Petitioner’s Brady claim is

denied for lack of prejudice.

III. Petitioner’s Ineffective Assistance of Counsel Claims

Petitioner argues that he received ineffective

assistance of counsel in each of his trials. With respect to his

first trial counsel, Mr. Todd Greenberg, Petitioner claimed

ineffective assistance in his motion to vacate. (State Court

Records at 104-10). The trial court rejected this claim on the

merits, finding that Mr. Greenberg’s representation of Petitioner

was effective. (Id. at 278.) With respect to his second trial

counsel, Mr. Freddy Berg, Petitioner raised a claim of ineffective

assistance in his direct appeal. (Id. at 599-611.) The Appellate

Division rejected this claim on the merits, concluding that Mr.

Berg’s representation was effective. (Id. at 677.)

Ineffective assistance of counsel claims are governed by

the standard set forth by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). First, Petitioner must show that

counsel’s performance “fell below an objective standard of

reasonableness.” Id. at 688. In assessing counsel’s performance,

a reviewing court must operate on the presumption “that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Id. at 689; see also Brown v. Greene, 577 F.3d 107,

110 (2d Cir. 2009). Second, Petitioner must demonstrate prejudice,

i.e., “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. Merely showing

that the errors had some effect on the outcome of the proceeding

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

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

whose result is reliable.’” Harrington, 562 U.S. at 104 (quoting

Strickland, 466 U.S. at 687).

Both the Strickland standard and the AEDPA are highly

deferential, and “when the two apply in tandem, review is ‘doubly’

so.” Harrington, 562 U.S. at 105 (quoting Knowles v. Mirzayance,

556 U.S. 111, 123 (2009)). Although the state courts referred

only to New York’s “meaningful representation” standard in

rejecting Petitioner’s claims, courts in this circuit have

concluded that such a decision “constitutes an adjudication on the

merits of petitioner’s federal ineffective assistance of counsel

claim.” Martin v. Lamanna, 2021 WL 663976, at *4 (E.D.N.Y. Feb.

18, 2021) (collecting cases). Accordingly, the court applies AEDPA

deference and considers “whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”

Harrington, 562 U.S. at 105.

A. Petitioner’s First Trial Counsel

In his motion to vacate, Petitioner alleged that Mr.

Greenberg was working as an Assistant District Attorney while

representing Petitioner and therefore had a conflict of interest

that violated Petitioner’s Sixth Amendment right to effective

counsel. (State Court Records at 104-10.) In support of this

allegation, Petitioner claimed that Mr. Greenberg served as

President of the Queens County District Attorney’s Association and

attached letters relating to Petitioner’s supervised release that

identified Mr. Greenberg as an “Assistant District Attorney.” (Id.

at 79, 84-93.)

The state court properly rejected Petitioner’s claim of

a conflict of interest as meritless. (Id. at 278.) The state

produced overwhelming evidence showing that Mr. Greenberg had not

been employed as an Assistant District Attorney since 1980 –

several decades before Petitioner’s trial. This evidence included

payroll and personnel records from the Queens County District

Attorney’s Office; Mr. Greenberg’s professional website, which

stated that he served as an Assistant District Attorney before

entering private practice in 1980; contemporaneous statements made

by Mr. Greenberg, confirming the details of his professional

background; and the certificate of incorporation for the Queens

County District Attorney’s Association, which stated that the

purpose of the organization was to foster “personal acquaintances

among former and present” prosecutors. (Id. at 159-60 (emphasis

added).) In light of this evidence, it was more than reasonable

for the state court to conclude that Mr. Greenberg did not have a

conflict of interest that compromised Petitioner’s right to

effective assistance of counsel.

Petitioner’s motion to vacate also argued that Mr.

Greenberg rendered ineffective assistance by (1) failing to

conduct a pre-trial investigation into a police officer’s use of

a personal breathalyzer device; and (2) failing to move to set

aside the verdict based on a lack of probable cause and the

admission of testimony about the personal breathalyzer device.

(Id. at 110.) As an initial matter, Mr. Greenberg did litigate

the probable cause for the stop and the admission of the

breathalyzer at pre-trial hearings and in a pre-trial motion.

(2013 Indictment Transcripts at 1-14; State Court Records at 1003-

07.) Trial counsel has not been found deficient for not renewing

a motion that has already failed. Dunham v. Travis, 313 F.3d 724,

731 (2d Cir. 2002); see also, e.g., Jabaut v. Miller, 2020 WL

2519790, at *14 (N.D.N.Y. May 18, 2020) (“[D]ecisions such as when

to object and on what grounds are primarily matters of trial

strategy and tactics, and thus are virtually unchallengeable

[through an ineffective assistance claim] absent exceptional

grounds for doing so.” (second alteration in original) (quoting

United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005))). In

addition, as the trial court recognized (State Court Records at

278), Mr. Greenberg was successful in acquitting Petitioner of the

top count of aggravated driving while intoxicated, indicating that

counsel’s performance was reasonable and effective. See Morency

v. Annucci, 2017 WL 4417718, at *15 (E.D.N.Y. Mar. 20, 2017) (trial

counsel’s strategy was proven effective in an acquittal of the

charge). Thus, Petitioner has failed to show that the state court

unreasonably applied Strickland when it concluded that Mr.

Greenberg’s performance was not deficient.

Moreover, even if Petitioner could establish deficient

performance, he cannot demonstrate prejudice. In addition to the

results from the officer’s personal breathalyzer device, the

evidence against Petitioner included testimony from police

officers that: (1) Petitioner was swerving in and out of lanes

without signaling; (2) Petitioner stopped in the right lane of

traffic rather than on the shoulder of the road; (3) there was a

smell of alcohol emanating from Petitioner and his vehicle; (4)

Petitioner’s eyes were bloodshot and watery; and (5) Petitioner

struggled to stay on his feet and had to lean against the car to

maintain his balance. (See, e.g., 2012 Indictment Transcripts at

265-66, 271-73.) The jury also observed a video of Petitioner

performing coordination tests “[p]oorly.” (Id. at 367.) Moreover,

the trial court instructed the jury that it was permitted “to infer

from the fact that [the officer] did not record the actual breath

test results that [the] information if it had been recorded would

not have been favorable to the prosecution.” (Id. at 426.) The

jury apparently discredited the results of the breathalyzer by

acquitting Petitioner of aggravated driving while intoxicated. In

light of the ample evidence of Petitioner’s guilt, as well as the

trial court’s adverse inference instruction, Petitioner has failed

to show a reasonable probability of a different outcome if Mr.

Greenberg had renewed his objection to probable cause or his

efforts to exclude evidence of the personal breathalyzer device.

B. Petitioner’s Second Trial

In his counseled direct appeal to the Second Department,

Petitioner raised several arguments regarding the conduct of his

second trial counsel, Mr. Freddy Berg. (State Court Records at

574-611.) As mentioned above, the Appellate Division rejected

these claims on the merits and concluded that Mr. Berg provided

meaningful representation. Applying AEDPA deference to the

Appellate Division’s decision, the court concludes that there is

a “reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington, 562 U.S. at 105.

First, Petitioner’s counsel criticized Mr. Berg’s

knowledge of the applicable law. (State Court Records at 601-03.)

During his summation, for example, Mr. Berg repeatedly argued:

“how can someone be sleeping and at the same time operate a motor

vehicle?” (2013 Indictment Transcripts at 790.) The legal

definition of operating a motor vehicle is broader than driving,

however, and includes when the defendant is “merely behind the

wheel with the engine running.” People v. Kaster, 2020 WL 6165157,

at *2 (N.Y. Sup. Ct. App. Term Oct. 8, 2020). Similarly, Mr. Berg

argued that there was no scientific evidence that his client was

intoxicated (see, e.g., 2013 Indictment Transcripts at 803),

despite the fact that the charge of common law intoxication

requires no such proof. See, e.g., People v. McConnell, 812

N.Y.S.2d 742, 744 (N.Y. Sup. Ct. App. Term 2006).

Nevertheless, even assuming that Mr. Berg’s conduct fell

below an objective standard of reasonableness, Petitioner has

failed to demonstrate prejudice. As discussed above, the

prosecution presented ample evidence that Petitioner was

intoxicated, including testimony from two police officers

regarding Petitioner’s erratic driving, slurred speech, difficulty

maintaining his balance, and refusal to take a breathalyzer test.

Moreover, the jury was properly instructed on the law, including

the requirements for operating a motor vehicle and common law

intoxication. (2013 Indictment Transcripts at 847-48.)

Accordingly, Petitioner has failed to show that, but for Mr. Berg’s

alleged errors, the result of the trial would have been different.

Second, Petitioner’s appellate counsel argued that Mr.

Berg was ineffective during voir dire. (State Court Records at

599.) During the first round of voir dire, Mr. Berg did not ask

potential jurors any questions during his twenty-minute round of

voir dire. He briefly exposited to the potential jurors and then

ended his turn. (2013 Indictment Transcripts at 307-08.) However,

Mr. Berg explained to the court that his lack of questioning was

part of his trial strategy. Additionally, Petitioner does not

identify any juror to whom Mr. Berg should have objected. Without

a specific argument as to how Mr. Berg’s voir dire strategy was

objectively unreasonable, Petitioner is unable to rebut the

presumption “that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689.

Third, Petitioner’s appellate counsel argued that Mr.

Berg elicited testimony from witnesses that was damaging to

Petitioner. (State Court Records at 603-07.) During his cross-

examination of one police officer, Mr. Berg elicited that

Petitioner was shouting expletives, that he was incoherent and

mumbling, and that he was screaming for an hour and a half. (2013

Indictment Transcripts at 555-56.) Mr. Berg also elicited

testimony that another police officer felt threatened by

Petitioner’s behavior. (Id. at 600.) As an initial matter,

decisions about “whether to engage in cross-examination, and if so

to what extent and in what manner, are . . . strategic in nature,”

and therefore generally do not support an ineffective assistance

claim. Walters v. United States, 2022 WL 890906, at *3 (S.D.N.Y.

Mar. 24, 2022) (alteration in original) (quoting United States v.

Eisen, 974 F.2d 246, 265 (2d Cir. 1992)). Even assuming that Mr.

Berg’s cross-examination constituted deficient representation,

however, Petitioner has failed to show prejudice. In addition to

the substantial evidence of Petitioner’s guilt, discussed above,

the substance of Petitioner’s conduct during the car ride had

already been brought out on direct examination. (See, e.g., 2013

Indictment Transcripts at 515.)

Fourth, Petitioner’s appellate counsel challenged Mr.

Berg’s decision not to stipulate that Petitioner’s license was

suspended. (State Court Records at 603-07.) This refusal caused

the prosecution to call an Assistant District Attorney, who

identified herself as a “government employee,” to testify that a

judge had informed Petitioner that his license was suspended.

(2013 Indictment Transcripts at 752-53.) Mr. Berg’s conduct

arguably may have fallen below an objective standard of

reasonableness, in risking that the door could be opened to

Petitioner’s prior convictions for driving while under the

influence by allowing this testimony. Further, the stipulation

would have proved the notice requirement only for the lesser charge

of Aggravated Unlicensed Operation of a Motor Vehicle under V.T.L.

§ 511(2)(A), which is a misdemeanor charge. See Mayo v. Henderson,

13 F.3d 528, 533 (2d Cir. 1994) (“[A] petitioner may establish

constitutionally inadequate performance if he shows that counsel

omitted significant and obvious issues while pursuing issues that

were clearly and significantly weaker.”) The court, however,

severely limited the Assistant District Attorney’s testimony and

thus the jury was only told that Petitioner was informed by a judge

that his license was suspended. (See, e.g., 2013 Indictment

Transcripts at 753-74.) There was no testimony about Petitioner’s

prior DWI convictions, and the jury was not aware of the witness’s

position as an Assistant District Attorney. Thus, this claim also

fails on the prejudice prong as Petitioner has failed to

demonstrate that but for this testimony the outcome would have

been different.

Finally, Petitioner argued on direct appeal that Mr.

Berg was consistently late and made odd comments throughout the

trial. The state acknowledges (ECF No. 10-1 at 31) – and the

court’s review of the record confirms – that Mr. Berg at times

conducted himself in a bizarre fashion. As the state points out,

however, much of these oddities occurred outside the presence of

the jury. As “regrettable” as Mr. Berg’s conduct may have been,

Petitioner has failed “to meet the prejudice standard elucidated

in Strickland as the attorney’s conduct occurred outside the

presence of the jury.” Tlatepla v. Graham, 2019 WL 4605337, at

*12 (S.D.N.Y. Aug. 5, 2019) (quotations and citation omitted).

In sum, even assuming that some of Mr. Berg’s conduct

fell below an objective standard of reasonableness, Petitioner has

failed to demonstrate prejudice. At a minimum, the Appellate

Division did not unreasonably apply Strickland when it concluded

that Petitioner failed to carry his burden of demonstrating

ineffective assistance of counsel. Accordingly, Petitioner’s

Sixth Amendment claims are denied.

IV. Petitioner’s Grand Jury Claims

Petitioner claims that his Fifth Amendment right to

indictment by a grand jury was violated in both state cases. (See,

e.g., First Pet. at 7; Second Pet. at 7.) These claims are

procedurally defaulted and not cognizable on habeas review.

First, Petitioner’s grand jury claims are unexhausted

and therefore procedurally barred. Petitioner claimed that the

2012 indictment was defective in his reply brief for his motion to

vacate. (State Court Records at 193-94.) “Under New York law,

however, a claim of error first raised in a reply brief is not

properly presented to the reviewing court,” and therefore is

unexhausted and procedurally barred. Lurie, 228 F.3d at 124.

Similarly, in his coram nobis petition, Petitioner claimed that

appellate counsel was ineffective for failing to raise a grand

jury claim with respect to the 2013 indictment. (State Court

Records at 384.) As discussed above, however, “a claim for

ineffective assistance of counsel for failing to raise an

underlying claim does not exhaust the underlying claim.” Khan,

2020 WL 6581855, at *7 (citation omitted). Because Petitioner

could not return to state court to exhaust a grand jury claim, and

because Petitioner fails to show cause and prejudice or actual

innocence, any grand jury claim is procedurally barred.

Second, “claims of deficiencies in state grand jury

proceedings are not cognizable in a habeas corpus proceeding.”

Rucano v. LaManna, 2021 WL 4521900, at *6 (E.D.N.Y. Oct. 4, 2021).

There is no federal constitutional right to indictment by a grand

jury in a state criminal prosecution as the right has not been

incorporated by the Due Process Clause of the Fourteenth Amendment.

See Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Davis v.

Mantel, 42 F. App’x 488, 490 (2d Cir. 2002). Additionally, any

claimed errors in the grand jury process are harmless as they were

cured by Petitioner’s conviction by the petit jury. See Lopez v.

Riley, 865 F.2d 30, 32 (2d Cir. 1989) (“[I]f federal grand jury

rights are not cognizable on direct appeal where rendered harmless

by a petit jury, similar claims concerning a state grand jury

proceeding are a fortiori foreclosed in a collateral attack brought

in a federal court.”); see also, e.g., McKelvey v. Bradt, 2016 WL

3681457, at *11-12 (S.D.N.Y. Jul. 6, 2016). Consequently,

Petitioner’s grand jury claims are denied.

V. Petitioner’s Eighth Amendment Claims

Petitioner claims that his Eighth Amendment rights were

violated because the state court (1) set excessive bail, (2)

imposed an excessive fine, and (3) imposed custodial sentences

that amounted to cruel and unusual punishment. (See, e.g., First

Pet. at 20, 22, 24; Second Pet. at 20, 22, 24.)

First, Petitioner’s claim of excessive bail is moot

because Petitioner was convicted and is now serving his sentence.

“[T]he Eighth Amendment protection against excessive bail may only

be vindicated prior to trial.” MacLean v. Lewin, 2011 WL 2971771,

at *4 (W.D.N.Y. July 20, 2011) (citing Murphy v. Hunt, 455 U.S.

478, 481-82 (1982)). Once a petitioner is convicted, claims of

excessive bail are no longer at issue. See, e.g., Lombard v.

Mazzuca, 2003 WL 22900918, at *6 (E.D.N.Y Dec. 8, 2003) (habeas

claim that pretrial bail was excessive became moot once petitioner

was convicted). Accordingly, Petitioner’s claim of excessive bail

is denied as moot.

Second, “[i]t is well settled that ‘[n]o federal

constitutional issue is presented where . . . the sentence is

within the range prescribed by state law.’” Ross v. Gavin, 101

F.3d 687 (2d Cir. 1996) (second and third alterations in original)

(quoting White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)); see

also, e.g., Dotsenko v. Joseph, 2019 WL 4917952, at *5 (E.D.N.Y.

Oct. 4, 2019). By the time of his convictions giving rise to the

instant petitions, Petitioner had already been convicted under

V.T.L. § 1192 twice in the preceding ten years, in 2007 and 2009.

(State Court Records at 215, 217.) Due to these prior convictions,

Petitioner’s instant convictions were classified as Class D

felonies. V.T.L. § 1193(1)(c)(ii). As a result, Petitioner was

subject to a fine up to $10,000 and imprisonment of up to 7 years.

See id.; see also N.Y. Penal Law § 70.00. With respect to the

2012 indictment, Petitioner was sentenced to two to six years in

prison. (2012 Indictment Transcripts at 476.) With respect to

the 2013 indictment, Petitioner was sentenced to two and one third

to seven years in prison and to pay a $2,000 fine. (2013 Indictment

Transcripts at 900.) Because these sentences were within the range

prescribed by New York law, Petitioner’s Eighth Amendment claims

are denied.

VI. Petitioner’s Speedy Trial Claims

Petitioner asserts violations of his Sixth Amendment

right to a speedy trial. (First Pet. at 14; Second Pet. at 14.)

These claims are also unexhausted and procedurally barred.

Petitioner did not raise a Sixth Amendment speedy trial claim on

direct appeal, in his motion to vacate, or in his coram nobis

petition. With respect to the 2013 indictment, Petitioner’s trial

counsel did raise a speedy trial claim under C.P.L. § 30.30.

“Raising a claim pursuant to § 30.30,” however, “is not sufficient

to exhaust the separate constitutional claim.” Turner v. Bell,

2021 WL 1565373, at *2 (E.D.N.Y. Apr. 21, 2021); see also, e.g.,

Gibriano v. Attorney General, 965 F. Supp. 489, 492 (S.D.N.Y. 1997)

(same). The record does not reveal any basis to excuse the

procedural default resulting from Petitioner’s failure to exhaust

a speedy trial claim. Accordingly, the court rejects Petitioner’s

Sixth Amendment speedy trial claims as procedurally defaulted.

VII. Petitioner’s Statutory and Regulatory Claims

Finally, Petitioner invokes a host of federal statutes

and regulations in his petitions. (First Pet. at 32-164; Second

Pet. at 32-164.) The court concludes that Petitioner is not

entitled to habeas relief based on any of the statutes or

regulations cited in the petitions.

All of the asserted statutory and regulatory violations

fail to comply with Rule 2(c) of the Rules Governing Section 2254

proceedings. Petitioner has enumerated many federal laws but has

not sufficiently or specifically explained how each law was

violated and how that violation led to Petitioner’s incarceration

or a violation of Petitioner’s rights. For instance, Petitioner

alleges that unidentified “officers” committed various crimes

under Title 18 of the United States Code. For example, Petitioner

alleges:

18 U.S.C.A § 653 – GROSSLY EGREGIOUS MALFEASANCE IN

VIOLATION OF DISBURSING OFFICER MISUSING PUBLIC

FUNDS: Officers engaged in insurrection and

rebellion through FRAUD & DECEIPT [sic], by

committing misprision of felony in violation of

accessory after the fact, by being a disbursing

officer of the United States, or any department or

agency thereof, or a person acting as such, in any

manner converts to his own use, or loans with or

without interest, or deposits in any place or in

any manner, except as authorized by law, any public

money intrusted to him; or, for any purpose not

prescribed by law, withdraws from the Treasury or

any authorized depositary, or transfers, or

applies, any portion of the public money intrusted

to him, is guilty of embezzlement of the money so

loans deposited, withdrawn, transferred or applied.

(First Pet. at 60 (emphasis in original)). Petitioner has not

provided any facts to identify the officers or the specific actions

they took that allegedly violated this criminal statute, nor does

he indicate how those actions violated Petitioner’s rights or led

to his incarceration. Each of the statutory and regulatory grounds

raised by Petitioner are very similar to the example identified

above (see, e.g., First Pet. at 32-58, 61-164), and thus none of

them meet the pleading standard under Rule 2(c). See Fed. R.

Governing Section 2254 Proceedings, Rule 2(c).

More fundamentally, a habeas petitioner under Section

2254 must show that he is “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a) (emphasis added). The court agrees with Respondent that

Petitioner “nowhere connects the violations he alleges to his

custody.” (ECF No. 10-1 at 41.) For example, Petitioner invokes:

(1) the federal criminal prohibition on aiding and abetting an

offense against the United States (e.g., First Pet. at 38 (citing

18 U.S.C. § 2)); (2) the federal criminal prohibition on conspiring

to commit an offense against the United States (e.g., First Pet.

at 44 (citing 18 U.S.C. § 371)); (3) federal criminal statutes

regarding the filing of claims against the United States and the

embezzlement of funds from the United States (e.g., First Pet. at

46-50, 54 (citing 18 U.S.C. §§ 285-87, 641)); (4) federal criminal

statutes prohibiting the forging of a federal court officer’s

signature and prohibiting various federal officers from embezzling

funds (e.g., First Pet. at 52, 56, 58, 60 (citing 18 U.S.C. §§

505, 645, 648, 653)); (5) federal criminal prohibitions on hostage

taking, kidnapping, and receiving ransom payments (e.g., First

Pet. at 70, 72, 74 (citing 18 U.S.C. § 1201-03));(6) federal

criminal statutes prohibiting making false statements within the

jurisdiction of the United States and obstructing official

proceedings of United States departments and agencies (e.g., First

Pet. at 64, 76 (citing 18 U.S.C. §§ 1001, 1505)); and (7) a federal

statute creating monetary grants to states for the improvement of

criminal records (e.g., First Pet. at 134 (citing 34 U.S.C. §

40302)). As these few examples illustrate, the statutes and

regulations cited in the petitions have no relationship to

Petitioner’s custody pursuant to his state court judgments of

conviction.

Finally, “[h]abeas corpus is available to review a claim

of violations of federal laws only when the claim alleges ‘a

fundamental defect which inherently results in a complete

miscarriage of justice, [or] an omission inconsistent with the

rudimentary demands of fair procedure.’” Joyce v. Pataki, 100

F.3d 941 (table), 1996 WL 2067, at *2 (2d Cir. Jan. 3, 1996)

(alteration in original) (quoting Hill v. United States, 368 U.S.

424, 428 (1979)); accord Reed v. Farley, 519 U.S. 339, 348 (1994).

Petitioner provides no facts or argument to show that the alleged

statutory and regulatory violations were related to his custody,

let alone that those alleged violations resulted in a complete

miscarriage of justice at his trial. Accordingly, Petitioner is

not entitled to habeas relief based on the statutory and regulatory

violations that are conclusorily alleged in his petitions.

CONCLUSION

For the foregoing reasons, the two petitions for a writ

of habeas corpus in 21-CV-992 and 21-CV-993 are denied. No

certificate of appealability shall issue because Petitioner has

failed to make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2); see Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). Pursuant to 28 U.S.C. §

1915(a)(3), the Court certifies that any appeal from this Order

would not be taken in good faith, and therefore in forma pauperis

status is denied for purpose of an appeal. See Coppedge v. United

States, 369 U.S. 438 (1962).

The Clerk of Court is respectfully requested to enter

judgments in favor of Respondent on both petitions, serve a copy

of this memorandum and order and the judgments in each action on

Petitioner, note service on the docket, and close this case.

SO ORDERED.

Dated: Brooklyn, New York

May 6, 2022 /s/ Kiyo A. Matsumoto_______

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York