# Patel v. Smith

> District Court, E.D. New York · May 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10307969

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307969

## How later opinions describe it (automated extraction)

- noting that “courts should review habeas petitions with a lenient eye”
- explaining that the pleading standard under Rule 2(c) is “more demanding” than the ordinary civil case and requires petitioners to “plead with particularity”
- noting that “courts should review habeas petitions with a lenient eye”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307969. Public record. Not legal advice.