Smith v. Gonzalez

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ete et ee tet et et me eer eet ee teen ee eee rw ern KH X

CARL SMITH, :

Petitioner, : MEMORANDUM DECISION

-v- : 19-CV-05813 (DC)

ERIC GONZALEZ, :

Respondent. :

wert rt er rrr rt re tre er wr ewww rrr rer rere HX

APPEARANCES: CARL SMITH

Petitioner Pro Se

16-A-2564

Mohawk Correctional Facility

Rome, NY 13442

ERIC GONZALEZ, Esq.

District Attorney, Kings County

By: Leonard Joblove, Esq.

Jean M. Joyce, Esq.

Assistant District Attorneys

350 Jay Street

Brooklyn, NY 11201

Attorney for Respondent

CHIN, Circuit Judge:

In 2016, following a jury trial, petitioner Carl Smith was convicted in

the Supreme Court of the State of New York, Kings County (Jeong, J.), of grand

larceny in the second degree (two counts), grand larceny in the third degree (two

counts), offering a false instrument for filing in the first degree (two counts),

unlicensed practice of law (one count), and criminal possession of a forged

instrument in the second degree (one count). Smith was sentenced as a second

felony offender to an aggregate indeterminate term of nine to eighteen years’

imprisonment. See Dkt. 8 at 9. His convictions were affirmed by the Appellate

Division, Second Department, People v. Smith, 97 N.Y.S.3d 281 (2d Dep't 2019) ("Smith

I"), and the New York Court of Appeals denied his application for leave to appeal,

see People v. Smith, 129 N.E.3d 345 (N.Y. 2019) (DiFiore, C.J.) ("Smith IT”).

On October 15, 2019, proceeding pro se, Smith filed the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). See Dkt. 1.

Smith argues that (1) the evidence supporting the grand larceny counts was legally

insufficient; (2) the evidence supporting the offering a false instrument counts was

legally insufficient; and (3) he had ineffective assistance of trial and appellate

counsel. See id. at 9, 16, 20. The Kings County District Attorney's Office filed its

opposition to the Petition on March 4, 2020. See Dkt. 8. On January 17, 2023, the case

was reassigned to the undersigned.

For the reasons set forth below, Smith's petition is DENIED.

BACKGROUND

I. The Facts!

The evidence at trial established the following:

1 The facts are drawn from the affirmation submitted in opposition to the

Petition. The recitation of facts set forth in the affirmation are supported by detailed

citations to the record, including the trial transcript. See Dkt. 8.

In 2011 and 2012, Smith filed forged deeds and other documents with the

New York City Department of Finance's Office of the City Register (the "City Register")

to obtain various parcels of real property in Kings County. Smith offered these

properties for sale to prospective buyers as the seller or as a New York State attorney

representing a seller. See id. at 1-2. Kenneth Hood, a former police officer and notary,

notarized several documents for Smith. Hood did not verify any signatures and

backdated his notary stamp at Smith's request. See id. at 2-3.

A. The 139 Vanderbilt Avenue Property

In the early 1980s, Delores Teel ("Delores") purchased a residential

building at 139 Vanderbilt Avenue in Brooklyn from Errol Crawford. In December

2001, Delores died intestate, and her heirs included her stepdaughter, Rina Teel

("Rina"), who was the administrator of the estate. Rina and other family members

maintained the 139 Vanderbilt Avenue property from 2001 through 2012. See id. at 3. In

2011, the Teel family attempted to sell the property for $1,025,000, but they were unable

to complete the sale because Smith's name was on the deed. The deed had been filed

with the City Register on April 14, 2011, but it purported to record a transfer of the

property from Delores to Smith on April 4, 2000. Hood notarized and backdated the

deed and related documents at Smith's request. Hood did not verify Delores's

signature, and Rina, who was familiar with Delores's signature, testified that she did

not recognize the signature on the deed and related documents. See id. at 3-4.

In 2011, the Teel family retained attorney Steven Erlitz to commence a

lawsuit against Smith and Hood to set aside the deed. Smith offered Erlitz $100,000 or

$150,000 for the Teel family to "walk away." See id. at 4. Around the same time, Smith

hired attorney Michael Apisiga to represent him in the sale of the property and hired

Fillmore Real Estate to list the property for sale with a listing price of over one million

dollars. Apisiga prepared contracts for several prospective buyers but faced a title

issue. A lis pendens was filed on the property, which prevented it from being sold with

clear title. Apisiga held payments from prospective purchasers in trust and refunded

them when the sales were unable to go through. Apisiga terminated the attorney-client

relationship with Smith after speaking with Erlitz. See id. at 3-4.

In approximately 2013, Robert Loheit sent letters addressed to the owner

of 139 Vanderbilt Avenue expressing interest in purchasing the property. Smith called

Loheit and set up a meeting in person. Smith presented Loheit with documentation

indicating that Smith was the owner of the property and offered to sell it for $350,000.

Loheit researched the chain of title and did not proceed with the purchase. See id. at 5.

B. The 64 Hart Street Property

Jennifer Stith owned a residential property at 64 Hart Street in Brooklyn

and had lived in the ground floor unit for most of her adult life. Her mother, Mary

Brown, had died in 1994, and following the death of her father in 2011, Stith decided to

sell the property. She entered into a contract of sale with Chris and Adell O'Neil, but

later discovered that because the deed had been transferred to Cheskel Parnes, the sale

could not go through. See id.

In September or October 2012, Parnes had been approached on the street

by a person named Sean Smart who claimed he was a real estate broker. Smart offered

to sell 64 Hart Street to Parnes for $200,000 on the condition that the current owner,

Brown, would reside on the first and second floors of the house until her death. When

Parnes insisted that the seller have an attorney, Smart told Parnes that Smith, the

petitioner, was an attorney and would assist with the sale of the house. Smith was not

an attorney. See id. at 5-6.

Parnes met with Smith and Smart, and they discussed the sale. Parnes

received a contract and a deed dated October 30, 2012, which he registered with the

City Register. The purchase price was $180,000, and the related documents were

purportedly signed by Brown. Stith confirmed, however, that the signatures were not

her deceased mother's. Parnes gave Smith between $3,500 and $4,000 in cash and gave

$25,000 in total to five individuals claiming to be involved with Smith or purporting to

be Brown and her granddaughter. Parnes never paid the contract price of $180,000. See

id. at 6-7.

Stith had never met Smith or had any dealings with him. She paid over

$50,000 in legal fees to cure the title, which took approximately four years. She then

sold the property to the O'Neils for approximately $700,000. See id. at 7.

Cc. The 45 Lewis Avenue Property

In 1999, Javier Cortes bought from the City of New York a vacant lot at 45

Lewis Avenue in Brooklyn. Cortes never sold or attempted to sell 45 Lewis Avenue to

anyone, nor did he know Smith or ever engage in any real estate transactions with him.

See id. On February 10, 2011, a deed and related documents for 45 Lewis Avenue were

filed with the City Register purportedly showing the transfer of the property from

Cortes to Smith on May 9, 2008, in consideration of ten dollars. The documents were

notarized by Hood. The signature, Social Security number, and address on the deed

and related forms were not Cortes's, and he had not seen the deed before it was shown

to him at trial. See id. at 7-8.

Cheung Yuen Chiu owned the neighboring lot at 43 Lewis Avenue. Smith

approached Cheung in 2011 and told him that he was selling 45 Lewis Avenue. Cheung

paid Smith $12,000 in cash to purchase the property. See id. at 8. Cheung did not obtain

a title report but checked the deed at the City Register and saw that Smith was listed as

the owner. Cheung and Smith went to City Hall and recorded a deed and related

documents, transferring title of the property. They signed a transfer report, had one of

the documents notarized, and dropped off the documents at the City Hall Clerk's office.

Smith told Cheung to pay the recording fee and that he would receive confirmation

within two weeks that the deed had been recorded. Cheung never received any

confirmation from the City Register. See id.

In 2011, Smith also approached Lamar June and asked if he was interested

in purchasing 45 Lewis Avenue, the neighboring lot to June's house. Over the span of a

month, Smith and June met three or four times and agreed on a purchase price of

$13,000. June paid Smith $11,000 and agreed to pay the rest later. On April 25, 2011,

Smith and June asked Apisiga to help them record a deed for 45 Lewis Avenue.

Apisiga notarized the signatures and sent the deed and related documents to the City

Register for recording. He was also listed on the title report as an attorney for the seller

without his consent. See id. at 8-9. Later, June approached Cheung and claimed to be

the owner of 45 Lewis Avenue, showing Cheung a document that named June as the

owner. June installed a gate on the property and kept his car there. See id. at 9.

II. Procedural History

A, State Court Proceedings

Smith was first indicted on July 11, 2013. A second indictment was filed

charging him with additional crimes on January 8, 2015. See id. at 2. On May 20, 2015,

the Supreme Court of the State of New York, Kings County (Chun, J.), granted the

People's motion to consolidate the two indictments. See id.

The case proceeded to trial, and the jury returned a verdict on May 23,

2016, convicting Smith of two counts of grand larceny in the second degree, two counts

of grand larceny in the third degree, two counts of offering a false instrument for filing

in the first degree, one count of unlicensed practice of law, and one count of criminal

possession of a forged instrument in the second degree. Smith was sentenced as a

second felony offender to an aggregate term of nine to eighteen years’ indeterminate

imprisonment. See id. at 9. The court also ordered the nullification of the deeds at 139

Vanderbilt Avenue and 45 Lewis Avenue and noted that the true owner of 64 Hart had

successfully brought an action to quiet title of that property. See id.; Dkt. 8-3 at 324.

Represented by counsel, Smith appealed from the judgment of conviction

in the Appellate Division, Second Department, on the grounds that (1) the evidence was

legally insufficient to support his convictions for second-degree and third-degree grand

larceny, and that the verdict on those counts was against the weight of the evidence;

(2) the evidence was legally insufficient to support his convictions for the felony offense

of offering a false instrument for filing because there was no evidence of intent to

defraud the State; and (3) he received ineffective assistance of trial counsel. See Dkts. 8

at 9-10; 8-4. On April 17, 2019, the Appellate Division affirmed Smith's judgment of

conviction. See Smith I, 97 N.Y.S.3d at 282. The court held, with respect to the grand

larceny convictions, both that the insufficiency of evidence claim was “unpreserved for

appellate review" and that, in any event, the evidence was "legally sufficient” to

establish Smith's guilt. Id. The court also concluded that Smith "was not denied the

effective assistance of counsel,” and that Smith's attorney provided "meaningful

representation." Id. at 282-83 (citing New York cases). Finally, although the court did

not explicitly discuss the offering a false instrument counts, the court held that "[t]he

defendant's remaining contention is without merit." Id. at 283.

On June 21, 2019, the New York Court of Appeals denied Smith's

application for leave to appeal. See Smith II, 129 N.E.3d 345.

On August 30, 2019, Smith filed pro se, in the Supreme Court of the

State of New York, Kings County, a motion to vacate judgment under N.Y. Criminal

Procedure Law § 440. The motion enumerated eight grounds, including that there

was insufficient evidence of grand larceny, he received ineffective assistance of

counsel, and the prosecution for unlicensed practice of law was time-barred. See

Dkt. 8 at 10-11. On May 11, 2021, in a nine-page decision, the Supreme Court denied

the motion, and on September 8, 2021, the Appellate Division, Second Department

denied Smith leave to appeal that decision. See Dkts. 11-3; 14.

B. Proceedings Below

On October 15, 2019, Smith filed the Petition, raising essentially the

same claims he raised in his direct appeal to the Appellate Division: (1) insufficiency

of evidence for the grand larceny counts, (2) insufficiency of evidence for the offering

a false instrument count, and (3) ineffective assistance of counsel. See Dkt. 1 at 9, 16,

20. On March 4, 2020, Respondent timely filed an opposition to the Petition. See

Dkt. 8. On June 5, 2021, the Court ordered Respondent to file a letter listing all

pending and concluded state court litigation and the status of that litigation.

Respondent filed letters and court records in compliance with this order. See Dkts.

11-14. On January 17, 2023, the case was reassigned to the undersigned.

DISCUSSION

I. Federal Review of State Convictions

A federal court may not grant a habeas petition on a claim that was

adjudicated on the merits in state court unless that adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d); see Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee,

857 F.3d 466, 477 (2d Cir. 2017). Hence, when a claim is adjudicated on the merits,

the state court's decision must be accorded "substantial deference.” Fischer v. Smith,

780 F.3d 556, 560 (2d Cir. 2015). "A federal court may reverse a state court ruling

only where it was 'so lacking in justification that there was .. . [no] possibility for

fairminded disagreement.” Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (per

curiam) (quoting Harrington, 562 U.S. at 103); see also Wetzel v. Lambert, 565 U.S. 520,

524 (2012) (per curiam).

"Federal courts will not review questions of federal law presented in a

habeas petition when the state court's decision rests upon a state-law ground that ‘is

independent of the federal question and adequate to support the judgment.” Cone v.

Bell, 556 U.S. 449, 465 (2009) (citations omitted). Federal courts may not review a

state court ruling that “fairly appear[s] to rest primarily on state procedural law," as

long as the procedural bar is “adequate to support the judgment.” Murden v. Artuz,

497 F.3d 178, 191-92 (2d Cir. 2007) (citations omitted).

The Second Circuit has "held repeatedly that the contemporaneous

objection rule" -- that state appellate courts will review only those errors of law that

are presented contemporaneously such that the trial court is "reasonably prompted"

to correct them -- "is a firmly established and regularly followed New York

procedural rule." Downs v. Lape, 657 F.3d 97, 103, 104 (2d Cir. 2011) (citations

omitted). Hence, the Circuit has affirmed the denial of habeas relief based on the

Appellate Division's ruling that the failure of a petitioner to object at trial rendered a

claim unpreserved for appellate review. See, ¢.g., Garcia v. Lewis, 188 F.3d 71, 81-82

(2d Cir. 1999) (affirming denial of habeas relief where petitioner's trial counsel failed

to bring to trial court's attention a claim that he later attempted to advance on

appeal). If a claim is procedurally barred pursuant to an independent and adequate

10

state rule, a federal habeas court may not review it on the merits, unless the

petitioner demonstrates (1) "cause for the default and actual prejudice as a result of

the alleged violation of federal law," or (2) "that failure to consider the claims will

result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,

750 (1991).

Defendants in a criminal trial have a right to be convicted with proof

establishing their guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 323 (1979). When reviewing a claim that the evidence introduced at trial was

insufficient to sustain a defendant's conviction, the reviewing court applies the

standard set forth in Jackson to determine "whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis

in original). In this analysis, the court "must look to state law to determine the

elements of the crime." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). A

“petitioner bears a very heavy burden in convincing a federal habeas court to grant a

petition on the grounds of insufficiency of the evidence." Id. (citation and internal

quotation marks omitted). Indeed, a federal court may overturn a state court

decision rejecting a sufficiency of the evidence challenge only if the state court

decision was "objectively unreasonable." Coleman v. Johnson, 566 U.S. 650, 651 (2012)

(per curiam) (internal quotation marks omitted).

Finally, in general, to prevail on a claim of ineffective assistance under

federal law, a petitioner must (1) show that counsel's performance was so deficient

11

as to fall below "an objective standard of reasonableness"; and (2) establish prejudice

by demonstrating a "reasonable possibility" that, “but for counsel's unprofessional

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

Washington, 466 U.S. 688, 694 (1984). In the context of a habeas petition pursuant to

28 U.S.C. § 2254, "[e]stablishing that a state court's application of Strickland was

unreasonable . .. is all the more difficult. The standards created by Strickland and

§ 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so." Harrington, 562 U.S. at 105 (citations omitted). Therefore, "[t]he

operative question” when a federal court reviews "a state court's Strickland ruling is

thus not whether [the] federal court believes the state court's determination was

incorrect, but rather whether that determination was objectively unreasonable."

Waiters, 857 F.3d at 478 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007))

(cleaned up).

The standard to establish an ineffective assistance of counsel claim

under New York law is lower than under federal law. See People v. Honghirun, 78

N.E.3d 804, 807 (N.Y. 2017). In New York, a defendant must show only “that counsel

failed to provide meaningful representation." People v. Alvarez, 125 N.E.3d 117, 120

(N.Y. 2019) (citing People v. Stultz, 810 N.E.2d 883 (N.Y. 2004); People v. Baldi, 429

N.E.2d 400 (N.Y. 1981)). Unlike the federal standard, see Strickland, 466 U.S. at 694,

under the state standard, the defendant is not required to demonstrate that he was

prejudiced by the ineffective assistance, see Alvarez, 125 N.E.3d at 120.

12

II. Analysis

Smith raises three claims in his habeas petition: (1) insufficient evidence

with respect to the grand larceny counts, (2) insufficient evidence with respect to the

offering a false instrument counts, and (3) ineffective assistance of trial and appellate

counsel. I address each claim in turn.

A, The Sufficiency of the Evidence of Grand Larceny

Smith argues that the evidence to establish grand larceny of real

property was legally insufficient based on the theory that because a void deed

cannot transfer property, a void deed cannot be the basis of a conviction for grand

larceny of real property, citing Marden v. Dorthy, 54 N.E. 726 (N.Y. 1899), and Faison

v. Lewis, 232 N.E.3d 220 (N.Y. 2015). See Dkt. 1 at 5, 9. Smith did not, however, make

this argument at trial. See Dkt. 8-4 at 61 ("Defendant never raised this claim [that a

forged deed cannot transfer property] at trial ....").

The Appellate Division, citing the contemporaneous objection rule,

held that Smith's contention that the evidence of grand larceny was legally

insufficient was "unpreserved for appellate review.” Smith I, 97 N.Y.S.3d at 282

(citing People v. Hawkins, 11 N.Y.3d 484, 492 (2008); N.Y. Crim, Proc. Law § 470.05

(McKinney)). The Appellate Division's determination, which was based on an

adequate and independent state ground, bars this Court from reviewing the merits

of the claim. See Cone, 556 U.S. at 465. Indeed, Smith has also not demonstrated

cause for the default or shown that failure to consider the claims will result ina

fundamental miscarriage of justice. See Coleman, 501 U.S. at 724.

13

In any event, Smith's legal insufficiency claim as to the grand larceny

counts is without merit. "[CJonsider[ing] the evidence in the light most favorable to

the prosecution and mak[ing] all inferences in its favor," Fama v. Comm'’r of Corr.

Serus., 235 F.3d 804, 811 (2d Cir. 2000), the Appellate Division found that the

evidence was legally sufficient and that the guilty verdict was not against the weight

of the evidence. The Appellate Division considered the definition of larceny in N.Y.

Penal Law § 155.05 and highlighted that the definition includes the term "obtain,"

which is further defined as including "the bringing about of a transfer or purported

transfer of property or of a legal interest therein, whether to the obtainer or another."

See Smith I, 97 N.Y.5.3d at 282 (quoting N.Y. Penal Law §§ 155.00 (1),(2)) (emphasis

added). The Appellate Division concluded that evidence adduced at trial, including

the testimony of several credible eyewitnesses, established beyond a reasonable

doubt that Smith filed forged deeds and other documents with the City Register to

obtain, for himself or others, three properties in Brooklyn and "that he did so with

the intent to deprive the true owners of their properties” for his own financial

benefit. See id.

Smith argues that a forged deed is "a legal nullity” because New York

courts have held that a forged deed is void. See Dkt. 1 at 11. The definition of

“obtain" under New York Penal Law § 155.00, however, prohibits the purported

transfer of property. The evidence established that Smith brought about the

purported transfers of real property to himself. Therefore, the Appellate Division

correctly rejected his contention that the evidence to support the grand larceny

14

counts was legally insufficient. The Appellate Division's decision was not an

unreasonable application of federal law under Jackson, nor was it objectively

unreasonable. See Jackson, 443 U.S. at 319; Coleman, 566 U.S. at 651.

Accordingly, Smith's sufficiency of the evidence claim as to the larceny

counts fails.

B. The Sufficiency of the Evidence of Offering a False Instrument for Filing

Smith argues that the evidence was legally insufficient to establish

offering a false instrument for filing because there was no evidence presented at trial

showing intent to defraud the State as required by N.Y. Penal Law § 175.35. See Dkt.

1 at 16. The Appellate Division determined that Smith's contention was without

merit.

The felony offense of offering a false instrument for filing in the first-

degree requires that the defendant,

knowing that a written instrument contains a false statement or false

information, and with intent to defraud the state or any political subdivision

[thereof,] . . . offers or presents it to a public office [or] public

servant... with the knowledge or belief that it will be filed with,

registered or recorded in or otherwise become a part of the records of

such public office.

N.Y. Penal Law § 175.35 (emphasis added).

The evidence at trial established that Smith filed fraudulent deeds and

other documents with the City Register, a public office that maintains and relies on

the veracity of filings. His repeated filings of fraudulent documents demonstrated

an intent to defraud the City Register, and thus, the State. The Appellate Division's

15

conclusion that the evidence was legally sufficient to convict Smith of offering a false

instrument for filing was not objectively unreasonable. See Coleman, 566 U.S. at 651.

Therefore, Smith's sufficiency of the evidence claim as to the larceny counts fails as

well.

C. Ineffective Assistance of Trial and Appellate Counsel

Smith claims that he received ineffective assistance of trial counsel

because counsel was unaware of relevant case law that holds that a void deed is a

nullity. See Dkts. 1 at 20-22; 8 at 40. Smith claims that trial counsel did not seek

dismissal of the grand larceny of real property charges as a matter of law and that, if

trial counsel had sought such dismissal, Smith would have been acquitted of these

counts. See Dkt. 1 at 20. The Appellate Division determined that Smith was not

deprived of the effective assistance of counsel and that "[v]iewed in totality," counsel

provided "meaningful representation.” Smith I, 97 N.Y.5.3d at 282-83 (citing People v.

Benevento, 697 N.E.2d 584, 712 (N.Y. 1998); Baldi, 429 N.E.2d at 405). Although the

Appellate Division did not cite Strickland in its analysis, it cited two state court cases

that describe New York's own standard for determining the effectiveness of counsel,

and the Second Circuit has recognized that New York's test is not contrary to

Strickland. See Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010). If a state court did

not apply Strickland, but held that counsel was effective under the New York

standard, the petitioner must establish that the state court unreasonably applied

Strickland. See id.

16

A defendant has the right to the assistance of counsel who has

reviewed the relevant law and facts to the defense. See People v. Droz, 348 N.E.2d

880, 882 (N.Y. 1976); People v. Butler, 462 N.Y.S.2d 263 (2d Dep't 1983). To establish

that the state court unreasonably applied Strickland, Smith must show that counsel's

performance fell below an objective standard of reasonableness and that "but for"

counsel's performance, there was a reasonable probability that the outcome would

have been different. See Strickland, 466 U.S. at 694.

The evidence was legally sufficient to establish the grand larceny

counts. Therefore, Smith has not shown that but for counsel's performance, the

outcome would be different. Additionally, counsel's performance did not fall below

an objective standard of reasonableness just because counsel decided not to assert

the meritless argument that Smith raised on appeal regarding the legal nullity of

void deeds. There is a strong presumption’ that counsel's attention to certain issues

to the exclusion of others reflects . . . tactics rather than ‘sheer neglect." See

Harrington v. Ritcher, 562 U.S. 86, 109 (quoting Yarborough v. Gentry, 540 U.S. 1, 8

(2003). The Appellate Division's ruling is not objectively unreasonable.

Accordingly, there was no error of constitutional magnitude as to Smith's trial

counsel.

Smith further contends that he received ineffective assistance of

appellate counsel because appellate counsel failed to present to the New York Court

of Appeals his claim that the transfer and recording of a void deed does amount to

grand larceny. See Dkt. 1 at 22. While Smith's letter of application to the New York

17

Court of Appeals did not specify which issues he was presenting, counsel wrote, "I

am enclosing copies of the briefs filed in the Appellate Division and that Court's

order and opinion. ... We request this Court to consider and review all issues

outlined in defendant-appellant's brief." Dkt. 8-5 at 2. Smith's claim as to grand

larceny was covered in "Point I" in the Appellate Division brief. Dkt. 8-4 at 4.

Furthermore, in Galdamez v. Keane, the Second Circuit held that the petitioner

properly exhausted his claims when along with the letter of application for leave to

appeal to the New York Court of Appeals, petitioner submitted a copy of the

Appellate Division's decision and later provided the briefs that were submitted to

the Appellate Division. 394 F.3d 68, 76 (2d Cir. 2005) ("Because the briefs fairly

presented the federal claims, and Galdamez's leave application reasonably could be

construed only as a request for further appellate review of all issues in the attached

briefs, we hold that Galdamez properly exhausted his federal claims before the

Court of Appeals."). Smith's claims were presented to the New York Court of

Appeals. Thus, there was no error of constitutional magnitude on the part of Smith's

appellate counsel.

CONCLUSION

Smith has failed to show any basis for relief under 28 U.S.C. § 2254.

Accordingly, the Petition is denied. Additionally, I decline to issue a certificate of

appealability because Smith has not made a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a)(3), I certify

18

that any appeal taken from this decision and order would not be taken in good faith.

The Clerk of the Court shall enter judgment accordingly and close this case.

The Clerk of Court is respectfully directed to mail a copy of this

memorandum decision and the judgment to Smith at his last address of record.

SO ORDERED.

Dated: New York, New York

March 21, 2023

DENNY CHI

United States Circuit Judge

Sitting By Designation

19