# Smith v. Gonzalez

> District Court, E.D. New York · March 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10309515

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 21, 2023
- **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/10309515

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309515. Public record. Not legal advice.