Monroe v. Griffin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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REGINALD MONROE, :

Petitioner, : MEMORANDUM DECISION

“V- 16-CV-04788 (DC)

THOMAS GRIFFIN, :

Respondent. :

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APPEARANCES: REGINALD MONROE

Petitioner Pro Se

12A0225

Green Haven Correctional Facility

P.O. Box 4000

Stormville, NY 12582

MELINDA KATZ, Esq.

District Attorney, Queens County

By: John M. Castellano, Esq.

Ellen C, Abbot, Esq.

Assistant District Attorneys

125-01 Queens Boulevard

Kew Gardens, NY 11415

Attorney for Respondent

CHIN, Circuit Judge:

In 2012, following a jury trial, petitioner Reginald Monroe was convicted

in the Supreme Court of the State of New York, Queens County (Lasak, /.), of second-

degree murder and third-degree weapons possession. Monroe was sentenced to an

indeterminate term of 25 years to life for murder and one year for weapons possession,

to run concurrently. See Dkt. 15-11 at 116. His convictions were affirmed by the

Appellate Division, Second Department, People v. Monroe, 987 N.¥.S.2d 243 (2d Dep't

2014) ("Monroe I"), and the New York Court of Appeals denied his application for leave

to appeal, People v. Monroe, 25 N.E.3d 350 (N.Y, 2014) (Smith, /.) ("Monroe II").

On June 30, 2016, proceeding pro se, Monroe filed the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). See Dkt. 2.

Monroe argues that (1) he was denied his statutory right to exercise peremptory

challenges and that, as a result, his due process right to a fair trial before an impartial

jury was violated and (2) he had ineffective assistance of appellate counsel for

various reasons. See id. at 3-4. The Queens County District Attorney's Office filed its

opposition to the Petition on May 10, 2017. See Dkt. 14. On February 3, 2023, the

case was reassigned to the undersigned.

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

BACKGROUND

I, The Facts?

On June 21, 2000, Monroe shot John Williams in the neck and torso and

stabbed him approximately 57 times, killing him. Williams lived with Darryl Privott on

the third floor of an apartment building at 106-53 150th Street in Queens, and Monroe

lived on the second floor of that building. See id. at 3-4.

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. 14,

Around 9:30 a.m. that day, Monroe, who was with another individual,

approached Privott and asked him whether Williams was home. Privott responded that

he was, and Monroe told Privott that he wanted to confront Williams about an incident

involving a woman who lived in the building. Monroe instructed Privott to stay at the

grocery store and not to enter the apartment building where they lived. Around 10:30

a.m., Sean Howell, who lived on the first floor of the building, was sleeping in his

apartment and heard the sound of someone falling down the stairs. He looked through

the peephole of his door and saw Williams in the hallway, yelling for Monroe not to kill

him. See id, at 4.

At the same time, Privott arrived at the front door of the building. He

looked through the window and saw Monroe, who yelled, "[D]idn't I tell you to stay

away from the house," and placed his hand on the window. Privott observed that

Monroe's hand was bloody, and he heard the sound of someone moaning inside. He

left the building and went to a friend's house. See id.

Around 1:00 pm, Privott returned to the building. Howell and his brother,

who also lived in the building, opened the front door to let Privott in. Privott observed

blood on the carpet and saw that the stair banister was broken, Privott, Howell, and

Howell's brother went upstairs to the third floor and noticed a trail of blood that went

from the third floor apartment all the way downstairs to the building cellar door. They

opened the cellar door and observed blood on the cellar stairway, but none of them

went into the basement. See td. at 4-5.

Privott packed a bag, went to his mother's house, and told her what had

happened. His mother told him that a warrant squad was looking for him. (He had an

outstanding warrant in an open criminal case). He called the warrant squad, and the

individual on the phone told him that a police officer would be there to pick him up the

next day. See id. at 5.

The next morning, a police officer came to pick Privott up, and Privott told

the police officer everything that he observed at his building the day before. Police

officers went to the building, and, upon entering the basement, a detective observed

Williams' dead body hanging from the stair runner with multiple stab wounds, The

detective recovered a knife from a garbage can on the first floor as well as two scissors

and two deformed bullets from the third-floor apartment. No gun was found at the

scene. The knife had Williams's blood on it. See id.

Monroe was arrested. He waived his Miranda rights and gave an oral and

written statement that he had gotten into an altercation with Williams. He stated that

he stabbed Williams "a lot of times" because he thought Williams had a gun during the

fight. He also stated that during the fight, the gun went off two times causing Williams

to fall back. See id. at 5-6; Dkt. 15-8 at 103-04.

A forensic examiner performed an autopsy on Williams's body. She

observed stab wounds to his neck, chest, arms, hands, and fingers. She also observed

bullet wounds to his neck and chest and recovered a bullet from his chest. She testified

that there were potentially three instruments used for the stabbings, and she

determined that Williams died from the stab and gunshot wounds to his chest and

neck. See Dkt. 14 at 6; Dkt. 15-9 at 68.

IL. Procedural History

A. State Court Proceedings

Monroe was charged with second-degree murder, second-degree

weapons possession, third-degree weapons possession, and tampering with physical

evidence. Dkt. 15-3 at 63. The case proceeded to trial,

On September 12, 2011, the third round of jury selection began with the

court resolving a Kern challenge advanced by the People. Dkt, 15-5 at 192. After

defense counsel exercised a peremptory challenge against an Asian juror, the People

made an application asserting that defense counsel was using her peremptory strikes to

challenge all of the Asian jurors presented. See id. at 13-14. The court concluded that

the People failed to make a prima facie case of discrimination. See id, at 19. Thereafter,

the court asked defense counsel if there were any other challenges up to juror number

12, and defense counsel said no. The court asked, "Marilyn Brown, Melida Sandiford,

and Louis Canella[s]iuis are acceptable to both sides?," to which both parties responded

“That is correct,” Id. at 20.

2 In People v, Kern, the New York Court of Appeals held that peremptory challenges

cannot be used to exclude jurors solely on the basis of their race. 554 N.E.3d 1235, 1242 (N.Y.

1990).

The court moved on to juror number thirteen. Neither party exercised a

challenge for cause, but defense counsel exercised a peremptory challenge against the

juror. The court moved on to juror number fourteen. Again, neither party exercised a

challenge for cause, but the People exercised a peremptory challenge against the juror.

The court then moved on to juror number fifteen. Both parties said that they did not

want to exercise challenges for cause. The court then asked defense counsel whether

she wished to exercise a peremptory challenge against the juror, and defense counsel

responded that she actually wanted to make a peremptory challenge against Mr.

Canellasluis, a juror who had already been approved by both parties and seated. She

stated that she had previously made a mistake. The court responded, "We have already

passed that." Id. at 20-21.

The court asked the prosecutor whether he would consent to a belated

peremptory challenge, and the prosecutor responded that he did not consent. Defense

counsel stated for the record that she did not believe anyone would be advantaged or

disadvantaged by allowing the belated challenge, and the court explained that it had

specifically asked whether Mr. Canellasluis was a satisfactory juror, to which both

parties had answered yes. See id, at 21-22. At the conclusion of the jury selection round,

Mr. Canellasluis was sworn in as a juror. See id. at 31.

Evidence at trial included the testimony of Privott, Howell, and the

detective who interviewed Monroe, as well as Monroe's written admission to law

enforcement that he stabbed Williams. See Dkts, 15-3 at 28, 15-8 at 2-83, 103, 129-149;

15-9 at 1-10. The jury returned a verdict on January 4, 2012, finding Monroe guilty of

second-degree murder and third-degree weapons possession. He was acquitted of

second-degree weapons possession and tampering with the evidence. See Dkt. 14 at 6

n.2. He was sentenced to an indeterminate sentence of 25 years to life for murder and

one year for weapons possession, to run concurrently. See Dkt. 15-11 at 116.3

Represented by counsel, Monroe appealed the judgment of conviction to

the Appellate Division, Second Department in May 2013, arguing that he was denied

his statutory right to exercise peremptory challenges and that his due process right to a

fair trial was violated because the court did not allow defense counsel to make an

untimely peremptory challenge. See Dkt. 15 at 14. On June 18, 2014, the Appellate

Division affirmed Monroe's judgment of conviction, holding that the Supreme Court

“providently exercised its discretion in denying the defendant's belated peremptory

challenge." Monroe [, 987 N.¥.5.2d 243. On December 8, 2014, the New York Court of

Appeals denied Monroe's application for leave to appeal. See Monroe H, 25 N.E.3d 350.

On January 28, 2015, Monroe filed pro se, in the Supreme Court of the

State of New York, Queens County, a motion to vacate judgment pursuant to N.Y.

Criminal Procedure Law § 440 ("§ 440 motion"). Monroe argued that his appellate

counsel was ineffective because he failed to raise the following grounds on direct

appeal -- that (1) the evidence was legally insufficient to establish guilt and the

people failed to disprove his justification defense, (2) the police and prosecution

committed bribery and perjury, and (3) he was denied the right to testify at trial. See

3 Monroe's conviction of third-degree weapons possession was reduced to fourth-

degree weapons possession at sentencing. Dkt, 15-11 at 76, 106.

Dkt. 15 at 88-101, 109, On May 19, 2015, the Queens County Supreme Court denied

the motion, concluding that Monroe had not raised his claims in the proper venue

and that Monroe failed to allege a sufficient factual or legal basis entitling him to

relief, See id. at 123-24.

On June 17, 2016, Monroe filed a petition for a writ of error coram nobis

in the Appellate Division, Second Department, claiming that he received ineffective

assistance of appellate counsel for various reasons. Id. at 125-57. On January 11,

2017, the Appellate Division denied the coram nobis petition, concluding that Monroe

failed to establish that he was denied the effective assistance of appellate counsel,

People v. Monroe, 43 N.Y.S.3d 922 (2d Dep't 2017) ("Monroe Il"). Monroe did not seek

leave to appeal to the New York Court of Appeals from the Appellate Division's

denial of his petition for a writ of error coram nobis.

B, Proceedings Below

On June 30, 2016, Monroe filed the Petition, raising the same claim he

raised on direct appeal to the Appellate Division -- that he was denied his statutory

right to exercise peremptory challenges and that his due process right to a fair trial

was violated because the court did not allow defense counsel to make an untimely

peremptory challenge. He also asserts a second ground -- echoing his coram nobis

petition -- that he received ineffective assistance of appellate counsel for various

reasons, See Dkt. 2. On May 10, 2017, Respondent timely filed its opposition to the

Petition. See Dkt. 14.

On May 26, 2022, Monroe filed in Queens Supreme Court another § 440

motion to vacate judgment, claiming actual innocence. Dkt. 34 at 2, 8-16. On June

21, 2022, and September 9, 2022, Monroe filed motions to stay the Petition pending

resolution of his second § 440 motion. Dkts. 28, 35. Respondent has opposed the

motions for a stay. Dkts. 29, 34.

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 ULS.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 stale 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).

A state law error is not sufficient for habeas corpus relief unless it rises

to a level that implicates a constitutional right. Wainwright v. Goode, 464 U.S, 78, 84-

86 (1983) (per curiam); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In

conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States."). The

Supreme Court has repeatedly held that there is "no freestanding constitutional right

to peremptory challenges." Rivera v. Hlinois, 556 U.S. 148, 157 (2009); see also United

States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) ("[UJnlike the right to an impartial

jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal

constitutional dimension."). In Rivera v. Illinois, the defendant argued that the Due

Process Clause required reversal of his conviction because the trial judge

erroneously denied a peremptory challenge. 556 U.S. at 156. The Supreme Court

explained that states may withhold peremptory challenges "altogether without

impairing the constitutional guarantee of an impartial jury and a fair trial" and that

just as state law controls the exercise of peremptory challenges, state law determines

the consequences of an erroneous denial of peremptory challenges. Id. at 152

(quoting Georgia v. McCollum, 505 U.S. 42, 57 (1992) (collecting cases)). The Court

concluded that the loss of a peremptory challenge is "not a matter of federal

constitutional concern” and that the judge's refusal to grant the peremptory

challenge did not violate the defendant's constitutional rights, Id. at 157-58.

Before seeking federal habeas relief, a state habeas petitioner must

exhaust his state remedies by presenting his constitutional claims to the state courts.

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28 U.S.C. § 2254(b\(1). A constitutional claim is not exhausted until the essential

factual and legal premises of the constitutional claim have been presented to the

highest state court capable of reviewing it. Bierenbaum v. Graham, 607 F.3d 36, 47 (2d

Cir. 2010); Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005); see also Jones v. Vacco, 126

F,3d 408, 413 (2d Cir. 1997). Additionally, an applicant is not deemed to have

exhausted his state remedies if he has the right under state law to raise, "by any

available procedure, the question presented." 28 U.S.C. § 2254(c) (emphasis added). If

a defendant has a claim of ineffective assistance of appellate counsel, the claim is

reviewable by coram nobis to the Appellate Division, People v. Bachert, 509 N.E.2d 318,

321-22 (N.Y. 1987), and the defendant may seek leave to appeal to the New York

Court of Appeals from the Appellate Division's denial of the coram nobis petition, see

N.Y, Crim, Proc, Law § 450,90(1).

When evaluating an ineffective assistance of appellate counsel claim, a

federal court applies the standards of Strickland v. Washington, 466 U.S. 668 (1984).

To show that appellate counsel representation was ineffective under Strickland, a

defendant "must establish that (1) the attorney's representation fell below an

objective standard of reasonableness; and (2) the deficient representation prejudiced

the defense." Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). "Under § 2254(d){1),

we must determine not whether the state court was incorrect or erroneous in

rejecting [an] ineffective assistance claim, but whether it was ‘objectively

unreasonable’ in doing so." Id. (quoting Williams v. Taylor, 529 U.S. 362).

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"(When a claim of ineffective assistance of counsel is based on failure

to raise viable issues, the district court must examine the trial court record to

determine whether appellate counsel failed to present significant and obvious issues

on appeal." Clark v. Stinson, 214 F.3d 315, 328 (2d Cir, 2000) (quoting 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." Mayo, 13 F.3d at 533. "Generally, only when ignored issues are clearly

stronger than those presented, will the presumption of effective assistance of counsel

be overcome." Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)).

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,

Il. Analysis

Monroe raises two claims in this Petition: (1) he was denied his statutory

right to exercise preemptory challenges and, as a result, his due process right to a fair

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trial before an impartial jury was violated and (2) his appellate counsel was ineffective

for various reasons, 1 address each claim in turn.

A. Exercise of Peremptory Challenges

The Supreme Court has held that the denial of peremptory challenges

does not implicate a constitutional right. See Rivera, 556 U.S. at 152, 157, Monrce's

claim is a matter of state law, and the attempt to make the claim a matter of federal

constitutional law fails because there is no constitutional right to peremptory

challenges. See id. The Second Circuit has noted that "errors of state law cannot be

repackaged as federal errors simply by citing the Due Process Clause." DiGughtelmo

v. Smith, 366 F.3d 130, 136 (2d Cir. 2004) (citation omitted). Monroe's claim is purely

that state law was violated, and "federal habeas corpus relief does not lie for errors

of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Moreover, the Appellate

Division's conclusion that the trial court "providently exercised its discretion in

denying the defendant's belated peremptory challenge" is entitled to substantial

deference and is not unreasonable. Monroe I, 987 N.Y,S,2d 243; see also Fischer, 780

F.3d at 560; Watters, 857 F.3d at 477,

Accordingly, Monroe's claim that his due process rights were violated

because the trial judge did not allow a belated peremptory challenge fails.

B, Ineffective Assistance of Appellate Counsel

Monroe first raised the ineffective assistance of appellate counsel claim

in his first § 440 motion on January 28, 2015, which was denied on May 19, 2015.

Monroe raised the claim again in a writ of error coram nobis petition to the Appellate

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Division, and the Appellate Division denied the writ on January 11, 2017. See Monroe

TIL, 43 N.Y.S.3d 922. Monroe did not seek leave to appeal to the New York Court of

Appeals from the Appellate Division's denial of his petition for a writ of error coram

nobis. Therefore, Monroe's claim that he received ineffective assistance of appellate

counsel is procedurally barred. Furthermore, any attempt to file a leave application

now would be untimely because a party has thirty days from receipt of an appellate

order to seek leave to appeal from the order. N.Y. Crim. Proc. Law § 460.10(5)(a).

Where a petitioner has procedurally defaulted a claim by failing to

raise it on direct review, the claim may be reviewed by the habeas court only if the

petitioner can first demonstrate either (1) "cause and prejudice," or (2) that a

fundamental miscarriage of justice would result if the merits of the federal claim are

not considered. See Edwards v. Carpenter, 529 U.S, 446, 451 (2000) (citing Coleman v.

Thompson, 501 U.S, 722, 750 (1991)).

To establish "cause" for a procedural default, the petitioner must

ordinarily show that "some objective factor external to the defense impeded" his

effort to comply with the state procedural rule in state court. Murray v. Carrier, 477

U.S. 478, 488 (1986); see also Clark v. Perez, 510 F.3d 382, 393 (2d Cir, 2008). To

establish "actual prejudice," a petitioner must show that “errors at his trial...

worked to his actual and substantial disadvantage, infecting his entire trial with error

of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982).

Finally, to show that here would be a "fundamental miscarriage of justice," a

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petitioner must show that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent." Murray , 477 U.S. at 496.

Monroe has not met any of these exceptions. First, he has not

presented any facts showing that there was cause for the procedural default.

Furthermore, he cannot show prejudice or fundamental miscarriage of justice

because his claim is meritless. Indeed, the Appellate Division rejected Monroe's

ineffective assistance of appellate counsel claim on the merits, and that decision is

entitled to substantial deference, see Fischer, 780 F.3d at 560, and can only be

disturbed if it was “objectively unreasonable," Sellan, 261 F.3d at 315,

Monroe claims that appellate counsel failed to raise several issues on

direct appeal to the Appellate Division. First, he claims that appellate counsel

shouid have raised a claim that his rights under the Confrontation Clause of the

Sixth Amendment of the U.S. Constitution were violated because several people did

not testify: (1) the technician who tested his DNA sample, (2) the detective who

wrote out his written statement, and (3) a detective who interviewed him during his

investigation. First, Monroe has not shown that appellate counsel erred by failing to

raise the claim as to the technician because at the time the conviction was appealed,

prevailing New York state law did not call for the testimony of the DNA technician

in such cases. Monroe's claim as asserted in his coram nobis petition relies on People v.

John, 52 N.E.3d 1114 (N.Y, 2016), which was decided after his trial. Under Strickland,

the reasonableness of counsel's conduct must be evaluated "as of the time of

counsel's conduct." 466 U.S. at 690. Appellate counsel did not err in failing to bring

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a claim that would have called for "an extension of or change in -- not an application

of -- existing law." People v. Feliciano, 950 N.E.2d 91, 100-01 (N.Y. 2011).

Furthermore, Monroe has not shown that the claim was "stronger than those

presented." Mayo, 13 F.3d at 533. An analyst from the Office of Chief Medical

Examiner testified on direct examination that there were two DNA profiles found

under Williams's fingernails, but that "[Monroe| was excluded as a possible

contributor," meaning "he was not a contributor.” See Dkt. 15-9 at 110. Thus,

appellate counsel could have deemed any testimony as to the DNA harmless, and it

was reasonable for appellate counsel not to raise the claim. See People v. Cartagena,

126 A.D.3d 913, 914 (2d Dep't 2015) (applying the harmless error analysis to a

Confrontation Clause claim and concluding that a constitutional error was harmless

because "there was no reasonable possibility that the erroneously admitted report

contributed to the defendant's conviction.").

Second, appellate counsel did not err in failing to raise the claim as to

the detective who wrote out the written statement because the other detective who

was present during the interview testified, and the written statement was entered

into evidence, See Dkt. 15-8 at 90, 113. Third, the detective who interviewed Monroe

when he made a self-incriminating statement -- Detective Lopresti — testified and

was cross-examined by Monroe's counsel. See id. at 122-29. Appellate counsel's

decisions with respect to the Confrontation Clause issues did not fall below an

objective standard of reasonableness.

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Additionally, Monroe claims that his appellate counsel failed to argue

that the prosecution permitted two detectives to testify falsely about money that

another witness received from them, but defense counsel had adequate opportunity

to cross-examine the detectives on this issue, which eliminates his claim of prejudice.

People v. Cortijo, 517 N.E.2d 1349, 1350 (N.Y. 1987) ("[A] defendant's constitutional

right to a fair trial is not violated when... he is given a meaningful opportunity to

use the allegedly exculpatory material to cross-examine the People's witnesses or as

evidence during his case.").

Monroe further claims that trial counsel failed to advance a third-party

culpability argument, but counsel was well within reason not to advance such an

argument because third-party culpability arguments "may not rest on mere

suspicion or surmise," People v. DiPippo, 50 N.E.3d 888, 893 (N.Y. 2016), and Monroe

did not advance evidence of third-party culpability. Monroe also claims that the

trial court abused its discretion by failing to remove the third-degree criminal

possession of a weapon charge from the jury's consideration, even though the

elements of fourth-degree criminal possession of a weapon were the same. Defense

counsel requested, at the beginning of jury selection, that the jury be recharged, and

the court declined to grant this request because the only change would be the

labeling of the offense. See Dkt. 15-11 at 75-76. Appellate counsel's failure to

advance this claim on direct appeal was reasonable.

Lastly, one of the claims that Monroe argues appellate counsel failed to

advance is factually incorrect. Monroe claims that the trial court abused its

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discretion by failing to issue a justification charge, but the court issued a justification

charge to the jury. See id. at 49-53,

The Supreme Court has held that the Constitution does not require

appointed counsel to raise every colorable claim suggested by a client. fones v.

Barnes, 463 U.S, 745, 754 (1983). Here, appellate counsel made a reasonable decision

to advance Monroe's strongest argument on appeal and not to advance the weaker

arguments. Thus, there was no error of constitutional magnitude regarding

Monroe's appellate counsel, and the Appellate Division's decision was not

unreasonable. See Waiters, 857 F.3d at 477; Sellan, 261 F.3d at 315.

Accordingly, Monroe's claim that he received ineffective assistance of

appellate counsel also fails.

Ii. Motions to Stay the Petition

On June 21, 2022, and September 9, 2022, Monroe asked this Court to stay this

Petition pending resolution of his second § 440 motion to vacate judgment, filed on May

26, 2022, which raises the claim of actual innocence on various grounds. See Dkts. 28,

35. Monroe's request to stay this Petition is denied. First, Monroe does not assert

claims of actual innocence in this Petition, and the claims in his new § 440 motion do

not relate back to the claims in this Petition. Therefore, Monroe has not demonstrated

the "good cause” required for a district court to grant stay-and-abeyance relief. Rhines v. □

Weber, 544 U.S. 269, 277 (2005). Second, he has not established a reason for his failure to

raise the new claims in a motion to vacate sooner, and, indeed, he had previously filed a

first § 440 motion and a petition for a writ of error coram nobis. Third, Monroe cannot

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add the claims asserted in his second § 440 motion to this Petition because the one-year

statute of limitations for the filing a habeas petition has long expired. See 28 U.S.C.

§ 2244(d)(1). Accordingly, the request to stay the Petition is denied.

CONCLUSION

Monroe 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 Monroe 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

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 Monroe at his last address of record.

SO ORDERED.

Dated: New York, New York

March 29, 2023

SBC

DENNY CHIN

United States Circuit Judge

Sitting By Designation

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