Hansen v. Johnson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NICHOLAS HANSEN,

Petitioner,

MEMORANDUM & ORDER

-against-

21-CV-00409

JAMES JOHNSON

ACTING SUPERINTENDENT

GREEN HAVEN CORRECTIONAL FAC,

Respondent.

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KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

BACKGROUND

Petitioner Nicholas Hansen (“Petitioner”) is

incarcerated pursuant to a judgment of conviction imposed in New

York State Supreme Court, Suffolk County. Petitioner sought a

writ of habeas corpus pursuant to 28 U.S.C. Section 2254 and

alleged that his state custody violates his federal and

constitutional rights due to the ineffective assistance of his

trial counsel. (ECF No. 1, Petition for Habeas Corpus (“Pet.”),

filed 01/25/21, at 1.) For the reasons set forth in the Court’s

January 10, 2022 Memorandum and Order (Jan. 10, 2022 Order) (ECF

No. 14), the petition was denied. Petitioner appealed the

Court’s ruling to the Court of Appeals, and the Second Circuit

vacated and remanded the case back to this Court to consider

whether:

the state court’s application of N.Y. C.P.L. § 440.10-

3(a) to Appellant’s ineffective assistance claim was

“exorbitant,” and thus inadequate to preclude federal

habeas review, see Pierotti v. Walsh, 834 F.3d 171,

176–77 (2d Cir. 2016); People v. Harris, 491 N.Y.S.2d

678, 687-88 (App. Div. 2d Dep’t 1985); and, if so,

whether (2) the state court’s merits analysis was a

“contrary-to-fact construction” and thus not entitled

to AEDPA deference, Fulton v. Graham, 802 F.3d 257,

265 (2d Cir. 2015); and (3) whether Appellant was

entitled to habeas relief on his claim that counsel

was ineffective by allegedly (a) failing to properly

advise him of his right to testify, or (b) coercing

him into not testifying, see Brown v. Artuz, 124 F.3d

73, 79 (2d Cir. 1997).

This Court assumes both parties’ familiarity with the

facts of the case. After trial before a court and jury on

December 13, 2013, Petitioner was convicted of Attempted Murder

in the Second Degree, two counts of Criminal Use of a Firearm in

the First degree, Criminal Possession of a Weapon in the Second

Degree, Criminal Sale of a Controlled Substance in the First,

Second, and Third Degree, two counts of Criminal Possession of a

Weapon in the Seventh Degree, seven counts of Criminal

Possession of a Controlled Substance in the Second Degree, and

Criminal Possession of a Controlled Substance in the Fourth

Degree. (ECF No. 11-9, Trial Transcript (“Tr.”), filed

08/16/21, at 145-152.)1 Petitioner was sentenced to a

determinate prison term of twenty-three years, and a five-year

post-release supervision term for the charge of Attempted Murder

1 Citations to Tr. refer to the trial testimony which are annexed through

multiple exhibits. (ECF No. 11-5-9.) The exhibits are sequential, so the

citations follow the internal pagination of the documents.

in the Second Degree, and concurrent determinate prison terms

for each of the remaining convictions. (ECF Nos. 11-9,

Sentencing Proceeding, filed 08/16/21; 6-1, at 190-193,

Respondent's Memorandum of Law in Opposition to Petition for a

Writ of Habeas Corpus (“Resp’t Mem.”), filed 04/08/21, at 3-4.)

Petitioner filed a direct appeal challenging only his

convictions for Attempted Murder in the Second Degree and

Criminal Use of a Firearm in the First Degree. (ECF No. 11-3,

Appellant's Brief, filled 08/16/21, at 66.) The New York

Appellate Division, Second Department upheld the convictions.

People v. Hansen, 61 N.Y.S.3d 614 (2d Dept 2017). The New York

Court of Appeals denied leave to appeal. People v. Hansen, 30

N.Y.3d 1105 (2018).

After his leave to appeal was denied, Petitioner filed

a motion pursuant to New York Criminal Procedural Law (NY CPL)

§440.10-1(h).2 (ECF No. 11-4, Appellant’s Motion to Vacate the

Conviction (“440.10 Mot.”), filed 08/16/21, at 19-30).

Petitioner sought to vacate his conviction, or alternatively, a

hearing, on the basis that his conviction was obtained in

violation of his Sixth Amendment right to effective assistance

of counsel. (Id.) Petitioner argued that his trial counsel

2 CPL §440.10-1(h) provides a vehicle for criminal defendants to move to vacate

their conviction upon the grounds that "the judgment was obtained in

violation of a right of the defendant under the constitution of this state or

of the United States”.

failed to advise him that the decision whether to testify was

ultimately his to make. (Id.)

The New York State Supreme Court, Suffolk County

(“440.10 Court”) denied Petitioner’s application pursuant to NY

CPL § 440.10(3)(a) holding Petitioner’s claim was procedurally

barred because Petitioner failed to state his desire to testify

on the record prior to his sentence. (ECF No. 11-4, 440.10

Decision (“440.10 Dec.”), filed 08/16/21, at 14.) The 440.10

Court further held that even if Petitioner’s claims cleared the

procedural hurdles, his claim failed on the merits under a

Strickland analysis. (Id. at 14-17); Strickland v. Washington,

466 U.S. 668 (1984) (“A [petitioner] claiming ineffective

assistance must (1) demonstrate that his counsel's performance

‘fell below an objective standard of reasonableness’ in light of

‘prevailing professional norms,’ and (2) ‘affirmatively prove

prejudice’ arising from counsel's allegedly deficient

representation.”).

When considering the 440.10 Motion the Court

determined that Petitioner failed to meet the first Strickland

prong of deficient performance, finding that counsel reasonably

and strategically decided to advise Petitioner against

testifying, even if “forceful persuasion tactics” were employed.

(Id. at 16-17.) The Court stated that Petitioner also failed to

satisfy the second Strickland prong of prejudice in the outcome

of the proceedings had he testified, because the jury was

presented with the justification defense, about which Petitioner

wanted to testify, and viewed the video and audio evidence.

(Id. at 17.) The Appellate Division denied Petitioner leave to

appeal on June 8, 2020. (ECF No. 1, Denial of Leave to Appeal

440.10 Decision, filed 01/25/21, at 29.)

On January 25, 2021, Petitioner filed a habeas

petition pursuant to 28 U.S.C. § 2254 raising a single claim of

ineffective assistance of counsel. (ECF No. 1, Petition for

Habeas Corpus (“Pet.”), filed 01/25/21, at 1.) Petitioner

alleged that he raised the issue of testifying with counsel on

the third day of voir dire and counsel responded with an

expletive, told Petitioner he knew what he was doing and that if

Petitioner raised the issue again counsel would withdraw from

the case. (Pet. at 5; Resp’t Mem. at 4.; ECF No. 11-4,

Petitioner’s Sworn Affidavit (“Pet. Aff.”), filed 08/16/21, at

20-24).) Petitioner stated he “became scared that [his

attorney] really would leave my case, so I just nodded my head.

I knew my mother had just emptied every bank account she had in

order to pay [the attorney] his fee . . . I did not want my

mother to lose her money for nothing, so I kept quiet after that

and hoped for the best. (Pet. Aff. at 21-22.) Petitioner

stated he was unaware that he had the right to testify until

after he visited the law library at the Auburn Correctional

Facility. (Id. at 22.) In his petition, Petitioner described

the testimony he would have provided had he testified and

submitted affidavits from family members. (Id. at 23.)

Upon review of the state court’s ruling, this Court

found that the Petitioner’s ineffective assistance of counsel

claim was procedurally barred because the state court rejected

the claim on adequate and independent state law grounds. (See

ECF No. 14, Jan. 10, 2022 Order.) The Court also held that even

if the claim was not procedurally barred, the 440.10 Court’s

decision was neither contrary to, nor did it involve an

unreasonable application of Strickland v. Washington. (Id.) By

Memorandum and Order filed on January 10, 2022, this Court

denied Petitioner’s writ of habeas corpus. Hansen v. Johnson,

No. 21-CV-409, 2022 WL 94397, at *1 (E.D.N.Y. Jan. 10, 2022).

Petitioner moved for a certificate of appealability,

which the Second Circuit granted. Hansen v. Johnson, No. 22-

241, 2022 WL 4389499, at *1 (2d Cir. Sept. 20, 2022).

Second Circuit Decision

On September 20, 2022, the Second Circuit vacated this

Court’s order and judgment and remanded for further proceedings.

(Id.) Specifically, the Second Circuit ordered this court to

consider whether:

(1) the state court’s application of N.Y. C.P.L. §

440.10-3(a) to Appellant’s ineffective assistance

claim was “exorbitant,” and thus inadequate to

preclude federal habeas review . . . and, if so,

whether

(2) the state court’s merits analysis was a “contrary-

to-fact construction” and thus not entitled to AEDPA

deference; and

(3) whether Appellant was entitled to habeas relief on

his claim that counsel was ineffective by allegedly

(a) failing to properly advise him of his right

to testify, or

(b) coercing him into not testifying. . .

Id. (internal citations omitted).

This Court ordered responses from both parties to the

Second Circuit’s order. (Nov. 10,2022 Order.) Assistant

District Attorney Karla Lato of the Suffolk County District

Attorney’s Office and Petitioner have both filed their

responses, and this Court has fully considered their arguments

and the record. (ECF No. 21, Resp’t Letter Supplemental

Response to Queries of Document #18; ECF No. 22, Petitioner

Declaration in Response to Court Order (“Pet. Declaration”.)

The Court addresses each of the above three directives

from the Second Circuit in turn. Upon review, this Court first

finds that the 440.10 Court’s application of CPL § 440.10(3)(a)

was “exorbitant,” under the law discussed further below, and was

erroneously applied. Second, the Court finds that the 440.10

Court’s merits analysis to be a “contrary-to-fact construction”

and accordingly it is not entitled to AEDPA deference.

Third, after de novo review, the Court finds that

Petitioner is not entitled to habeas relief because Petitioner

did not satisfy his burden to show that his counsel provided

constitutionally inadequate assistance of counsel under

Strickland, 466 U.S. 668. Accordingly, Petitioner’s application

for a writ of habeas corpus is respectfully denied.

I. Motion to Vacate the Judgment Pursuant to CPL §440.10

Petitioner had filed a Motion to Vacate his conviction

pursuant to CPL § 440.10-1(h), arguing that his Sixth Amendment

right to effective assistance of counsel was violated when his

counsel failed to advise him that the decision to testify was

ultimately Petitioner’s to make and threatened to quit when

Petitioner raised the issue of testifying at trial. (440.10

Mot. at 2.) The state court held that Petitioner’s claims of

ineffective assistance of counsel were barred based on a

procedural ground, CPL § 440.10(3)(a), which provides that the

Court may deny a motion to vacate a judgment:

when, although facts in support of the ground or issue

raised upon the motion could with due diligence by the

defendant have readily been made to appear on the

record in a manner providing adequate basis for review

of such ground or issue upon an appeal from the

judgment, the defendant unjustifiably failed to adduce

such matter prior to sentence and the ground or issue

in question was not subsequently determined upon

appeal.

(440.10 Dec. at 6-7); CPL § 440.10(3)(a). The purpose of CPL §

440.10 is to provide a means by which criminal defendants can

inform the court of facts that were not reflected in the record

and were unknown at the time of judgment, and that would as a

matter of law undermine the judgment. People v. Maffei, 35

N.Y.3d 264, 269 (2020) (“. . . providing a vehicle specifically

for the investigation of claims dependent on matters dehors the

direct record . . .”); People v. Fuller, 28 Misc. 3d 1144, 1146

(Sup. Ct. 2010.); People v. Singh, 147 A.D.3d 787, 788 (2017)

(“CPL 440.10 . . . is designed for the purpose of developing

matters dehors the trial record.”) A motion pursuant to CPL §

440.10 is not a vehicle for a second appeal. Pinckney v. Lee,

No. 10-CV-01312 (KAM), 2020 WL 6136302, at *9 (E.D.N.Y. Oct. 19,

2020); People v. Cooks, 67 N.Y.2d 100, 103 [1986].

Here, the state court noted that the purpose of a CPL

§ 440.10 motion is to develop facts that are outside the trial

record and that the section does not apply to facts that should

have been on the record prior to judgment. (440.10 Dec. at 7.)

(“The failure to place known facts on the trial record cannot

justify a collateral attack.”) (citing People v. Degondea, 3

A.D.3d 148 (1st Dept 2003)).

A. Habeas Review of State Court’s Application of a State

Procedural Ground

The state court expressly invoked CPL §440.10(3)(a) as

a procedural ground for denying Petitioner’s §440.10 motion. A

federal habeas court, guided by the Second Circuit, reviews a

state procedural ground for decision to determine if it is

independent of the federal claim and adequate to preclude

federal habeas review. Fulton v. Graham, 802 F.3d 257, 265 (2d

Cir. 2015); Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011).

Under the adequate and independent state grounds doctrine,

the federal court must honor a state court holding that provides

a sufficient state law basis for the court’s judgment, even

where the state court also relies on federal law when ruling on

the merits. Harris v. Reed, 489 U.S. 255, 264 (1989). A

federal habeas court may not review a related state court

decision if it rests on a state law ground that is “independent

of the federal question and adequate to support the judgment.”

Fulton, 802 F.3d at 262 (quoting Cone v Bell, 536 U.S. 449, 465

(2009). Therefore, federal habeas review is not permitted where

the state court explicitly invokes an independent and adequate

state procedural bar as a separate basis for its decision.

Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also

Coleman v. Thompson, 501 U.S. 722, 729 (1991) (holding that a

habeas court may not consider a question of federal law

presented in a case “if the decision of [the state] court rests

on a state law ground that is independent of the federal

question and adequate to support the judgment.” (emphasis

added)). A state procedural ground is independent if the state

court relies on that law as an independent basis for its

position and clearly and expressly states that its judgment

relies on that law. Garner v. Lee, 908, F.3d 845, 859 (2d Cir.

2018).

The adequacy of a state procedural bar is a federal

question. Lee, 534 U.S. at 375. Ordinarily the habeas court

addresses the adequacy of a decision’s state procedural ground

by examining whether the rule upon which the state court relied

is firmly established and regularly followed. Fulton, 802 F.3d

at 262 (quoting Downs v. Lape, 657 F.3d 97, 101-02 (2d Cir.

2011)).

A state court must apply the state procedural grounds

“evenhandedly to all similar claims.” Cotto, 331 F.3d at 239

(citing Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).) Even

if a rule is generally firmly established and regularly

followed, the Court must examine the rule within the specific

circumstances of the case. Monroe v. Kuhlman, 433 F.3d 236, 241

(2d Cir. 2006) (citing Cotto v. Herbert, 331 F.3d 217, 240 (2d

Cir. 2003)). If the Court determines that the state ground was

exorbitantly applied, in that the rule was not applied in the

same manner as in other cases with similar circumstances, the

procedural ground invoked is inadequate to bar federal habeas

review. Lee v Kemna, 534 U.S. 362, 375 (2002).

Courts in the Second Circuit have recognized that CPL §

440.10(3)(a) is firmly established and regularly followed. See

e.g., Pooler v. Rice, No. 14-CV-3089 (JMA), 2017 WL 2684023, at

*8 (E.D.N.Y. June 20, 2017); Chrysler v. Guiney, 14 F. Supp. 3d

418, 454 (S.D.N.Y. 2014), aff'd, 806 F.3d 104 (2d Cir. 2015);

Witt v. Racette, No. 10-CV-9180, 2012 WL 3205177, at *8

(S.D.N.Y. Aug. 7, 2012).

“The question, then, is whether this case falls within ‘the

small category of cases in which [the] asserted state grounds

are inadequate to block adjudication of the federal claim’ or

‘in which the exorbitant application of a generally sound rule

renders the state ground inadequate’ to bar consideration of the

federal constitutional claim.” Cotto, 331 F.3d at 239(quoting

Lee, 534 U.S. at 381).

Courts “evaluate whether a case presents such an

[exorbitant application of a state procedural rule] by reference

to three useful, but non-exclusive, considerations, or

‘guideposts.’” Kozlowski v. Hulihan, 511 F. App’x 21, 25 (2d

Cir. 2013) (summary order). These guideposts are:

(1) whether the alleged procedural violation was

actually relied on in the trial court, and

whether perfect compliance with the state rule

would have changed the trial court’s decision;

(2) whether state case law indicated that

compliance with the rule was demanded in the

specific circumstances presented; and

(3) whether petitioner had substantially complied

with the rule . . . and, therefore, whether

demanding perfect compliance with the rule would

serve a legitimate governmental interest.

Fulton, 802 F.3d at 262; Lee, 534 U.S.at 381.

These guideposts, nevertheless, do not always apply in

every scenario because they were derived from a fact-specific

analysis and the courts must exercise caution to avoid

“improperly ‘forc[ing] square pegs into round holes’ in

considering those guideposts.” Pierotti v. Walsh, 834 F.3d 171,

179 (2d Cir. 2016) (quoting Clark v. Perez, 510 F.3d 382, 391

(2d Cir. 2008)).

B. The State Court Erroneously and Exorbitantly Applied

CPL § 440.10(3)(a)

In his 440.10 motion to vacate his conviction,

Petitioner contends that he received ineffective assistance of

counsel because his attorney failed to advise him that the

decision to testify at trial was ultimately Petitioner’s to make

and threatened to quit when Petitioner raised the issue of

testifying on his own behalf. (Pet. at 5; 440.10 Mot. at 2.)

The prosecution opposed the 440.10 motion and included

an affidavit from Petitioner’s counsel disputing with detailed

facts Petitioner’s factual statements.3 The 440.10 Court held

that Petitioner’s ineffective assistance of counsel claim was

procedurally barred by NY CPL § 440.10(3)(a), because Petitioner

failed to exercise due diligence and put his desire to testify

3 For the purpose of considering whether the application of § 440.10(3)(a) by

the state court was exorbitant, this Court will accept as true Petitioner’s

sworn statements of facts.

on the record in a manner that provided an adequate basis for

review. (440.10 Dec. at 7.)

Petitioner argues that the 440.10 Court erred in its

application of CPL § 440.10(3)(a). (Pet. Declaration at 2-3.)

The 440.10 Court held that Petitioner’s claims of ineffective

assistance of counsel were barred based on procedural ground CPL

§ 440.10(3)(a), and denied Petitioner’s motion stating,

The Court may deny a motion to vacate a judgment

when, although facts in support of the ground or

issue raised upon the motion could with due

diligence by the defendant have readily been made to

appear on the record in a manner providing adequate

basis for review of such ground or issue upon an

appeal from the judgment, the defendant

unjustifiably failed to adduce such matter prior to

sentence and the ground or issue in question was not

subsequently determined upon appeal.

(440.10 Dec. at 6-7.)

Petitioner, in his reply to the Second Circuit’s

mandate, asserts that the 440.10 Court erred in its application

of this procedural ground to bar his motion, because it

overlooked the second part of the statute which directs that CPL

§ 440.10(3)(a) does not apply to bar “a motion based upon

deprivation of the right to counsel at the trial or upon failure

of the trial court to advise the defendant of such right[.]”

CPL § 440.10(3)(a);(Pet. Declaration at 2-3.)

The 440.10 Court erred in its application of CPL §

440.10(3)(a) by disregarding the second part of this procedural

rule, because courts within the Second Circuit have determined

that a motion based upon the deprivation of counsel also

includes a motion based on ineffective assistance of counsel.

See Faulkenson v. Conway, No. 04-CV-0080(SJF), 2007 WL 160926,

at *7 (E.D.N.Y. Jan. 10, 2007) (citing Lopez v. Greener, 323 F.

Supp. 2d 456, 465 (S.D.N.Y.2004) aff'd, 159 Fed. Appx. 320 (2d

Cir.2005)); Watkins v. Perez, No. 05 CIV. 477(GEL), 2007 WL

1344163, at *6 (S.D.N.Y. May 7, 2007); Laigo v. New York, No.

10-CV-04228 (PKC), 2013 WL 1898407, at *4 (E.D.N.Y. May 7,

2013); Bolling v. Stinson, No. 97–CV–6721, 1999 WL 287733, at *3

(E.D.N.Y. May 5, 1999). Petitioner’s claim of ineffective

assistance of counsel falls under the umbrella of a deprivation

of counsel claim; thus, the statute should not have been applied

to deny Petitioner’s 440.10 motion. Under New York law, when a

claim of ineffective assistance of counsel is based upon facts

that occurred outside the trial record, the claim must be made

on collateral attack via a CPL § 440.10 motion, and not upon

direct appeal. Pierotti, 834 F.3d at 178 (citing People v.

Brown, 45 N.Y.2d 852, 853-54 (1978)).

Here, Petitioner’s ineffective assistance claims turn on a

conversation with his counsel, off the record, and therefore, it

would not have been appropriate for Petitioner to have raised

his claims on direct appeal. The 440.10 Court did not

acknowledge that CPL § 440.10(3)(a) did not apply to bar

Petitioner’s ineffective assistance of counsel claims.

Furthermore, the 440.10 Court held that Petitioner’s

motion under CPL § 440.10 should not present facts that should

have been developed on the record and a defendant who disagrees

with his attorney about his right to testify has an obligation

to state that on the trial record. (440.10 Dec. at 7-8.)

(emphasis added). The 440.10 Court noted that Petitioner failed

to raise his desire to testify during the trial when his

attorney stated on the record that the defense rested, and that

Petitioner did not raise his desire to testify during his pre-

sentence interview or during the sentencing proceedings.

(440.10 Dec. at 6.)

The 440.10 court exorbitantly applied CPL § 440.10

(3)(a) by not properly considering the statute. Here, as in

Pierotti, the first and third guideposts generally used to

determine whether a state court’s application of a procedural

rule was exorbitant are not applicable because the guideposts

pertain to procedural violations that occurred on the record

before a trial court during the trial. 834 F.3d at 179.

Turning to the second guidepost of whether perfect

compliance with the rule is demanded, the application of

§440.10(3)(a) is permissive and does not demand perfect

compliance. Section 440.10(3)(a) provides that the state court

“may” deny a motion to vacate under such circumstances, but it

is not required to do so. Cf. CPL §440.30(3) (“Upon

consideration of the merits of the motion the court must grant

it . . .”)

Further analysis of the purpose of the statute and its

application to these unique facts demonstrates that the 440.10

Court applied the statute exorbitantly in this instance. Here,

the 440.10 Court opined that the purpose of a motion to vacate

pursuant to CPL § 440.10 was to “develop facts dehors the trial

record, not to apply facts that should have been placed on the

record prior to judgment.” (440. Dec. at 7.) (emphasis added).

The 440.10 Court held that because Petitioner did not object

when his counsel waived his right to testify, that waiver is

binding and valid, (id. at 8), and required that, “A defendant

who is disagreement with his attorney about whether to testify

has an obligation to affirmatively state such when counsel rests

without the defendant’s testimony.” (Id.) (citing United States

v. Martinez, 833 F.2d 750 (9th Cir. 1989), vacated on other

grounds, 928 F.2d 1470 (9th Cir. 1991); People v. Roman, 172

Misc.2d 339 (Sup. Ct., 1997)).4

4 The 440.10 Court’s reliance on People v. Roman, 172 Misc. 2d 339, 344 (Sup.

Ct. 1997) was also misplaced because the Roman court also rejected the Ninth

Circuit’s reasoning stating: “This Court does not now believe that a

defendant must explicitly state to the Court his disagreement with counsel's

actions or be foreclosed from raising the claim that he was denied the right

to testify.” (citing United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir.

1996)). The Roman Court held that for the court to interject with a judicial

The 440.10 Court relied on a Ninth Circuit opinion,

United States v. Martinez that the Second Circuit had previously

rejected. In Martinez, the defendant, Martinez, claimed he was

deprived of his right to testify when his attorney refused to

call him as a witness. 883 F.2d at 752. The Ninth Circuit, in

Martinez, held that criminal defendants who fail to notify the

court that they object to their attorney resting without

allowing their client to testify waive their right to testify.

Id. at 759 (“Day after day in the courts of the United States

defense counsel make the decision not to cross-examine without

first informing their clients that they have a fundamental

constitutional right to insist upon cross-examination . . . We

assume, not unreasonably in our culture, that this right is so

generally known that it is not necessary to inform the defendant

of its existence. We also assume that by accepting counsel and

not objecting in court to counsel's action that the defendant

waives this right when counsel waives it. It is crystal-clear

that a defendant may waive the right by his conduct.”).

The Second Circuit, however, has rejected the Ninth

Circuit’s reasoning in Martinez. In Brown v. Artuz, 124 F.3d 73,

inquiry into a defendant’s waiver of his right to testify, there must be some

indication during the trial of conflict between the attorney and defendant or

a tactical decision by the attorney that places the defense case in jeopardy.

Roman, 172 Misc. 2d at 344. New York Courts have repeatedly held that any

waiver of the constitutional right to testify in one’s own defense must be

knowing, voluntary, and intelligent. See People v. Morgan, 149 A.D.3d 1148,

(3d Dep't 2017).

79 (2d Cir. 1997), the Second Circuit noted: “[W]e do not go so

far as Martinez in relieving defense counsel of a responsibility

in the matter.” Thereafter in Chang v. United States, 250 F.3d

79, 84 (2d Cir. 2001) the Second Circuit stated its agreement

with:

the circuits that have refused to find a waiver or

forfeiture solely from a defendant’s silence at trial.

. . . [A]bsent something in the record suggesting a

knowing waiver, silence alone cannot support an

inference of such a waiver. . . . [A] defendant who

is ignorant of the right to testify has no reason to

seek to interrupt the proceedings to assert that

right, and we see no reason to impose what would in

effect be a penalty on such a defendant.

A defendant in New York does not waive the right to

testify even if the defendant remains silent on the matter at

trial. (Id.)

Other Circuits have also rejected a requirement that a

defendant must object to his lawyer’s actions during trial to

preserve his right to testify. See Underwood v. Clark, 939 F.2d

473, 476 (7th Cir. 1991)(“We . . . recognize that the defendant

might well feel too intimidated to speak out of turn in this

fashion.”); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

Cir.1996)(“ However, we also reject the demand rule, requiring

that the defendant directly express to the court during the

trial the desire to testify, in recognition of the

impracticability of placing a burden on the defendant to assert

a right of which he might not be aware or to do so in

contravention of the court's instructions that the defendant

speak to the court through counsel.”); United States v. Teague,

908 F.2d 752, 759 (11th Cir. 1990)(“ It would be anomalous to

consider the right to counsel of fundamental importance because

of the common lack of understanding of the trial process by

defendants, and to require a defendant to rely on his attorney

to be his sole spokesperson in the courtroom, while at the same

time holding that by failing to speak out at the proper time a

defendant has made a knowing, voluntary and intelligent waiver

of a personal right of fundamental importance such as the right

to testify.”) New York state courts have not adopted the Ninth

Circuit’s position, and in fact, they have soundly rejected its

reasoning. In People v. Windley, 28 Misc. 3d 1232(A) (Sup. Ct.

2010), the court stated:

Contrary to the People’s view, the trial record is

devoid of any indication that the defendant waived his

right to testify or was persuaded by counsel not to do

so for strategic reasons. In general, counsel is

reasonably viewed as part and parcel of the defendant

and his case. Thus, [defense counsel’s] metaphorical

use of the pronoun “we,” along with the lack of any

demonstrative protestation over not being called as a

witness, hardly establish that the defendant waived

his right to testify. Whether [defense counsel]

engaged a trial strategy that excluded the defendant’s

testimony belies the issue presented here, which is,

did the defendant waive his right to testify or did

counsel deprive him of the opportunity to make that

decision.

Not only did the 440.10 Court rely on the rejected Martinez case

as support for its decision, but it also relied upon People v.

Degondea, 3 A.D.3d 148 (1st Dept 2003) where the defendant

claimed that the judge was falling asleep during jury selection.

In Degondea, the Appellate Division, First Department determined

that the claim was procedurally barred under CPL § 440.10(3)(a)

because the defendant should have placed this issue on the

record during the trial. (Id.) The 440.10 Court’s supportive

case law is not analogous to the instant Petitioner’s stated

fear of losing his attorney, his representative at trial, if he

spoke up.

When New York State cases have invoked CPL §

440.10(3)(a) on claims of ineffective assistance of counsel, the

claims generally have involved: failures to call certain

witnesses, object to testimony, cross examine witnesses,

challenge jurors during voir dire, or to properly advise a

defendant prior to entering a guilty plea or other trial errors.

See People v. Durham, 195 A.D.3d 1318, 1321 (2021), leave to

appeal denied, 37 N.Y.3d 1160 (2022); People v. Stanley, 189

A.D.3d 1818, 1820 (2020).

Although some ineffective assistance claims regarding

trial or procedural errors should be placed on the record,

courts have acknowledged that some ineffective assistance of

counsel claims occur outside of the record. See Durham, 195

A.D.3d at 1321. (Where the court acknowledged that counsel’s

allegedly erroneous sentencing advice was a matter dehors the

record). Here, Petitioner’s conversation with counsel about his

desire to testify occurred off the record.

Petitioner was represented by counsel throughout trial

proceedings and sentencing and relied on his counsel’s

representation. Petitioner’s stated fear, whether it was

justified or not, that his attorney would quit if Petitioner

raised the issue, would reasonably have prevented Petitioner

from raising the issue at the time of Petitioner’s trial

proceedings. The 440.10 Court ignored the obvious concerns of

raising an infective assistance of counsel claim during the

trial and its requirement that Petitioner follow a rule that is

not supported or applied by state courts in similar

circumstances, was an exorbitant application of a procedural

ground.

Contrary to the state court’s findings, Petitioner’s

desire to testify and his claims that counsel prevented him from

doing so are not matters that “should have been put on the

record”, and thus the State Court exorbitantly applied CPL §

440.10(3)(a).

II. Contrary-to-fact: The State Court’s Merit Analysis was

a “Contrary-to-fact Construction” and is Not Entitled

to AEDPA Deference.

As instructed by the Second Circuit, the Court will

next consider whether the 440.10 Court’s state law analysis was

a “contrary-to-fact construction.” When the state court rules

on a petitioner’s claim on procedural grounds but then proceeds

to discuss the merits, the state court has applied a “contrary-

to-fact construction”. Bell v. Miller, 500 F.3d 149, 155 (2d

Cir. 2007) (“ . . . if the merits were reached, the result would

be the same.”); see also Fulton, 802 F.3d at 265(“The state

court introduced its discussion of the merits as follows:

“however, if the court were to consider the defendant’s claims .

. . the motion would similarly be denied.”); Clark v. Perez, 510

F.3d 382, 394 (2d Cir. 2008)(“That court did discuss the merits

in detail, but the discussion was by way of explanation for the

statement that were the court to consider defendant’s claim of a

deprivation of her constitutional right, it would find the claim

completely meritless . . . by its own terms the [state court]

announced that it was not basing its judgment on the merits of

[petitioner’s federal claims, but on a state procedural

bar.”)(internal quotations omitted).

A contrary-to-fact construction creates a contingent

observation, not an alternative holding. McDowell v. Heath, No.

09 CIV. 7887 (RO) (MHD), 2013 WL 2896992, at *6 (S.D.N.Y. June

13, 2013). A contingent observation, “reflects that the

disposition was not premised on the court’s view of the merits.”

Bell, 500 F.3d at 155. A contrary-to-fact construction of the

merits is the not the same as an adjudication on the merits in

which the court disposes of the claim on the merits and reduces

its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303,

312 (2d Cir.2001) (internal quotations omitted). Nor is it an

alternative holding. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d

Cir.2004) (the state court had reviewed the claim on the merits

when it found the claim to be unpreserved, and in any event,

without merit.) (internal quotations omitted).

Under AEDPA, if a habeas petitioner’s claim “was

adjudicated on the merits in State court proceedings,” a federal

court can grant habeas relief only if the state court’s decision

was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented.”

28 U.S.C. § 2254(d). Although in its decision denying

Petitioner’s 440.10 motion, the 440.10 Court commented on the

merits of Petitioner’s ineffective assistance claim, that

Court’s commentary does not constitute a decision on the merits

for purposes of 28 U.S.C. § 2254(d). Fulton, 802 F.3d at 265.

Though the 440.10 Court dismissed Petitioner’s claim on a

procedural ground, it also stated that, “Even if defendant’s

self-serving, unsubstantiated assertions were enough to survive

the procedural hurdles, his claim of ineffective assistance of

counsel would fail under a Strickland analysis.” (440.10 Dec.

at 14.) The 440.10 Court employed a contrary-to-fact

construction when it discussed the merits of Petitioner’s claim

as a contingent observation to its decision to deny the claim on

procedural grounds.

When a court employs a contrary-to-fact construction

in its determination of the merits of a claim, the Second

Circuit had held that that determination is not an adjudication

of the claim on the merits. See e.g., Cochran v. Griffin, No.

918CV0175 (LEK)(TWD), 2021 WL 1223848, at *5 (N.D.N.Y. Mar. 31,

2021) (finding that the state court did not adjudicate the

petitioner’s claim on the merits when it employed the contrary-

to-fact construction by stating, “even if this [state] court

were to consider the motion, it would be denied on the merits”);

Cooper v. Griffin, No. 16CV0629(VEC)(BCM), 2019 WL 1026303, at

*10 (S.D.N.Y. Feb. 11, 2019) (finding the use of the phrase “in

any event, even if the this court were to reach the merits of

the claim, they would be denied,” to be a contrary-to-fact

construction and not an alternative holding not entitled to

deferential review under § 2254(d).); McClain v. Inserra, No. 10

CV 2303 (RJD), 2013 WL 2395190, at *6 n. 1 (E.D.N.Y. May 31,

2013) (finding there was no adjudication on the merits as the

state court employed a contrary to fact construction by stating

“were the court, nevertheless, to consider petitioner’s claim,

it would find that counsel’s failure . . . did not deprive the

defendant of meaningful representation.”).

This Court determines that the procedural ground that

the 440.10 Court exorbitantly employed in its disposition is

inadequate to bar federal habeas review, and that because the

440.10 Court did not determine the claim on the merits, this

Court must review Petitioner’s claims de novo. See Fulton 802

F.3d at 265; Bell, 500 F.3d at 155; Cotto, 331 F.3d at 230.

III. Under de novo review, Petitioner’s Ineffective

Assistance claim fails to satisfy the Strickland

standard.

The Constitution requires that a defendant receive

effective assistance of counsel. McMann v. Richardson, 397 U.S.

759, 771 (1970). “[A]ny claim by the defendant that defense

counsel has not discharged their responsibility—either by

failing to inform the defendant of the right to testify or by

overriding the defendant's desire to testify—must satisfy the

two-prong test established in Strickland v. Washington, 466 U.S.

668 (1984), for assessing whether counsel has rendered

constitutionally ineffective assistance.” Brown, 124 F.3d at

79.

In Strickland, 466 U.S. 668, the Supreme Court articulated

a two-prong test to determine whether an attorney has provided

ineffective assistance of counsel. “A [petitioner] claiming

ineffective assistance must (1) demonstrate that his counsel's

performance ‘fell below an objective standard of reasonableness’

in light of ‘prevailing professional norms,’ and (2)

‘affirmatively prove prejudice’ arising from counsel's allegedly

deficient representation.” Grant v. Woods, 313 F. App'x 376, 377

(2d Cir. 2009) (citing Strickland, 466 U.S. at 688, 693)

(citations omitted). The Strickland standard is both “highly

demanding,” and “rigorous.” Kimmelman v. Morrison, 477 U.S. 365,

382 (1986); Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.

2001). The petitioner bears the burden of proving that both

Strickland prongs are met. Byrd v. Evans, 420 F. App'x 28, 30

(2d Cir. 2011) (citing Kimmelman, 477 U.S. at 381).

In considering the first Strickland prong, the counsel’s

performance, a court must “indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

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

Petitioners are tasked with overcoming “the presumption that,

under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

In considering the second Strickland prong, the prejudice

prong, courts consider “whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Id. at

686. To establish prejudice, a petitioner must demonstrate that

“there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.”

Henry v. Poole, 409 F.3d 48, 63–64 (2d Cir. 2005) (quoting

Strickland, 466 U.S. at 695). A reasonable probability is

defined as “a probability sufficient to undermine confidence in

the outcome.” Morales v. Greiner, 273 F. Supp. 2d 236, 246

(E.D.N.Y. 2003) (citing Strickland, 466 U.S. at 694.) “[T]he

petitioner must show that but for counsel's ineffectiveness,

there is a reasonable probability that the sentence imposed

would have been different.” Martin v. United States, 834 F.

Supp. 2d 115, 126 (citing United States v. Workman, 110 F.3d

915, 920 (2d Cir. 1997)).

Petitioner alleges he received ineffective assistance

of counsel because his attorney did not inform him that he had a

constitutional right to testify, and that Petitioner was free to

exercise that right even if his attorney did not want him to

testify. (440.10 Mot. at 19-30). Petitioner further alleges

that his attorney prevented him from testifying when he asked to

testify, and his attorney told him he could not testify and

threatened to “withdraw from the case if Petitioner raised the

issue again.” (Pet. Aff. at 20-24).

Petitioner submitted his own affidavit and affidavits from

two of his family members, which do not show personal knowledge

of conversations between Petitioner and his counsel, and merely

assert that counsel informed them that Petitioner did not need

to testify. (ECF No. 11-4, Petitioner’s Family Members’

Affidavits (“Family Affs.”), filed 08/16/21 at 36, 38.) The

prosecution submitted an affidavit from Petitioner’s counsel

stating that he told Petitioner that the decision whether to

testify should be made after the prosecution presented its case.

(ECF No. 11-4, Trial Counsel’s Sworn Affidavit (“Counsel Aff.”),

filed 08/16/21, at 62-62). Counsel also stated in his sworn

statement that as the prosecution was close to concluding its

case, and after the prosecution rested, he informed Petitioner

that his right to testify was ultimately his decision but

strongly advised Petitioner against doing so because counsel

believed the prosecution failed to prove its case. (Id.) He

states that Petitioner chose not to testify, and that counsel

did not prevent Petitioner from testifying. (Id.)

A. First Strickland Prong: Performance by Counsel

The Court finds that Petitioner does not meet the first

prong of the Strickland test. A petitioner must proffer

sufficient evidence to support allegations that his counsel

failed to inform him of his right to testify or barred him from

testifying. Bennett v. United States, 663 F.3d 71, 86 (2d Cir.

2011).

Here, Petitioner provided his own sworn statement as well

as two affidavits from family members. (Pet. Aff. at 20-24);

(Family Affs. 36, 38.) In his own sworn statement, Petitioner

alleges that he first raised the issue of testifying with

defense counsel after jury selection was complete, and counsel

responded forcefully telling Petitioner to “shut up”, that “[he]

was not testifying” and “if [Petitioner] talk[ed] about

testifying again, I am getting off the case.” (Pet. Aff. at

22.) The affidavits of Petitioner’s two family members do not

substantiate his claims. Both affidavits state that when his

family members asked counsel if Petitioner was going to testify,

counsel told them that Petitioner would not need to testify.

(Family Affs. at 36-38.) The family members’ affidavits do not

state personal knowledge that Petitioner’s counsel did not

advise him of the right to testify or threaten Petitioner that

he would cease to represent Petitioner if he were to raise the

issue of testifying again. (Id.) Nor does Petitioner’s family

state in their affidavits that Petitioner wished to testify and

that his counsel prevented him from doing so. (Id.)

Petitioner’s claims of ineffective assistance of counsel

are, therefore, only supported by his own sworn statements.

Other than his own sworn statement, Petitioner provides no

additional proof that counsel did not inform him about his right

to testify or that he threatened to withdraw if Petitioner

raised the issue of testifying. Under New York law, the state

court may deny a motion to vacate the judgment under CPL §

440.10 on the merits without a hearing if an allegation of fact

essential to support the motion is made solely by the defendant and

is unsupported by any other affidavit or evidence. CPL §

440.30(4)(d)(i).

In most circumstances, such as in the instant case, the

self-serving testimony of a petitioner is not sufficient to

satisfy the first Strickland prong absent substantiation and

more fulsome details of the circumstances. Purdy v. Zeldes, 337

F.3d 253, 259 (2d Cir. 2003); Chang, 250 F.3d at 79 (“A

defendant’s bare, unsupported assertion, even in affidavit form,

is generally insufficient; rather courts have required greater

particularity and some substantiation to state a claim.”)

(internal quotations omitted); See also Reese v. United States,

164 F. Supp. 3d 608, 6112 (S.D.N.Y. 2016) (“[A] petitioner’s

unsubstantiated and self-serving statements are generally

insufficient by themselves to sustain an ineffective assistance

of counsel claim unless they are found credible given all the

relevant circumstances.”)

Where there is a claim involving an “off the record

interaction” with trial counsel, the habeas court “cannot just

rely on the motion, files, and records before the district

court.” Heron v. Griffin, No. 18-CV-00004 (JFB), 2019 WL

1050011, at *8 (E.D.N.Y. Mar. 5, 2019(quoting Chang, 250, F.3d

at 85.) An evidentiary hearing is not required, though, if the

record is supplemented with a detailed affidavit from trial

counsel describing the circumstances surrounding the

petitioner’s failure to testify. Chang, 250, F.3d at 85-86.

When faced with the self-serving unsubstantiated allegations of

a habeas petitioner that are contradicted by the credible

affirmation of trial counsel, the habeas court can properly

exercise its discretion and choose to credit trial counsel and

deny the claim of ineffective assistance of counsel. See

Batista v. United States, No. 14-CV-895 (DLI), 2018 WL 1556880,

at *6 (E.D.N.Y. Mar. 30, 2018), aff'd, 792 F. App'x 134 (2d Cir.

2020)(“Where ... a habeas court is faced with self-serving

allegations that are contradicted by a credible affirmation by a

trial attorney, it may choose to credit the attorney and dismiss

the ineffective assistance of counsel claim without further

hearings.”)(citing Vargas v. United States, 2007 WL 2246004, at

*8 (E.D.N.Y. July 31, 2007); Thai v. United States, 2007 WL

13416, at *6 (E.D.N.Y. Jan. 2, 2007)(finding the petitioner’s

ineffective assistance of counsel claim to be meritless when the

petitioner’s only evidence was his own self-serving testimony

that was contradicted by an affidavit from his defense counsel

which described a credible description of events)(internal

quotations omitted).

Petitioner cannot establish ineffective assistance based

only on his own self-serving and unsubstantiated assertions,

particularly where his family members’ affidavits do not support

his assertions, and his own defense counsel submitted a detailed

affidavit with a credible version of the events. See United

States v. El-Hage, No. 16-CV-3119(LAK), 2019 WL 1915594, at *2

(S.D.N.Y. Apr. 30, 2019) (“The defendant cannot establish

coercion on the sole basis of his alleged subjective belief that

his counsel would not have supported his decision to testify in

the face of objectively reasonable attorney conduct.”); Campbell

v. United States, No. 06 CR 41 CM, 2015 WL 1062176, at *7

(S.D.N.Y. Mar. 9, 2015)(“[Petitioner] offers nothing more than

his conclusory and self-serving claims to dispute [his claim

that his lawyer told him not to testify]”).

Petitioner’s counsel stated in his affidavit that he had

numerous conversations with Petitioner about the case and the

evidence, including the video and his defense strategy.

(Counsel Aff. 62-62.) Petitioner’s counsel informed the 440.10

Court that prior to jury selection he informed Petitioner that

he was going to ask the trial court to provide a preliminary

charge to the prospective jurors that the jury could not

consider the fact that Petitioner did not take the stand in

their determination of guilt. (Id. at 63.) Counsel informed

Petitioner that the preliminary charge would allow him to strike

jurors who state that they want to hear from both sides. (Id.)

Counsel told Petitioner that his decision to testify should wait

until after the prosecution finished presenting its case and

rested. (Id.) When the prosecution was almost finished

presenting its case, Petitioner informed counsel that he wanted

to testify. (Id. at 64.) Counsel told Petitioner that it was

ultimately Petitioner’s decision if Petitioner wanted to testify

but counsel strongly advised Petitioner not to testify because

counsel believed the prosecution had not met its burden of

proof. (Id.) Counsel reiterated this advice after the

prosecution rested, and Petitioner made the decision not to

testify. (Id.) Counsel stated that counsel’s advice was based

on a strategic decision to “hold the People to their burden,”

and that he did not prevent Petitioner from testifying. (Id.)

Petitioner’s account of his off the record conversation

with counsel is unsubstantiated and self-serving. He provided

two affidavits from family members, including his mother, who he

stated was paying for his attorney. His family members’

affidavits did not state that Petitioner told them that he

wished to testify, or that counsel refused to allow Petitioner

to testify. (Family Affs. at 36,38). Rather, the family

members’ affidavits support defense counsel’s affidavit that

Petitioner did not need to testify. Counsel’s detailed affidavit

states that based on his legal strategy of holding the

prosecution to its burden of proof, he strongly advised

Petitioner not to testify but it was his decision to make, and

that Petitioner ultimately decided not to testify. (Counsel

Aff. 62-62). The Court finds that counsel’s detailed account on

this issue is credible and reliable, however even if this Court

were to find Petitioner’s unsubstantiated affidavit to be

credible and reliable, Petitioner has not satisfied the second

Strickland prejudice prong.

B. Second Strickland Prong: Prejudice

Petitioner has failed to establish that counsel’s

legal assistance so prejudiced Petitioner that there is a

reasonable probability that, absent such conduct, the factfinder

would have had a reasonable doubt respecting Petitioner’s guilt.

Henry, 409 F.3d at 63–64. Petitioner detailed the matters about

which he wished to testify in his 440.10 motion, specifically

that his use of force during the drug transaction was justified

because he believed he was being robbed. (Pet. Aff. at 22.)

The person for whom Petitioner was selling drugs forced

Petitioner to take a gun to the meeting with the drug purchaser

(the undercover officer) and threatened to shoot a member of

Petitioner’s family if he was robbed. (Id.) Petitioner,

unsuccessfully, tried to change the location of his meet up with

the undercover officer, and at the meeting gave the undercover

officer his keys to show that he was not trying to rob him.

(Id. at 22-23.) As soon as the additional unmarked police

vehicles arrived at the location and blocked Petitioner in, and

he saw that one officer had a gun, Petitioner feared that he had

been set up to be robbed. (Id. at 23.) The trial evidence

established that no law enforcement officers identified

themselves as police, they were not wearing uniforms and did not

have their shields displayed which is consistent with the

justification defense that Petitioner believed he was being

robbed. (Tr. 295-96, 598-600, 615,617-19.)

The information to which Petitioner wished to testify to

support his justification defense was provided to the jury

without Petitioner being subjected to cross-examination if he

had testified. The audio recording and testimony from the

undercover officer, who previously told Petitioner he was not

police, indicated that Petitioner tried to change the location

of the meeting and he refused, and that Petitioner gave him his

keys at the location. (Tr. 200-01, 208,213-14.) The undercover

officer was wearing plain clothes. The video surveillance

evidence showed that Petitioner’s vehicle was surrounded by

unmarked police vehicles. The police officers testified that

they did not announce themselves as police or wear their police

shields because they were concerned about counter-surveillance.

(Tr. 215-17, 598-600, 619-227.) Defense counsel argued in

opening and closing statements that Petitioner did not know he

was encountering law enforcement, feared he was going to be

robbed, and argued that the audio and video surveillance

supported the justification defense regarding Petitioner’s use

of force by discharging a weapon at the police. (Tr.25-30,700-

01, 705, 707,727, 729-34, 739.)

Absent counsel’s alleged conduct preventing Petitioner from

testifying, the same evidence, information, and arguments

supporting Petitioner’s defense was provided to the jury. (See

440.10 Dec at 17.) Counsel’s decision to strongly advise

Petitioner not to testify constituted a sound, albeit

unsuccessful, defense strategy, but does not satisfy the

prejudice prong nor amount to ineffective assistance of counsel.

See United States v. Stahl, 337 F. App'x 31, 33 (2d Cir.

2009)(defense counsel was not deficient for focusing on one

defense strategy over another and even if counsel had used the

defense the petitioner supported, there was no indication it

would have led to a different outcome.);Rosario-Dominguez v.

United States, 353 F. Supp. 2d 500, 513 (S.D.N.Y. 2005) (The

court concluded that defense counsel’s decision to pursue a

certain strategy over others the defendant preferred was a

matter of legal strategy and did not support a claim of

ineffective assistance of counsel.)

Though the 440.10 Court erroneously and exorbitantly

applied a procedural ground to deny Petitioner’s ineffective

assistance claims, de novo review of the claim demonstrates that

Petitioner cannot satisfy the Strickland requirements and,

therefore, the petition is respectfully denied.

CONCLUSION

For the foregoing reasons, the petition for a writ of

habeas corpus is denied. 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 judgment denying the petition, mail a copy of

this Memorandum and Order and judgment to Petitioner at his last

known address, note mailing on the docket and close this case

within one business day.

SO ORDERED.

Dated: Brooklyn, New York

June 29, 2023 ____/s/_____________________

KIYO A. MATSUMOTO

United States District Judge

39