Ash v. Miller

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMEL ASH, :

Petitioner, :

v. : MEMORANDUM & ORDER

: 21-CV-4214 (WFK)

MARK J. MILLER, Superintendent, :

Green Haven Correctional Facility, :

Respondent. :

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WILLIAM F. KUNTZ, I, United States District Judge:

Jamel Ash (‘‘Petitioner”) brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254 (the “Petition”), challenging his conviction for felony-murder. ECF No. 1. For the following

reasons, the Petition is DENIED.

BACKGROUND

I. The Offense, Bench Trial, and Sentencing

On the morning of April 4, 2010, at approximately 7:00 A.M., Lucius Battle, a twenty-

three year old man, was returning home from a party he attended the previous evening. Resp.

Opp. at 1-2, ECF No. 12. Battle first accompanied a friend to her home before proceeding alone

toward the elevated New Lots Avenue train station in Brooklyn, New York. /d. Shortly

thereafter, Jamel Ash (“Petitioner”) emerged from a vehicle and approached Battle while

displaying a black handgun. /d. Petitioner proceeded to rob Battle of his cellphone, wallet, keys,

and MP3 player before fleeing the scene. Jd. at 2.

Immediately following the robbery, Battle ran up the stairs to the mezzanine level of the

New Lots Avenue train station, where he approached Lynn McAllister, an MTA transit clerk

operator, and requested entrance to the train station without paying. R. at A55. After Ms.

McAllister refused him entry, Battle informed her he had just been robbed and had no money,

but that he needed to return home. Ms. McAllister still refused. Jd Several minutes later,

Battle returned to the station with a female whose identity remains unknown. Jd. This individual

swiped both herself and Battle into the train station and she later informed Ms. McAllister Battle

looked unwell. Jd. at A56. Ms. McAllister called for medical assistance and left her booth to

assist Battle. Resp. Opp. at 5. Battle told Ms. McAllister he had a heart murmur, and reiterated

he had been robbed and wanted to go home. R. at A56. Battle also provided Ms. McAllister

with his name and age, as well as the contact information for his mother. Resp. Opp. at 5. Ms.

McAllister called Battle’s mother, who confirmed he had a heart condition. Jd. The fire

department and emergency medical services arrived at the train station shortly thereafter to find

Battle slumped on a bench and breathing heavily. Jd. at 6. Battle suffered a seizure and cardiac

arrest while being treated by first responders. R. at A505. Ultimately, Battle was taken to the

hospital where he was pronounced dead. /d.

Investigators located Petitioner two days later by tracking Battle’s cellphone, which

Petitioner had been using since the robbery. Jd. Petitioner admitted he had taken Battle’s phone,

but denied possessing a gun during the robbery. /d. Petitioner was subsequently charged under

Kings County Indictment Number 2989/2010 on three counts: (1) felony-murder, with robbery

as the underlying felony pursuant to N.Y. Penal Law §125.25(3); (2) robbery in the first degree

(display of apparent handgun) pursuant to N.Y. Penal Law § 160.15(4); and (3) robbery in the

third degree (forcible taking) pursuant N.Y. Penal Law §160.05. Petition at 11.

In May 2012, Petitioner was tried by bench trial before the Honorable Justice Danny K.

Chun of the Supreme Court of New York, Kings County. Jd. On May 21, 2012, Judge Chun

found Petitioner guilty of felony murder and robbery in the first degree. R. at Al. On August 8,

2012, the court sentenced Petitioner to a term of imprisonment of fifteen years to life for the

felony murder conviction and to a concurrent term of imprisonment of fifteen years for his first-

degree robbery conviction, followed by aterm of five years of post-release supervision. Id.

II. Post-Conviction Activity

On May 15, 2017, Petitioner filed a motion to vacate the judgment of conviction on the

second-degree homicide count pursuant to New York Criminal Procedure Law § 440.10 on the

grounds he was provided ineffective assistance of counsel under both Strickland v. Washington,

466 U.S. 668 (1984) and the New York State constitution (the “440 Motion”). Id. at A292-

A355. Petitioner’s 440 Motion was assigned to Judge Chun, the same judge who presided over

Petitioner’s May 2012 bench trial and subsequent sentencing. Jd. at Al. The trial court denied

the 440 Motion on March 30, 2018 (“the 440 Decision”). Jd. at A1l-A7. The trial court agreed

Petitioner’s trial counsel’s failure to assert a foreseeability defense fell below the objective

standard of reasonableness. R. at A4; People v. Ash, 2018 WL 7891738, at *2-*3 (N.Y. Sup. Ct.

Kings Cnty. Mar. 30, 2018) (Chun, J.). However, Judge Chun nevertheless denied Petitioner’s

motion on the grounds Petitioner failed to establish he was prejudiced by his counsel’s failure in

this regard. R. at AS. Furthermore, the court found the evidence was legally sufficient to

establish Petitioner’s guilt beyond a reasonable doubt. Jd.

On May 2, 2018, Petitioner filed an application for leave to appeal the trial court’s denial

of his 440 Motion before the New York Supreme Court, Appellate Division, Second Department.

Id. at A401-418. On July 2, 2018, the Second Department denied Petitioner’s application. Id. at

A421. On July 31, 2018, Petitioner moved to reargue his application for leave to appeal the

denial of his 440 Motion, which the Appellate Division subsequently denied on September 17,

2018. Id. at A437.

On December 20, 2018, Petitioner filed an appeal in the Appellate Division, Second

Department, arguing (1) the State did not prove the victim’s death was reasonably foreseeable

and (2) Petitioner was denied effective assistance of trial counsel due to his counsel’s failure to

raise the issue of the foreseeability. Jd. at A475-491. On October 23, 2019, the Second

Department unanimously affirmed Petitioner’s conviction in its entirety. People v. Ash, 176

A.D.3d 1090 (2d Dep’t 2019). In so doing, the Second Department held the evidence was

legally sufficient as to foreseeability and the trial court’s verdict was not against the weight of

the evidence. R. at 599-600. Finally, the Second Department rejected Petitioner’s ineffective

assistance of counsel claims. Jd. at 600.

On November 20, 2019, Petitioner applied for leave to appeal the Second Department’s

denial of his ineffectiveness claims to the New York State Court of Appeals, which was

subsequently denied on June 4, 2020. Id. at A601-610; see People v. Ash, 35 N.Y.3d 1025 (June

2020).

On July 27, 2021, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2254,

seeking a writ of habeas corpus. See Petition, ECF No. 1.

DISCUSSION

The Court’s review of the Petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (““AEDPA”), 28 U.S.C. § 2254. This statute “authorizes a federal court to

grant a writ only where a state holds a petitioner in its custody in violation of ‘the Constitution or

laws or treaties of the United States.’” Word v. Lord, 648 F.3d 129, 131 (2d Cir. 2011) (quoting

28 U.S.C. § 2254(a)). In accordance with AEDPA, when a petitioner’s claims have been

rejected on the merits by a state court, the reviewing court “may grant [a] writ [of habeas corpus]

only if that 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 if the

decision ‘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); Harrington v. Richter, 562 U.S.

86, 98 (2011). Judicial review under the “unreasonable application” prong is “extremely

deferential,” and a “‘state court’s determination that a claim lacks merit precludes federal habeas

relief so long as fairminded jurists could disagree on the correctness of the state court’s

decision.”” /d. (quoting Chrysler v. Guiney, 806 F.3d 104, 118 (2d Cir. 2015)).

The instant Petition arises from Petitioner’s counsel’s failure to raise a foreseeability

defense to the felony murder charge during Petitioner’s May 2012 bench trial before Judge

Chun. See generally Pet. Br. As he did on appeal, Petitioner again argues his trial counsel failed

to raise a defense that was “very strong and very obvious,” and thus this failure constitutes

ineffective assistance of counsel. Pet. Br. at 27. Moreover, Petitioner claims the trial judge’s

denial of relief “due to a purported lack of prejudice” was erroneous. Id. at 9.

To prove ineffective assistance of counsel, a petitioner must show (1) “counsel’s

representation fell below an objective standard of reasonableness”; and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In evaluating the first

prong of the two-part Strickland analysis, “[j]udicial scrutiny of a counsel’s performance must be

highly deferential” and “every effort [must] be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Bell v. Cone, 535 U.S. 685, 698 (2002)

(quoting Strickland, 466 U.S. at 689). As for the second prong, a petitioner must show the

defective performance was prejudicial, meaning “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. To establish

the prejudice prong, merely a “reasonable probability” is “sufficient to undermine confidence in

the outcome.” Jd.

The Strickland standard is a rigorous one. “It is not enough to show that the errors had

some conceivable effect on the outcome of the proceeding.” Harrington, 562 U.S. at 104

(internal citation and quotation marks omitted). Rather, counsel’s errors must be “so serious as

to deprive [the defendant] of a fair trial, a trial whose result is reliable.” Jd. “The Second Circuit

generally ‘requires some objective evidence other than defendant’s assertions to establish

prejudice.’” Cameron v. Cunningham, 13-CV-5872, 2014 WL 1259672, at *8 (S.D.N.Y. Mar.

27, 2014) (Gorenstein, M.J.), report and recommendation adopted, 13-CV-5872, 2014 WL

4449794 (S.D.N.Y. Sept. 9, 2014) (Failla, J.) (citing Pham v. United States, 317 F.3d 178, 182

(2d Cir. 2003)).

To establish a defendant’s guilt of felony murder under New York law, the prosecution

must show, “in the course of committing a robbery, the defendant caused the death of the victim,

which further require[s] proof, inter alia, that ‘the fatal result was reasonably foreseeable.’” See

People v. Gobardhan, 56 N.Y.S.3d 118, 119 (2017) (citation omitted); see also People v.

Hernandez, 82 N.Y .2d 309, 313-14 (1993) (“[H]omicide is properly charged when the

defendant’s culpable act is ‘a sufficiently direct cause’ of the death so that the fatal result was

reasonably foreseeable.”). Thus, at Petitioner’s May 2012 bench trial, the prosecution was

required to prove (1) Petitioner’s conduct was an “actual contributory cause of the death (factual

causation)” and (2) “the death was a reasonably foreseeable result of the conduct” (legal

causation). R. at 7; CJI2d[NY] Penal Law art 125, Causation.

Petitioner’s trial counsel did not raise the foreseeability requirement at any point during

the bench trial. As he later stipulated, trial counsel “presented his defense exclusively as to

factual causation” and “[a]t no time during the multi-day trial did defense counsel raise the issue

of whether Battle’s death” was “reasonably foreseeable” to Petitioner. R. at 8. Neither party

disputes this fact. In his 440 Motion, Petitioner argues this omission constituted deficient

performance because “the foreseeability requirement was well-established in New York law by

the time of the 2012 trial; prevailing case law demonstrated there was, at the least, a very strong

foreseeability argument available to [Petitioner]; and there was no plausible strategic or tactical

reason to explain why defense counsel could not or should not have made the People prove both

foreseeability and factual causation.” Pet Br. at 18. Indeed, Petitioner submitted a sworn

affidavit from his trial counsel, in which trial counsel admits his omission was not a strategic

choice, but merely the product of his ignorance on the issue. R. at A315-16 (“My failure to raise

this issue at trial was not a choice made for strategic reasons. Until I spoke with [Petitioner’s]

current counsel and reviewed the relevant authorities, I was unaware of this requirement. Had I

been aware of the legal requirement of reasonable foreseeability, I undoubtedly would have

argued at trial that the victim’s death was not reasonably foreseeable to [Petitioner].”).

In light of the obviousness of this defense, combined with trial counsel’s admissions, the

trial court determined “trial counsel’s performance in this regard fell below an objective standard

of reasonableness.” R. at A3-A4. Thus, the trial court found the first prong of Strickland was

fulfilled. Respondent does not dispute this conclusion. See generally Resp. Br.; Pet. Br. at 34

(“The lack of dispute over Strickland’s performance prong is appropriate.”).

However, while the trial court agreed with Petitioner as to the unreasonableness of his

trial counsel in omitting the foreseeability defense, it was unconvinced by Petitioner’s argument

that he was prejudiced by this failure. R. at A4. Specifically, the trial court found “there was no

prejudice to the defendant because there is no reasonable probability that the outcome of the case

would have been different had the counsel raised this issue.” Id. Respondent agrees with this

determination, and continues to argue Petitioner was not prejudiced by the performance of his

trial counsel. On the other hand, Petitioner continues to assert “It]here was at least a reasonable

probability ofa different outcome, but for counsel’s error.” Pet. Br. at 36.

Thus, the central question remains whether trial counsel’s failure to raise a foreseeability

defense impacted the outcome of Petitioner’s May 2012 bench trial. In his decision on

Petitioner’s 440 Motion, Judge Chun explained Petitioner was not prejudiced by the failings of

his trial counsel because “in deciding the defendant’s verdict, this court was aware of and did

apply both the actual causation and the reasonable foreseeability requirements in accordance

with precedent and the Criminal Jury Instructions.” R. at A6. Inso doing, Judge Chun

emphasized the difference between bench and jury trials. R. at A6. Namely, Judge Chun

identified that in contrast to a lay jury, a judge “‘is uniquely capable of distinguishing the issues

and making an objective determination’ based upon appropriate legal criteria.” R. at A6

(citations omitted). Judge Chun also presented as evidence of his consideration of foreseeability

during the bench trial two cases in which foreseeability is discussed: People v. Stewart, 40

N.Y 2d 692 (1976) and People v. Kibbe, 35 N.Y.2d 407 (1974). R. at A7. In Kibbe, the New

York Court of Appeals held “to be a sufficiently direct cause of death so as to warrant the

imposition of a criminal penalty therefore, it’s not necessary that the ultimate harm be intended

by the actor. It will suffice if it can be said beyond a reasonable doubt...that the ultimate harm is

something which should have been foreseen as being reasonably related to the acts of the

accused.” R. at A7 (citing 35 N.Y.2d at 412). Ultimately, Judge Chun reasoned because he was

independently aware of the reasonable foreseeability standard, and applied it to Petitioner’s case,

“there is no reasonable probability that the outcome of the case would have been different had

defense counsel raised this issue.” Jd. at A7. Therefore, Judge Chun concluded Petitioner was

not prejudiced by his trial counsel’s error. Id. .

The crux of Petitioner’s argument is that Judge Chun’s conclusion regarding prejudice

was “clearly wrong.” Pet. Br. at 34. Petitioner claims the foreseeability defense applied to his

case considering the circumstances of the case and the identity of the victim. Jd. Namely,

Petitioner emphasizes Battle’s young age—twenty-three years old at the time of his death—and

outward appearance of health. /d. As Petitioner notes, Battle’s mother even testified at trial that,

although Battle “had been diagnosed with his congenital heart condition as a teenager, he lived a

normal, active life.” Jd. (citing R. at A130-35). Thus, Petitioner argues, while Battle’s death

_ was a “terrible tragedy,” “it was also a freak outcome that was not reasonably foreseeable,

certainly not to someone in Petitioner’s shoes, knowing only what Petitioner knew.” Id.

Petitioner labels Judge Chun’s decision “error-ridden” and claims his decision applied a

subjective prejudice standard rather than an objective one and is therefore contrary to Strickland □

and an unreasonable application of the same. /d. at 37-48.

In contrast, Respondent argues the trial court’s prejudice analysis was neither contrary to

Strickland nor an unreasonable application of the Supreme Court’s holding therein. Resp. Br. at

35. As Judge Chun mentioned in his 440 Decision, so too does Respondent point to the trial

court’s Kibbe reference in its verdict as evidence “the court considered the issue of foreseeability

sua sponte.” Id. at 36. Indeed, Respondent argues the trial court’s consideration of

foreseeability should be assumed based on the unique “learning, experience and judicial

discipline” of a judge. Jd. According to Respondent, the trial court’s decision denying

Petitioner’s 440 Motion, in which Judge Chun confirms his consideration of legal precedent and

criminal jury instructions, which Respondent argues would have included the relevant

information on foreseeability, further evinces the trial court carefully considered the

foreseeability issue. Id. at 37.

Having weighed the parties’ competing arguments, the Court finds in Respondent’s favor

and concludes the trial judge’s findings were neither contrary to, nor an unreasonable application

of, Strickland.

I. Petitioner was not Prejudiced by Trial Counsel’s Omission

“The United States Supreme Court has determined that Strickland v. Washington, 466

U.S. 668 (1984), qualifies as ‘clearly established law’ for purposes of reviewing ineffective

assistance claims under AEDPA.” Peters v. Graham, 13-CV-06222, 2017 WL 2797915, at *2

(W.D.N.Y. June 28, 2017) (Telesca, J). At this stage, the Court must determine whether the trial

court unreasonably applied Strickland to Petitioner’s case. See Harrington, 562 U.S. at 101. In

Harrington, the Supreme Court described the extremely high bar set by Strickland in conjunction

with § 2254(d): “[e]stablishing that a state court’s application of Strickland was unreasonable

under § 2254(d) 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.” /d. at 105

(citations omitted); see also Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting

Strickland’s high bar is never an easy task.”).

Petitioner argues the trial court’s post-conviction decision that Petitioner was not

prejudiced was contrary to and an unreasonable application of Strickland because it erroneously

applied a subjective, rather than objective, prejudice analysis. Pet. Br. at 37. As previously

described, Judge Chun ruled trial counsel’s omission of the foreseeability defense did not

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prejudice Petitioner because the Judge himself was aware of the actual causation and reasonable

foreseeability requirements, and applied these requirements when deciding the Petitioner’s

verdict. R. at 6. Petitioner claims this ruling was a “post-hoc opinion of a fact-finder” and thus

“irrelevant to a Strickland prejudice inquiry.” Pet. Br. at 38. Petitioner argues further the proper

inquiry was “whether there was a reasonable probability that the attorney’s omission affected the

decision of a hypothetical, objective judge—not the particular trial judge that presided.” Id.

Petitioner also points to the following language from Hill v. Lockhart as evidence of this

framework: “the outcome at a possible trial, where necessary, should be made objectively,

without regard for the ‘idiosyncrasies of the particular decisionmaker.’” 472 U.S. 52 (1985)

(citing Strickland, 466 U.S. at 695).

Respondent claims Petitioner misinterprets Strickland. Respondent argues “[Petitioner]

relies upon an out-of-context quote from Strickland” and “[a] more complete excerpt of the

portion of the Strickland decision quoted in Lockhart shows that [Strickland] supports this Court

giving weight to the [trial] court’s explanation of what it considered in convicting [Petitioner] of

felony murder in [his] case.” Resp. Br. at 41. According to Respondent, Strickland and its

progeny permit trial courts to consider the “actual process of decision” as “part of the record of

the proceedings under review.” Jd. at 42. Respondent contends, therefore, that the trial court’s

“statement in its 440 [D]ecision that it had weighed the foreseeability issue sua sponte in

deliberating about [Petitioner’s] guilt should indeed be considered by the Court in determining

whether [Petitioner] had established Strickland’s prejudice prong.” Id.

This court agrees. In Strickland, the Supreme Court explained: “[a] defendant has no

entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be

reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker

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is reasonably, conscientiously, and impartially applying the standards that govern the decision. It

should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual

propensities toward harshness or leniency.” Strickland at 695. In short, the assumption of an

“objective” decisionmaker refers to the exclusion of “the possibility of arbitrariness, whimsy,

caprice, ‘nullification,’ and the like.” Jd The Supreme Court went on to suggest that while

“evidence about the actual process of decision,” such as “a particular judge’s sentencing

practices,” should not be considered, evidence that is “part of the record of the proceeding under

review” may be. Id.

Respondent’s interpretation of Strickland is consistent with case law from the Second

Circuit, in which the appellate court has repeatedly found the objective analysis directive

contemplated by Strickland refers to weighing the strength of the evidence at trial. In Garner v.

Lee, for example, the Second Circuit concluded a district court erred in determining a petitioner

satisfied Strickland’s prejudice prong because of the strength of the evidence presented against

the petitioner at trial. Garner v. Lee, 908 F.3d 845 (2d Cir. 2018). In so doing, the Circuit

discussed the meaning and implications of Lockhart’s admonitions regarding objective prejudice

analysis. Jd. at 862. The Circuit clarified because the prejudice inquiry under Strickland is

objective, it is “ineluctably tied to the strength of the prosecution’s evidence” and therefore

“Te]ven serious errors by counsel do not warrant granting habeas relief where the conviction is

supported by overwhelming evidence of guilt.” /d. (citing Lindstadt v. Keane, 239 F.3d 191, 204

(2d Cir. 2001); see also Schrock v. Kirkpatrick, 16-CV-6364, 2019 WL 8807887, at *12

(W.D.N.Y. Mar. 27, 2019) (Siragusa, J.).

Respondent’s understanding is further supported by this Circuit’s precedent to the extent

courts have consistently recognized inherent differences between jury and bench trials in the

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context of Strickland prejudice analyses, and have expressly found the risk of prejudice is far

lesser in the latter. See, e.g., Moore v. Chapplus, 16-CV-6400, 2017 WL 59083, at *4 (E.D.N.Y.

Jan. 5, 2017) (Cogan, J.) (“[I]t must be remembered that this case was tried to the court, not a jury.

This reduces petitioner’s argument to a contention that an experienced trial judge was unduly

prejudiced by petitioner’s use of offensive language and could not properly separate from that the

probative value of seeking to arrange the murder of the tipsters as to his consciousness of guilt, a

dubious contention.”); BIC Corp. v. Far E. Source Corp., 23 F. App’x 36, 39 (2d Cir. 2001)

(“[T]he admission of evidence in a bench trial is rarely ground for reversal, for the trial judge is

presumed to be able to exclude improper inferences from his or her own decisional analysis.”);

Steinhilber v. Kirkpatrick, M., 18-CV-1251, 2020 WL 9074808, at *25 (S.D.N.Y. Aug. 21, 2020)

(McCarthy, M.J.), report and recommendation adopted sub nom. Steinhilber v. Kirkpatrick, 18-

CV-1251, 2021 WL 1254554 (S.D.N.Y. Apr. 5, 2021) (Briccetti, J.) (‘[T]rial counsel’s decision

‘was all the more reasonable because the trial was not before a jury but rather before a judge who,

as an experienced finder of fact, would understand why the defense would choose not to make

such a statement.’”) (citing Armatullo y, Taylor, 04-CV-5357, 2005 WL 2386093, at *12

(S.D.N.Y. Sept. 28, 2005) (Gorenstein, M.J.)); Carrino v. Lee, 21-CV-5909, 2023 WL 4304799,

at *11 (S.D.N.Y. Jan. 31, 2023) (Davison, M.J.), report and recommendation adopted sub nom.

Carrino vy. Eckert, 21-CV-5909, 2023 WL 4296182 (S.D.N.Y. June 30, 2023) (Briccetti, J.)

(“Given that this was a bench trial, the potential for prejudice is minimal.”) (citing Steinhilber,

2020 WL 9074808 at *14).

Furthermore, contrary to Petitioner’s position on this issue, courts routinely consider the

subjective knowledge of the relevant factfinder when analyzing this issue. In the context of

bench trials, specifically, courts in this Circuit have rejected ineffective assistance claims based

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on a lack of prejudice because of the unique understanding of a case by a particular judge. For

example, Dunham y. Travis, 313 F.3d 724 (2d Cir. 2002) is particularly instructive here.

In Dunham, a petitioner challenged his conviction following a bench trial on the grounds

he received ineffective assistance of counsel because his trial counsel failed to impeach the

victim with her earlier statements. 313 F.3d at 732. The Circuit rejected this claim in part

because it found the trial counsel’s decision “fell within the wide range of acceptable

professional assistance” and thus the performance prong was not satisfied. Jd. However, the

Circuit went on to qualify that the petitioner’s arguments failed nevertheless because he suffered

no prejudice from the error. Jd. The Circuit explained “[t]he state judge, sitting as factfinder,

convicted Dunham while admitting to some doubts about Desio’s testimony. He did this based

on his conclusion that the physical and scientific evidence ‘exclude beyond a reasonable doubt

every hypothesis but guilt.’ Because the state judge expressly convicted Dunham despite doubts

about Desio’s credibility, there is no ‘reasonable probability’ that further impeachment of her

credibility would have changed the verdict.” Jd. (citing Strickland, 466 U.S. at 694). Notably, as

Respondent argues presently, the Circuit found evidence of the lack of prejudice in the form of a

440 decision subsequently decided by the same judge who presided over the bench trial, in which

the trial judge reasoned he was “unmoved by one of the allegedly inconsistent statements when it

was raised in the § 440 motion before him.” Jd.

Ultimately, this Court determines the expertise and awareness of the presiding judge in

the context of a bench trial are relevant for the purposes of establishing Strickland prejudice.

Corbett v. United States, 15-CV-1461, 2019 WL 4758340, at *7 (D. Conn. Sept. 30, 2019)

(Chatigny, J.) (rejecting a petitioner’s claim that he was prejudiced by his trial counsel’s failure

to interview a witness because the presiding trial judge “was well aware of the potential flaws in

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relying too heavily on [the] out-of-court testimony, both through his judicial experience and

through counsel’s submission objecting to the testimony.”) (emphasis added).

In his 440 Decision, Judge Chun identified the inherent and pertinent differences between

the effect of prejudice in cases decided by a judge rather than a lay jury, which, as the

aforementioned cases have explained, is relevant for the Court to consider. R. at 7. Judge Chun

confirmed he was aware of the reasonable foreseeability standard, cited the applicable, seminal

cases on the issue, and certified that he considered the standard in determining Petitioner’s guilt.

Similarly to the Second Circuit in Dunham, this Court finds the expertise and knowledge

Judge Chun exhibited at trial, combined with the evidence he took into consideration regarding

this issue, as evinced in his 440 Decision, are relevant to the Court’s instant prejudice analysis.

Moreover, it is well established that in the context of bench trials, trial court judges are

presumed to make decisions “based upon appropriate legal criteria.” Zuniga v. Lamana, 18-CV-

5717, 2019 WL 4124416, at *9 (S.D.N.Y. Aug. 30, 2019) (Cott, M.J.) (citation omitted).

Affording consideration to Judge Chun’s statements in this case is consistent with this

presumption, contrary to Petitioner’s suggestion that the statements made by the trial court on

this matter are unreliable especially considering the fact Judge Chun did not explicitly identify

the foreseeability issue upon announcing his verdict. Pet. Br. at 34-36. However, as Respondent

identifies, courts are not required to provide a full accounting of the legal principles upon which

they rely when announcing a verdict. People v. Amakye, 118 N.Y.S.3d 362 (N.Y. App. Term.

2019). Regardless, while the trial court did not reference the foreseeability issue explicitly, the

Court finds its reference to the seminal cases on this issue constitute sufficient evidence of its

consideration of the matter. The trial court’s acknowledgement of the foreseeability standard,

combined with the ubiquity of the defense in the New York criminal law and the associated jury

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instructions, are sufficient to assure this Court there was a reasonable basis for the trial court to

find Petitioner did not demonstrate Strickland prejudice.

CONCLUSION

The Petition is DENIED in its entirety for the foregoing reasons. A certificate of

appealability shall not issue. See 28 U.S.C. § 2253. The Clerk of Court is respectfully directed

to mail a copy of this Memorandum and Order to Petitioner and to close this case.

SO ORDERED.

S/WFK -€S

—_—_ ze

HON. WILLIAM F. KUNTZ, II

UNITED STATES DISTRICT JUDGE

Dated: September 5, 2023

Brooklyn, New York

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