Leftenant v. The Attorney General of the State of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHELDON LEFTENANT,

Petitioner, MEMORANDUM AND ORDER

-v- 20-cv-436 (JS)

ATTORNEY GENERAL OF THE STATE

OF NEW YORK (Clinton Correctional

Facility Superintendent),

Respondent.

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APPEARANCES

For Petitioner: Sheldon Leftenant, Pro Se

16-A-1249

Attica Correctional Facility

P.O. Box 149

Attica, New York 14011

For Respondent: Marion Tang, Esq.

District Attorney’s Office of Suffolk County

200 Center Drive

Riverhead, New York 11901

SEYBERT, District Judge:

Following a state court jury trial, Petitioner Sheldon

Leftenant (“Petitioner” or “Leftenant”), was convicted of one

count each of Attempted Aggravated Murder of a Police Officer

(Count 1, PL §125.26[1][a][i] as modified by PL §110.00, a class

A-I violent felony), Criminal Possession of a Weapon in the Second

Degree (Count 2, PL §265.03[1][b], a class C violent felony), and

Resisting Arrest (Count 3, PL §205.30, a class A

misdemeanor)(hereafter, the “Conviction”). Before the Court is

Petitioner’s pro se petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254 (“§ 2254”) raising four grounds for relief.

(Petition (“Pet.”), ECF No. 1.) Respondent Attorney General of

the State of New York (“State” or “Respondent”), has responded to

the Petition (see Return, ECF No. 8; see also Respondent’s

Memorandum of Law (“Resp. Opp.”), ECF No. 8-1), to which Petitioner

has replied (see Reply/Traverse (“Traverse”), ECF No. 15). For

the reasons set forth below, the Petition is DENIED in its

entirety, and the case is dismissed.

BACKGROUND

I. The Offensive Conduct1

Second Precinct Police Officers Mark Collins, Robert

Dorr, and Damian Torres (collectively, the “Officers”) were

assigned to a special plainclothes task force in Huntington

Station, focusing on a certain sector which experienced a high

level of drug activity, gang violence, robberies, assaults, and

1 The summary of facts is drawn from: the Petition, the pretrial

hearing transcript (“Pretrial Tr.”) (see ECF No. 9-1); the trial

transcript (“Tr.”) (see ECF Nos. 9-2, 9-3); the sentencing

transcript (“Sent’g Tr.”) (see ECF No. 9-4); Petitioner’s state

court appellate brief (“App. Br.”) (see ECF No. 9-5), which

Petitioner incorporates by reference into his Petition in support

of his claims (see Pet. ¶ 13); Respondent’s state opposition brief

(“State Opp. Br.”)(see ECF No. 9-6); the Decision & Order of the

Appellate Division Second Department (“App. Div. Decision”)(see

ECF No. 9-7); Petitioner’s application for leave to appeal to the

New York Court of Appeals (“C.A. Appl.”)(see ECF No. 9-9); and

Respondent’s opposition to Petitioner’s application for appeal

(“C.A. Opp.”)(see ECF No. 9-8).

burglaries. (Tr. at 1327:15-20; 1328:2-12; 1334:2-7; 1335:24-

1338:15.)

On March 11, 2015, the Officers were patrolling in an unmarked

gray Ford Edge (the “Edge”). (Id. at 1338:3-19.) At approximately

11:50 p.m., the Officers witnessed a dark-colored Honda sedan (the

“Honda”) traveling eastbound on Jericho Turnpike near the Roadway

Inn at approximately 60 m.p.h. in a zone with a speed limit of 40

m.p.h. (Id. at 705:7-9; 708:20-709:3; 1338:20-1339:15.) The

Officers initiated a traffic stop, beginning with following the

Honda for about a mile until it made a quick right onto Goeller

Avenue. (Id. at 1339:19-1340:2-13, 603:3-604:14; 1340:3-1340:6.)

Officer Dorr then activated the police light-bar and placed it on

the dashboard; thereafter, the Honda abruptly stopped in the middle

of the road near the well-lit intersection of Goeller Avenue and

Jericho Turnpike. (Id.) On the right was an open gas station and

on the left was a row of stores and a bar called the “Instant

Replay”. (Id. at 604:4-8; 1340:20-1341:8.)

The Officers exited their vehicle and approached the

Honda. (Id. at 604:23-605:4 1341:9-1342:14.) Officer Torres

proceeded to the driver’s side; Officer Dorr stopped at the rear

trunk; and Officer Collins walked to the passenger side. (Id. at

604:23-605:4 1341:9-1342:14.) As the Officers approached, they

noticed the rear passengers turning around to look back at them

and moving about a great deal. (Id. at 604:23-605:4; 658:22-

659:5; 1342:15-19.) Officer Dorr saw the left rear passenger reach

down and go out of sight for a moment (id. at 605:5-10); he shone

his flashlight through the back window and recognized the rear

passengers as being Keith Primm (“Primm”) seated on the left, and

Petitioner seated on the right. (Id. at 605:17-22.) Officer

Torres approached the driver’s window, identified himself as a

Suffolk County Police Officer, and asked the driver for his

license, registration, and proof of insurance. (Id. at 658:22-

659:16.) Officer Torres identified the driver as Phillipe Victor

(“Victor”) and the front passenger as Jean Luc Garand (“Garand”).

(Id. at 660:2-8; 722:19-21.)

As Officer Collins continued toward the vehicle, he saw

Petitioner put his hand in his pocket. (Id. at 1342:20-1343:2.)

Officer Collins banged on the window with his hand and told

Petitioner to take his hand out of his pocket. (Id. at 1342:20-

1343:22.) Petitioner complied and slowly put his hand in his lap.

(Id. at 1343:16-25.) Officer Collins then banged on the window

again, identified himself as a Suffolk County Police Officer and

asked for identification. (Id. at 1344:2-6.) Petitioner rolled

down the window and handed Officer Collins a “New York State new

style ID.” (Id. at 1344:7-25.) Since Officer Collins had worked

in this section of Huntington for about eight years, he had come

to know Petitioner, being acquainted with Petitioner for

approximately seven years. (Id. at 1335:2-11, 21-23.) Recognizing

Petitioner, Officer Collins asked: “Sheldon, I haven’t seen you in

a while. Where have you been?” Petitioner replied, “Officer, you

know me, I been staying out of trouble. I’m staying in Mastic with

my family.” (Id. at 1345:7-22.)

During this short conversation, Officer Collins also

noticed Primm was “very uneasy” and continued to move around,

moving his hands under the seat, under his legs, and in and out of

his pockets. (Id. at 1345:7-25.) Officer Torres repeatedly told

Primm to put his hands on his lap, but Primm continued to hide his

hands, move his hands under his legs, in and out of his pockets,

and under the seats. (Id. at 661:2-12.) Feeling unsafe, Officer

Torres asked Primm to step out of the vehicle. (Id. at 661:2-12.)

Officers Torres and Dorr escorted Primm to the Honda’s left rear

and conducted a quick pat-down in search for weapons. (Id. at

661:20-25.)

During Primm’s pat-down, Petitioner “became visibly nervous”

and started “looking around.” (Id. at 1348:2-6.) Although

Petitioner’s hands had been calmly in his lap, he began

“frantically moving around [as] well,” looking over his shoulder

to see what was happening with Primm and looking back to Officer

Collins. (Id. at 1348:2-13.) Officer Collins then asked

Petitioner to step out of the vehicle and opened the rear passenger

side door. (Id. at 1348:22-1349:2.) As soon as the car door was

opened, Petitioner took off running. (Id. at 609: 16-20; 662:2-

9; 1349:11-14.) Officer Torres, who had proceeded around the back

of the vehicle to assist Officer Collins, tried to grab Petitioner.

(Id. at 610:14-18; 662:16-22; 1349:13-1350:6.) But Petitioner,

who was wearing a gray jacket, spun around and ran northbound

through the gas station in a northwest direction. (Id. at 610:14-

18; 662:16-22; 1349:13-1350:6.) Officer Collins gave chase,

running only 10-to-15 feet behind, yelling “Stop. Police.” (Id.

at 663:306; 1349:13-1350:14; 1352:3-5.) Officer Torres followed

only about 30-feet behind. (Id. at 664:12-15.)

Petitioner ran northbound towards Jericho Turnpike.

(Id. at 663:7-16; 1349:11-16.) When Officer Collins reached

Jericho Turnpike, he slowed down because it was a busy road. (Id.

at 1351:8-12.) He pulled out his TASER from his police vest and

continued to follow Petitioner across Jericho Turnpike and towards

Mercer Court. (Id. at 663:23-664:11; 1350:21-1351:22.) Officer

Torres followed in tow. (Id. at 664:12-15.) Petitioner continued

running, but changed directions, heading westbound; he crossed

over Mercer Court and Officer Collins began gaining on him. (Id.

at 664:19-23; 681:3-14; 1351:16-1352:11, 1353:10-13.) Petitioner

then headed into a residential driveway, which was poorly lit.

(Id. at 153:22-1354:2, 1355:3-9.)

Officer Collins tried pointing the TASER’s red light in

front of Petitioner to alert Petitioner that he was behind him

with a taser and to deter Petitioner and gain his compliance. (Id.

at 1354:6-20.) Officer Collins also yelled, “Stop. Police. I’m

going to tase you.” (Id. at 1354:6-20.) However, Petitioner kept

running up the driveway with Officer Collins in pursuit. At the

top of the driveway was a PVC fence with a gate; like a football

player, Petitioner tucked his shoulder and ran right into the gate

trying to break through it. (Id. at 1355:3-13.) Instead,

Petitioner bounced back off the gate. (Id. at 1355:14-16.)

Thereafter, Officer Collins ordered Petitioner down on the ground

or he would be tased. (Id. at 1355:17-19.) Petitioner started

turning towards Officer Collins, who could not see Petitioner’s

hands; in response, Officer Collins deployed his TASER. (Id. at

1355:20-25.) However, because the TASER did not deploy properly,

Petitioner did not fall to the ground in a “muscular lockup” as

would be expected. (Id. at 1356:5-14.) Instead, Petitioner

continued turning “[p]retty quick” towards Officer Collins who

grabbed Petitioner by the shoulders and threw him into a pile of

snow. (Id. at 1356:23-1357:6; 1417:21-24.) Officer Collins told

Petitioner to put his hands behind his back and stop resisting.

(Id. at 1391:13-16.) As the two men fell to the ground, the

defective TASER shocked Officer Collins, though not strongly

enough to disable him, and Officer Collins tossed it away to avoid

further shocks. (Id. at 1357:9-25; 1391:19-24.)

Attempting to handcuff him, Officer Collins got on top of

Petitioner. (Id. at 1391:17-18.) He started pulling on

Petitioner’s hands trying to get them out but “they were very firm”

and he “could feel they were moving around like he was trying to

grab for something.” (Id. at 1358:14-18.) Officer Colins began

“to punch [Petitioner] a few times in the face trying to soften

him up to get his hands out,” but that did not work. (Id. at

1358:19-23.) Petitioner was laying on his side with Officer

Collins directly over him when Officer Collins “saw a couple of

[blue] sparks very close to [his] face,” “followed by four loud

pops.” (Id. at 1358:24-1359:13.) According to Officer Collins,

time seemed to have “stood still.” (Id. at 1359:14-16.) He

realized Petitioner had a gun and was shooting at him. (Id. at

1359:14-16.)

Officer Collins tried to draw his service weapon from

his right-side holster but discovered his right arm would not move.

(Id. at 1359:17-24; 1360:9-19.) He then tried to reach across his

waist and pull out his service weapon with his left hand but was

unable to pull it out. (Id. at 1360:3-8.) Still on top of

Petitioner, he realized it was likely best for him to get some

kind of cover and create distance between he and Petitioner. (Id.

at 1361:17-20.) When he tried to stand up, Officer Collins

discovered that his right leg did not work either. (Id. at

1361:21-25.) Instead, Officer Collins pulled himself on his belly

to a set of concrete steps he saw when he first ran up the driveway.

(Id. at 1362:9-17.) He was hoping to get behind the steps for

protection. (Id. at 1362:9-17.) In that moment, Officer Collins

believed that Petitioner was going to shoot him in the “back of

the head . . . to finish [him] off.” (Id. at 1362:18-1363:4.)

Officer Collins finally reached the steps and pulled his police

vest over his face as a shield and watched Petitioner undo the

latch, open the gate into the rear yard, and head right. (Id. at

1362:18-1363:4.)

Soon after, Officer Torres arrived at the top of the

driveway and discovered Officer Collins on his back. (Id. at

666:2-10.) Officer Torres kneeled next to Officer Collins who

said, “Damian, I’m shot. He Shot me.” (Id. at 666:2-10.) Seeing

a gunshot wound on Officer Collins’ neck, Officer Torres radioed

for help. (Id. at 666:2-667:8.)

Officer Dorr had remained behind at the traffic stop while

Officers Collins and Torres pursued Petitioner. (Id. at 610:9-

611:8.) After what “[f]elt like. . . an approximate 10, 15

seconds,” Officer Dorr heard four gunshots. (Id. at 611:19-21;

612:8-13.) He instructed Primm to put his hands on the Honda and

for the other passengers to show their hands, which they did. (Id.

at 612: 14-20.) Officer Dorr then heard an undiscernible “garbled”

transition come over the radio. (Id. at 612:22-613:11.)

Suspecting Officers Collins or Torres may have been shot, Officer

Dorr decided to go after them. (Id. at 613:5-16.) He jumped in

the Edge and proceeded down Jericho Turnpike trying to find the

other Officers. (Id. at 613:12-614:2.) As Officer Dorr continued

westbound on Jericho Turnpike, he saw Officer Torres shining a

flashlight and Officer Collins on his back in a snowbank, bleeding

from a gunshot wound to his neck. (Id. at 614:10-615: 10.) Having

exited the Edge, Officer Dorr knelt down next to Officer Collins

and heard him say that Petitioner shot him. (Id. at 615:23-

616:25.) Officer Torres also recalled Officer Collins saying, in

a horse voice, “Damian, Sheldon Leftenant shot me. His ID is in my

pocket.” (Id. at 667:9-20.) Officer Torres reached into Officer

Collins’ pocket and pulled out a New York State driver’s license

belonging to Petitioner. (Id. at 667:9-20.) Officers Dorr and

Torres treated Officer Collins who was having difficulty

breathing, “freezing cold” and “shaking uncontrollably.” (Id. at

616: 2-25; 667:9-20; 1367:5-1368:25.) Ambulance personnel arrived

and placed Officer Collins in an ambulance; he was subsequently

taken by helicopter to Stony Brook University Hospital where he

was treated for gunshot wounds to his neck and right flank.2 (Id.

at 617:15-20; 668:15-17; 1369:2-25, 1308:9-20; 1370:6-1371:2;

1372:7-22.) Officer Collins survived his injuries but required

subsequent vocal cord surgery, treatments, and therapy. (Id. at

1377:7-24.)

2 “Flank” is an anatomically defined area which is lateral to the

anterior abdomen. (Id. at 1313:21-25.) It is “primarily the

musculature on the side of [the] abdomen.” (Id. at 1313: 21-

1314:6.)

A. The Search for Petitioner

After Officer Collins was placed in the ambulance, a

full description of Petitioner was broadcast over the radio. (Id.

at 668:18-24.)

John Bryne (“Byrne”), a civilian who lived in a

second-floor apartment at 19 Mercer Court, had heard gunshots just

before midnight on March 11, 2015. (Id. at 744:21-745:20.) He

looked out his window and saw a black male, with black curly hair,

wearing a gray jacket, jeans, and dark shoes, coming around the

corner of the side fence of his neighbor’s house. (Id. at 746:12-

748:2.) The man ran around the fence, grabbed the bolt, and swung

himself around. (Id. at 747:2-15.) Byrne then watched him run up

along the side of the house and fall in the snow. (Id. at 747:2-

15.) Byrne then screamed out the window, “[O]fficer, somebody is

running over here thorough my neighbor’s house.” (Id. at 747:2-

15.) The man looked right up at Byrne. (Id. at 754:2-18.) Byrne

then headed to his back deck and saw the man jump the fence into

the yard of another neighbor. (Id. at 748:15-749:24.) thereafter,

Byrne went outside and saw an officer coming down the block. (Id.

at 756:8-16.) Byrne told the officer he saw someone run through

his yard and jump the fence. Soon after, he saw “K-9 cops coming.”

(Id. at 756:8-16.)

K-9 Unit officers were called to respond to 11 Mercer

Court to locate a suspect who shot an officer. (Id. at

768:4-769:4.) Officer Kenneth O’Brien and his dog, Dodge,

responded to the call and began working the area trying to find

human scent. (Id. at 768:4-769:24.) Right on the property line

of 13 and 15 Mercer Court, Dodge began tracking; thereafter, he

and Officer O’Brien followed the scent. (Id. at 771:6-777:22.)

Officer Brendan Gayer and his dog, Rascal, joined the search. (Id.

at 777:12-22; 788:21-24; 794:15-795:21; 797:7-19.) Officer Gayer

and Rascal went through a gate on the east side of 94 East 25th

Street, just north of 11 Mercer Court, where Rascal alerted to a

metal shed. (Id. at 669:10-17; 798:16-801:4.) Based on Rascal’s

alert, Officer Gayer was “very convinced that there was a human

inside of that shed.” (Id. at 801:5-8.) Officer Gayer requested

assistance from other officers. (Id. at 801:9-24.) The responding

officers were able to open the shed by tearing the shed door from

its hinges. (Id. at 804:21-805:10.) Inside the shed, Officer

Gayer saw Petitioner “seated upright but [in the] fetal position.”

(Id. at 805:12-806:7.) Despite commands to come out with his hands

up, Petitioner did not voluntarily come out of the shed. (Id. at

805:18-806:25.) Petitioner was forcibly removed by officers and,

although he resisted, was eventually handcuffed. (Id. at 806:11-

25.)

Officer Torres confirmed and identified the man that was

pulled from the shed as Petitioner, the same subject that was in

the vehicle stopped on Goeller Avenue and the same subject that

was running from he and Officer Collins. (Id. at 669:18-670:5.)

After receiving medical attention, Petitioner was taken to

the Third Precinct to be processed. (Id. at 1065:20-1066:18.) He

was charged under Indictment No. 624-2015 with Attempted

Aggravated Murder of a Police Officer, Criminal Possession of a

Weapon in the Second Degree, and Resisting Arrest.

B. The Recovered Evidence

Just after midnight on March 12, 2015, Detective Michael

Milau responded to 11 Mercer Court; he was instructed to go to the

hospital where Officer Collins was being treated. (Id. at 10485-

23.) There, Detective Milau recovered several items that had been

removed from Officer Collins, including a: (1) bulletproof front

vest panel; (2) pair of jeans; (3) pair of black Nike sneakers;

(4) sock; (5) pair of boxer shorts; (6) blue shirt;(7) t-shirt;

(8) sweatshirt; (9) shirt; and (10) a blanket Officer Collins had

been wrapped in. (Id. at 1049:24-1050:10.)

Further, K-9 Officer Stephen J. McSweeney responded to

11 Mercer Court with his dog, McClane, to search for and recover

evidence. (Id. at 867:10-868:7.) Officer McSweeney and McClane

performed an off-lead search specifically for explosive scents at

11 Mercer Court and 13 Mercer Court. (Id. at 869:15-870:11.) With

the help of McClane, Officer McSweeney recovered a black durag in

the backyard of 13 Mercer Court. (Id. at 870:14-20.) McClane

then led Officer McSweeney to a propane gas tank with a “hood that

was over the top of it.” (Id. at 870:14-872:4.) Officer McSweeney

“picked up the hood a little bit, saw the butt end of a revolver,

[a] small revolver, put it back down” and rewarded McClane. (Id.

at 872:2-4.) Officer McSweeney then went back to 11 Mercer Court

and found Officer Collins’ TASER, radio, and vest. (Id. at 872:21-

25; 880:3-24.)

In total, 16 items were recovered from 11 Mercer Court

and collected by the Suffolk County Crime Laboratory’s Crime Scene

Response Team. (Id. at 896:22-897:5; 830:22-831:4.) The items

included: (1) Officer Collins’ “GLOCK 23 Gen4 pistol; (2) a hat

recovered from Goeller Avenue; (3) a phone charger found at the

entrance to the gas station; (4)-(5) Officer Collins’ police vest,

clothing, belt, shoes, and blanket used to cover him--received

from Detective Milau; (6)-(9) AFIDs3 discharged from Officer

Collins’ TASER; (10) TASER and attached wires; (11) a piece from

Officer Collins’ TASER cartridge; (12) a question stain in the

snow that could have been blood; (13) a portion of police vest;

3 The Court understands the acronym “AFID” to mean “Anti-Felon

Identification Disks”, part of a serialized identification

mechanism placed in cartridges which contain the projectile darts

expelled from tasers. (See Tr. 948-51); see also, e.g., D.A.

Lounsbury & L. Frank Thompson, Locating Taser Anti-Felon

Identification Disks, 57 J. FORENSIC IDENTIFICATION 223, 223-229

(2007), available at https://www.ojp.gov/ncjrs/virtual-

library/abstracts/locating-taser-anti-felon-identification-

disks#:~:text=This%20article%20demonstrates%20a%20method,using%2

0an%20alternate%20light%20source.

and (14) Officer Collins’ radio; and (15)-(16) expended

projectiles (bullets). (Id. at 933:2-4; 937:2-6; 940:23-8;

842:10-19; 947:17-948:12; 957:24-958:18; 959:21-24;

960:19-961:12; 961:13-14; 962:21-23; 973:22-8; 978:12-15.) A

wallet was also recovered from a sidewalk near the lot located at

233 East Jericho Turnpike that Petitioner crossed, which included,

inter alia, Petitioner’s social security card, library card, and

a N.Y.S. benefit identification card belonging to a Deon Leftenant.

(Id. at 982:25-986:13.)

The .38 caliber revolver (the “Revolver”) found on the

propane tank and its casings were recovered, placed in a sealed

package, and transferred to the Suffolk County crime lab for

testing. (Id. at 988:2-990:19; 1053:2-1054:4.) The Revolver and

casings were tested, after which it was determined the bullets

found at the scene were fired from the Revolver and were used to

shoot Officer Collins from only “zero to two inches” away. (Id.

at 1179:9-13; 1184:14-23, 1218:14-1220:6; 1222:18-1246:15;

1249:10-22.) However, Officer Collins’ service weapon was never

used. (Id. at 1254:11-17.)

II. The Suppression Hearing

On October 26, 2015, a combined Huntley/Wade4 hearing

was held before Honorable John J. Collins of the Supreme Court,

4 See United States v. Wade, 388 U.S. 218 (1967), and People v.

Huntley, 15 N.Y.2d 72 (1965).

County of Suffolk. (Pretrial Tr. at 1-2:24.) Through his

appointed attorney, Ian Fitzgerald, Esq., Petitioner challenged

the admissibility of Petitioner’s show-up identification and

certain post-arrest statements Petitioner made to police. (Id. at

2:22-3:11.)5 At the beginning of the hearing, Petitioner requested

Mr. Fitzgerald be relieved as his attorney and he be appointed new

counsel. (Id. at 6:3-24; 7:17-23.) Petitioner asserted his belief

that Mr. Fitzgerald was not working in his best interest. (Id. at

7:17-23.) He claimed Mr. Fitzgerald “pushes [him] off like he

doesn’t care or doesn’t have any interest in what [he is] talking

about.” (Id. at 7:17-23.) When the court asked Petitioner if he

intended to hire his own attorney, Petitioner responded he was

“looking for a lawyer.” (Id. at 7:24-8:4.)

The trial court noted Mr. Fitzgerald had been appointed

and representing Petitioner for at least seven months. (Id. at

8:5-22.) In all that time, the trial court had not received any

request from Petitioner for new counsel, and Petitioner had not

previously raised his dissatisfaction with Mr. Fitzgerald’s

representation. (Id. at 8:5-9:10.) Petitioner stated that, on or

about August 25, 2015, he had filed an “18-B” request form seeking

5 Mr. Fitzgerald had also previously made a challenge to the grand

jury proceeding. (Id. at 6:3-13.) The Court found the grand jury

proceeding was proper and the three charges in the Indictment were

sufficiently sustained by the evidence. (Id.)

to “fire” Mr. Fitzgerald. (Id. at 9:23-11:10.) The trial court

advised Petitioner it never received such a form; moreover, at a

September 14, 2015 court appearance, which was after Petitioner

purportedly sent the form and prior to the initial Huntley/Wade

hearing, Petitioner never brought his dissatisfaction with Mr.

Fitzgerald’s representation to the trial court’s attention. (Id.

at 10:11-17.) Despite warning Petitioner that his choice to raise

his dissatisfaction with counsel just before witnesses were to be

called at the Huntley/Wade hearing was “very, very late and

potentially dilatory,” the Court afforded Petitioner the

opportunity to describe his concerns about Mr. Fitzgerald’s

representation. (Id. at 8:23-9:22.)6 Petitioner reiterated his

belief that Mr. Fitzgerald: dismissed him as irrelevant; pushes

him away “like a fly” when he asks for motions to be made; and was

not helping Petitioner “in the way [he] want[ed] him to help.”

(Id. at 12:3-13:14.) Petitioner stated he had asked Mr. Fitzgerald

to make a motion for a change of venue but Mr. Fitzgerald just

“pushed [him] off.” (Id. at 12:12-20.)

Thereafter, the trial court observed “Mr. Fitzgerald is

a very experienced, criminal practitioner” who had done

“everything legal[ly] and humanly possible to represent”

6 Petitioner was cautioned that anything said to the trial court

during his application could possibly be used against him because

the application was being made in open court. (Id. at 6:25-7:7.)

Petitioner. (Id. at 9:11-21.) The trial court detailed Mr.

Fitzgerald having done significant work in: procuring discovery

from the government; challenging statements Petitioner made to the

police at the time of his arrest; challenging the identification

of Petitioner; challenging the presentation to the grand jury; and

preparing himself diligently for the Huntley/Wade hearing. (Id. at

8:5-22.) The trial judge further explained Mr. Fitzgerald was not

wrong in not making a change of venue motion since “this would not

be the appropriate time for a change of venue motion,” which “[i]f

one were to be appropriate, it would not be until there was an

attempt at selecting a fair and impartial jury.” (Id. at 12:21-

13:8.) In light of Mr. Fitzgerald’s representation through

Petitioner’s oral application, the trial court found Petitioner

had not provided any reason Mr. Fitzgerald should be removed. (Id.

at 13:15-14:15.) In fact, Mr. Fitzgerald had “gotten the DA’s

office to consent to have these pretrial hearings.” (Id.)

According to the trial court, Petitioner was entitled to competent

counsel and “Mr. Fitzgerald more than [fit] that bill by quite a

lot.” (Id. at 15:23-16:2.) Thus, since the case was in the

pretrial hearing stage and trial was not scheduled to begin until

“at least January,” the court trial found Petitioner had ample

time to either make a formal motion to have counsel relieved, or

to hire his own attorney. (Id. at 15:23-17:2.) Ultimately, the

trial court found Petitioner had not provided any basis why Mr.

Fitzgerald should be removed; therefore, it denied Petitioner’s

application and commenced the hearing. (Id. at 17:6-22.)

III. The Trial

In January 2016, Petitioner appeared with Mr. Fitzgerald

for his jury trial. (See Tr. at 1-2:22.) The first issue addressed

was Mr. Fitzgerald’s motion to preclude as unduly prejudicial

“testimony regarding any alleged gang affiliation of [Petitioner]”

or that “these police officers were in the . . . Gang Unit.” (Id.

at 3:24-4:16.) The People agreed to have the Officers refrain

from referring to the “Gang Unit.” (Id. at 4:20-5:2.) Mr.

Fitzgerald also moved to subpoena Officer Collins’ personnel file.

(Id. at 6:8-7:6.)

Petitioner then addressed the trial court, again stating

his belief Mr. Fitzgerald did not “have his best interest in mind.”

(Id. at 18:25-19:6.) The judge again explained that, from the

trial court’s perspective, Mr. Fitzgerald had “done an excellent

job” representing Petitioner, staying on top of all issues, and

making all appropriate applications. (Id. at 19:9-20:16.) It

stated Mr. Fitzgerald had represented Petitioner well in court and

in chambers, and had been successful on motions made on

Petitioner’s benefit. (Id.) Thus, the Court proceeded with trial.

(Id. at 20:17-22.)

After jury selection, but before opening statements, Mr.

Fitzgerald moved to suppress certain video surveillance7 provided

by the People after jury selection. (Id. at 545:25-548:20.) The

Court ruled Petitioner was prejudiced by the delayed production of

the video and precluded its introduction at trial. (Id. at 815:13-

818:9.)

On January 16, 2016, the jury reached a verdict. (Id.

at 1566:13-15.) Petitioner was found guilty of all three counts

of his Indictment. (Id. at 1566:24-16.) On March 28, 2016,

Petitioner was sentenced to consecutive sentences totaling

56-years-to-life imprisonment and five-years’ post-release

supervision. (Sent’g Tr. 23:12-24:6;26:8-14.)

IV. The Post-Conviction Proceedings

On May 1, 2018, through appellate counsel, Felice B.

Milani, Esq., of Legal Aid Society of Suffolk County, Petitioner

filed a direct appeal to the Appellate Division, Second Department

on May 1, 2018. (See App. Br.) Petitioner’s counseled brief raised

four claims: (1) Petitioner was deprived of his constitutional

right to effective assistance of counsel because his trial counsel,

Mr. Fitzgerald, failed to seek suppression of “all actions”

stemming from the purported unlawful seizure of Petitioner and

failed to call a detective as a witness or move for a missing

7 The video was from the gas station located at the Jericho

Turnpike/Goeller Avenue intersection.

witness charge (id. at 17-32); (2) the trial court erred when it

failed to relieve Petitioner’s counsel at his request (id. at 33-

44); (3) Petitioner’s Conviction was against the weight of the

evidence and should be dismissed in the interest of justice (id.

45-48); and (4) Petitioner’s cumulative sentence of 56-years was

unduly harsh and excessive and should be modified in the interest

of justice (id. at 49-52). Respondent opposed Petitioner’s appeal.

(See State Opp. Br.)

On June 26, 2019, the Appellate Division modified

Petitioner’s judgment of conviction only as to his sentence. (See

App. Div. Decision at 1.) The Appellate Division determined the

sentence imposed on the Conviction of Criminal Possession of Weapon

was to run concurrently with the sentence imposed on the conviction

of Attempted Aggravated Murder of a Police Officer. Id. Judgment

of Conviction was otherwise affirmed. (Id.)

As to Petitioner’s first claim, i.e., he was deprived

effective assistance of counsel, the Appellate Division held,

“defendant’s contention. . . is without merit.” (Id. at 2.) Upon

review of the record, the Appellate Division found Mr. Fitzgerald

provided “meaningful representation” to Petitioner. (Id.)

Regarding Petitioner’s claim Mr. Fitzgerald purportedly failed to

file a suppression motion, the Appellate Division found there was

no support for such a motion. (Id.) As it related to Petitioner’s

contention Mr. Fitzgerald was ineffective for failing to call a

certain detective as a witness, the Appellate Division held there

was no compelling reason to call such detective as a witness, since

the detective’s testimony would not have been material; therefore,

Mr. Fitzgerald was not ineffective and his decision could be

explained “as a legitimate strategic choice.” (Id.)

As to Petitioner’s second claim, the Appellate Division held

the trial court did not improvidently exercise its discretion in

denying Petitioner’s request for substitution of counsel because

he “failed to make specific factual allegations of serious

complaints about his assigned trial counsel” and following the

appropriate inquiry, the trial court properly determined the

request was not supported by good cause. (Id.)

The Appellate Division further found Petitioner’s third

claim, i.e., the evidence was legally insufficient to establish

his guilt, was not preserved for appellate review. (Id. at 1.)

Nonetheless, the Appellate Division found the contention to be

without merit and the evidence was legally sufficient to establish

guilt beyond a reasonable doubt. (Id.)

As to Petitioner’s fourth claim concerning the issue of

Petitioner’s sentence, the People conceded, and the Appellate

Division agreed, that Petitioner’s sentence be modified resulting

in his terms of imprisonment for his convictions of criminal

possession of a weapon and attempted aggravated murder of a police

officer running concurrently. (Id. at 2.)

On August 20, 2019, Petitioner’s application for leave

to appeal was summarily denied. See People v. Leftenant, 34 N.Y.3d

934, 133 N.E.3d 407 (2019). This Petition followed.

Legal Standards

I. Section 2254 Standard of Review

“It is well established that a federal habeas court does

not sit to correct a misapplication of state law, unless such

misapplication violates the Constitution, laws, or treaties of the

United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.

2002). Pursuant to 28 U.S.C. §2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

a habeas court considering a claim that was decided on the merits

in a state court proceeding may grant relief only if the state

court’s decision was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or” (2) “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).

The AEDPA establishes a deferential standard of review:

“a federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000); see

also McBride v. Perez, No. 13-CV-4792, 2015 WL 5245072, at *8

(S.D.N.Y. June 25, 2015) (“‘[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws

or treaties of the United States.’” (quoting Estelle v. McGuire,

502 U.S. 62, 67-68 (1991)). The requirements set forth by the

AEDPA are strictly construed and, by design, erect a barrier to

federal habeas relief founded upon the principle that “[s]tate

courts are adequate forums for the vindication of federal rights”

and are “presumptively competent[] to adjudicate claims arising

under the laws of the United States.” Burt v. Titlow, 571 U.S.

12, 19 (2013) (internal quotation marks and citation omitted).

Under § 2254(d)(1), a state court decision is considered

“contrary to” federal law if it either “applies a rule that

contradicts the governing law set forth in [the Supreme Court’s]

cases” or “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and

nevertheless arrives at a result different from [Supreme Court]

precedent.” Williams, 529 U.S. at 405-06. “‘Clearly established

Federal law’ means ‘the holdings, as opposed to the dicta, of [the

Supreme] Court's decisions as of the time of the relevant state-

court decision.’” Green v. Travis, 414 F.3d 288, 296 (2d Cir.

2005) (quoting Williams, 529 U.S. at 412) (alteration in original).

An “unreasonable application” of federal law occurs where the state

court “correctly identifies the governing legal rule but applies

it unreasonably to the facts of a particular prisoner’s case.”

Williams, 529 U.S. at 407-08. “The critical point is that relief

is available under § 2254(d)(1)’s unreasonable application clause

if, and only if, it is so obvious that a clearly established rule

applies to a given set of facts that there could be no fairminded

disagreement on the question.” White v. Woodall, 572 U.S. 415,

427 (2014) (internal quotation marks and citations omitted).

Regarding the second subsection of §2254(d), courts have

had “fewer opportunities to consider what constitutes an

‘unreasonable determination of the facts’” pursuant to

§ 2254(d)(2), compared with § 2254(d)(1). Cardoza v. Rock, 731

F.3d 169, 177 n.5 (2d Cir. 2013). The state court’s determination

of the facts “is not unreasonable merely because the federal habeas

court would have reached a different conclusion in the first

instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). A finding

may rise to the level of an unreasonable determination of the facts

“where, for example, reasonable minds could not disagree that the

trial court misapprehended or misstated material aspects of the

record in making its finding or where the court ignored highly

probative and material evidence.” Cardoza, 731 F.3d at 177-78

(first citing Wiggins v. Smith, 539 U.S. 510, 528 (2003); then

citing Miller-El v. Cockrell, 537 U.S. 322, 346 (2003)). However,

“even if the standard set forth in section 2254(d)(2) is met, the

petitioner still ‘bears the ultimate burden of proving by a

preponderance of the evidence that his constitutional rights have

been violated.’” Id. at 178 (quoting Epps v. Poole, 687 F.3d 46,

50 (2d Cir. 2012)); cf. Nowakowski v. New York, No. 13-CV-3709,

2018 WL 6421056, at *6 (E.D.N.Y. Dec. 6, 2018) (“[F]or claims of

‘unreasonable determination[s] of the facts’ under paragraph

(d)(2), an applicant bears the additional burden of ‘rebutting the

state court’s factual findings ‘by clear and convincing

evidence.’” (quoting Burt, 571 U.S. at 20) (alteration in

original)).

II. Procedural Bars to Federal Habeas Review

A. Failure to Exhaust

A habeas petition will not be reviewed by the district

court unless “the applicant has exhausted the remedies available

in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

Exhaustion of state remedies requires a petitioner “fairly

presen[t] federal claims to the state courts in order to give the

State the opportunity to pass upon and correct alleged violations

of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365 (1995) (internal quotation marks and citation omitted;

alteration in original). The state courts must have had “the first

opportunity to hear the claim sought to be vindicated in a federal

habeas proceeding” for there to have been exhaustion of state

remedies, and therefore a state prisoner must “present the state

courts with the same claim he urges upon the federal courts.”

Picard v. Connor, 404 U.S. 270, 276 (1971).

Because the exhaustion doctrine is designed to

give the state courts a full and fair

opportunity to resolve federal constitutional

claims before those claims are presented to

the federal courts . . . state prisoners must

give the state courts one full opportunity to

resolve any constitutional issues by invoking

one complete round of the State's established

appellate review process.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, a

defendant must exhaust his claims by seeking leave to appeal to

the New York Court of Appeals. See Morgan v. Bennett, 204 F.3d

360, 369 (2d Cir. 2000).

B. State Procedural Requirements

A federal court “may not review federal claims that were

procedurally defaulted in state court—that is, claims that the

state court denied based on an adequate and independent state

procedural rule.” Davila v. Davis, 582 U.S. 521, 527 (2017); see

also Jimenez v. Walker, 458 F.3d 130, 136 (2d Cir. 2006)

(“[F]ederal courts may not review the judgment of a state court

that ‘rests on a state-law ground that is both ‘independent’ of

the merits of the federal claim and an ‘adequate’ basis for the

court’s decision.’” (quoting Harris v. Reed, 489 U.S. 255, 260

(1989))). This principle serves to “ensure that state-court

judgments are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our system of

federalism.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

A procedural rule is adequate if it is “firmly

established and regularly followed by the state in question.”

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

marks and citation omitted). To be independent, the “state court

must actually have relied on the procedural bar as an independent

basis for its disposition of the case” by “‘clearly and expressly’

stat[ing] that its judgment rests on a state procedural bar.”

Harris, 489 U.S. at 261-63, 265 n.12. Further, a state court’s

reliance on an independent and adequate procedural bar forecloses

habeas review even if the state court also rejected the claim on

the merits in the alternative. See, e.g., id., at 264 n.10

(explaining “a state court need not fear reaching the merits of a

federal claim in an alternative holding” where it “explicitly

invokes a state procedural bar rule as a separate basis for [its]

decision” (emphasis in original)); Fama v. Comm’r of Corr. Servs.,

235 F.3d 804, 810 n.4 (2d Cir. 2000) (“[W]here a state court says

that a claim is ‘not preserved for appellate review’ and then ruled

‘in any event’ on the merits, such a claim is not preserved.”);

Nowakowski, 2018 WL 6421056, at *6 (noting “[t]he bar applies even

where the state court has also ruled in the alternative on the

merits of the federal claim” (internal quotation marks and citation

omitted)).

Notwithstanding the existence of a procedural bar to a

claim under state rules, “a federal court may still review the

claim on the merits [1] if the petitioner can demonstrate both

cause for the default and resulting prejudice, or [2] if he can

demonstrate that the failure to consider the claim will result in

a miscarriage of justice.” Petronio v. Walsh, 736 F. Supp. 2d

640, 654 (E.D.N.Y. 2010) (citing Coleman v. Thompson, 501 U.S.

722, 749–50 (1991)). As to the cause and resulting prejudice

avenue, “[c]ause may be demonstrated with ‘a showing that the

factual or legal basis for a claim was not reasonably available to

counsel, . . . or that ‘some interference by state officials’ made

compliance impracticable, . . . [or that] the procedural default

is the result of ineffective assistance of counsel.’” Bossett v.

Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray v. Carrier,

477 U.S. 478, 488 (1986) (citations omitted)).8 As to prejudice,

a petitioner must demonstrate more than “a possibility of

prejudice,” but rather that the errors below “worked to his actual

8

Although ineffective assistance of counsel may, in some

circumstances, constitute cause for a default, the claim for

ineffective assistance “generally must ‘be presented to the state

courts as an independent claim before it may be used to establish

cause for a procedural default.’” Edwards v. Carpenter, 529 U.S.

446, 452 (2000) (quoting Murray, 477 U.S. at 489); see also Pitre

v. Griffin, No. 16-CV-6258, 2016 WL 7442653, at *11 (E.D.N.Y. Dec.

26, 2016) (“[T]he ineffective assistance claim must itself have

been exhausted in the state court.”). Here, no such claim has

been raised by Petitioner, either in the state courts or in this

Petition.

and substantial disadvantage.” Murray, 477 U.S. at 494 (internal

quotation marks and citation omitted; emphasis in original).

“The miscarriage of justice exception is concerned with

actual as compared to legal innocence.” Calderon v. Thompson, 523

U.S. 538, 559 (1998) (internal quotation marks and citation

omitted). A petitioner must demonstrate, by clear and convincing

evidence, that he is actually innocent, and must support his claims

“with new reliable evidence –- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence –- that was not presented at trial.” Schlup v. Delo, 513

U.S. 298, 324 (1995). Plaintiff does not argue that he is actually

innocent, nor does the record support any such argument; therefore,

the miscarriage of justice exception is inapplicable.

Accordingly, any analysis whether Petitioner has overcome a

procedural bar will be limited to the exception for cause and

resulting prejudice.

Finally, “[t]he Court is mindful that, as with all pro

se pleadings, a habeas petition filed pro se is to be construed

liberally.” Crowder v. Ercole, No. 09-CV-3401, 2012 WL 5386042,

at *2 (E.D.N.Y. Nov. 2, 2012) (citation omitted); see also Alonge

v. Chappius, No. 12-CV-542, 2019 WL 1642449, at *6 (E.D.N.Y. Apr.

16, 2019)(“[T]he court must interpret petitioner’s pleadings as

raising the strongest arguments they suggest”). Pro se status,

however, “does not exempt a party from compliance with relevant

rules of procedural and substantive law.” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (quoting Traguth v.

Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

DISCUSSION

Petitioner challenges his state court Conviction by

raising the identical four grounds he asserted in his state court

appeal, i.e.: (1) ineffective assistance of counsel; (2) failure

to assign new counsel at Petitioner’s request; (3) Petitioner’s

Conviction was against the weight of the evidence; and

(4) Petitioner’s sentence is excessive. (See Pet. at 3.) The Court

will address each of Petitioner’s claims in turn.9

I. Ground One: The Ineffective Assistance Claim

Petitioner asserts he is entitled to habeas relief on the

ground of ineffective assistance of counsel because defense

counsel did not contest the stop-and-search of the Honda and

Petitioner’s subsequent arrest, although there were grounds to do

so. (Pet. at 6; Traverse at 8.) Specifically, Petitioner contends

Mr. Fitzgerald was ineffective for failing to request a probable

9 To the extent Petitioner requests an evidentiary hearing (see

Traverse at 13), after a thorough review of Petitioner’s

submissions and the state court record and transcripts, the Court

finds in accordance with Rule 8 of the Rules Governing Section

2254 Cases that an evidentiary hearing is not necessary to address

Petitioner’s claims. See Richardson v. Wolcott, No. 6:20-CV-6178

CJS, 2023 WL 4999832, at *8 (W.D.N.Y. Aug. 4, 2023).

cause hearing under Dunaway v New York, 442 U.S. 200 (1979,10 and

for failing to move to suppress the evidence that resulted from

the traffic stop. (Pet. at 6.; Traverse at 4.) Petitioner argues

that “had [Mr. Fitzgerald] argued that there was no probable cause

to arrest the Petitioner in [a] notice of motion[,] the result of

trial would have been different because there is a possibility

that all evidence as a result of the illegal arrest would have

been suppressed and the indictment dismissed.” (Traverse at 8.)11

10 In Dunaway, the United States Supreme Court held seizures of

suspects are reasonable only if supported by probable cause. Id.

A hearing held pursuant to Dunaway addresses the propriety of a

suspect’s arrest under the Fourth Amendment. See id.

11 Respondent contends Petitioner’s claim on this ground includes

that defense counsel failed to “investigate or meet” with

Petitioner. (Resp. Opp at 11-13.) However, Petitioner raises

this challenge in the second ground of the Petition based upon the

Court’s purported failure to provide him new counsel, not in his

first ground for ineffective assistance of counsel. (See Pet. at

6-7.) Nonetheless, affording Petitioner every benefit given his

pro se status, to the extent Petitioner seeks relief for

ineffective assistance of counsel based upon his defense counsel’s

purported failure to investigate or meet with him, the Court

declines to consider the same as it is unexhausted. Although

Petitioner raised an ineffective-assistance-of-counsel claim in

state court, Petitioner never claimed it was because his defense

counsel failed to investigate or meet with him. (See App. Br. at

17-32; App. Div. Decision at 2; see also C.A. Appl.) Because

Petitioner failed to preserve this issue for appellate review, it

is barred from federal habeas review. See Strzelecki v.

Cunningham, No. 13-CV-0133, 2019 WL 6050404, *10 (E.D.N.Y. Nov.

15, 2019) (discussing failure to exhaust a claim in state court

bars a habeas petitioner from asserting that claim in federal

court).

Petitioner raised this very claim in his direct appeal.

(See App. Br. at 20-27.) The Appellate Division denied

Petitioner’s appeal on this ground, stating, “there can be no

denial of effective assistance of trial counsel arising from

counsel’s failure to make a motion that has little or no chance of

success.” (App. Div. Decision at 2.) The Appellate Division found

“counsel was not ineffective for failing to move to suppress

evidence resulting from a traffic stop where, as here, there was

no support in the record for such a motion.” (Id. (citing People

v. Carver, 27 N.Y.3d 418, 421 (2016)). Therefore, this claim is

properly exhausted. However, the Court finds the Appellate

Division’s denial was not contrary to, or an unreasonable

application of, clearly established federal law.

To establish deficient performance, a petitioner must

prove “counsel’s representation fell below an objective standard

of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688

(1984). Even if a petitioner can show deficient performance, he

must also establish prejudice--that is, “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

Further, as a general principle, there is “a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. After all, “there are

countless ways to provide effective assistance in any given case,”

and “[e]ven the best criminal defense attorneys would not defend

a particular client in the same way.” Id.

In the context of a habeas petition, in reviewing the

totality of the evidence, the habeas court must “use a ‘doubly

deferential’ standard of review that gives both the state court

and the defense attorney the benefit of the doubt.” Burt v.

Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen v. Pinholster, 563

U.S. 170, 190 (2011)). The Supreme Court has instructed “the

question is not whether counsel’s actions were reasonable . . .

[rather, t]he question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”

Harrington v. Richter, 562 U.S. 86, 105 (2011). Bearing this

deferential standard in mind, it is unsurprising that “the great

majority of habeas petitions that allege constitutionally

ineffective counsel” fail. Lindstadt v. Keane, 239 F.3d 191, 199

(2d Cir. 2001).

Further framing the issue of ineffective representation

to instances involving a suppression motion, “in order to show

ineffective assistance of counsel for failure to make a motion to

suppress, ‘the underlying motion must be shown to be meritorious,

and there must be a reasonable probability that the verdict would

have been different if the evidence had been suppressed.’” Cruz

v. Colvin, No. 17-CV-3757, 2019 WL 3817136, at *16 (E.D.N.Y. Aug.

14, 2019) (quoting United States v. Matos, 905 F.2d 30, 32 (2d

Cir. 1990).

Contrary to Petitioner’s assertions, here, the record

evidence establishes his defense counsel fulfilled his

professional obligation because there is no evidence suggesting

there was any potentially meritorious basis upon which such a

suppression motion could have been made. Rather, the record shows

the Officers pulled over the Honda, in which Petitioner was a

passenger, because it was speeding--traveling at least 60 m.p.h.

in a 40-m.p.h.-zone. (See Tr. at 705:7-9; 708:20-709:3; 1338:20-

1339:15.) The Honda came to a stop and, as the Officers

approached, they noticed the rear passengers (later identified as

Petitioner and Primm) turning around to look back at them and

moving about a great deal. (Id. at 604:23-605:4; 658:22-659:5;

1342:15-19.) Officer Collins saw Petitioner put his hand in his

pocket, which made the Officer uncomfortable approaching the

Honda. (Id. at 1342:20-1343:22.) Officer Collins noticed Primm

was “very uneasy” and continued moving around. (Id. at 1345:23-

1346:5.) He moved his hands under the seat, under his legs, and

in and out of his pockets. (Id. at 1345:7-22.) Feeling unsafe,

Officer Torres asked Primm to exit the Honda, thereafter conducting

a quick pat-down of Primm in search for weapons. (Id. at 661:2-

25.)

Testimonial evidence also showed that, during Primm’s

pat-down, Petitioner: “became visibly nervous”; started “looking

around”; and began “frantically moving around,” looking over his

shoulder to what was happening with Primm and looking back to

Officer Collins. (Id. at 1348:2-13.) Officer Collins testified

that when he asked Petitioner to step out of the Honda, as soon as

the car door was opened, Petitioner immediately fled. (Id. at

609: 16-20; 662:2-9; 1348:22-1349:11-14.)

The record demonstrates probable cause existed to stop

the Honda as a lawful traffic stop and the Officers acted properly

in questioning and further searching the occupants of the Honda.

See Jones v. LaValley, No. 11-CV-6178, 2014 WL 1377589, at *22

(S.D.N.Y. Apr. 3, 2014), report and recommendation adopted, 2015

WL 1439406 (S.D.N.Y. Mar. 30, 2015) (finding, based on “a

combination of factors,” police were justified in pursuit where

they were engaged in “an evolving escalating situation”).

Even assuming, arguendo, the initial stop of the vehicle

was illegal, Petitioner’s subsequent flight and shooting of

Officer Collins provided probable cause for his arrest. See United

States v. Jenkins, 659 F. App’x 1, 3 (2d Cir. 2016) (finding, even

if initial police stop was unlawful, defendant’s arrest was not

subject to the exclusionary rule due to defendant’s subsequent and

intervening act of striking an officer); United States v. Bellamy,

592 F. Supp. 2d 308, 323 (E.D.N.Y. 2009) (finding evidence

discovered during “defendant’s commission of distinct offenses—

assault and resisting arrest” were not incident to officer’s

unlawful stop and therefore were admissible). Under these

circumstances, if defense counsel made a motion to suppress, as

Petitioner suggests, it would have been unsuccessful. See People

v. Nunez, 137 A.D.3d 569, 569 (2016) (motion to suppress properly

denied where it was found that, “[e]ven if the police actions in

seeking to stop defendant were initially unlawful, any illegality

was attenuated by defendant’s independent, calculated acts of

picking up the pistol he had dropped in his flight, aiming it at

one of the officers and firing two shots”); People v. Little, 309

A.D.2d 767, 768 (2003) (motion to suppress properly denied where

“defendant’s shooting at the officers constituted a calculated,

independent criminal act, unrelated to the police activity which

preceded it”).

Petitioner has failed to establish the existence of any

foundation for moving for a Dunaway Hearing. Petitioner has not

articulated, and the record does not support, a factual or legal

argument which trial counsel failed to assert which would have

likely resulted in the suppression of evidence. Thus, Petitioner

has not demonstrated trial counsel’s performance was ineffective.

See Jones, 2014 WL 1377589, at *22; Montgomery v. Wood, 727 F.

Supp. 2d 171, 186 (W.D.N.Y. 2010) (denying habeas petition where

“[a]part from [petitioner’s] own opinion that his arrest was

without probable cause and counsel should have moved for a

Mapp/Dunaway hearing, Petitioner has not suggested that there were

any potentially meritorious bases on which such a suppression

motion could have been premised”). Moreover, because there is no

“reasonable probability” that, but for counsel’s purported error

in failing to challenge Petitioner’s arrest, the result of the

trial would have been different, Petitioner also fails to establish

any prejudice under Strickland. See White v. Bellnier, No.

09-CV-744, 2011 WL 6780995, at *9 (E.D.N.Y. Dec. 27, 2011).

Having failed to satisfy either the deficient

performance or prejudice prongs of Strickland’s constitutional

test for ineffective assistance of counsel, Petitioner’s claim

seeking habeas relief on this basis fails.

II. Ground Two: The Denial of New Counsel Claim

Petitioner asserts he is entitled to habeas relief

because the trial court failed to appoint him new counsel at his

request, violating his Sixth Amendment right to counsel. (Pet. at

7.) Petitioner contends that, on August 22, 2015, he wrote to the

trial court requesting a new attorney and that, on October 26,

2015, he made a similar request in person during the Huntley/Wade

hearing. (See id.) Petitioner raised this claim in his direct

appeal. (See App. Br. at 33-44.)

The Appellate Division rejected Petitioner’s appeal on

Ground Two, stating:

The County Court did not improvidently

exercise its discretion in denying the

defendant’s application for a substitution of

counsel, as he failed to make specific factual

allegations of serious complaints about his

assigned trial counsel (see People v Porto, 16

NY3d 93, 99-100; People v Davis, 161 AD3d

1000, 1002) and, in any event, the court

conducted an appropriate inquiry and properly

determined that the request was not supported

by good cause (see People v Linares, 2 NY3d

507, 510-512; People v Johnson, 116 AD3d 883,

883-884).

(App. Div. Decision at 2.) Therefore, this claim is properly

exhausted.

In opposition, Respondent argues Petitioner’s claim on

Ground Two should be denied because denial of new counsel is not

cognizable on habeas review. (Opp. Br. at 34.) Respondent further

maintains the state appellate court’s determination that the trial

court did not abuse its discretion in denying substitution was

neither contrary to, nor an unreasonable application of clearly

established federal law. (Id.) The Court agrees with Respondent.

The Sixth Amendment right to counsel includes “the right

of a defendant who does not require appointed counsel to choose

who will represent him.” United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006). However, this “right to counsel of choice does

not extend to defendants who require counsel to be appointed for

them.” Id. at 151. In other words, “[t]he [Sixth] Amendment

guarantees defendants in criminal cases the right to adequate

representation, but those who do not have the means to hire their

own lawyers have no cognizable complaint so long as they are

adequately represented by attorneys appointed by the courts.”

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624

(1989).

“Aside from this general principle, the Supreme Court

has not articulated a standard for deciding a Sixth Amendment claim

based on a habeas petitioner’s allegation the trial court denied

his request for substitute counsel.” Ward v. Capra, No.

1:17-CV-0704, 2019 WL 2302351, at *6 (E.D.N.Y. May 30, 2019)

(internal quotations omitted). “Hence, [the Court] could not say

that the decision of the Appellate Division rejecting petitioner’s

complaint about his attorney was either contrary to, or an

unreasonable application of, established Supreme Court

jurisprudence.” Cantoni v. Leclair, No. 12-CV-4353, 2015 WL

518226, at *16 (S.D.N.Y. Feb. 9, 2015)(citing 28 U.S.C. § 2254(d)).

Therefore, the denial of Petitioner’s request for new counsel is

not cognizable for purposes of habeas review. See Oshintayo v.

Jones, No. 9:19-CV-1249, 2023 WL 3821325, at *9 (N.D.N.Y. Mar. 6,

2023) (“[T]he denial of Petitioner’s request for new counsel is

not cognizable for purposes of habeas review.”), report and

recommendation adopted, 2023 WL 3816726 (N.D.N.Y. June 5, 2023);

Zuniga v. Lamana, No. 18-CV-5717, 2019 WL 4124416, at *7 (S.D.N.Y.

Aug. 30, 2019)(same).

Even if the Court were to consider the merits of

Petitioner’s claim, the Court would conclude the trial court did

not err in refusing to grant new counsel. Trial courts have a

“wide latitude in balancing the right to counsel of choice against

the needs of fairness . . . and against the demands of its

calendar.” Gonzalez-Lopez, 548 U.S. at 152. In evaluating whether

the trial court abused its discretion by refusing to substitute

counsel, the court must consider the timeliness of the request,

the extent of the court’s inquiry, the extent of any breakdown in

communication, and whether the defendant’s conduct contributed to

a breakdown in trust. See United States v. John Doe #1, 272 F.3d

116, 122-23 (2d Cir. 2001). “Although AEDPA requires this court

to apply a standard of review that is more deferential to the state

court’s conclusions than the abuse-of-discretion standard . . .

courts have found the John Doe factors to be instructive in

determining whether the state courts’ adjudication of [a] Sixth

Amendment claim was a reasonable application of an established

constitutional right.” Bethea v. Walsh, No. 09-CV-5037, 2016 WL

258639, at *33 (E.D.N.Y. Jan. 19, 2016) (internal quotations and

citations omitted).

Here, Petitioner first requested new counsel orally on

October 26, 2015, during the pre-trial Huntley/Wade hearing. (See

Pretrial Tr. at 1-2:24.)12 At that point, Mr. Fitzgerald had been

appointed and representing Petitioner for at least seven months

without complaint by Petitioner. (Id. at 8:5-22.) Moreover, the

trial court warned Petitioner that his choice to raise this issue

just before witnesses were to be called at the hearing was “very,

very late and potentially dilatory.” (Id. at 8:23-9:22.)

Petitioner requested substitute counsel because he

claimed Mr. Fitzgerald “pushes [him] off like he doesn’t care or

doesn’t have any interest in what [he is] talking about.” (Id. at

7:17-23.) Thereafter, the trial judge made several inquiries.

First, he asked whether Petitioner intended to hire his own

attorney, to which Petitioner responded he was “looking for a

lawyer.” (Id. at 7:24-8:4.) Next, the trial judge gave

Petitioner the opportunity to describe his concerns about Mr.

Fitzgerald’s representation. (Id. at 8:23-9:22.) Petitioner only

reiterated that he felt as though Mr. Fitzgerald dismissed him as

irrelevant, pushed him away “like a fly” when he asked for motions

to be made, and that Mr. Fitzgerald was not helping Petitioner “in

the way [he] want[ed] him to help.” (Id. at 12:3-13:14.)

12 Petitioner claimed to have filed, on or about August 25, 2015,

an “18-B” request form seeking to “fire” Mr. Fitzgerald, but the

trial court never received such a form. (Id. at 9:23-11:17.)

Further, the trial court pointed out there had been a court

appearance on September 14, 2015 -— after the date Petitioner

purportedly sent the form and prior to the Huntley/Wade hearing –

at which time Petitioner’s alleged dissatisfaction was not brought

to the Court’s attention. Id.

The trial court then made several findings regarding the

adequacy of Mr. Fitzgerald’s representation. It found Mr.

Fitzgerald was highly qualified and he had exhibited exemplary

work in procuring discovery from the government. (Id. at 8:5-22;

13:15-14:15.) Mr. Fitzgerald made significant efforts in

challenging: the statements Petitioner made to the police at the

time of his arrest; the identification of Petitioner; and the

presentation to the grand jury. (Id.) According to the trial

judge, Mr. Fitzgerald had prepared himself diligently for the

Huntley/Wade hearing, which, notably, he secured on consent from

the District Attorney’s Office. (Id.) The trial court found

Petitioner had not provided any reason Mr. Fitzgerald should be

removed. (Id. at 13:15-14:15.) Further, Petitioner still had

sufficient time before trial to make a formal motion to have

counsel relieved, or to hire his own attorney. (Id. at 15:23-

17:2.) Petitioner never made a formal motion and only raised the

issue again the day of trial. (See Tr. at 18:25-19:6.)13

Based upon the above, the trial court appropriately

weighed the demands of its calendar and exercised its discretion

to deny the substitution-of-counsel requests made on the days of

the Huntley/Wade hearing and the beginning of trial. The Appellate

13 Petitioner never claimed Mr. Fitzgerald refused to meet with

him. (See Pet. at 7.) As previously stated, any claim for relief

on that basis is unexhausted and will not be considered by this

Court. (See supra note 11.)

Division reasonably affirmed the trial court’s substitution

denials in finding Petitioner “failed to make specific factual

allegations of serious complaints about his assigned trial

counsel.” (See App. Div. Decision at 2.) Accordingly,

Petitioner’s denial-of-new-counsel claim is without merit.

Further, even if the trial court’s denial decision was

erroneous, the error was harmless because Mr. Fitzgerald’s

performance was not ineffective. (See supra DISCUSSION, Part I);

see also Peterson v. Bennett, No. 01-CV-0920, 2002 WL 1592600, at

*5 (E.D.N.Y. July 18, 2002)(“[E]ven if the decision not to

substitute counsel was erroneous, the error was harmless because

counsel’s performance was not ineffective”). Therefore,

Petitioner’s claim for habeas relief based upon Ground Two fails.

III. Ground Three: Against the Weight of the Evidence Claim

Petitioner argues he is entitled to habeas relief on the

grounds that the jury’s verdict is against the weight of the

evidence. (Pet. at 9.) Petitioner’s claim is not cognizable here

as it does not raise a federal question. See McKinnon v.

Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69, 75

(2d Cir. 2011). Since Ground Three is based solely upon state

law, it is unreviewable in a federal habeas corpus proceeding.

See id. (“The argument that a verdict is against the weight of the

evidence states a claim under state law, which is not cognizable

on habeas corpus.”); see also 28 U.S.C. § 2254(a); Estelle, 502

U.S. at 67–68; Butler v. Cunningham, 313 F. App’x 400, 401 (2d

Cir. 2009); Smith v. Lee, No. 11-CV-0530, 2014 WL 1343066, at *10

(E.D.N.Y. Mar. 31, 2014) (“It is well settled that a ‘weight of

the evidence’ claim is distinct from an ‘insufficiency of the

evidence’ claim and is a state claim based on N.Y.C.P.L.

§ 470.15(5) that is not reviewable in a federal habeas proceeding.”

(citing McKinnon, 422 F. App’x at 75)). For this reason alone,

the Court rejects Petitioner’s Ground Three claim seeking habeas

relief.

Further, to the extent Petitioner’s claim can be

construed as raising a federal claim that the evidence was

insufficient to support the Conviction, the claim still fails

because it is both procedurally barred and without merit. In its

decision affirming Petitioner’s Conviction, the Appellate Division

held Petitioner’s “contention that the evidence was legally

insufficient to establish this guilt is unpreserved for appellate

review.” (App. Div. Decision at 1) (citing C.P.L. § 470.05[2];

and People v Hawkins, 11 N.Y.3d 484, 492 (2008)). It is of no

consequence that the Appellate Division went on to make an

alternative finding on the merits; the procedural bar still

applies. See Fama, 235 F.3d at 810 n.4 (“Where a state court says

that a claim is ‘not preserved for appellate review’ and then ruled

‘in any event’ on the merits, such a claim is not preserved.”);

Nowakowski, 2018 WL 6421056, at *6 (stating “[t]he bar applies

even where the state court has also ruled in the alternative on

the merits of the federal claim” (internal quotation marks and

citation omitted)).

Even if the claim were not barred, the Appellate

Division’s rejection of the claim was not an unreasonable

application of controlling Supreme Court law, or factually

unreasonable. The applicable federal sufficiency law is well-

established:

[T]he critical inquiry . . . does not require

a court to ask itself whether it believes that

the evidence at the trial established guilt

beyond a reasonable doubt. Instead, the

relevant question is whether, after viewing

the evidence in the light most favorable to

the prosecution, any rational trier of fact

could have found the essential elements of the

crime beyond a reasonable doubt. This familiar

standard gives full play to the responsibility

of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Once a

defendant has been found guilty of the crime

charged, the factfinder’s role as weigher of

the evidence is preserved through a legal

conclusion that upon judicial review all of

the evidence is to be considered in the light

most favorable to the prosecution.

Jackson v. Virginia, 443 U.S. 307, 318-319(1979) (internal

quotations and citations omitted; all emphases omitted); see also

Policano v. Herbert, 507 F.3d 111, 115-16 (2d Cir. 2007) (“In a

challenge to a state criminal conviction brought under 28 U.S.C.

§ 2254 . . . the applicant is entitled to habeas corpus relief if

it is found that upon the record evidence adduced at the trial no

rational trier of fact could have found proof of guilt beyond a

reasonable doubt.” (quoting Jackson, 443 U.S. at 324)). A

Petitioner arguing a sufficiency of the evidence claim “bears a

very heavy burden.” United States v. Aguilar, 585 F.3d 652, 656

(2d Cir. 2009). “In considering a petition for writ of habeas

corpus based on insufficient evidence . . . a federal court must

look to state law to determine the elements of the crime” and view

the facts in the light most favorable to the verdict. Green v.

Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993); see Garbutt v. Conway,

668 F.3d 79, 80-81 (2d Cir. 2012) (per curiam).

The above standards foreclose any possibility of

granting habeas relief on Petitioner’s sufficiency claim.

Petitioner claims there is no direct evidence he possessed a

firearm or “fired shots” and no evidence he resisted arrest. (Pet.

at 9.) But this Court’s review begins with the uncategorical

presumption that the jury believed the prosecution witnesses and

drew all reasonable inferences in the prosecution’s favor.

As noted, Petitioner was convicted of one count each of

Attempted Aggravated Murder of a Police Officer, Criminal

Possession of a Weapon in the Second Degree, and Resisting Arrest.

Pursuant to New York State Penal Law, a person is guilty of: (1)

Aggravated Murder when (a) “[w]ith intent to cause the death of

another person, he or she causes the death of such person. . .

[who] at the time of the killing in the course of performing his

or her official duties”, and (b) the intended victim was a police

officer (P.L. § 125.26); (2) Criminal Possession of a Weapon in

the Second Degree when “such person possesses any loaded firearm”

(P.L. § 265.03(3)); and (3) Resisting Arrest “when he intentionally

prevents or attempts to prevent a police officer . . . from

effecting an authorized arrest of himself or another person” (P.L.

§ 205.30).

At trial, Officer Collins testified that on the night of

the incident, he was on top of Petitioner attempting to handcuff

him when he could feel Petitioner’s hands “moving around like he

was trying to grab for something.” (Tr. at 1391:17-1392:25.) That

is when Officer Collins “saw a couple of [blue] sparks very close

to [his] face,” “followed by four loud pops.” (Id. at 1358:24-

1359:13.) Officer Collins testified he realized Petitioner had a

gun and was shooting at him. (Id. at 1359:14-16.) Officer Torres

testified that when he arrived on scene, Officer Collins said to

him, “Damian, Sheldon Leftenant shot me. His ID is in my pocket.”

(Id. at 667:9-20.)

The Revolver and its casings were later recovered,

placed in a sealed package, and transferred to the Suffolk County

crime lab for testing. (Id. at 988:2-990:19; 1053:2-1054:4.) It

was found at 13 Mercer Court, right next door to where the shooting

occurred and near the shed where Petitioner was found. (Id.) At

trial, evidence was entered demonstrating that, after the Revolver

and casings were tested, it was determined the bullets found at

the scene were fired from a .38 revolver. (Id. at 1179:9-13;

1184:14-23.) Based upon an examination of Officer Collins’

clothing, it was further determined the bullets from the Revolver

were used to shoot Officer Collins from only “zero to two inches”

away. (Id. at 1218:14-1220:6; 1222:18-1246:15; 1249:10:-22.)

Officer Collins’ service weapon, however, was never used. (Id. at

1254:11-17.)14

Furthermore, evidence was presented at trial that once

Petitioner was discovered in the shed by the K-9 unit, he refused

to come out voluntarily. (Id. at 802:20-806:7.) Officer Gayer

testified he, along with other officers, had to forcibly remove

Petitioner from the shed. (Id. at 806:11-13.) Officer Gayer also

testified Petitioner resisted arrest, refusing to volunteer his

hands for handcuffing and refusing to put his hand behind his back.

(Id. at 806:21-25.) Officer Gayer described the event as a

“violent struggle” that consisted of officers wrestling Petitioner

14 To the extent Petitioner’s claim includes there was no evidence

presented at trial demonstrating he had the intent to kill Officer

Collins, the same is unavailing. (See App. Br. at 47; see also

Resp. Opp. at 49-50.) Intent to kill can be inferred where, as

here, a defendant purposely aims his weapon at an officer and fires

it multiple times. See Diggs v. Artus, No. 10-CV-1233, 2013 WL

837271, at *5 (E.D.N.Y. Mar. 5, 2013).

to get his hands from a hidden position into handcuffs. (Id. at

835:8-836:24.)

Having considered each of the crimes for which

Petitioner was convicted and having reviewed the trial record,

this Court concludes the Appellate Division’s upholding of the

Conviction was neither contrary to nor an unreasonable application

of clearly established federal law nor based upon an unreasonable

determination of the facts. Accordingly, Petitioner’s claim

seeking habeas relief based upon Ground Three is rejected.

IV. Ground Four: Excessive Sentence Claim

Petitioner contends his original sentence of

56-years-to-life imprisonment, reduced to 40-years-to-life

imprisonment by the Appellate Division, is excessive, thereby

entitling him to habeas relief. (See Pet. at 10.) His argument

is unavailing.

It is well settled that an excessive sentence claim,

such as Petitioner’s, does not present a required federal

constitutional issue when the received sentence “is within the

range prescribed by state law.” White v. Keane, 969 F.2d 1381,

1383 (2d Cir. 1992); see also Taylor v. Connelly, 18 F. Supp. 3d

242, 268 (E.D.N.Y. 2014). In other words, habeas relief on this

basis necessarily turns on whether Petitioner’s sentence for each

crime falls within the prescribed sentencing range under state

law.

Petitioner was originally sentenced to an aggregate

sentence of 56-years-to-life imprisonment and five years of post-

release supervision. (Sent’g Tr. at 23:18-24:6; 26:5-14.) This

included consecutive terms of imprisonment of an indeterminate term

of 40-years-to-life on Count 1 (Attempted Aggravated Murder of a

Police Officer), a determinate term of 15 years followed by five

years of post-release supervision on Count 2 (Criminal Possession

of a Weapon in the Second Degree), and a definite term of one year

on Count 3 (Resisting Arrest). (Id.)

Petitioner’s Conviction was affirmed by the Appellate

Division, but modified insofar as the terms of imprisonment for

Attempted Aggravated Murder of a Police Officer and Criminal

Possession of a Weapon in the Second Degree should have been

imposed concurrently to each other. (App. Div. Decision at 2.)

Thus, Petitioner’s sentence was modified so that his aggregate

sentence was reduced to 40-years-to-life imprisonment. (-Se-e- -id-.-)

Under New York state law, the maximum sentence permitted for

a violation of Attempted Aggravated Murder of a Police Officer, a

Class “A-I” Felony, is a term of life imprisonment. See P.L. §§

125.26[1][a][i], as modified by P.L. § 110.00; 70.00(2)(a).

Additionally, under New York state law, the maximum sentence

permitted for a violation of Criminal Possession of a Weapon in

the Second Degree, a Class “C” Felony, is a term of imprisonment

of 15 years. See P.L. §§ 265.03[1][b]; 70.00(2)(c). Finally,

under New York state law, the maximum sentence permitted for a

violation of Resisting Arrest, a Class “A” Misdemeanor, is a term

of imprisonment of one year. See P.L. §§ 205.30; 70.15(1).

Petitioner’s aggregate sentence of 40-years-to-life

imprisonment for Attempted Aggravated Murder of a Police Officer,

Criminal Possession of a Weapon in the Second Degree, and Resisting

Arrest falls within what is permitted by applicable statute and,

hence, does not present a federal constitutional issue. Therefore,

Petitioner’s excessive sentence claim, i.e., Ground four, is

untenable on habeas review.

CONCLUSION

Accordingly, for all the foregoing reasons, IT IS HEREBY

ORDERED that Petitioner’s Petition (ECF No. 1), is DENIED. The

Clerk of the Court is directed to: dismiss the Petition; close the

case; and, mail a copy of this Order to Petitioner.

Further, the Court:

(A) Declines to issue a certificate of appealability because

Petitioner has not “made a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2);

and

(B) Pursuant to 28 U.S.C. § 1915(a)(3), certifies that any

appeal from this Order would not be taken in good faith,

and, therefore, in forma pauperis status is denied for the

purpose of any appeal. See Coppedge v. United States, 369

U.S. 438, 444-45 (1962).

SO ORDERED this 5 day of December 2023 at Central

Islip, New York.

/s/ JOANNA SEYBERT________

Hon. Joanna Seybert

United States District Judge