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

> District Court, E.D. New York · December 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10310855

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310855

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
SHELDON LEFTENANT,

Petitioner, MEMORANDUM AND ORDER
-v- 20-cv-436 (JS)

ATTORNEY GENERAL OF THE STATE
OF NEW YORK (Clinton Correctional
Facility Superintendent),

Respondent.
-------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310855. Public record. Not legal advice.