Mancha v. Department Superintendent

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RUDY MANCHA,

MEMORANDUM & ORDER

Petitioner, 20-CV-953(EK)

-against-

DEPARTMENT SUPERINTENDENT,

Respondent.

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ERIC KOMITEE, United States District Judge:

Rudy Mancha petitions this Court for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Proceeding pro se, he

challenges his convictions on two felony counts arising from a

2012 burglary in Brooklyn. Mancha argues that the state

proceedings were tainted by the prosecution’s exercise of

racially discriminatory challenges in jury selection, the

presentation of hearsay evidence in violation of the Sixth

Amendment, the ineffective representation he received from

counsel, and certain prosecutorial conduct.

For the reasons that follow, the petition is denied.

I. Background

In March 2015, following a trial in Kings County

Supreme Court, a jury convicted Mancha of two counts of first-

degree burglary. The trial court sentenced him to concurrent

twenty-year terms of imprisonment. He is currently in custody

at Sing Sing Correctional Facility in Westchester County, New

York.

The Court construes Mancha’s petition liberally, as is

required for pro se litigants. E.g., Johnson v. Fogg, 653 F.2d

750, 753 (2d Cir. 1981). On that basis, I read his petition to

assert four claims.

First, he argues that the State violated his rights

under Batson v. Kentucky, 476 U.S. 79 (1986), by striking all

prospective Latino jurors. See Pet. 5, ECF No. 1.

Second, he argues that the State violated his rights

under the Sixth Amendment’s Confrontation Clause because, in his

telling, the expert witness who testified about the DNA evidence

“did not conduct[,] witness[,] or supervise” the lab testing

that generated the DNA profiles. Id. at 7.

Third, he argues that his counsel was constitutionally

ineffective for “failing to properly investigate this case.”

Id. at 8. However, Mancha’s petition nowhere specifies what

further investigation his counsel should have performed. The

Court reads Mancha to challenge the reliability of the DNA

evidence and to argue that his counsel was constitutionally

ineffective for failing to make a hearsay objection to the DNA

expert’s testimony, as explained below.

Fourth and finally, Mancha argues that he was deprived

of due process because of unspecified “prosecutorial

misconduct.” Id. at 10.

II. Factual and Procedural History

On the day before the burglary in question, Nazroon

Rhiman and her fourteen-year-old son, Zahir, were praying at

their home in Brooklyn when two men came to the door. The men

left after a brief exchange (as described below), but returned

the following night. When the doorbell rang the second time,

Zahir opened it; the smaller of the two men pulled a handgun

from his hoodie and pointed it at him.

The two men then forced their way inside the house and

physically attacked Nazroon and Zahir. One man told the other

to “[t]ry to get what you can from inside.” After hearing

screams, Nazroon’s tenant came downstairs, at which point one of

the men pointed a gun at her. When the tenant ran back upstairs

to call the police, the perpetrators fled the scene.

A. The Investigation

In the immediate aftermath of the crime, the NYPD

obtained video and DNA evidence from the scene. It was

substantially later, however, that this evidence led to the

identification of Mancha as one of the two perpetrators.

At the time of the crime, three surveillance cameras

were in operation at 313 Nichols Avenue, including one by the

front door. Id. at 30. The view from this camera showed the

front stairs, part of the driveway, and the front yard. Id. at

30-31. Video from that camera showed that when the two

perpetrators were fleeing the scene, the larger man fell and hit

the gate pillar in the front yard. Id. at 78.1

Later that night, Officer Denis Kosta of the NYPD

Evidence Collection Team arrived at the scene. Officer Kosta

swabbed the gate pillar where the video showed the larger man

striking his head while fleeing. Id. at 137-44. Kosta also

took saliva swabs from Nazroon and Zahir and sent them to the

New York City Office of Chief Medical Examiner (“OCME”) for DNA

testing. Id. at 146-47. OCME analysts determined that the swab

from the gate pillar contained DNA from Nazroon and another

person. Id. at 208, 236-37.

In April 2015, after noting a match with the National

DNA Index System (“NDIS”), Detective Nicoletta collected a DNA

sample from Mancha pursuant to a court order and submitted it to

OCME for testing. Id. at 209-10, 269.2 When the test results

1 Prior to trial, the NYPD lost the original video of the September 27

incident, which Detective Nicoletta had been given to the NYPD’s press

information unit to be edited and provided to news outlets. Id. at 256-58.

As a result, at trial, the government introduced into evidence an edited

version of the September 27 video and the recording that Zahir had created on

his cell phone, over defense counsel’s objection. Id. at 61-64. Mancha does

not challenge this evidence in his habeas petition.

2 OCME analysts uploaded the second contributor’s profile into NDIS and

found that it matched Mancha’s. State App. Div. Br. 20 n.11, ECF No. 7-6.

To avoid having to inform the jury of Mancha’s criminal history — i.e., the

came back, Wing Wong, a forensic analyst in OCME, and his

colleagues compared Mancha’s DNA profile to the second

contributor’s and determined that the DNA profiles matched. Id.

at 210. Mancha was subsequently arrested and tried.

B. Trial

1. Jury Selection

During jury selection, defense counsel leveled an

unsuccessful Batson challenge based on the prosecution’s

exercise of peremptory strikes against Latino males. The

prosecution exercised twelve peremptory challenges, three of

which were against individuals whom defense counsel identified

as Latino: Fernando Monroy, Ranciel Zarzuela, and Mario Pineda.

After the strike against Pineda, defense counsel objected:

I think the People have been striking all the male

Hispanics during the jury selection. I know in this

round . . . there is two male Hispanics and that’s the

second male. I believe the first one was number four.

I think he is a male Hispanic as well. Mr. Zarzuela.

I know on previous rounds the People have struck male

Hispanics to[o], with their challenges. . . . I

think it was . . . second round yesterday number five,

Mr. Fernando Monroy.

Jury Selection Tr. 324:3-14, ECF No. 7-2. The trial judge,

Justice Raymond Guzman, responded, “So you mentioned one person

from before and . . . two people from this round. Counsel, I

don’t feel you’ve made a prima facie case out. So, if that was

reason his DNA was in NDIS — the State moved to obtain a new sample from him.

Id.

a Batson challenge it’s denied.” Id. at 324:17-22. Following

this ruling, defense counsel offered no further argument in

support of the Batson challenge, and did not renew the challenge

at any point during the remainder of jury selection.

2. State’s Case-in-Chief

At trial, the State called six witnesses: Nazroon and

Zahir Rhiman; Seceon Genao, the upstairs tenant; OCME analyst

Wing Wong; Officer Denis Kosta of the NYPD Evidence Collection

Team; and NYPD Detective Vito Nicoletta.

a. The Burglary Evidence

Taken together, the trial testimony of the Rhimans and

Genao established the following. On the evening of September

26, 2012, Nazroon and Zahir were at home in Brooklyn. Trial

Transcript (“Tr.”) 29-30, ECF No. 7-3. At approximately 9:00

p.m., the doorbell rang. Id. at 31-32. Nazroon looked out the

window and saw two men. Id. at 105. Zahir answered the door,

and one of the men asked about a rental apartment being

advertised in a sign in the window of the house. Id. at 32-34.

Zahir told the man to call his older brother, whose number was

listed on the sign, and the two men left. Id. at 33-34.

The men returned at approximately 8:30 p.m. the next

day. Id. at 34-38, 107-08. Zahir answered the door again and

began speaking with the men, and Nazroon followed to the door

about a minute later. Id. at 37-38. After speaking with Zahir

for approximately two to three minutes, the smaller man nodded

at the larger man and then pulled a handgun from the pocket of

his hoodie. Id. at 38-39, 86-88, 110-12. When the smaller man

pointed the gun at Zahir’s face, Zahir tried to close the door,

but the men forced their way inside the home. Id. at 40, 88,

111-12.

A physical altercation ensued, during which the larger

man pointed his accomplice’s gun at Zahir. Id. at 42. The

larger man tackled Zahir to the floor and punched him on his

neck and sides while Zahir screamed for help. Id. at 40-41.

The smaller man punched Nazroon in the face, pushed her down to

the floor, held her there using his feet and his off-hand, and

continued to punch her as she lay pinned on her side. Id. at

110-11. One man told the other to “[t]ry to get what you can

from inside.” Id. During this altercation, Nazroon’s upstairs

tenant, Ms. Genao, heard the screams and walked part of the way

down the stairs to see what was happening. Id. At that point,

the larger man pointed the gun at Genao, causing her to run back

up the stairs and call 911. Id. at 42-43, 308-11, 313-14. Both

perpetrators then ran out of the house. Id. at 42-43, 115.3

3 None of the three eyewitnesses to the incident — Nazroon, Zahir, and

Genao — were able to identify Mancha in court as one of the perpetrators. In

their testimony, they referred to the perpetrators as the “smaller” man (who

was never apprehended) and the “larger” man, whom the NYPD had determined to

be Mancha.

b. The DNA Evidence

The State offered testimony from Wong, the forensic

analyst, regarding the DNA evidence. The court qualified him as

an expert in forensic biology, DNA testing and analysis, and the

statistical significance of DNA test results. Id. at 182-83.

While other analysts performed the actual testing of the

samples, id. at 210, Wong testified that he personally analyzed

the DNA profiles generated from them. E.g., id. at 209.

Specifically, Wong compared the DNA profile of the swab from the

gate pillar with the DNA profile of Nazroon and determined that

her DNA was included in the sample. Id. at 209. He further

concluded that the sample had a second male contributor. Id. at

209. Wong compared the second contributor’s DNA profile with

Zahir’s and excluded Zahir as the source. Id. Then Wong

received the DNA sample that Detective Nicoletta collected from

Mancha. Id. at 210. Wong and his team tested that sample and

concluded that it matched the second contributor’s — i.e., that

the DNA recovered from the gate pillar belonged to Mancha. Id.

at 212-13.

In support of this conclusion, Wong explained the

process for verifying the results of the DNA analysis. To aid

his testimony, he showed the jury a chart — which his team

compiled but which he testified he had reviewed for accuracy —

comparing the DNA profiles from the gate pillar swab, a

duplicate of the gate pillar swab, Nazroon’s swab, the DNA

profile of the second contributor on the gate pillar swab, and

Mancha’s swab. Id. at 214-16. He testified that his OCME team

tested the gate pillar swab twice “to make sure that our

resource is correct, there was no sample mixup, that the results

are consistent with each other.” Id. at 216. Wong then

personally compared the results from Mancha’s swab and the

second contributor’s swab and explained that the profiles

matched, noting that “[a]t each location [shown], the alleles

between the two profiles are the same.” Id. at 217-21.4

Finally, Wong testified that the DNA profile of the second

contributor would be exceptionally unlikely to match multiple

individuals, stating that “[w]e would expect to see this DNA

profile” in only “one in greater than 6.8 trillion people.” Id.

at 221-222.

After the State rested, the defense presented no

witnesses.

C. Verdict & Sentence

The trial court submitted two counts of Burglary in

the First Degree to the jury: one count of violating P.L.

§ 140.30(2) (causing physical injury to Nazroon Rhiman while

committing a burglary of a dwelling), and one count of violating

4 The defense never objected to Wong’s solo introduction of the DNA

evidence nor did the defense ever request that the other analysts who worked

on the case testify at trial.

P.L. § 140.30(4) (burglary of dwelling while displaying what

appeared to be a firearm). Id. at 389-95. The jury found

Mancha guilty on both counts. Id. at 463-64. On May 25, 2015,

Justice Guzman sentenced Mancha to concurrent prison terms of

twenty years on each count, to be followed by five years of

post-release supervision. Sentencing Tr. 5-6, ECF No. 7-3.

D. Appeals & Collateral Proceedings

Mancha timely appealed his convictions to the New York

Supreme Court, Appellate Division, Second Department. He made

several arguments, including — as relevant here — (1) that the

trial court improperly denied his Batson challenge, (2) that the

admission of, and testimony regarding, the DNA evidence violated

the Confrontation Clause, and (3) that his trial counsel was

ineffective for failing to object to the introduction of the

State’s DNA evidence as hearsay and pursuant to the

Confrontation Clause. See Mancha App. Br. ECF No. 7-5.

The Appellate Division affirmed Mancha’s convictions

and sentence. See People v. Mancha, 75 N.Y.S.3d 276 (App. Div.

2d Dep’t 2018). The panel concluded that Mancha’s Batson and

ineffective assistance claims were without merit, and that

Mancha had failed to preserve his Confrontation Clause claim

because he had not objected at trial. Id. at 276-77. Mancha

sought leave to appeal to the New York Court of Appeals, which

that court denied on September 26, 2018. See People v. Mancha,

111 N.E.3d 1120 (N.Y. 2018). His conviction became final on

December 25, 2018 — when his time to seek a writ of certiorari

at the United States Supreme Court expired. See Gonzalez v.

Thaler, 565 U.S. 134, 150 (2012).

Mancha also pursued several unsuccessful collateral

attacks on his convictions. In November 2017, while his appeal

to the Appellate Division was still pending, Mancha moved in the

Kings Country Supreme Court to vacate his judgment of conviction

pursuant to C.P.L.R. § 440.10. See ECF No. 7-11. The Supreme

Court denied that motion in April 2018 as procedurally barred

under C.P.L.R. § 440.10(2)(c) because it raised issues that

Mancha could have raised on direct appeal but did not. The

court then went on to deny Mancha’s claims on the merits. See

ECF No. 7-13.

On August 20, 2019, Mancha filed a second motion under

C.P.L.R. § 440.10. See ECF No. 7-14. In that motion, Mancha

argued (again) that the admission of the DNA evidence at trial

violated his confrontation rights. See id. The Supreme Court

denied the motion as procedurally barred, for two reasons: his

claim had been decided on the merits on appeal, C.P.L.R.

§ 440.10(2)(a), and he had not raised this claim in his first

motion to vacate judgment, C.P.L.R. § 440.10(3)(c). See ECF No.

7-16. In March 2020, Mancha moved for leave to appeal the state

Supreme Court’s denial of his second motion to vacate judgment.

See ECF No. 7-17. That application was denied. See People v.

Mancha, No. 8266/2013, 2020-02654 (App. Div. 2d Dep’t Aug. 10,

2020).

Mancha filed this petition on February 18, 2020,

within the one-year statute of limitations of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See 28

U.S.C. § 2244(d)(1).5 The State acknowledges that Mancha

properly exhausted both the Batson claim and the ineffective

assistance claim relating to Wong’s DNA testimony. See Aff. in

Opp’n to Pet. (“Opp’n Br.”) 3, 16-18, ECF No. 7.6 Mancha’s

Confrontation Clause and due process claims, however, were not

preserved in state court and therefore are procedurally barred

from habeas review, as discussed below.

III. Legal Standards

28 U.S.C. § 2254, as amended by AEDPA, governs this

application for a writ of habeas corpus for a person in custody

5 Although Mancha filed the petition more than one year after his

conviction became final, the petition was nonetheless timely because the

limitations period was tolled during the pendency of Mancha’s state-level

appeals, as the State acknowledges. See State Letter dated June 12, 2023,

ECF No. 16 at 1-2 (explaining the procedural history and tolling analysis);

see also Carey v. Saffold, 536 U.S. 214, 220-21 (2001).

6 The State views Mancha’s petition as raising two separate ineffective

assistance claims: first, that his counsel was ineffective for failing to

“investigate the case,” as stated in the petition, and second, that his

counsel was ineffective for failing to object to Wong’s testimony about the

DNA evidence. Id. at 16-17. The State argues that while the latter claim is

properly exhausted, the former is unexhausted because Mancha never raised it

in state court. Id. at 16-18. As set forth herein, however, the Court reads

Mancha to assert one claim — that his counsel failed to challenge the State’s

DNA evidence on the merits — and concludes that this claim is exhausted.

pursuant to the judgment of a state court. Under AEDPA, a

petitioner challenging a determination that was “adjudicated on

the merits” in state court must demonstrate that the state

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or was “based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” Id. § 2254(d)(2). The state court’s findings of

fact are “presumed to be correct,” and the petitioner can rebut

this presumption only “by clear and convincing evidence.” Id.

§ 2254(e)(1).

A legal conclusion is “contrary to” clearly

established federal law if it “contradicts the governing law set

forth in” the United States Supreme Court’s cases or “confronts

a set of facts that are materially indistinguishable from a

decision” of the Supreme Court, yet “arrives at a result

different from [that] precedent.” Price v. Vincent, 538 U.S.

634, 640 (2003). And a decision involves an “unreasonable

application” of federal law “if the state court identifies the

correct governing legal principle” in the Supreme Court’s

decisions but “unreasonably applies that principle to the facts

of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413

(2000). It is the petitioner’s burden to show that the state

court applied the governing principle in an objectively

unreasonable manner. Price, 538 U.S. at 641.

In the end, it is not enough that the federal court

conclude, in its independent judgment, that the state court’s

decision was incorrect or erroneous: “[A] state court decision

must be not only erroneous but also unreasonable. Some

increment of incorrectness beyond error is required.” Francis

S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000).

IV. Discussion

A. Batson Claim

Mancha first claims that the State violated his rights

under Batson by striking “[a]ll Spanish people” from the jury

pool, citing the challenges against Monroy, Zarzuela, and

Pineda. Pet. 5.

In general, trial courts evaluate Batson challenges

using a three-step framework. See Johnson v. California, 545

U.S. 162, 169 (2005). At step one, the defendant must make a

prima facie case that the proponent of the peremptory strikes

acted with discriminatory intent. Id. To do so, he must (among

other things) proffer facts that give “rise to an inference of

discriminatory purpose.” Batson, 476 U.S. at 94. As discussed

in greater detail below, he may draw on “a wide variety of

evidence” to establish that inference. Id. The defendant might

show, for example, a sufficient pattern of strikes against

prospective jurors of his race. See Batson, 476 U.S. at 97.

Batson did not, however, prescribe in detail the type of

“pattern” evidence that would suffice.

If the defendant does not meet his burden at step one,

the challenge fails, and the trial court need not reach the

second (or third) steps. When the defendant makes the required

initial showing, however, “the burden shifts to the State to

explain adequately the racial exclusion by offering permissible

race-neutral justifications for the strikes.” Johnson, 545 U.S.

at 168.

Here, the trial court concluded that Mancha had not

made the prima facie showing, and thus did not reach the second

step. While defense counsel argued that the State was “striking

all the male Hispanics” from the venire, he merely noted that

the State had struck three Latino males. Tr. 324:2-14. He

offered no additional context for the challenge, such as the

proportion of Latino males who had been struck, or the

proportion of all struck jurors who were Latino males. See

Jones v. West, 555 F.3d 90, 98 (2d Cir. 2009). On this limited

record, the trial court denied the challenge. Tr. 324:17-22.

Following trial, Mancha appealed his convictions to

the Appellate Division, asserting — among other arguments — that

the trial court had erred in denying his Batson challenge. Like

the trial court, the Appellate Division concluded that Mancha

“failed to make a prima facie showing of purposeful

discrimination in the People’s exercise of peremptory

challenges.” Mancha, 75 N.Y.S.3d at 276. The court stated that

Mancha “merely contended that the prosecution peremptorily

challenged the only two Hispanic male jurors who were on the

panel of prospective jurors for the fourth round of jury

selection and had previously challenged another Hispanic male

juror in a prior round.” Id. The court therefore held that

Mancha “did not offer a showing of facts and circumstances

sufficient to raise an inference of purposeful discrimination.”

Id.

The Appellate Division’s conclusion was not contrary

to, or an unreasonable application of, clearly established

Supreme Court precedent on this topic. The Batson Court stated

that, in endeavoring to establish a prima facie case, “the

defendant must show, among other things, that “the prosecutor

used [peremptory challenges] to exclude the veniremen from the

petit jury on account of their race.” Batson, 476 U.S. at 96.

And the Court later explained that in some instances, “the

statistical evidence alone raises some debate as to whether the

prosecution acted with a race-based reason when striking

prospective jurors.” Miller-El v. Cockrell, 537 U.S. 322, 342

(2003). In Miller-El, for example, the prosecution “used

peremptory strikes to exclude 10 of the 11 African-Americans

eligible to serve on the jury.” Id. at 326.7

But the Court has not specified with precision how

this statistical assessment should operate, and has never held

that a defendant has made out a prima facie case under Batson

based purely on the number of jurors of a particular ethnicity

who were struck. Instead, the Court has consistently invoked

the denominator — the total number of jurors of a particular

race in the venire — as one of the “relevant circumstances” in

assessing statistical evidence. That denominator was the eleven

jurors “eligible to serve” in Miller-El, and the four in Batson.

See Batson, 476 U.S. at 83 (referring to prosecution’s use of

“peremptory challenges to strike all four black persons on the

venire”) (emphasis added); id. at 90-91 (“The record in Swain

showed that the prosecutor had used the State’s peremptory

challenges to strike the six black persons included on the petit

jury venire.”) (emphasis added) (citing Swain v. Alabama, 380

U.S. 202, 210 (1965)). Likewise, in the more recent case of

Flowers v. Mississippi, the Court analyzed the use of peremptory

strikes against black jurors over the course of six trials in

the same criminal case, focusing along the way on the number of

7 Even then, the Court held only that a certificate of appeal should

have issued in Miller-El’s habeas case — that is, that “the District Court’s

decision was debatable.” 537 U.S. at 348. The majority did not conclude that

the writ should actually issue. Id.

“black prospective jurors against whom the State could have

exercised a peremptory strike.” 139 S.Ct. 2228, 2245-46 (2019)

(emphasis added).

Second Circuit precedent also suggests that Mancha did

not meet his burden to make out a prima facie case of racial

discrimination under Batson.8 Applying Batson and its progeny,

the Second Circuit has held that when “the asserted prima facie

case is based upon the use of strikes to exclude all or nearly

all of the members of a particular racial group,” the record

should include both the numerator and the denominator — “how

many members of that group were in the venire, and how many of

those were struck.” Jones, 555 F.3d at 98. In all cases, the

petitioner bears “the burden of articulating and developing the

factual and legal grounds supporting his Batson challenge before

the trial court.” Overton, 295 F.3d at 279.

The trial court’s ruling on Mancha’s Batson challenge

was not contrary to, or an unreasonable application of, Supreme

Court precedent. Although defense counsel alleged that the

prosecution had struck three Latino men from the venire, he did

not develop the record at all regarding the number of Latino

8 Second Circuit precedent cannot, by itself, be the basis for granting

a habeas petition, in light of AEDPA’s focus on clearly established Supreme

Court precedent. But Circuit precedent contrary to a petitioner’s argument

can form a basis for denial, as this court is of course bound by the Second

Circuit’s interpretation of Supreme Court precedent. See generally Serrano

v. Fischer, 412 F.3d 292, 299 n.3 (2d Cir. 2005).

males (or the total number of Latinos) in the venire. Without

this information, Mancha cannot obtain habeas relief on this

ground. See, e.g., Jones, 555 F.3d at 99; see also Copeland v.

Walker, 258 F. Supp. 2d 105, 123 (E.D.N.Y. 2003) (rejecting

Batson claim in a habeas petition where, in attempting to

establish a prima facie case of discrimination, the “petitioner

did no more than cite the number of challenges against blacks”).

B. Confrontation Clause Claim

Mancha also claims that the State violated his rights

under the Sixth Amendment’s Confrontation Clause when OCME

analyst Wong testified about the DNA analysis. See Pet. 7. He

argues in particular that Wong “did not conduct[,] witness[,] or

supervise the generation of the DNA profiles” that linked Mancha

to the crime. Id.

The Appellate Division held that Mancha’s Sixth

Amendment claim was “unpreserved for appellate review” because

Mancha failed to object to the introduction of the DNA evidence

and testimony at trial. Mancha, 75 N.Y.S.3d at 277. Given

this, Mancha’s claim was procedurally defaulted. “A federal

habeas court will not review a claim rejected by a state court

if the decision of the state court rests on a state law ground

that is independent of the federal question and adequate to

support the judgment.” Walker v. Martin, 562 U.S. 307, 315

(2011). A state procedural rule is “adequate” to support the

judgment if it is “firmly established and regularly followed.”

Id. at 316. Here, the Appellate Division relied on New York’s

contemporaneous-objection rule, which the Second Circuit has

“held repeatedly . . . is a firmly established and regularly

followed New York procedural rule.” Downs v. Lape, 657 F.3d 97,

104 (2d Cir. 2011). That rule “constitutes an independent and

adequate state law ground for disposing” of a defendant’s Sixth

Amendment claims in New York state court. Id.

Given the default, petitioner may reach the merits

here only by demonstrating both “cause for the default and

actual prejudice as a result of the alleged violation of federal

law,” or that failure to consider the claim “will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501

U.S. 722, at 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451

(2000).

Mancha has not demonstrated that cause existed for the

default. To establish cause, Mancha must “show that some

objective factor external to the defense” — for example, that

the “factual or legal basis for a claim was not reasonably

available to counsel” — “impeded counsel’s efforts to comply

with the State’s procedural rule.” Murray v. Carrier, 477 U.S.

478, 488 (1986); Clark v. Perez, 510 F.3d 382, 393 (2d Cir.

2008). Mancha offers no argument that cause existed for his

procedural default, and the trial transcript reveals no such

reason. See, e.g., Campbell v. Lee, No. 11-CV-7737, 2016 WL

6901425, at *6 (S.D.N.Y. Sept. 29, 2016), R&R adopted, 2016 WL

6892766 (S.D.N.Y. Nov. 21, 2016) (“Campbell cannot demonstrate

cause for his procedural default because he cannot point to any

reason why his trial counsel could not have raised an objection,

nor does the trial transcript suggest such a reason.”).

Mancha also has not shown that failure to consider his

claim would result in a “fundamental miscarriage of justice.”

Edwards, 529 U.S. at 451. To satisfy the “miscarriage-of-

justice exception,” the petitioner is required to “establish

that, in light of new evidence, it is more likely than not that

no reasonable juror would have found [him] guilty beyond a

reasonable doubt.” House v. Bell, 547 U.S. 518, 536-37 (2006).

Mancha has not met that burden here (and does not meaningfully

contend otherwise in his papers).

C. Ineffective Assistance Claim

Mancha raises a claim of ineffective assistance of

counsel on the ground that his counsel “fail[ed] to properly

investigate this case,” but he does not specify any particular

steps his counsel should have taken. Pet. 8.

In his petition, Mancha states that he exhausted this

claim by raising it on direct appeal to the Appellate Division.

See id. at 9. There, Mancha framed his trial counsel’s

deficiency as a failure to level a proper objection at trial and

a failure to conduct effective cross-examination, rather than a

failure to investigate. He claimed that his “counsel was

ineffective for failing to even attempt to discredit the DNA

results.” See ECF No. 7-5 at 38-39. Specifically, he argued

that his counsel “failed to protect [his] confrontation rights

by not requesting to cross-examine the analysts who actually

generated the DNA profiles used to identify him,” id. at 39.

Mancha went on to argue that even with the failure to object,

his counsel should have at least “questioned Wong about the

reliability of the DNA analysis and the possibility of human

error or malfeasance.” Id. In the instant petition, Mancha

appears to be raising those same arguments.

The Appellate Division rejected Mancha’s ineffective

assistance claim on the merits, holding that it was “without

merit,” and that the “record reveals that defense counsel

provided meaningful representation.” Mancha, 75 N.Y.S.3d at

277. This holding, to the extent Mancha can be read to

challenge it here, was not contrary to, or an unreasonable

application of, Strickland v. Washington, 466 U.S. 668 (U.S.

1984), or any other clearly established Supreme Court precedent.

Under Strickland and its progeny, to succeed on a

claim for ineffective assistance, the defendant must first show

that counsel’s performance was “outside the wide range of

professionally competent assistance” or “fell below an objective

standard of reasonableness.” Id. at 688-690; see also Burt v.

Titlow, 571 U.S. 12 (2013) (counsel is “strongly presumed to

have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment”).

Second, the defendant must show that “there is a reasonable

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

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

694. Having held that Mancha’s trial counsel provided adequate

representation, the Appellate Division did not reach the second

prong. See Mancha, 75 N.Y.S.3d at 277. Pursuant to AEDPA,

Mancha must show that the Appellate Division “applied Strickland

to the facts of his case in an objectively unreasonable manner.”

Bell v. Cone, 535 U.S. 685, 699 (2002). He has not done so.

First and foremost, it is not obvious that a Sixth

Amendment objection to Wong’s testimony would have succeeded.

At the time of Mancha’s trial, the Supreme Court had explained

that whether a statement presents a Confrontation Clause issue

depends on whether it is “procured with the primary purpose of

creating an out-of-court substitute for trial testimony.”

Michigan v. Bryant, 562 U.S. 344, 358 (2011). Applying this

standard in Williams v. Illinois, a plurality of the Supreme

Court held that the state trial court had not erred by

permitting an expert witness to testify about certain DNA

evidence even though the expert had not participated in the DNA

testing. 567 U.S. 50, 56-58 (2012) (plurality opinion). The

plurality held that even if the DNA report “had been admitted

into evidence” for its truth, “there would have been no

Confrontation Clause violation” because the “primary purpose” of

the DNA report was not to serve as evidence against the

petitioner but instead to identify the perpetrator of a rape

whom the police had not yet apprehended. Id. Here, Mancha has

not shown that the primary purpose of the DNA testing was trial

testimony, rather than the effort to identify the still-at-large

perpetrator of the burglary.

Moreover, trial counsel may well have refrained from

objecting based on legitimate tactical concerns. When applying

the performance prong of the Strickland test, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at

703. Here, even if a hypothetical objection to Wong’s testimony

on Confrontation Clause grounds had succeeded, the State could

simply have called one or more of the analysts who generated the

DNA evidence to testify about the results. That testimony could

have had the effect of “highlight[ing] rather than cast[ing]

doubt upon the forensic analysis,” Bullcoming v. New Mexico, 564

U.S. 647, 667 (2011), and it was a reasonable strategic

litigation decision not to further shine the spotlight on such

potentially damning evidence. See Strickland, 466 U.S. at 681

(“Because advocacy is an art and not a science, and because the

adversary system requires deference to counsel’s informed

decisions, strategic choices must be respected in these

circumstances if they are based on professional judgment.”).

Indeed, this is one reason why parties regularly reach

stipulations about the admissibility of lab reports.

This concern about soliciting potentially damaging

testimony applies equally to trial counsel’s decision not to

challenge Wong’s testimony. Consider Wong’s direct examination:

he testified that OCME is an accredited lab that meets the

national standard for performing DNA testing and undergoes

external audits twice yearly. See Tr. 178:18-180:4. And as to

this case specifically, he testified “[w]e performed testing

twice” to make sure “that the results are consistent with each

other” and that “everything is correct.” Id. at 216:19-22.

Wong also testified that the second contributor’s DNA profile,

which he determined to be a match with Mancha’s, would be seen

in only “one in greater than 6.8 trillion people.” Id. at

221:14-222:21. If trial counsel had contested the reliability

of this evidence, the effort may well have gone badly: the State

may have called an additional witness, buttressing the show of

reliability, and Wong might have provided additional testimony

proclaiming the rigor and precision of OCME’s testing methods,

the soundness of the results in this case, and the substantial

likelihood that Mancha was the second contributor to the DNA

sample from the gate pillar. Such testimony could have had the

effect of “bolster[ing] the persuasive power of the State’s

case.” Bullcoming, 564 U.S. at 667.

Given the foregoing considerations, Mancha’s trial

counsel acted within the broad contours of objectively

reasonable professional assistance by declining to raise a Sixth

Amendment objection to Wong’s testimony and not challenging Wong

about the reliability of the DNA evidence.

D. Due Process Claim

Lastly, Mancha claims a “violation of due process,”

asserting that he was “deprived of his constitutional right to a

fair trial based on prosecutorial misconduct and counsel[’]s

defective performance.” Pet. 10. Neither Plaintiff’s Petition

nor his Reply, ECF. 12 (“Pet. Rep.”), explains what

prosecutorial actions (or omissions) constituted such

misconduct.

Mancha concedes that he has not exhausted this claim,

as he is raising it now for the first time. See Pet 10. He

states that “Petitioner has determined that this constitutional

claim should be challenged and ha[s] yet to do so.” Id.

Pursuant to the exhaustion doctrine, “a prisoner seeking to

upset his conviction on federal grounds must have given the

state courts a fair opportunity to review his federal claim and

correct the alleged error.” Dean v. Smith, 753 F.2d 239, 241

(2d Cir. 1985). Although a federal court may not grant a habeas

petition based on an unexhausted claim, it may deny such a claim

on the merits. See 28 U.S.C. § 2254(b)(2).

Even if Mancha had properly exhausted this claim, it

would fail on the merits. Mancha does not say what acts or

omissions constituted prosecutorial misconduct or defective

performance by counsel. Nevertheless, to the extent that he is

referring to the arguments previously raised in his Batson and

ineffective assistance claims, those arguments fail for the

reasons stated above.

V. Conclusion

For the foregoing reasons, Mancha’s claims are denied

as meritless, procedurally barred, or both. Because Mancha has

not made a “substantial showing of the denial of a

constitutional right,” a certificate of appealability will not

issue. 28 U.S.C. § 2253. I certify pursuant to 28 U.S.C.

§ 1915(a)(3) that any appeal would not be taken in good faith

and in forma pauperis status is therefore denied for purposes of

an appeal. Coppedge v. United States, 369 U.S. 438, 444-45

(1962). Mancha, however, has a right to seek a certificate of

appealability from the Court of Appeals for the Second Circuit.

See 28 U.S.C. § 2253(c)(1).

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: December 19, 2023

Brooklyn, New York