# Dorcinvil v. Kopp

> District Court, E.D. New York · January 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10311046

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 5, 2024
- **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/10311046

## How later opinions describe it (automated extraction)

- explaining that doing so is justified where the substantive issue easily resolves against the petitioner and the procedural issue concerns a complicated state law question
- recognizing this practice as standard in New York state court
- explaining that testimony is not hearsay when admitted to “complet[e] the narrative of how [the] defendant came to be investigated”
- reversing district court for granting habeas relief without citing a sufficiently similar Supreme Court case

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------X

Jacques Dorcinvil,

Petitioner, MEMORANDUM & ORDER

- against - No. 20-cv-600 (KAM)

Marlyn Kopp,1

Respondent.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Petitioner Jacques Dorcinvil, proceeding pro se, petitions
for a writ of habeas corpus in accordance with 28 U.S.C. § 2254,
alleging that his state custody violates his federal
constitutional rights due to ineffective assistance of counsel,
various trial errors, and suppression of exculpatory evidence.
(ECF No. 6 pp. 2–28, Pet. Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by Person in State Custody (“Pet.”).) For the
reasons below, the Court respectfully denies the Petition.

1 The proper respondent in a federal habeas action is the warden or
superintendent of the facility where the petitioner is held. Green v. Lee,
964 F. Supp. 2d 237, 253 (E.D.N.Y. 2013). The original respondent in this
action was Christopher Miller, the Superintendent of Great Meadow
Correctional Facility when the action was filed. (See Pet. 2.) The Court,
on its own initiative, deems the Petition amended to change the respondent to
the Superintendent of Sing Sing Correctional Facility, where Dorcinvil is
currently held. (See ECF No. 31, Notice of Change of Address); Pellis v.
Wright, No. 19-cv-149 (EAW), 2022 WL 3587755, at *4 n.4 (W.D.N.Y. Aug. 22,
2022). The Court retains subject-matter jurisdiction because Dorcinvil was
convicted and sentenced in the Eastern District of New York. See 28 U.S.C.
§ 2241(d).
BACKGROUND
Dorcinvil’s Petition claims fifteen different grounds for
relief covering all aspects of his trial, which he previously
raised across multiple state court appeals and collateral

proceedings that spanned nearly a decade. The Court provides
only a broad overview of the facts and procedural history here
and discusses more specific details undergirding each of
Dorcinvil’s asserted grounds for habeas relief further below.
I. Factual Background
On January 14, 2007, Claudette Marcellus returned home to
her Brooklyn apartment with her twelve-year-old son, B.M.,2 to
find that her boyfriend, Jacques Dorcinvil, had locked them out.
(ECF No. 20-1 pp. 296–829, Trial Tr., 24:9–19.)3 Dorcinvil
opened the door, argued with Claudette, and then began hitting
her with a metal chair and broomstick. (Id. 25:13–27:9.) When
B.M. attempted to flee and call the police, Dorcinvil punched
and kicked him. (Id. 27:10–28:2.) The police arrested

Dorcinvil, but Claudette signed a waiver of prosecution and
declined to press charges. (Id. 197:6–21, 202:22–203:10.)
After the incident, Claudette obtained a no-contact order of
protection against Dorcinvil, but Dorcinvil continued living at

2 The Court refers to the surviving victim, who was a minor at the time, only
by his initials.
3 The Court cites all docket entries according to their internal pagination,
not the page numbers assigned by the Court’s electronic docketing system.
her apartment. (Id. 35:5–15.)
On May 4, 2007, while the order of protection was still in
effect, Dorcinvil attacked Claudette with a knife and then

chased B.M. around the apartment, stabbing him in the back and
pushing him onto a couch. (Id. 37:1–38:9.) Claudette rushed
over to shield B.M. with her body, and Dorcinvil repeatedly
stabbed them both. (Id. 38:10–22.) After the attack, Dorcinvil
gathered some clothes and left the apartment, dropping several
items, with Claudette staggering after him. (Id. 39:15–40:10.)
When the police arrived, they found Claudette dead in a pool of
blood outside the building and followed a trail of bloody
handprints and footprints back into her apartment. (Id. 63:6–
66:3, 239:10–13.) Paramedics arrived and transported B.M. to
the hospital. (Id. 241:7–251:3.)
The officers who inspected the apartment afterward found a

bloody jacket inside the apartment containing a wallet and other
papers, including an expired passport in Dorcinvil’s name. (Id.
451:3–453:1.) Joseph Perry, the lead detective on the case, ran
a background check on Dorcinvil and responded to tips that came
through the department hotline. (Id. 457:19–458:12.) Later
that month, the police arrested Dorcinvil at the Haitian
consulate in Miami while he was requesting a passport. (Id.
462:14–463:14.) The State charged Dorcinvil with murder,
attempted murder, assault, contempt (for violating the order of
protection), and illegally possessing a weapon. (ECF No. 20
pp. 1–34, Aff. in Opp’n to Pet. for Writ of Habeas Corpus
(“Pitts Aff.”) ¶ 6.)
II. Procedural Background
A. Trial

Dorcinvil, represented by Stanford Bandelli, Esq., was
tried by a jury in the Supreme Court of New York, Kings County.
(Id. ¶ 7.) The State’s witnesses included B.M., several police
officers, a DNA expert, a paramedic, a medical expert, and the
landlord of the apartment building where Claudette and B.M. had
lived. (See generally Trial Tr.) Detective John Briano, who
had investigated the January and May incidents and accompanied
B.M. in the ambulance ride to the hospital, did not testify.
(Id. 200:17–24, 436:21–23; Pitts Aff. ¶ 7 n.14.) Dorcinvil did
not testify and called no witnesses. (Trial Tr. 475:4–9.) The
jury convicted Dorcinvil on all counts. (Id. 533:22–535:2.) On

December 16, 2009, the court sentenced him to an aggregate term
of imprisonment of fifty-seven years to life. (ECF No. 20-1
pp. 830–48, Sentencing Tr., 14:21–22.)
B. Collateral Challenges and Appeals
On November 15, 2011, Dorcinvil filed a pro se motion in
state court to vacate the judgment of conviction under
Section 440.10 of the New York Civil Practice Law and Rules,
arguing that his trial attorney was constitutionally
ineffective. (ECF No. 20-2 pp. 6–23, Mot. to Vacate Judgment
Under CPL 440/10 (“1st 440 Mot.”).) He also moved for
additional DNA testing on two pieces of evidence recovered from
the crime scene. (Id. 23.) The court denied Dorcinvil’s

motion, (ECF No. 20-4, Decision & Order (“D&O on 1st 440
Mot.”)), and denied Dorcinvil’s motion to renew and reargue his
motion, (See ECF No. 20-5 pp. 2–3, Notice of Appeal). On
January 29, 2013, the Appellate Division, Second Department,
denied leave to appeal. (ECF No. 20-5 p. 8, Decision & Order on
Appl.)4
On February 5, 2013, Dorcinvil, represented by new
appointed counsel, Erica Horwitz, Esq., appealed his judgment of
conviction, claiming various due process and Confrontation
Clause violations. (ECF No. 20-6, Br. for Def.-Appellant
(“Appellate Br.”).) Dorcinvil later filed a pro se supplemental

brief raising ineffective trial counsel and additional due
process claims. (ECF No. 20-8, Def.-Appellant Suppl. Pro Se Br.
(“Suppl. Appellate Br.”).) The Appellate Division, Second
Department, affirmed Dorcinvil’s conviction. People v.
Dorcinvil, 122 A.D.3d 874 (2d Dep’t 2014). The New York Court
of Appeals denied leave to appeal on March 26, 2015, People v.
Dorcinvil, 30 N.E.3d 170 (N.Y. 2015), and on June 15, 2015,

4 The Appellate Division has discretion whether to hear an appeal of the
denial of a motion to vacate. N.Y. C.P.L.R. § 450.15.
denied Dorcinvil’s pro se request for reconsideration, People v.
Dorcinvil, 36 N.E.3d 97 (N.Y. 2015). Dorcinvil did not petition
the United States Supreme Court for a writ of certiorari. (Pet.

3.)
On December 9, 2015, Dorcinvil filed a second pro se motion
to vacate the judgment of conviction in state court, seeking
additional DNA testing and also claiming ineffective counsel,
actual innocence, and failure to disclose exculpatory evidence.
(ECF No. 20-16, Def. C.P.L. § 440.10 Pro Se Brief
(“2d 440 Mot.”).) The court denied the motion on October 27,
2016. (ECF No. 20-19, Mem. (“D&O on 2d 440 Mot.”).) Dorcinvil
appealed the portions of the trial court’s order unrelated to
additional DNA testing, and the Appellate Division, Second
Department, denied leave to appeal on August 18, 2017, Decision
& Order on Appl., People v. Dorcinvil, No. 2016-13011, 2017 WL

3573486 (2d Dep’t Aug. 18, 2017). As to the request for
additional DNA testing, however, the court deemed Dorcinvil’s
“motion papers . . . a timely notice of appeal from that portion
of the [trial court’s] order.” Id. On October 27, 2017, the
New York Court of Appeals summarily dismissed Dorcinvil’s
application for leave to appeal the Appellate Division’s ruling.
People v. Dorcinvil, 89 N.E.3d 1261 (N.Y. 2017).
While his second motion to vacate was pending, Dorcinvil on
July 6, 2016, filed a pro se petition for a writ of error coram
nobis, claiming Horwitz was ineffective in litigating his direct
appeal.5 (ECF No. 20-11, Writ or [sic] Error Coram Nobis, Def.’s
Pro-Se Br. (“Coram Nobis Pet.”).) The Appellate Division,
Second Department, denied the application, People v. Dorcinvil,

149 A.D.3d 867 (2d Dep’t 2017), and the New York Court of
Appeals denied leave to appeal on July 20, 2017, People v.
Dorcinvil, 85 N.E.3d 102 (N.Y. 2017).
In January 2019, Dorcinvil, represented again by Horwitz,
appealed the portion of the trial court’s order denying
Dorcinvil’s request for DNA testing raised in his second motion
to vacate. (ECF No. 20-21, Br. for Def.-Appellant (“DNA
Appellate Br.”).) The Appellate Division, Second Department,
affirmed, People v. Dorcinvil, 175 A.D.3d 1421 (2d Dep’t 2019),
and the New York Court of Appeals denied leave to appeal on
December 12, 2019, People v. Dorcinvil, 139 N.E.3d 804 (N.Y.
2019), and denied reconsideration on February 12, 2020, People
v. Dorcinvil, 142 N.E.3d 1169 (N.Y. 2020).

C. Federal Habeas Review
On January 24, 2020, Dorcinvil timely6 filed commenced this

5 A coram nobis petition is an appropriate vehicle in New York state court to
raise a claim of ineffective appellate counsel. Wade v. Melecio,
No. 21-cv-9138 (GHW) (JLC), 2023 WL 2152489, at *18 (S.D.N.Y. Feb. 22, 2023),
R&R adopted by 2023 WL 2500676 (S.D.N.Y. Mar. 14, 2023).
6 A habeas petitioner has one year from the date his or her state court
conviction becomes final to seek relief in federal court. 28 U.S.C.
§ 2244(d)(1)(A). A petitioner’s state court conviction becomes “final” for
habeas purposes, however, only after proceedings conclude in the United
States Supreme Court or time expires to petition for a writ of certiorari in
that court. Davis v. Racette, 99 F. Supp. 3d 379, 384 (E.D.N.Y. 2015). A
action by filing a petition for a writ of habeas corpus. (ECF
No. 1.) Dorcinvil’s petition included a letter requesting that
the Court hold the Petition “in abeyance” until the New York

Court of Appeals decided his request for reconsideration of its
denial of leave to appeal the Appellate Division’s decision on
Dorcinvil’s appeal as to his second state court motion to
vacate. (ECF No. 1-4 p. 1, Jan. 17, 2020, Ltr. from Jacques
Dorcinvil.) On February 27, 2020, Dorcinvil filed another
letter notifying the Court that the New York Court of Appeals
denied reconsideration and requesting the Court to adjudicate
his Petition.7 (ECF No. 6 p. 1, Feb. 20, 2020, Ltr. from Jacques

petition for a writ of certiorari seeking review of a judgment of a lower
state court that was subject to discretionary review by the state court of
last resort must be filed within ninety days after entry of the order denying
discretionary review. U.S. Sup. Ct. R. 13(1). Here, because Dorcinvil did
not seek relief in the United States Supreme Court, his state court
conviction became final on September 14, 2015, the date ninety-one days (an
additional day added because the ninetieth day fell on a Sunday) after the
New York Court of Appeals denied discretionary review of the Appellate
Division’s decision. Dorcinvil thus had one year after that date to file his
Petition in this Court. The December 9, 2015, filing of Dorcinvil’s second
motion to vacate tolled the one-year limitation period, however. See
28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application
for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.”). That motion remained pending until
December 12, 2019, when further state appellate review finally became
unavailable. See Clemente v. Lee, 72 F.4th 466, 476 (2d Cir. 2023). Because
the periods after Dorcinvil’s conviction became final when his second motion
to vacate was not pending amounted to less than one year on the date on which
he sought federal habeas review, his Petition is timely.
7 Dorcinvil’s letter includes a request for appointment of counsel. There is
no constitutional right to appointed counsel in habeas cases. Harris v.
United States, 367 F.3d 74, 77 (2d Cir. 2004); accord Rucano v. LaManna,
No. 18-cv-4586, 2020 WL 978825 (KAM), at *4 (E.D.N.Y. Feb. 28, 2020). The
Court has discretion whether to appoint counsel, and the threshold question
is whether the petitioner’s claims are “likely to be of substance.” Rucano,
2020 WL 978825, at *4 (quoting Hodge v. Police Officers, 802 F.2d 58, 61
(2d Cir. 1986)). As set forth below, the Court can adequately resolve all
Dorcinvil’s claims based on the parties’ submissions and the ample state
Dorcinvil.) The letter attaches a second petition for a writ of
habeas corpus virtually identical to the first, exhibits, and
another memorandum of law. (See generally ECF No. 6.) The

Court follows the Second Circuit’s directive to construe the
second petition as a motion to amend the initial petition and
thus treats the second petition as the operative Petition. See
Stewart v. Dep’t of Corr., No. 20-cv-2136 (JMA), 2020 WL
3415768, at *2 (E.D.N.Y. June 22, 2020) (citing Ching v. United
States, 298 F.3d 174, 175 (2d Cir. 2002)). It makes no
practical difference, however, because the contents of the two
are substantively the same. The Court will still reference the
memorandum of law Dorcinvil submitted in support of his first
petition to the extent it helps clarify the bases for some of
his claims.
Dorcinvil first claims his trial counsel was

constitutionally ineffective for (1) failing to object to parts
of Detective Perry’s testimony, (2) failing to object to
comments in the State’s summation, (3) failing to request a
hearing to suppress property seized from him during his arrest,

court record, and it finds that Dorcinvil’s claims are unlikely to be of
substance. Further, based on its review of the parties’ submissions and the
state court record, the Court finds no factual or legal ambiguities material
to Dorcinvil’s claims that appointed counsel might reasonably be expected to
help clarify. Dorcinvil competently articulated the factual and legal bases
for his claims, and he identified no facts he was unable to investigate
without counsel nor conflicting evidence that would require cross-
examination. Thus, the Court finds that appointing counsel would not serve
“the interest of justice.” Id. at *3.
(4) failing to move to strike an allegedly biased juror,
(5) failing to investigate a potential alibi witness, and
(6) failing to retain a DNA expert.

Dorcinvil further claims his appellate counsel was
constitutionally ineffective for failing to raise a
Confrontation Clause claim regarding the State’s DNA and medical
evidence.
Dorcinvil also claims his general due process rights were
violated at trial due to (1) the trial court’s denial of his
motion to exclude B.M.’s testimony and denial of his request for
disclosure of additional parts of B.M.’s mental health
documentation, (2) the admission of allegedly unduly prejudicial
exhibits, (3) the trial court’s denial of Dorcinvil’s motions to
sever the charges regarding the January 2007 and May 2007
incidents, (4) the admission of a statement on direct

examination that the trial court allegedly suppressed and ruled
could be used only for impeachment, (5) the trial court’s
refusal to give a missing witness instruction as to one of the
detectives that investigated the January 2007 and May 2007
incidents, and (6) the admission of testimony referencing
Dorcinvil’s “past arrests” and “complaints.”
Finally, Dorcinvil claims the State suppressed exculpatory
evidence.
LEGAL STANDARD
A petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 is the vehicle by which a state prisoner obtains federal
review of his or her state custody. Cook v. N.Y. State Div. of
Parole, 321 F.3d 274, 278 (2d Cir. 2003). The court may issue

the writ only if it finds that the petitioner is in custody in
violation of federal law. 28 U.S.C. § 2254(a). Any claim for
which the petitioner seeks habeas relief must have been fairly
presented for review and exhausted in the state court.
28 U.S.C. § 2254(b)(1)(A).
Respect for judicial federalism requires that a federal
habeas court refrain from resurrecting a claim the petitioner
“procedurally defaulted” in state court. Davila v. Davis,
582 U.S. 521, 527–28 (2017). Procedural default occurs when the
state court clearly and expressly relied on a state procedural
rule to dispose of the petitioner’s claim, regardless of whether
the state court also addressed the merits of the claim. Garner
v. Lee, 908 F.3d 845, 859 (2d Cir. 2018). The petitioner may

raise a procedurally defaulted claim in a federal habeas
proceeding only by showing either (1) good cause for the default
and resulting prejudice or (2) that he or she is actually
innocent. Gomez v. United States, 87 F.4th 100, 107 (2d Cir.
2023).
If the state court adjudicated the petitioner’s claim on
the merits, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) requires the habeas court to give the state court’s
decision great deference. McCray v. Capra, 45 F.4th 634, 640

(2d. Cir. 2022). The state court need not explain its reasoning
for its decision to be considered “on the merits.” Johnson v.
Williams, 568 U.S. 289, 298 (2013). If the petitioner presented
the claim to the state court and the state court denied relief,
the habeas court may presume the state court adjudicated the
claim on the merits absent any contrary indication or state law
principle. Id.
Under AEDPA, a state court decision on the merits must
stand unless it 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. 28 U.S.C.
§ 2254(d). “Clearly established federal law” means a holding,
as opposed to dicta, of a Supreme Court decision that existed at
the time of the relevant state court decision. McCray, 45 F.4th
at 640. The habeas court may not use Second Circuit precedents
to “refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule” that the Supreme Court
“has not announced.” Jackson v. Conway, 763 F.3d 115, 134
(2d Cir. 2014) (quoting Marshall v. Rodgers, 569 U.S. 58, 64
(2013)).
A state court decision is “contrary to” clearly established
federal law if it contradicts a Supreme Court decision on a

legal question or decides a case differently from how the
Supreme Court decided a case with materially identical facts.
McCray, 45 F.4th at 640. A state court decision “involves an
unreasonable application of” clearly established federal law if
the state court identifies the correct legal rule from the
applicable Supreme Court decision but unreasonably applies it to
the facts of the petitioner’s case. See id.
When a habeas petitioner proceeds pro se, the court holds
the petition to less rigorous standards than it holds filings by
counseled parties. Licausi v. Griffin, 460 F. Supp. 3d 242, 260
(E.D.N.Y. 2020). The court must liberally construe the petition
to raise the strongest arguments it suggests. Id. Still, pro
se petitioners are not exempt from the applicable procedural and
substantive rules. Banner v. Royce, 525 F. Supp. 3d 417, 418

(E.D.N.Y. 2021).
DISCUSSION
Dorcinvil’s Petition claims fifteen grounds for relief.
(See Pet. 6–12(E).) The Court first addresses the ineffective
trial counsel claims (Grounds One, Two, Nine, Ten, Eleven,
Twelve), followed by the ineffective appellate counsel claim
(Ground Fifteen), general due process claims (Grounds Three,
Four, Five, Six, Seven, Eight, Fourteen), and suppression of
evidence claim (Ground Thirteen).
I. Ineffective Assistance of Trial Counsel
The Sixth Amendment to the federal Constitution guarantees

a criminal defendant the right to assistance of counsel. U.S.
Const. amend. VI. In Strickland v. Washington, the Supreme
Court interpreted “assistance” to mean “effective” assistance.
466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). An attorney renders ineffective
assistance if he or she (1) performs below objectively
reasonable professional standards (2) in a way that prejudices
the defendant. Farhane v. United States, 77 F.4th 123, 126
(2d Cir. 2023). Prejudice occurs only when there is a
substantial likelihood that the result of the proceeding would
have been different but for the attorney’s deficient
performance. Garner, 908 F.3d at 866.

There is no reason for the court to address both elements
of the Strickland inquiry if the defendant fails to establish
one. Id. at 861. Further, the court may address the two
elements in either order. Id. The Second Circuit has
instructed district courts to dispose of Strickland claims
solely for lack of sufficient prejudice without “grad[ing]
counsel’s performance” when it is easier to do so. See id.
(quoting Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir. 1984)).
A. Detective Perry’s Testimony
Dorcinvil claims his trial attorney, Bandelli, was
ineffective because he failed to object to “damaging hearsay” in
the form of Detective Perry’s testimony that he “had a suspect”

after arriving on the scene and speaking to Detective Briano,
who did not testify at Dorcinvil’s trial. (ECF No. 1-3, Mem. of
Law, Pet’r’s Pro-Se Br. (“Mem.”) 43–47; see Trial Tr. 455:25–
456:9.) Dorcinvil further alleges that Perry offered hearsay
testimony by mentioning he talked to people who called into the
tipline he set up during his investigation. (Pet. 6(A).)
Dorcinvil also argues that Perry’s hearsay testimony violated
his rights under the Confrontation Clause. (Id.) Dorcinvil
failed to exhaust this claim in state court before raising it
here, but the Court exercises its discretion to reach and reject
the claim on the merits.
1. Exhaustion
Dorcinvil raised the Strickland claim regarding Perry’s

hearsay testimony in his direct appeal, and the Appellate
Division concluded that Dorcinvil’s entire ineffective counsel
claim was a “mixed claim” because it concerned both record and
non-record issues. Dorcinvil, 122 A.D.3d at 877–78. Thus, the
court concluded that the claim could not be “resolved without
reference to matter outside the record” and that Dorcinvil would
have to raise it in a collateral challenge rather than on direct
appeal. Id. at 878; see Pierotti v. Walsh, 834 F.3d 171, 178
(2d Cir. 2016) (recognizing this practice as standard in New
York state court). Dorcinvil did not claim Bandelli was

ineffective for failing to object to the State’s summation in
either of his state collateral challenges. (Pet. 8.) Thus, he
“deprived the state court of an opportunity to review” this
claim and has left it unexhausted. See Murray v. Cunningham,
No. 19-cv-767 (DC), 2023 WL 4665761, at *7 (E.D.N.Y. July 20,
2023) (finding “mixed” ineffective counsel claim unexhausted
where appellate court instructed petitioner to raise claim in
collateral proceeding but petitioner had not done so at time he
sought federal habeas relief).
Because Dorcinvil’s Petition contains both exhausted and
unexhausted claims, it is a “mixed petition.” See Rhines v.
Weber, 544 U.S. 269, 275 (2005). A habeas court facing a mixed

petition may (1) dismiss the entire petition without prejudice,
(2) deny the entire petition on the merits, (3) permit the
petitioner to “delete” the unexhausted claims from the petition
and return to state court to proceed on the unexhausted claims,
or (4) stay the petition until the petitioner exhausts the
unexhausted claims. Wesley-Rosa v. Kaplan, 274 F. Supp. 3d 126,
129 (E.D.N.Y. 2017). Dorcinvil has not moved for a stay, and he
would not have been able to because he had no good cause for
failing to raise this component of his ineffective trial counsel
claim in either of his state collateral challenges. See id.
The Court exercises its discretion to reach the merits
rather than send Dorcinvil back to state court to raise the
claim in a third collateral challenge. See 28 U.S.C.
§ 2254(b)(2); Abuzaid v. Mattox, 726 F.3d 311, 322 n.8 (2d Cir.

2013). Dorcinvil has not prevailed on a single one of the many
claims he raised in his various state court appeals or
collateral proceedings, which spanned nearly a decade and
generated over one thousand pages of briefing and judicial
decisions, and the Court declines to create even more work for
the state courts by forcing them to adjudicate yet another
plainly meritless claim. Further, the Court is already
considering other of Dorcinvil’s ineffective trial counsel
claims that the state courts have addressed and rejected, which
leaves the Court in a position to evaluate the cumulative effect
of all allegedly prejudicial Strickland errors. Finally, the
Court can resolve the claim based on Strickland’s prejudice

prong alone solely by reference to the existing record, and
nothing in the Petition or record suggests the result could
possibly change given additional factual development. Thus, the
Court finds that addressing this component of Dorcinvil’s
ineffective trial counsel claim now will further “AEDPA’s goals
of encouraging finality and reducing delays.” See Johnston v.
Senkowski, No. 01-cv-1770 (NAM), 2005 WL 1388880, at *3
(N.D.N.Y. June 9, 2005).
2. Merits
Because there is no state court decision on the merits to
defer to, AEDPA deference does not apply and the Court reviews
Dorcinvil’s claim de novo.8 See Folkes v. Lee, No. 10-cv-5416

(BMC), 2011 WL 2610496, at *4 (E.D.N.Y. June 30, 2011). Even
under de novo review, however, Dorcinvil’s arguments are
meritless. Under New York law, hearsay is recognized as an
“out-of-court statement admitted for the truth of the matter
asserted.” People v. Slade, 170 N.E.3d 1189 (N.Y. 2021)
(quoting People v. Buie, 658 N.E.2d 192, 194 (N.Y. 1995)). The

8 The inapplicability of AEDPA deference complicates the Court’s review
because the record lacks an affidavit from Bandelli explaining his actions.
The Second Circuit held in Sparman v. Edwards that “a district court facing
the question of constitutional ineffectiveness of counsel should, except in
highly unusual circumstances, offer the assertedly ineffective attorney an
opportunity to be heard and to present evidence, in the form of live
testimony, affidavits, or briefs.” 154 F.3d 51 (2d Cir. 1998). The absence
of Bandelli’s affidavit poses no problem as to Dorcinvil’s other ineffective
counsel claims because the Supreme Court’s decision in Cullen v. Pinholster,
563 U.S. 170 (2011), held that the record in cases subject to 28 U.S.C.
§ 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits, thus abrogating Sparman with respect to
such cases. Licausi, 460 F. Supp. 3d at 259 n.8; see Ridgeway v. Zon,
424 F. App’x 58, 60 (2d Cir. 2011). Because no state court adjudicated
Dorcinvil’s ineffective counsel claim on the merits, at least as it pertains
to the State’s summation, the Sparman presumption arguably still applies.
See, e.g., United States v. Macaluso, No. 16-cr-609, 2020 WL 2097837, at *2
(E.D.N.Y. May 1, 2020) (noting court had solicited affidavit from defendant’s
trial attorney in resolving ineffective counsel claim raised in post-Cullen
motion under 28 U.S.C. § 2255 to vacate federal conviction). Nonetheless,
the Court can resolve Dorcinvil’s claim based on Strickland’s prejudice prong
alone by simply assuming without deciding – and without casting any
aspersions on Bandelli – that Bandelli’s performance was deficient, thus
rendering it unnecessary for the Court to solicit an affidavit from Bandelli
explaining his trial strategy. See Broxmeyer v. United States, 661 F. App’x
744, 750 (2d Cir. 2016) (summary order) (“Although it might have been helpful
if the district court had sought affidavits from [defendant’s] counsel, none
of his claims requires further evidence to determine their validity.”)
(citation omitted).
challenged testimony – that Perry determined Dorcinvil to be a
suspect after he spoke to Briano – was not hearsay because it
did not relay to the jury any “statement” by Briano or a tipline

caller. Further, Perry offered this testimony to explain his
own actions during his investigation, not to prove the truth of
what another person told him. See People v. Gross, 47 N.E.3d
738, 742 (N.Y. 2016) (explaining that testimony is not hearsay
when admitted to “complet[e] the narrative of how [the]
defendant came to be investigated”). The Appellate Division
found as much when it rejected Dorcinvil’s claim on direct
appeal (not raised in the context of ineffective counsel) that
Perry’s testimony “constituted impermissible hearsay and
bolstering.” See Dorcinvil, 122 A.D.3d at 876.
The challenged testimony also did not implicate the
Confrontation Clause. The federal Constitution guarantees
criminal defendants the right to confront adverse witnesses, see

U.S. Const. amend. VI, and the “main and essential purpose of
confrontation is to secure . . . the opportunity of cross-
examination,” Fuentes v. Griffin, 829 F.3d 233, 247 (2d Cir.
2016) (quoting Davis v. Alaska, 415 U.S. 308, 315–16 (1974)).
Dorcinvil’s argument that Perry’s testimony “bolstered” B.M.’s
identification of Dorcinvil, (see Pet. 6(A)), falls short,
however, because Dorcinvil had a full and fair opportunity to
cross-examine Perry and B.M., see Licausi, 460 F. Supp. 3d at
266. Thus, because any hearsay or Confrontation Clause
objection to Perry’s testimony would have been meritless,
Dorcinvil cannot claim Bandelli was ineffective for failing to
make such objections. See Blackman v. United States,

No. 16-cr-89 (JS), 2019 WL 2106189, at *5 (E.D.N.Y. May 14,
2019).
Finally, Dorcinvil argues it was error for the trial court
to have admitted Perry’s “bolstering” testimony identifying
Dorcinvil on the video surveillance footage when Perry had not
seen him before and that Bandelli was ineffective for failing to
object to that testimony. (See Pet. 6(A)). That argument
cannot help Dorcinvil in a federal habeas proceeding because
“bolstering” alone, even if forbidden under state law, is
insufficiently prejudicial to implicate federal due process.
See 28 U.S.C. § 2254(a); Mejia v. Sup’t, Elmira Corr. Facility,

No. 20-cv-2836 (KAM), 2023 WL 7857277, at *13 (E.D.N.Y. Nov. 16,
2023). Moreover, any such error could not have caused
Strickland prejudice here because Claudette’s landlord also
identified Dorcinvil as the person in the video. (See Trial Tr.
133:25–134:1, 138:13–17.) There is no reasonable probability
that the jury would not have convicted Dorcinvil had Perry not
identified him too.
B. The State’s Summation
Dorcinvil claims Bandelli was ineffective by failing to
object to allegedly unduly prejudicial comments the State made
during its summation.9 (Pet. 7–7(A).) As with Dorcinvil’s
Strickland claim regarding Perry’s testimony, Dorcinvil failed

to exhaust this claim because he never raised it in a collateral
proceeding after being instructed to do so by the Appellate
Division, but the Court again exercises its discretion to review
the claim on the merits de novo. (See supra pp. 15-18.)
Dorcinvil contends Bandelli should have objected when the
State allegedly appealed to the jurors’ sympathy in an
inflammatory way, vouched for B.M.’s credibility, and expressed
personal beliefs about Dorcinvil’s guilt. (Mem. 51–55.)
Decisions about whether to make objections during the
prosecutor’s summation are matters of trial strategy “virtually
unchallengeable” in a federal habeas proceeding. Hamilton v.
Lee, 94 F. Supp. 3d 460, 477 (E.D.N.Y. 2015) (quoting
Strickland, 466 U.S. at 690–91). To support habeas relief, the

prosecutor must have made improper comments that “so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.” Torres v. Racette, No. 11-cv-1647
(PKC), 2018 WL 4762246, at *6 (E.D.N.Y. Oct. 2, 2018) (quoting

9 This claim is found in Ground Two of Dorcinvil’s Petition, which also
asserts that Dorcinvil was “denied a fair trial by . . . the admission of an
unnecessary and gruesome photograph of the bloody, half naked decedent.”
(Pet. 7.) Because most of Ground Two concerns Dorcinvil’s allegations of
ineffective counsel, (see id. 7–7(A); Mem. 51–55 (elaborating on Ground
Two)), the Court addresses that portion of the claim here and addresses the
victim’s photograph below, (see infra pp. 37–38).
Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
None of the State’s comments come close to any impropriety
necessary to justify habeas relief. The State’s references to
Dorcinvil as a “guilty man,” (see Trial Tr. 506:5–23), were

permissible as an argument to the jury about how to interpret
the evidence the jury already heard and reach a verdict, see
United States v. Oreckinto, 774 F. App’x 698, 702 (2d Cir. 2019)
(summary order) (finding no error when prosecutor showed jury
image of defendant captioned “Guilty”). The State’s vivid
description of Claudette’s murder and the trauma it inflicted on
B.M., which Dorcinvil deems “inflammatory,” (see Mem. 52–53),
was not improper because prosecutors are not forbidden from
“vigorous advocacy” or using “colorful” language in summations,
see Portes v. Capra, 420 F. Supp. 3d 49, 58 (E.D.N.Y. 2018)
(quoting United States v. Rivera, 971 F.2d 876, 884 (2d Cir.

1992)). The State also did not convey a “personal belief” in
Dorcinvil’s guilt to the jury by using the phrase “I submit to
you.” (See Mem. 52–53.) The phrase “I submit to you” is a
common form of verbal filler that attorneys utter when arguing
in court, and it does not prejudice criminal defendants when
used in a prosecutor’s summation. See United States v. Eltayib,
88 F.3d 157, 173 (2d Cir. 1996); Wright v. Poole, No. 02-cv-8669
(KMK), 2012 WL 4478393, at *9 (S.D.N.Y. Sept. 28, 2012).
Finally, the trial court instructed the jury that summations are
not evidence, and this Court must presume the jury followed that
instruction absent any evidence to the contrary. (See Trial Tr.
512:24–513:12); Joseph v. Conway, No. 07-cv-5523 (DC), 2023 WL
3092877, at *6 (E.D.N.Y. Apr. 26, 2023) (citing Gonzales v.
Sullivan, 934 F.2d 419, 424 (2d Cir. 1991)).

Because none of the comments from State’s summation that
Dorcinvil cites were unduly prejudicial, there would have been
no basis for Bandelli to object to them. See Broxmeyer v.
United States, 661 F. App’x 744, 749 (2d Cir. 2016) (summary
order) (explaining that “absent any prejudicial error in the
[prosecutor’s] summation,” the lack of “an otherwise futile
objection could not have rendered counsel ineffective”) (quoting
United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005)).
Thus, Dorcinvil cannot claim to have suffered Strickland
prejudice through the lack of objections and cannot obtain

habeas relief on this ground.
C. Suppression Hearing
Dorcinvil claims Bandelli was ineffective by failing to
request a suppression hearing (or “Mapp hearing”) regarding
property the police recovered from Dorcinvil during his arrest
in Miami. (Pet. 12(A).) Dorcinvil raised this claim in his
first motion to vacate, (see 1st 440 Mot. 5), and the trial
court rejected it as factually incorrect, (see D&O on 1st 440
Mot.). Dorcinvil then raised the claim again in his second
motion to vacate, and the trial court rejected it as factually
incorrect and because the court’s “prior decision and order
[was] now also a bar to [Dorcinvil’s] attempt to re-litigate the

same issue,” (D&O on 2d 440 Mot. 6–7 (citing N.Y. C.P.L.R.
§ 440.10(3)(b))). This Court reviews the trial court’s decision
on the second motion to vacate, the last reasoned state court
decision addressing this ground for relief after the Appellate
Division and New York Court of Appeals declined discretionary
review. See McCray, 45 F.4th at 640.
Dorcinvil’s Strickland claim based on Bandelli’s alleged
failure to request a suppression hearing is procedurally
defaulted. The trial court rejected Dorcinvil’s claim based on
Section 440.10(3)(b) of the New York Civil Practice Law and
Rules. That section generally permits the trial court to deny a
motion to vacate where “[t]he ground or issue raised upon the

motion was previously determined on the merits upon a prior
motion or proceeding” in New York state court “other than an
appeal from the judgment.” N.Y. C.P.L.R. § 440.10(3)(b). The
Second Circuit has not addressed whether a state court’s proper
invocation of Section 440.10(3)(b) operates as a procedural bar,
but the consensus among district courts in the circuit is that
it does. See, e.g., Brown v. Burnett, No. 19-cv-1295 (TJM),
2021 WL 4990257, at *12 (N.D.N.Y. Oct. 27, 2021); Jiang v.
Larkin, No. 12-cv-3869 (PGG), 2016 WL 1718260, at *23 (S.D.N.Y.
Apr. 28, 2016); Nowicki v. Cunningham, No. 09-cv-8476 (KMK),
2014 WL 5462475, at *9 (S.D.N.Y. Oct. 27, 2014). The Court
finds those district court decisions well reasoned and joins the

consensus. The Court also finds nothing improper about how the
trial court invoked Section 440.10(3)(b) here. Moreover,
Dorcinvil has not argued there was good cause for or prejudice
resulting from the default, nor has he established actual
innocence. Thus, Dorcinvil cannot prevail on this claim.
D. Jury Selection
Dorcinvil claims his trial attorney was ineffective for
failing to move to strike an unidentified juror who said during
jury selection that she thought she would be “very nervous”
without elaborating on what she would be nervous about. (Pet.
12(B).) Dorcinvil raised this claim in his second state court
motion to vacate, and the trial court rejected it both on the
merits and on procedural grounds, (D&O on 2d 440 Mot. 7–8

(citing N.Y. C.P.L.R. § 440.30(4)(b))). This Court reviews the
trial court’s decision on the second motion to vacate, which was
the last reasoned state court decision addressing this ground
for relief after the Appellate Division and New York Court of
Appeals declined discretionary review. See McCray, 45 F.4th at
640.
Despite the trial court’s invocation of Section
440.30(4)(b) of the New York Civil Practice Law and Rules, which
permits a court to deny a motion to vacate where the motion
papers lack sworn statements substantiating essential facts,
this Court assumes without deciding that the trial court

adjudicated this claim on the merits. The Second Circuit has
not addressed whether Section 440.30(4)(b) can support a
procedural default, but because there is an intra-district split
on that question, see Totesau v. Lee, No. 19-cv-6992 (PKC),
2022 WL 1666895, at *19 n.30 (E.D.N.Y. May 25, 2022) (collecting
cases), and Second Circuit authority finding that a similar
state procedural rule cannot support a procedural default, see
Giraldo v. Bradt, No. 11-cv-2001 (JFB), 2012 WL 3835112, at *8
(E.D.N.Y. Sept. 5, 2012) (citing Garcia v. Portuondo,
104 F. App’x 776, 779 (2d Cir. 2004) (summary order)), the Court
concludes that this claim is best resolved on the merits. Thus,
the Court heeds the Second Circuit’s suggestion to “hurdl[e] the
procedural questions to reach the merits.” See Dunham v.
Travis, 313 F.3d 724, 729–30 (2d Cir. 2002) (explaining that

doing so is justified where the substantive issue easily
resolves against the petitioner and the procedural issue
concerns a complicated state law question); Totesau, 2022 WL
1666895, at *19 n.30 (doing so with respect to Section
440.30(4)(b)).
Turning to the merits, Dorcinvil’s Strickland claim fails
because there was no prejudice. During jury selection, Bandelli
asked whether any prospective juror had a “friend or a friend of
a friend or a family member that [had] been . . . the victim of
domestic violence.” (ECF No. 20-1 pp. 73–221, Voir Dire Tr.

67:19–22.) One juror apparently signaled that she had a
question, and the exchange proceeded as follows:
MR. BANDELLI: Ma’am?
PROSPECTIVE JUROR: I think I’ll be very nervous.
THE COURT: I prefer that you be nervous because, you
know, this is a case where it’s a hard job. The
question is not whether you will be nervous, but can
you do the job?
PROSPECTIVE JUROR: I don’t know. My stomach is
bubbling already.
(Id. 68:20–69:3.) The transcript does not indicate which
prospective juror had this exchange with Bandelli or whether
that juror was seated for trial, but no juror was stricken as a
result of the exchange.
There is no prejudice here because Dorcinvil has failed to
establish that the unidentified prospective juror who thought
she would be “very nervous” was actually seated on the jury.
Second, even assuming this juror was seated, the trial court did
not contradict or unreasonably apply clearly established federal
law in finding that the juror’s statements did not evince actual
bias. A defendant alleging ineffective counsel with respect to
jury selection must show that the juror had “[a]ctual bias.”
United States v. Kelly, 609 F. Supp. 3d 85, 152 (E.D.N.Y. 2022).
Dorcinvil cites no Supreme Court case holding that a juror’s
statement expressing a vague sense of nervousness, without more,
amounts to actual bias. To the contrary, the Supreme Court has

denied habeas relief even where jurors have “doubted, or
disclaimed outright, their own impartiality on voir dire.” See
Hughes v. United States, 258 F.3d 453, 458 (6th Cir. 2011)
(citing Patton v. Yount, 467 U.S. 1025, 1032 (1984)); accord
Figueroa v. Heath, No. 10-cv-121 (JFB), 2011 WL 1838781, at *12
(E.D.N.Y. May 13, 2011). Thus, Dorcinvil cannot obtain habeas
relief on this ground.
E. Alleged Alibi Witness
Dorcinvil claims Bandelli was ineffective for failing to
contact alleged alibi witnesses after Dorcinvil gave Bandelli
their contact information. (Pet. 12(C).) Dorcinvil raised this
claim in his first motion to vacate, (see 1st 440 Mot. 5), and
the trial court rejected it on the merits, (D&O on 1st 440

Mot.). Dorcinvil then raised the claim again in his second
motion to vacate, and the trial court rejected it on the merits
again without invoking Section 440.10(3)(b), (D&O on 2d 440
Mot.). This Court reviews the trial court’s decision on the
second motion to vacate, which was the last reasoned state court
decision addressing this ground for relief after the Appellate
Division and New York Court of Appeals declined discretionary
review. See McCray, 45 F.4th at 640.
Because the trial court did not invoke the successive
motion procedural bar when it denied Dorcinvil’s second motion
to vacate, the Court concludes this claim is not procedurally

defaulted and will review it on the merits, applying AEDPA
deference. The trial court did not contradict or unreasonably
apply clearly established federal law in rejecting this claim.
The only “alibi” witness Dorcinvil discussed before that court
was his fellow inmate, Steven Renaud, who swore an affidavit
testifying as to Dorcinvil’s whereabouts the day before the May
2007 incident. (D&O on 2d 440 Mot. 8.) The court thus found
this affidavit at most “place[d] [Dorcinvil] in mid-town
Manhattan on the day before the crime, evidence which would not
have precluded [Dorcinvil’s] commission of murder a day later.”
(Id.) Accordingly, Dorcinvil cannot establish Strickland
prejudice because he cannot establish a substantial likelihood

that Renaud’s testimony would have changed the result. Renaud
“had no knowledge of [Dorcinvil’s] whereabouts” on May 4, 2007.
See Matthews v. Mazzuca, No. 01-cv-9369 (HB), 2003 WL 22208358,
at *4 (S.D.N.Y. Sept. 23, 2003) (finding counsel not ineffective
for not investigating alleged alibi witness who could testify as
to petitioner’s whereabouts on day of incident but not at time
of incident), aff’d by 120 F. App’x 856 (2d Cir. 2005). Even if
Renaud’s testimony were admitted, it “would have still left open
the very real possibility that he in fact visited” Claudette’s
apartment on May 4, 2007. See id. Thus, Dorcinvil may not
obtain habeas relief on this ground.
F. DNA Expert
Dorcinvil claims Bandelli was ineffective for “never

produc[ing]” DNA experts or “request[ing] . . . a hearing to
determine whether or not the DNA evidence introduce[d] at trial
by the people’s experts were reliable.” (Pet. 12(C).)
Dorcinvil raised this claim in his first motion to vacate, (see
1st 440 Mot. 8–9), and the trial court rejected it as factually
incorrect, (see D&O on 1st 440 Mot.). Dorcinvil then raised the
claim again in his second motion to vacate, and the trial court
rejected it as “without merit” and because the court “decline[d]
to revisit” the DNA claims “pursuant to CPL § 440.10(3)(b).”
(D&O on 2d 440 Mot. 9). This Court reviews the trial court’s
decision on the second motion to vacate, which was the last
reasoned state court decision addressing this ground for relief

after the Appellate Division and New York Court of Appeals
declined discretionary review. See McCray, 45 F.4th at 640.
The Court concludes that this claim is procedurally defaulted
for the same reason that Dorcinvil’s suppression hearing claim
is procedurally defaulted. (See supra pp. 24–25.)
Because each deficiency Dorcinvil alleges in Bandelli’s
performance resulted in either no prejudice or negligible
prejudice, the Court also finds that there is no reasonable
probability that the cumulative effect of all the alleged errors
would have changed the result of Dorcinvil’s trial. See Ohle v.
United States, No. 13-cv-450 (JSR), 2015 WL 5440640, at *12

(S.D.N.Y. Sept. 8, 2015). Thus, even considering all of
Dorcinvil’s Strickland claims collectively, he cannot establish
the prejudice necessary to obtain habeas relief.
II. Ineffective Assistance of Appellate Counsel
Dorcinvil claims his appellate counsel, Erica Horwitz, was
constitutionally ineffective because she failed to argue on
appeal that Dorcinvil’s trial counsel was constitutionally
ineffective for failing to preserve a Confrontation Clause
objection regarding the DNA report and autopsy reports
introduced at trial. (Pet. 12(E).) Dorcinvil raised this claim
in his coram nobis petition, (Coram Nobis Pet. 11), and the
state appellate court rejected it on the ground that Dorcinvil
“failed to establish that he was denied effective assistance of
appellate counsel,” Dorcinvil, 149 A.D.3d at 867. This Court
reviews the Appellate Division’s decision on the coram nobis

petition, the last reasoned state court decision addressing this
ground for relief after the New York Court of Appeals declined
discretionary review. See McCray, 45 F.4th at 640.
Here, Horwitz provided the state court an affirmation
explaining her appellate strategy. (See ECF No. 20-12,
Affirmation of Erica Horwitz (“Horwitz Affirmation”).) AEDPA
thus requires the Court to apply “double deference,” comprising
both the deference owed to Horwitz’s strategic decisions under
Strickland itself and the deference owed to the state court’s
application of Strickland to Horwitz’s performance. See Simpson
v. Bell, 557 F. Supp. 3d 365, 372 (E.D.N.Y. 2021). Because the

decision under review was a summary disposition, it must stand
so long as any reasonable judge “could have” found that Horwitz
complied with the Strickland standard. See Chrysler v. Guiney,
806 F.3d 104, 118 (2d Cir. 2015). In conducting that analysis,
the Court observes the Supreme Court’s admonition that appellate
counsel “need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to
maximize the likelihood of success on appeal.” See id. (quoting
Smith v. Robbins, 528 U.S. 259, 288 (2000)).
The Appellate Division did not contradict or unreasonably
apply Strickland or any other clearly established federal law in
denying Dorcinvil’s coram nobis petition. Horwitz filed a 63-

page appellate brief on Dorcinvil’s behalf raising five claims
of error. (Horwitz Affirmation ¶ 6.) In response to
Dorcinvil’s coram nobis petition, she explained that she
declined to argue Bandelli was ineffective for failing to object
to the State’s DNA evidence because she found the State’s DNA
evidence weak and observed that Bandelli exploited it to
Dorcinvil’s advantage in his summation. (Id. ¶¶ 10–17.) She
further explained that she declined to argue Bandelli was
ineffective for failing to object to the State’s autopsy
evidence because such an objection would have been squarely
foreclosed by state court precedent. (Id. ¶¶ 18–26.) Applying

AEDPA’s doubly deferential standard, the Court concludes that a
reasonable judge could have found that Horwitz’s selection of
appellate issues fell within the range of discretion afforded by
Strickland, regardless of whether it was the optimal selection
or even a good selection. See Chrysler, 806 F.3d at 118.
Moreover, even if Horwitz’s strategy were deemed professionally
unreasonable, there was no prejudice. Horwitz did argue
ineffective trial counsel in the alternative with respect to two
of her arguments, (see Appellate Br. 49, 62), and the appellate
court found those claims formed part of a “mixed claim” of
ineffective assistance unsuitable for direct appellate review,
Dorcinvil, 122 A.D.3d at 877–78. There is no reason to find the

additional ineffective trial counsel claims that Dorcinvil would
have preferred Horwitz to raise would have met any other fate.
Thus, Dorcinvil cannot obtain habeas relief on his ineffective
appellate counsel claim.
III. General Due Process
The federal Constitution provides that a state may not
deprive a person of life, liberty, or property without due
process of law. U.S. Const. amend. XIV, § 1. In a criminal
trial, “due process” means only the “fundamental elements of
fairness,” not the “meticulous observance of state procedural
prescriptions.” Murray v. Noeth, 32 F.4th 154, 158 (2d Cir.
2022) (quoting Rivera v. Illinois, 556 U.S. 148, 158 (2009)).
A. B.M.’s Testimony and Medical Records

Dorcinvil claims the trial court denied him due process by
finding B.M. competent to testify and denying Dorcinvil’s
request for disclosure of B.M.’s mental health records. (Pet.
9–9(A).) Bandelli had made a pre-trial motion to exclude B.M.’s
testimony based on B.M.’s alleged “cognitive issues” that
Bandelli argued affected B.M.’s perception. (Voir Dire Tr. 8:8–
18.) The court denied the motion, reasoning that B.M.’s medical
issues were irrelevant to his competency to testify. (Id. 8:19–
9:6.) The court also denied Bandelli’s request for disclosure
of B.M.’s school psychological evaluation after the court
reviewed the records in camera. (Id. 10:1–13:23.)

When Dorcinvil raised this claim in his direct appeal, the
Appellate Division rejected on the merits Dorcinvil’s challenge
to B.M.’s competency to testify and found Dorcinvil’s challenge
to the trial court’s refusal to disclose B.M.’s medical records
inappropriate for review on direct appeal because it was based
on matter outside the record. Dorcinvil, 122 A.D.3d at 877.
Dorcinvil did not raise this claim in either of his state court
motions to vacate. (Pet. 9.) This Court thus reviews the
Appellate Division’s decision on Dorcinvil’s direct appeal, the
last reasoned state court decision addressing this ground for
relief after the New York Court of Appeals declined
discretionary review. See McCray, 45 F.4th at 640.

The Appellate Division did not contradict or unreasonably
apply clearly established federal law in permitting B.M. to
testify. Federal habeas relief is available only for errors of
federal law and “does not lie for errors of state law.” Jones
v. Hendrix, 599 U.S. 465, 490 (2023) (quoting Estelle v.
McGuire, 502 U.S. 62, 67 (1991)). A child witness’s competency
to testify in New York state court is governed by New York state
law, specifically Section 60.20(2) of the Civil Practice Law and
Rules. Dorcinvil’s claim thus does not implicate federal law
and cannot support habeas relief. See Ramos v. Lee,
No. 19-cv-1125 (JS), 2021 WL 3269237, at *9 (E.D.N.Y. July 30,

2021) (“Whether the trial court properly admits sworn testimony
from a child complainant in accordance with the requirements of
C.P.L. § 60.20(2) is a matter best left to the New York state
courts.”); see also DiGuglielmo v. Smith, 366 F.3d 130, 136
(2d Cir. 2004) (admonishing district courts not to repackage
alleged state law errors as federal law errors by simply framing
them as due process violations).
Dorcinvil’s challenge to the trial court’s refusal to
disclose B.M.’s psychological evaluation is unexhausted because
he did not raise it in his second state court motion to vacate
after the appellate court found it improperly raised on direct
review; however, the Court again exercises its discretion under

28 U.S.C. § 2254(b)(2) to address and reject this claim on the
merits under de novo review. (See supra pp. 15–18.)
Dorcinvil’s claim fails on the merits. Trial courts have
“wide latitude” to limit cross-examination to avoid testimony
only “marginally relevant.” Corby v. Artus, 699 F.3d 159, 166
(2d Cir. 2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986)). Specifically, a trial court may constitutionally
restrict inquiry into a witness’s psychiatric history if the
proponent of such evidence fails to reasonably link it to the
facts at issue. Drake v. Woods, 547 F. Supp. 2d 253, 267
(S.D.N.Y. 2008). The standard procedure when a court faces a
request for disclosure of sensitive materials is to review the
materials in camera and determine whether they are appropriate
for cross-examination. Viera v. Sheahan, No. 16-cv-4048 (KAM),

2020 WL 3577390, at *6 (E.D.N.Y. June 30, 2020).
Under these standards, the trial court committed no error
in refusing to disclose B.M.’s psychiatric records. Before
trial, the court examined B.M.’s records in camera found
Bandelli already had “enough” to effectively cross-examine B.M.
as to his perception of the events as the crime occurred. (Voir
Dire Tr. 13:15–21.) At trial, Bandelli cross-examined B.M.
regarding his stay in a psychiatric hospital. (See Trial Tr.
48:6–55:5.) In summation, Bandelli argued B.M. was not credible
and that he was lying. (Id. 496:14–499:7.) Dorcinvil has

provided no reason to find the marginal impeachment value gained
from disclosure of more of B.M.’s medical records would have
materially improved Bandelli’s ability to cross-examine B.M. or
that there was any defect in the trial court’s in camera review
process. See McGeachy v. Perez, No. 11-cv-3906 (DC), 2023 WL
1830802, at *9 (E.D.N.Y. Feb. 7, 2023) (denying habeas relief
where “substantial cross-examination of [witness’s] mental
health history was permitted” and “there was no evidence that
[additional records] would not have been cumulative” of
witness’s other testimony). Thus, Dorcinvil may not obtain
habeas relief on this ground.
B. Trial Exhibits
Dorcinvil claims the trial court violated his due process

rights by admitting a photo of Claudette after the January 2007
assault, a photo of Claudette after the May 2007 murder, video
surveillance of the May 2007 incident, and Dorcinvil’s arrest
photos. (Pet. 7; 10–10(A).) Dorcinvil raised this claim in his
direct appeal. (Appellate Br. 50–54.) The Appellate Division
rejected the claim on the merits as to the May 2007 photo of
Claudette and Dorcinvil’s arrest photos. Dorcinvil, 122 A.D.3d
at 876–77. It found Dorcinvil’s claim as to the January 2007
photo of Claudette and the video footage “unpreserved for
appellate review and, in any event, without merit.” Id. at 877.
Dorcinvil did not raise his evidentiary claims regarding the

trial exhibits in either of his state court motions to vacate.
(Pet. 8.) This Court thus reviews the Appellate Division’s
decision on Dorcinvil’s direct appeal, the last reasoned state
court decision addressing this ground for relief after the New
York Court of Appeals declined discretionary review. See
McCray, 45 F.4th at 640.
Dorcinvil’s evidentiary claims regarding the January 2007
photo and the arrest photos are procedurally defaulted. Though
the Appellate Division concluded they were “unpreserved for
appellate review” without citing a particular procedural rule,
Dorcinvil, 122 A.D.3d at 877, the Court finds that the Appellate
Division likely relied on New York’s contemporaneous objection

rule, which is a valid procedural bar in New York state court,
see Carey v. Connell, No. 10-cv-3873 (DLC), 2012 WL 37084, at *4
n.1 (S.D.N.Y. Jan. 6, 2012) (concluding habeas claims were
procedurally defaulted based on contemporaneous objection rule
where Appellate Division wrote that claims were “unpreserved for
appellate review and, in any event, without merit”); Whaley v.
Graham, No. 06-cv-3843 (JFB), 2008 WL 4693318, at *7 (E.D.N.Y.
Oct. 15, 2008) (same). Because Dorcinvil has not argued there
was good cause for or prejudice resulting from the default, nor
has he established that he is actually innocent, those claims
cannot support habeas relief.
The Appellate Division did not rely on a procedural bar to

reject Dorcinvil’s claims regarding the May 2007 photo of
Claudette and arrest photos but rather addressed those claims on
the merits, so this Court reviews the Appellate Division’s
decision on those evidentiary rulings with AEDPA deference.
State court evidentiary rulings generally present state law
questions inappropriate for review in a federal habeas
proceeding. See Vega v. Walsh, 669 F.3d 123, 126 (2d Cir.
2012). A state court evidentiary error cannot support habeas
relief unless the error amounted to a federal due process
violation. Enoksen v. Squires, 532 F. Supp. 3d 75, 93 n.13
(E.D.N.Y. 2021). Evidence erroneously admitted under state law
does not violate due process if it was “at least arguably
relevant,” Vega, 669 F.3d at 126, but not “sufficiently material

to provide the basis for conviction” or “remove a reasonable
doubt” that otherwise would have existed, Heidgen v. Graham, 420
F. Supp. 3d 1, 11 (E.D.N.Y. 2019). Moreover, to overcome AEDPA
deference, the petitioner must identify a Supreme Court decision
clearly establishing that erroneously admitting the specific
kind of evidence at issue violates due process. Evans v.
Fischer, 712 F.3d 125, 133-35 (2d Cir. 2013) (reversing district
court for granting habeas relief without citing a sufficiently
similar Supreme Court case).
Here, the Court may not grant habeas relief on Dorcinvil’s
claim as to the photograph of Claudette’s body because no

Supreme Court precedent holds that the admission of a photograph
of a victim’s body violates due process. See Fernandez v.
Ercole, No. 14-cv-2974 (HBP), 2017 WL 2364371, at *5 (S.D.N.Y.
May 31, 2017). As to Dorcinvil’s arrest photographs, the state
court ruling was not erroneous because New York law permits the
admission of a defendant’s arrest photograph. See King v.
Coveny, No. 18-cv-2851 (KPF), 2022 WL 4952537, at *9 (S.D.N.Y.
Oct. 3, 2022). Moreover, there was no due process violation
because the photographs were at least arguably relevant to show
that Dorcinvil changed his appearance after Claudette’s murder,
thus evincing consciousness of guilt; however, the photographs
were also insufficiently material to form the basis of

Dorcinvil’s conviction in light of the overwhelming evidence
against him. Thus, Dorcinvil’s claims as to the trial exhibits
cannot support habeas relief.
C. Joinder
Dorcinvil claims he was denied a fair trial because the
trial court denied his motion to sever the charges and instead
conducted a single trial regarding the January 2007 and May 2007
incidents. (Pet. 11(A); see Voir Dire Tr. 2:22–6:6.) The court
explained that the May 2007 incident related to the January 2007
incident because it involved Dorcinvil’s violation of the orders
of protection that resulted from the January 2007 incident.
(Voir Dire Tr. 6:21–7:12.) The court further explained that two

trials would require B.M., a minor who had moved out of state,
to return to New York twice to testify, and that the court would
not permit that result. (Id. 7:13–15.)
Dorcinvil raised this claim in his direct appeal, and the
Appellate Division rejected it on the merits. See Dorcinvil,
122 A.D.3d at 877. Dorcinvil did not raise the claim in either
of his state court motions to vacate. (Pet. 11(A).) This Court
thus reviews the Appellate Division’s decision on Dorcinvil’s
direct appeal, the last reasoned state court decision addressing
this ground for relief after the New York Court of Appeals
declined discretionary review. See McCray, 45 F.4th at 640.
The state court did not contradict or unreasonably apply

federal law in rejecting Dorcinvil’s prejudicial joinder claim.
A state court’s decision whether to join or sever charges is a
matter of state law that generally cannot support habeas relief.
Prejudicial joinder amounts to a constitutional violation only
when it renders the petitioner’s trial fundamentally unfair in
violation of federal due process. Herring v. Meachum, 11 F.3d
374, 377 (2d Cir. 1993); accord Fields v. N.Y.S.D.O.C.C.S.,
No. 20-cv-9 (PKC), 2023 WL 6292479, at *9 (E.D.N.Y. Sept. 27,
2023). To prevail, the petitioner must show actual prejudice
resulting from the joinder, not just the potential for
prejudice. Fields, 2023 WL 6292479, at *9. Moreover, a state
court may constitutionally consider matters of judicial
convenience in deciding to join charges. Conroy v. Racette,

No. 14-cv-5832 (JMA), 2017 WL 2881137, at *13 (E.D.N.Y. July 6,
2017).
Here, Dorcinvil fails to establish that he suffered actual
prejudice from the joinder. The charges stemming from the May
2007 murder of Claudette and stabbing of B.M. “inextricably
related” to the charges stemming from the January 2007 assault
of Claudette and B.M. because Dorcinvil’s contact with the
victims in May 2007 violated the order of protection that was
issued in response to the January 2007 incident and thus formed
the basis for the criminal contempt charges. (See Trial Tr.
524:12–19); Fields, 2023 WL 6292479, at *10. Further, it was

appropriate for the state trial court to have considered the
fact that B.M., a minor witness who had moved out of state,
would have had to return to New York to testify if there were
two trials. See Conroy, 2017 WL 2881137, at *13. Thus, the
trial court’s denial of Dorcinvil’s motion to sever did not
violate due process and Dorcinvil may not obtain habeas relief
on this ground.
D. Suppression Ruling
Dorcinvil claims the state trial court unconstitutionally
permitted the State to elicit suppressed statements on direct
examination. (Pet. 11(A)–(B).) Before trial, the State
conceded that two of Dorcinvil’s post-arrest statements were

obtained illegally and agreed only to introduce those statements
to impeach Dorcinvil if he chose to testify. (See ECF No. 20-1
pp. 1–72, Hr’g Tr., 4:2–13, 68:6–70:14.) The statements
concerned the route Dorcinvil took to travel from New York City
to Miami and Dorcinvil’s theory that another man stabbed
Claudette and B.M. (Id. 46:13–47:20.) The trial court appears
to have acknowledged the State’s concessions without explicitly
ruling that Dorcinvil’s statements were obtained
unconstitutionally. (See id. 4:14, 68:6.) The State sought a
ruling that the statements were not coerced and thus usable for
impeachment, and the state trial court agreed to make that
ruling. (Id. 70:15–71:1.)

At trial, the State elicited the following testimony from
Detective Perry on direct examination, which Dorcinvil alleges
violated the trial court’s “suppression” ruling:
Q. What did you do in Miami, Florida?
A. I transported Jacques [Dorcinvil] back to New
York.
Q. Did you learn how he came to be in Florida or –
did you learn how he came to be in custody in
Florida[?]
MR. BANDELLI: Objection.
A. Yes.
THE COURT: Overruled.
Q. How is that?
A. He walked into the consulate looking for a
passport.
Q. Did you eventually place Jacques [Dorcinvil] under
arrest?
A. Yes, I did.
(Id. 462:25–463:14; see Pet. 11(B).) This testimony does not
reveal the route Dorcinvil took to travel from New York to
Florida.
Dorcinvil raised this claim in his pro se supplemental
brief in support of his direct appeal, (see Suppl. Appellate Br.
34–42), and the Appellate Division rejected it as “unpreserved
for appellate review and, in any event, without merit,”
Dorcinvil, 122 A.D.3d at 877. Dorcinvil did not raise this
claim in his state court motions to vacate. (Pet. 11(B).) This
Court thus reviews the Appellate Division’s decision on
Dorcinvil’s direct appeal, which was the “last reasoned state-
court decision to address” this ground for relief after the New
York Court of Appeals declined discretionary review. See
McCray, 45 F.4th at 640.

This claim is procedurally defaulted. The Appellate
Court’s conclusion that the claim was “unpreserved for appellate
review” invoked a procedural bar even if the court also
addressed the merits. See Carey, 2012 WL 37084, at *4 n.1
(explaining that a state court’s rejection of a claim on both
procedural and substantive grounds invokes a procedural bar if
phrased in the conjunctive rather than in the disjunctive).

Though the Appellate Division did not cite a precise procedural
ground, it need not do so, Simms v. Lilly, No. 21-cv-702 (PKC),
2022 WL 4451003, at *6 (E.D.N.Y. Sept. 23, 2022), and the Court
declines to conclude that the Appellate Division misapplied its
own procedural law when that court both explicitly invoked it
and had a valid justification. In its response to Dorcinvil’s
pro se supplemental appellate brief, the State noted that this
claim was “unpreserved for appellate review” because Bandelli
failed to state the grounds supporting his objection to the
testimony at issue and made no further application after the
trial court overruled the objection. (ECF No. 20-9, Resp’t’s
Br. in Reply to Def.’s Pro Se Suppl. Br. (“State’s Appellate
Br.”) 40.)10 The Court finds that the Appellate Division likely

relied on New York’s specific objection rule to find Dorcinvil’s
claim unpreserved. See N.Y. C.P.L.R. § 470.05(2); People v.
Britt, 145 N.E.3d 207, 213 (N.Y. 2019) (finding “one-word
objections, without any elaboration” insufficient to preserve

10 The State also suggested the claim was unpreserved for appellate review
because Bandelli did not seek to reopen the suppression hearing. (See
State’s Appellate Br. 39–40.) The Court declines to address that ground as
additional support for the Appellate Division’s conclusion due to the
relative dearth of federal habeas case law addressing it as a basis for
procedural default.
objection to trial testimony for appellate review); see also,
e.g., Anderson v. Martuscello, No. 17-cv-9638 (KMK), 2021 WL
4429333, at *12 (S.D.N.Y. Sept. 27, 2021) (relying on New York’s

specific objection rule to apply procedural default where
Appellate Division deemed petitioner’s claim “unpreserved for
appellate review” without specifying a procedural ground).
Dorcinvil has not argued there was good cause for or prejudice
resulting from the default here, nor has he established actual
innocence. Thus, Dorcinvil cannot prevail on this claim.
E. Missing Witness Instruction
Dorcinvil claims the state trial court denied him due
process and violated his rights under the Confrontation Clause
by refusing to give a missing witness instruction as to
Detective Briano, who investigated the January 2007 and May 2007
incidents but did not testify at the trial. (Pet. 11(B).) By
the time of Dorcinvil’s trial, Briano had retired from the

police force and moved out of state. (Trial Tr. 444:20–445:10.)
Dorcinvil raised this claim in his direct appeal, and the
Appellate Division rejected it, concluding that “[a]ny errors in
this regard were harmless, as there was overwhelming evidence of
[Dorcinvil’s] guilt and no significant probability that the
errors contributed to [Dorcinvil’s] convictions,” without
opining one way or the other whether the trial court did err,
Dorcinvil, 122 A.D.3d at 876–77. Dorcinvil did not raise this
claim in either of his motions to vacate. (Pet. 11(B).) This
Court thus reviews the Appellate Division’s decision on
Dorcinvil’s direct appeal, the last reasoned state court

decision addressing this ground for relief after the New York
Court of Appeals declined discretionary review. See McCray,
45 F.4th at 640.
The Appellate Division’s harmless error determination was a
merits adjudication. See Brown v. Davenport, 596 U.S. 118, 127
(2022). To obtain habeas relief in light of a state court’s
harmless error ruling, the petitioner must both overcome AEDPA
deference and satisfy the requirement the Supreme Court set
forth in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), of
establishing that the alleged error had a “substantial and
injurious effect or influence” on the trial’s outcome, Brown,
586 U.S. at 126–27. If a habeas claim falls because the
petitioner cannot show Brecht prejudice, “there is no need to

prolong the matter” by also conducting an AEDPA review of the
state court’s harmless error analysis. Id. at 138–39.
Dorcinvil cannot obtain habeas relief based on his missing
witness instruction claim because even assuming the trial court
erred in refusing to give such an instruction, Dorcinvil cannot
show that Brecht prejudice resulted from the alleged error. A
trial court’s erroneous refusal to give a missing witness
instruction is subject to a harmless error analysis, Johnson v.
Griffin, No. 13-cv-4337 (MKB), 2022 WL 3347771, at *13 (E.D.N.Y.
Aug. 12, 2022), as is a Confrontation Clause violation, United
States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004); accord Sims
v. Artus, No. 07-cv-6187 (JFB), 2019 WL 3718024, at *8 (E.D.N.Y.

Aug. 7, 2019). Thus, the Appellate Division’s decision must
stand unless the Court finds that the lack of a missing witness
instruction substantially influenced the verdict.
The lack of a missing witness instruction here had at most
a negligible effect on the verdict. First, there was
overwhelming evidence of Dorcinvil’s guilt. See Johnson,
2022 WL 3347771, at *14 (finding “any error in the refusal to
give a missing witness charge” harmless in light of overwhelming
evidence of guilt). As Dorcinvil argued on appeal, the only
disputed factual issue at trial was whether the State proved his
identity as the attacker beyond a reasonable doubt. (Appellate

Br. 50.) B.M. – with whom Dorcinvil lived for months before the
attacks – made an in-person identification of Dorcinvil and
testified in detail about Dorcinvil’s January 2007 and May 2007
attacks. (Trial Tr. 22:6–47:20.) B.M.’s testimony regarding
the May 2007 incident was corroborated by surveillance footage
showing a man, identified by Claudette’s landlord as Dorcinvil,
walking past Claudette’s dead body. (Id. 123:6–138:17.) B.M.’s
testimony was further corroborated by the admission of the
jacket Dorcinvil left at the scene, which had both victims’
blood on it, Dorcinvil’s DNA on the collar, and Dorcinvil’s
driver’s license and passport in its pockets. (Id. 296:2–8,
451:5–453:3.)

Additionally, though Briano was involved in the
investigation, most if not all of the testimony he might have
offered had he testified would have been cumulative with other
witnesses’ testimony, given that B.M. and other officers
involved in the investigation were called as witnesses. See
Page v. Conway, No. 10-cv-5264 (DAB) (KNF), 2013 WL 2896798, at
*9 (S.D.N.Y. May 3, 2013) (finding any possible error in “the
trial court’s refusal to give a missing witness jury
instruction” harmless “because the record did not provide any
basis for the jury to find that” the witness “possessed
material, non-cumulative information”), R&R adopted by 2014 WL
1877677 (S.D.N.Y. May 8, 2014). Moreover, the trial court

issued other instructions “mitigat[ing] against the absence of
the missing witness instruction,” including that the jurors were
required to “decide the case on the evidence alone without
speculating concerning matters not presented,” which
“specifically precluded” the jury from “speculating about what
[Briano] would have said had he testified.” See Johnson,
2022 WL 3347771, at *13; (Trial Tr. 512:14–23). Finally, the
trial court permitted Bandelli “to comment in summation about
[Briano’s] failure to testify,” which further “mitigate[d] the
impact of a failure to give a missing witness charge.” See
Johnson, 2022 WL 3347771, at *13; (Trial Tr. 481:11–21 (“Where
is Detective Briano? I have no idea. He’s not here. . . . Why

isn’t he here? Why isn’t he here?”), 482:16–18 (“There is a
reason you didn’t hear from Detective Briano. I don’t know what
it is, but he should have been here and that’s on them.”),
488:19–20 (“Where is Detective Briano? Where is he? He’s not
here.”), 496:12–13 (“[W]here is the Detective Briano? Where is
he?”), 497:20 (“Where is Detective Briano? Where is he?”)).
Because Dorcinvil cannot show that the lack of a missing witness
instruction substantially influenced the verdict in light of
these circumstances, he cannot show Brecht prejudice and thus
cannot obtain habeas relief on this ground.
F. “Prior Arrests” and “Complaints”
Dorcinvil claims he suffered due process and Confrontation
Clause violations when the trial court allowed Detective Perry

to testify that he discovered Dorcinvil had “past arrests” and
“complaints” after running an electronic background check on
him. (Pet. 11(B), 12(E).)11 Dorcinvil first raised this claim
in his direct appeal, and the Appellate Division rejected it
based on harmless error without opining whether the trial court
actually erred in admitting this testimony. See Dorcinvil,

11 Dorcinvil raises this claim twice in his Petition, citing it as both his
Eighth and Fourteenth ground for relief.
122 A.D.3d at 876–77. Dorcinvil did not raise this claim in
either of his state court motions to vacate. (Pet. 11(B),
12(E).) This Court thus reviews the Appellate Division’s

decision on Dorcinvil’s direct appeal, the last reasoned state
court decision addressing this ground for relief after the New
York Court of Appeals declined discretionary review. See
McCray, 45 F.4th at 640. As with Dorcinvil’s missing witness
instruction claim, (see supra pp. 46–47), the Appellate
Division’s harmless error ruling was a merits adjudication that
cannot be disturbed unless Dorcinvil can both show Brecht
prejudice and overcome AEDPA deference, see Brown, 586 U.S. at
126–27.
This claim fails because Dorcinvil cannot show Brecht
prejudice. As described above, (see supra pp. 48–49), the
evidence of Dorcinvil’s guilt was overwhelming. The allegedly

improper testimony, by contrast, consisted of just four lines in
a 537-page trial transcript. (Trial Tr. 457:21–24.) Given the
mass of specific evidence linking Dorcinvil to the crimes at
issue, Perry’s brief and general suggestion that Dorcinvil had
other encounters with law enforcement could not have
substantially influenced the verdict. Moreover, by the time
Perry offered this testimony, the jury had already properly
heard that Dorcinvil was arrested for the January 2007 incident
and had an order of protection entered against him, (see id.
471:16–22), which mitigated against the possibility the jury
might have speculated about other crimes Dorcinvil may have
committed. Thus, because Dorcinvil cannot show Brecht

prejudice, he cannot obtain habeas relief on this ground.
IV. Suppression of Exculpatory Evidence
Dorcinvil claims the State suppressed exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963). (Pet.
12(D); see Reply 49–55.) Dorcinvil first raised this claim in
his second state court motion to vacate, (see 2d 440 Mot. 22–
31), and the state trial court rejected it as “procedurally
barred because it relie[d] on a misapprehension of the facts,”
(D&O on 2d 440 Mot. 10). The court explained that the evidence
seized from Dorcinvil’s person during his arrest in Miami was
not introduced at trial. (Id.) Rather, the State showed
evidence recovered from the May 2007 crime scene itself weeks
earlier. (Id.) This Court reviews the trial court’s decision

on the second motion to vacate, the last reasoned state court
decision addressing this ground for relief after the Appellate
Division and New York Court of Appeals declined discretionary
review. See McCray, 45 F.4th at 640.
This claim is not procedurally defaulted. The state trial
court rejected the claim based on N.Y. C.P.L.R. § 440.30(4)(c),
which permits the court to reject a claim if “[a]n allegation of
fact essential to support the motion is conclusively refuted by
unquestionable documentary proof.” (See D&O on 2d 440 Mot. 11.)
A state court’s rejection of a claim based on Section
440.30(4)(c) is an adjudication on the merits, not an invocation
of a procedural bar. Giraldo, 2012 WL 3835112, at *8 (citing
Garcia, 104 F. App’x 776 at 779). Thus, the Court reviews the

claim on the merits, applying AEDPA deference.
The state trial court did not contradict or unreasonably
apply Brady. A Brady violation occurs when the prosecution
suppresses material exculpatory evidence. McCray, 45 F.4th at
641. Dorcinvil utterly fails to articulate how any of the items
seized from him during his arrest in Miami weeks after the May
2007 incident (a Bible, driver’s license, state identification
cards, debit card, business card, and sunglasses) and that were
never introduced at trial, (see D&O on 2d 440 Mot. 10),
constitute material or exculpatory evidence. Thus, Dorcinvil

cannot obtain habeas relief on this ground.
CONCLUSION
The Court respectfully denies Dorcinvil’s Petition and
dismisses this action with prejudice.
The Clerk of Court is respectfully requested to amend the
caption to reflect that Marlyn Kopp is the respondent, enter
judgment in favor of Kopp, serve a copy of this Memorandum and
Order and the judgment on Dorcinvil, note service on the docket,
and close this case.
In accordance with 28 U.S.C. § 1915(a) (3), the Court
certifies that any appeal from this order would not be taken in
good faith and thus denies in forma pauperis status for the
purposes of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).

SO ORDERED.
Dated: January 5, 2024 □□ f? YY, ——
Brooklyn, New York ww oe eS: Ltr
xitda. MATSUMOTO
United States District Judge
Eastern District of New York

54

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311046. Public record. Not legal advice.