James v. D'Amore

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHRISTOPHER E. JAMES,

Petitioner, MEMORANDUM & ORDER

22-cv-1120(KAM)

-against-

MICHAEL D’AMORE, Superintendent of

Marcy Correctional Facility1,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Petitioner Christopher James (“Petitioner”) currently

incarcerated in the custody of the New York State Department of

Corrections and Community Supervision, petitions for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. On October 26, 2018,

Petitioner was convicted after a jury trial of murder in the second

1 The proper respondent in a federal habeas action is the warden or

superintendent of the facility where the petitioner is currently in custody.

Green v. Lee, 964 F. Supp. 2d 237, 253 (E.D.N.Y. 2013). The original respondent

in this action was “Ms. Macintosh,” the Superintendent of Clinton Correctional

Facility when the action was filed. (See Pet. at 1.) The Court, upon the

motion of Petitioner, deems the Petition amended to change the respondent to

the Superintendent of Marcy Correctional Facility, where Petitioner is currently

held. (See ECF No. 35, Motion to Change Caption.) The Court retains subject-

matter jurisdiction because Petitioner was convicted and sentenced in the

Eastern District of New York. See 28 U.S.C. § 2241(d). The Court takes judicial

notice of the name of the current superintendent of Marcy Correctional Facility.

See Department of Corrections and Community Supervision Facilities:

https://doccs.ny.gov/location/marcy-correctional-facility (last visited

February 1, 2024).

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degree (N.Y. Penal Law § 125.25(1)). (See ECF No. 1, Petition for

Writ of Habeas Corpus (“Pet.”), at 1; ECF No. 15, State’s Affidavit

in Opposition (“State Opp.”), at ¶77.) On November 30, 2018, the

trial court sentenced Petitioner to an indeterminate prison term

of 25 years to life for the murder. (Pet. at 2.) The Petitioner

claims that (1) the trial court violated his constitutional right

to a speedy trial, (2) the trial court violated his constitutional

right to counsel by allowing him to represent himself pro se

despite his “distorted” state of mind, (3) his retrial following

an initial mistrial violated the double jeopardy clause of the

Fifth Amendment, (4) the trial court erroneously ruled on an

evidentiary issue between his first and second trial, (5) the trial

court denied his right against self-incrimination, and (6) he is

a sovereign and his arrest was a violation of federal law. (Pet.

at 5, ECF No. 6, Petitioner’s Letter2 (“Pet. Letter”), at 1-3.)

For the reasons set forth below, the petition is respectfully

DENIED.

2 In light of Petitioner’s pro se status, the Court construes Petitioner’s

subsequent letter as a supplement to the original petition, as opposed to a

second or successive habeas petition, and considers all of the claims raised in

both documents together, mindful of the mandate to liberally construe pro se

filings. Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

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BACKGROUND

I. Factual Background3

At trial, the prosecution presented evidence showing that on

February 10, 2010, Petitioner stabbed Kevin Pierson (“Mr. Pierson”

or the “victim”) to death inside his apartment at 4 Maple Wing

Drive, Central Islip, New York. (State Opp. at ¶¶8, 25.)

Subsequently, on February 12, 2010, a cousin of Mr. Pierson reached

out to relatives who lived nearby in Central Islip to alert them

that he had not heard from Mr. Pierson and asking if they could

check on him. (Id. at ¶23.) Mr. Pierson’s nephew went to his

apartment to check on him, and, upon finding the door unlocked,

opened the door and observed blood and a painting askew in the

foyer. (Id. at ¶24.) Mr. Pierson’s nephew alerted the police,

who subsequently arrived at the scene, found Mr. Pierson deceased,

and began their investigation. (Id. at ¶¶24-25.)

Among the items recovered from the crime scene was a jacket

with a knife sheath in the left pocket. (Id. at ¶40.) In addition,

the crime scene investigators found a sock-clad impression of a

footprint at the crime scene, which was made by an individual’s

bare foot with a sock on, stepping in a stain and leaving the

impression with a weave pattern of the sock. (Id. at ¶48.) To

3 Because Petitioner was convicted, the court summarizes the facts in the light

most favorable to the verdict. See United States v. Wasylyshyn, 979 F.3d 165,

169 (2d Cir. 2020) (citing Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012)).

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preserve the foot impression, one of the investigators took

examination-quality photographs with scales. (Id.) Investigators

also took DNA samples from the jacket with the knife sheath, and

specifically from a portion of the jacket not stained with blood:

the cuff. (Id. at ¶¶53-54.)

In 2013, Detective Michael Mahan of the Suffolk County Police

Department’s Homicide Squad received notice of a DNA match to

Petitioner on the jacket recovered at the crime scene. (Id. at

¶71.) Detective Mahan had previously spoken to an individual

claiming to be Petitioner in April 2010 while calling contacts on

the victim’s cell phone. (Id.) After conducting a background

investigation and learning of an address for Petitioner in

Binghamton, New York, the Suffolk County District Attorney’s

Office and Detective Mahan made the decision to arrest Petitioner.

(Id. at ¶73.)

On April 24, 2016, Detective Mahan and other officers from

the Suffolk County Police Department arrested Petitioner as he was

departing a residence in Binghamton, New York. (Id. at ¶¶9,75.)

Petitioner was provided Miranda warnings, brought first to the

Binghamton Police Department, and subsequently back to Suffolk

County to conduct post-arrest processing. (Id. at ¶¶10-12.)

During his transportation back to Suffolk County, Petitioner made

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several statements to investigators of his own accord, including

some that were inculpatory. (Id. at ¶¶12-17.)

II. Pre-trial Proceedings

A. Pre-trial Huntley Suppression Hearing

On November 29, 2016, Petitioner appeared with counsel in

County Court in Suffolk County for a Huntley hearing regarding

Petitioner’s motion to suppress his conversations with Detective

Mahan on April 7, 2010, and April 24, 2016. (ECF No. 18-13,

Huntley Hearing Transcript (“Huntley Tr.”), at 2-3.)4 Detective

Mahan provided testimony recounting his conversations with

Petitioner on both dates. (Id. at 6-24.)

Detective Mahan testified that he responded to the crime scene

in Central Islip on February 12, 2010, and subsequently examined

the phone of the victim, Mr. Pierson. (Id. at 7-8.) Mr. Pierson

had called a contact, “Briss,” nine times on February 10, 2010,

and texted the contact 14 times on the same day. (Id. at 8.)

Detective Mahan called the contact on April 7, 2010, and eventually

received a call back later that day from the same number. (Id. at

9-10.) Detective Mahan testified that the individual returning

his call said his name was Christopher James, and that he was 19

years old. (Id. at 10.) Detective Mahan described the

conversation with Petitioner on April 7, 2010 as follows:

4 All pin citations to the record refer to the page number assigned by the

court’s CM/ECF system.

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I told him I wanted to speak to him about Kevin

[Pierson], if he knew Kevin [Pierson]. He said he did.

He said he had met him the prior summer. He said he

used the nickname or went by the nickname of Web. . . .

I asked him when he first met with Mr. [Pierson]. He

said he first met Mr. [Pierson] at a club in downtown

Brooklyn called the Brooklyn House. And he had said he

had never been to Mr. [Pierson]’s place. He said the

last time he spoke with Mr. [Pierson] was in February,

that past February. He said it was the day of the

blizzard. He said it was 3 or 4:00 in the afternoon. He

said that Mr. [Pierson] called him looking for company

and was looking for somebody to hang out. And he said

that he told him, no, he wasn't going out.

(Id. at 10-13.)

Detective Mahan further testified that the next time he spoke

with Petitioner was April 24, 2016. (Id. at 13.) Detective Mahan

explained that he spoke with Petitioner on that day as he was

arresting him in Binghamton, New York, and subsequently in the

police vehicle as the police transported Petitioner back to Suffolk

County. (Id. at 13-14.) Detective Mahan testified that he read

Petitioner his Miranda rights, from a pre-printed form, and that

Petitioner responded as follows:

At that point Mr. James stated, "I don't need a lawyer,

I didn't do anything wrong." So at that point I

proceeded with the waiver questions.

"Do you understand each of these rights I've explained

to you?["] His answer was yes. The second question,

"Having these rights in mind, do you wish to talk to me

now?" At which point he said, "I don't think I want to

talk to you right now."

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(Id. at 15-18.) Detective Mahan testified that he then had

Petitioner sign the rights warning, and they began the drive from

Binghamton to Long Island. (Id. at 18-19.)

Detective Mahan testified that Petitioner made the following

statements while in the police vehicle:

I initially spoke with Mr. James and told him that I

knew that he was involved in the death of Mr. [Pierson]

and I was hoping that he would speak with me and tell me

what happened.

Basically, he remained silent and looked out the window

for a period of time. And the first thing that he said

to me was, "Why did I have that girl's picture?" And he

was referring to a picture of a female that I had

obtained from the Binghamton Police Department. And it

was a picture of a female that he had had a prior

domestic incident with several months prior.

I told him that I had the picture because I had

information that was his girlfriend. He said that wasn't

his girlfriend. He said she was pregnant with his baby.

It was his first child. He said that she was due in a

couple of months and that she was nothing to him.

He said that he had called the police to get her taken

-- to have her removed from his house. And she had told

the police or made [] up a story and he was the one that

wound up getting arrested.

Q. What transpired next in the vehicle?

A. After another period of silence, Mr. James turned

around, looked at me, and asked me if I thought that I

had — if he had killed Mr. [Pierson].

Q. What specifically did he say to you?

A. "You think I killed him," at which time I told him

yes. I told him I didn't know the reason why. I had a

theory as to why, but unless he told me, I would not

know for sure.

At that point, he asked me "What's my theory?" So I

proceeded to tell him what my theory was.

Q. What did you tell him?

A. I told him that I knew that Mr. [Pierson] was

bisexual. I knew that based upon prior — the prior

telephone conversation that I had with him in the past,

meaning, Mr. James, where he said that Mr. [Pierson] had

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invited him to his place on several occasions. I thought

that he went to his residence under the pretense that he

was going to hang out with some females. And upon

arriving there, Mr. [Pierson] made sexual advances

towards him and things went horribly wrong.

Q. What was his reaction to your theory?

A. As I was speaking to him, he was nodding his head in

acknowledgment, tears welled up in his eyes. And he

said, "That's a great theory. I don't have to tell you

nothing. You know everything that happened."

Q. What happened then?

A. At that point I asked him if he wanted to tell me

what did, in fact, happen and expand on it. And he just

looked out the window and sat in silence for another

period of time.

Q. And approximately how long did he sit in silence?

A. I would say probably 20 minutes to a half an hour.

Q. And what is the next thing that occurred in the

vehicle?

A. The next thing was he turned around and asked me,

["]Am I being charged with murder?["] And I told him,

Yes, he was. At which point he made denials saying,

["]I wasn't there, I was never there.["]

At that point I asked him if he knew what DNA was? He

didn't answer verbally. He just shook his head and

acknowledged what it was. And I told him that I knew it

was a lie, that he was not there, because his DNA was

recovered at the crime scene.

Q. What did he say to that?

A. His response was, ["]Oh, shit.["] And then he said,

["]How can I be charged with murder if no weapon was

recovered?["]

Q. And what did you say in response to his statement

that how could he charged with murder if no weapon was

recovered?

A. I said — I asked him ["]why would you think that no

weapon was recovered?["] I had never mentioned anything

about that previously to him. And he just sat in

silence.

(Id. at 19-23.) Detective Mahan continued his testimony by

describing the remainder of his conversation with Petitioner,

which was not directly related to Mr. Pierson’s death, and closed

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by noting that he arrived in Suffolk County with Petitioner at

9:06pm. (Id. at 23-25.) No further conversation regarding the

events of February 2010 occurred after that point. (Id. at 25.)

The County Court, after the conclusion of the hearing, issued

a written decision and order finding the statements made by

Petitioner admissible at trial. (ECF No. 18, State Court Record

Part I (“Record Pt. I”), at 66.) The County Court found that both

of the statements “were made spontaneously by the defendant” and

“were not the result of custodial interrogation.” (Id. at 68.)

Continuing, the County Court found that the Detective “did not

physically force the defendant to waive his rights, did not

threaten or try to coerce the defendant into making the statements,

and made no promises to the defendant which may have created a

substantial risk that the defendant might falsely incriminate

himself.” (Id. at 68-69.) Accordingly, the County Court found

the statements would be “admissible at trial.” (Id. at 69.)

B. Petitioner’s First Trial

The Petitioner’s first trial began with jury selection on

September 18, 2017. (See generally ECF No. 18-2, Trial Transcript

for September 18, 2017.) Petitioner was represented by counsel

during this trial, and the jury began deliberations on October 4,

2017. (ECF No. 18-10, Trial Transcript for October 4, 2017, at

166.) On October 6, 2017, at 4:03pm, the jury sent a note informing

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the trial court that they could not reach a verdict. (ECF No. 18-

30, Trial Transcript for October 6, 2017, at 18.) With the consent

of the parties, the trial court read the jury what is referred to

as the “Allen charge” in New York state court, instructing them to

continue their deliberations. (Id. at 18-23.) Two jurors

subsequently indicated that they could not continue deliberating

due to work obligations, and the Petitioner, through counsel,

consented to discharge and release those two jurors, putting in

place Alternates Number 1 and Number 2, instead. (Id. at 28-33.)

The trial court explained to the jurors that they would begin

deliberations “from scratch[,] from day one” when they returned on

October 10, 2017. (Id. at 37-38.)

The trial court further charged the jury when they began

deliberations on October 10, 2017, explaining to them that they

must began their deliberations “anew, providing [the alternate

jurors] an opportunity to participate fully in the deliberations

as to each count as well as the verdict.” (ECF No. 18-31, Trial

Transcript for October 10, 2017, at 4.) The next day, on October

11, 2017, the trial court held a conference in chambers with

counsel for the prosecution and the defense, as well as a court

reporter. (ECF No. 18-32, Trial Transcript for October 11, 2017,

at 2.) The trial court had one of the jurors on the phone, who

was calling from the hospital. (Id.) The juror was not sure if

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she would be able to resume deliberating and explained that she

planned to call after speaking with her doctor to update the trial

court. (Id. at 7.)

The trial court asked Petitioner and his counsel what they

wished to do with respect to the remaining alternate jurors. (Id.)

Petitioner’s counsel requested that the alternates be discharged,

as Petitioner would not consent to either of the remaining two

alternates replacing the juror who had called from the hospital.

(Id. at 7-8.) The two remaining alternates were discharged, and

the parties subsequently held another conference when the ill juror

called back with her doctor’s instructions. (Id. at 9-16.) The

juror noted that her doctor did “not want [her] to return to jury

duty” and recommended that she see a cardiologist. (Id. at 16-

17.) Subsequently, in open court, the trial court explained to

the parties how he planned to proceed:

We are in a position where clearly [Juror Number 9], is

incapacitated and physically unable to proceed with this

trial. So even without an application by either side,

I'm in a position where I need to declare a mistrial in

this case.

Anybody wish to be heard further before we bring the

jury out?

(Id. at 21.) After neither side expressed a wish to be heard, the

trial court declared a mistrial and discharged the jury. (Id. at

23-24.)

C. Matters before Petitioner’s Second Trial

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Following Petitioner’s first trial ending in a mistrial,

defense counsel asked for permission to be relieved, and was

replaced with substitute court-appointed counsel with Petitioner’s

consent. (ECF No. 18-12, Hearing Transcript for October 18, 2017,

at 8-9.) The prosecution subsequently moved the trial court for

an order pursuant to New York Crim. Proc. Law (“CPL”)

240.40(2)(b)(v) compelling Petitioner to permit the taking of foot

impressions on January 26, 2018. (Record Pt. I, at 121.)

Petitioner, through counsel, opposed the motion, but the trial

court granted the prosecution’s motion for foot impressions on

February 13, 2018, finding that probable cause existed to believe

that Petitioner committed the crime, and there was a clear

indication that relevant material evidence would be found. (Id.

at 121-22.) The trial court further explained that it found “a

comparison of the defendant's foot impressions with the evidence

obtained from the crime scene-photographs of sock clad bloodied

footprints-will yield probative material evidence, whether is it

inculpatory or not.” (Id. at 122.)

The proceedings were subsequently adjourned on several

occasions at Petitioner’s request. (Id. at 1-2.) On May 9, 2018,

defense counsel requested to be relieved, noting that he had

discussed the topic with Petitioner. (ECF No. 18-19, Hearing

Transcript for October May 9, 2018, at 3.) Petitioner confirmed

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that he had been able to discuss the topic with his counsel, and

explained that defense counsel “told [Petitioner] that he [has]

family issues going on so he might be relieved on [Petitioner’s]

case.” (Id.) As the trial court began to explain that replacement

counsel had been arranged for Petitioner, Petitioner interjected:

“I can represent myself.” (Id. at 3-4.) The trial court stated,

“I don’t think that’s a good idea” but Petitioner reiterated his

request. (Id. at 4.) The court continued and stated that he would

schedule a subsequent hearing for May 14, 2018, where the newly

appointed counsel would be present, and Petitioner could speak

with him on the topic. (Id. at 5.)

On May 14, 2018, Petitioner had the opportunity to speak to

newly appointed defense counsel, but maintained that he wished to

proceed pro se. (ECF No. 18-20, Hearing Transcript for May 14,

2018, at 2-3.) The trial court explained to Petitioner the dangers

of proceeding in such a manner, and the following discussion took

place:

THE COURT: Listen, you sat here throughout -- you sat

here throughout that trial. You saw what is necessary

to represent somebody. And although you're probably an

intelligent young fellow, you're not a lawyer, and you

really don't know -even though you have been through the

trial once and you know basically what is coming, there

[are] some additional things that have taken place since

the trial ended that, quite frankly, only a lawyer has

the ability to comprehend. So I just think it's a bad

idea for you to represent yourself.

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THE DEFENDANT: Can I say this, your Honor? I remember

when you charged the jury you said me, the defendant,

doesn't have to disapprove or approve of anything --

THE COURT: You don't have to prove or disprove anything.

THE DEFENDANT: -- it's all on the DA.

THE COURT: Yes.

THE DEFENDANT: So let the burden remain on her. I just

want to go to trial. That's what I want to do.

(Id. at 3-4.) After further discussion about Petitioner’s desire

to proceed to trial, the trial court explained that the parties

would discuss the matter further at a conference on May 16, 2018.

(Id. at 8.)

At the conference on May 16, 2018, the trial court explained

to Petitioner, after confirming he still wished to proceed pro se,

that “before permitting you to give up that right and proceed as

your own lawyer, I must decide whether you fully understand the

significance and consequences of doing so.” (ECF No. 18-21,

Hearing Transcript for May 16, 2018, at 6.) The trial court

allocuted the Petitioner by inquiring as to Petitioner’s

educational background, employment history, medical history, and

further discussed the “the dangers of proceeding without a lawyer

and the reasons our law favors that you be defended by a lawyer.”

(Id. at 6-10.) The trial court further explained the disadvantages

Petitioner would face, and asked if Petitioner understood. (Id.

at 10-13.) The trial court particularly emphasized the following:

THE COURT: In particular, it is difficult to deliver an

opening and summations where you'll likely have to speak

about your alleged conduct and in doing so, you run the

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risk of saying something in such a way as to make it

appear you are guilty.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Likewise, a defendant who represents himself

and must ask questions about his conduct runs the risk

that he will frame a question in such a way as to make

it appear he's guilty.

Do you understand that?

THE DEFENDANT: Yes.

(Id. at 13-14.) The trial court continued with the examination,

and further warned Petitioner regarding the risks of self-

representation. (Id. at 14-27.) The trial court concluded by

stating to Petitioner that “you seem to me to be an intelligent

individual, and you're making a decision that is not terribly

intelligent [to proceed pro se], that's my concern. Would you

reconsider at all?” (Id. at 25.) Petitioner replied, “I wish not

to.” (Id.) At the conclusion of the hearing, the trial court

scheduled a subsequent hearing for May 21, 2018, to discuss timing

for Petitioner’s second trial. (Id. at 28-31.)

Subsequent hearings were held to ensure that Petitioner had

access to his case file as well as a legal advisor. At the final

pre-trial conference prior to Petitioner’s second trial, on

September 10, 2018, Petitioner raised two concerns with the trial

court. (ECF No. 18-26, Hearing Transcript for September 10, 2018,

at 3.) First, Petitioner claimed that his right to a speedy trial

had been violated because more than 180 days had elapsed since

October 18, 2017. (Id. at 3-5.) Second, Petitioner argued that

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his double jeopardy rights were being violated because jeopardy

had attached in the first trial. (Id. at 6-7.) The trial court

explained that Petitioner was “[w]rong” and noted that the trial

would go forward. (Id. at 7.)

D. Petitioner’s 2018 42 U.S.C. § 1983 Complaint

While awaiting his second trial, Petitioner filed a pro se

complaint in federal district court for the Eastern District of

New York against Suffolk County and the “S.C. Homicide Section”

pursuant to 42 U.S.C. § 1983. James v. Suffolk County, No. 18-

CV-2826 (JFB), 2018 WL 10162136, at *1 (E.D.N.Y. Oct. 11, 2018).

The district court granted Petitioner in forma pauperis status to

proceed, but dismissed his complaints, noting that “there are

simply no facts from which the Court could reasonably construe a

policy or practice of denying timely trials to pretrial detainees”

and “even if the Court were to construe the complaint as against

the Suffolk County District Attorney, plaintiff's claims would be

barred by the Eleventh Amendment and absolute prosecutorial

immunity.” Id., at *3. Accordingly, Petitioner’s complaint was

dismissed without leave to amend. Id. at *4.

III. Trial

Jury selection for Petitioner’s second trial began on

September 26, 2018, and concluded on October 15, 2018, at which

point the trial began. ((ECF No. 18-27, Trial Transcript for

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September 26; ECF No. 18-33, Trial Transcript for October 15,

2018.) Petitioner gave an opening statement in which he stated

the following:

My name is Christopher James. Basically you know I'm on

trial fighting for my life for murder in the second

degree.

Basically when I was arrested April 24, 2016, in the

comfort of my home, minding my business, walked out the

door and was grabbed and taken from my comfort zone to

deal with the problem we're facing today. But, I would

like you to know before that I was in school, going to

college for music and sound engineering, in which I have

13 college credits, and still trying to pursue that

dream. And I am also a founder of the Almighty King

Queen Nation, in which me, King Stone, and Queen Stone,

are the organizers and supervisors of that open society.

Basically it's all about human consciousness from Earth

to Heaven and enlighten everybody to the universal laws

and the true wisdom of God. It's very powerful. It's

very true. Very real. I would like to also pursue that

dream as well.

As far as what's going on and why everybody is here

today, honestly, I am not guilty of this crime. I knew

the victim. We were acquaintances. I wouldn't say we

were very close, you know, but, um, I knew him, and

unfortunately things happened in which now I'm being

blamed for, but I can promise you that I had nothing to

do with it and I had no knowledge of it happening.

Basically I just want you all to look at the evidence

for what it is and make a very conscious decision when

it's time for you.

Thank you.

(ECF No. 18-33, Trial Transcript for October 15, 2018, at 54-55.)

Petitioner continued to represent himself throughout the trial,

although the trial court appointed a legal advisor to assist him

with any questions he might have regarding the law. Petitioner

cross-examined witnesses and otherwise participated in the trial,

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although in one instance, he was admonished by the trial court for

asking a witness whether she was “gay” and other inappropriate

questions. (ECF No. 18-35, Trial Transcript for October 18, 2018,

at 148-49.) Following the trial court’s admonition, Petitioner

generally complied with the trial court’s directives.

At the conclusion of the prosecutor’s case, Petitioner moved

to dismiss for failure to present legally sufficient evidence,

which the trial court denied. (ECF No. 18-39, Trial Transcript

for October 24, 2018, at 36-37.) Petitioner subsequently offered

a summation of two words: “Evil lives.” (Id. at 53.) Following

the prosecution’s summation and the trial court’s charge, the jury

began deliberations on October 26, 2018, and reached a verdict of

guilty the same day. (ECF No. 18-40, Trial Transcript for October

26, 2018, at 39.)

IV. Verdict and Sentence

On October 26, 2018, the jury found Petitioner guilty on the

sole count of the indictment, murder in the second degree. (Id.

at 44.) On November 30, 2018, the trial court sentenced Petitioner

to an indeterminate sentence of 25 years to life imprisonment.

(ECF No. 18-14, Sentencing Transcript, at 10-11.)

PROCEDURAL HISTORY

I. State-Murder Conviction Direct Appeal

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Petitioner, represented by counsel, appealed his conviction

to the Appellate Division, Second Department, arguing that (1) the

hearing court improperly denied suppression of his statements to

law enforcement officials made during transportation; (2) his

guilt was not proven beyond a reasonable doubt and the verdict was

against the weight of the evidence; (3) his retrial was barred by

double jeopardy because no demonstration of “manifest necessity”

was made prior to the declaration of a mistrial in his first trial;

(4) the trial court abused its discretion in reconsidering an

evidentiary ruling made during his first trial and admitting only

a subset of text messages into evidence at retrial; (5) the trial

court erred in directing him to provide foot impressions for

forensic analysis; and (6) the trial court erred in allowing him

to proceed pro se and failing to order a CPL article 730

examination to determine his competency to waive counsel. (State

Opp. at ¶78.) Petitioner submitted a supplemental pro se brief

raising two additional arguments: (1) he was denied his right to

a speedy trial; and (2) the prosecutor’s summation was improper.

(Id.)

On December 1, 2021, the Appellate Division unanimously

affirmed the judgment of conviction and sentence. People v. James,

157 N.Y.S.3d 307 (2d Dep’t 2021). First, the Appellate Division

agreed with the trial court’s decision to deny suppression of

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Petitioner’s statement made during transportation and after the

administration of Miranda warnings:

The defendant initiated conversation with detectives

after invoking his right to remain silent, and

inculpated himself by asking a question which betrayed

his knowledge of an essential fact not disclosed by the

police. Contrary to the defendant's contention, his

statements during transport were volunteered or

spontaneous, and not the product of police conduct or

questioning which reasonably could be expected to elicit

an inculpatory response from him.

Id. at 308. Second, the Appellate Division held that Petitioner’s

“contention that there was legally insufficient evidence to

support his conviction is unpreserved for appellate review” but

that regardless, “viewing the evidence in the light most favorable

to the prosecution, we find that it was legally sufficient to

support his conviction.” Id. (citation omitted). Continuing, the

Appellate Division stated that “[u]pon reviewing the record here,

we are satisfied that the verdict of guilt was not against the

weight of the evidence.” Id.

Third, the Appellate Division held that Petitioner “failed to

preserve for appellate review his contentions that a demonstration

of ‘manifest necessity’ was required prior to the declaration of

a mistrial in his first trial,” to prevent his retrial from being

barred, but that such contentions were nonetheless “without

merit.” Id. Fourth, The Appellate Division found that the trial

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court did not err in revisiting evidentiary rulings made during

the first trial prior to the retrial:

The Supreme Court providently exercised its discretion

in reconsidering an evidentiary ruling made during the

defendant's first trial regarding text messages between

the defendant and the victim, and in granting the

People's application to admit only certain of those text

messages into evidence at the retrial. The subject text

messages were probative of the victim's state of mind

and, thus, of the defendant's motive for killing the

victim. The defendant failed to establish that the text

messages between the defendant and the victim that the

court excluded at the retrial were relevant to a material

fact, or otherwise met an exception to the rule against

hearsay.

Id. at 309 (citations omitted).

Fifth, the Appellate Division found that Petitioner’s

“contention that his waiver of the right to counsel was not

knowing, voluntary, and intelligent is without merit.” The

Appellate Division explained its reasoning as follows:

Here, the County Court engaged in a “searching inquiry”

to clarify that the defendant understood the

ramifications of proceeding pro se before accepting the

defendant's waiver. The defendant's further contention

that the court erred in failing to order a CPL article

730 examination to determine his competency to waive

counsel is likewise without merit. A defendant's mental

capacity may be taken into account in determining

whether to permit the defendant to proceed pro se

“although the trial court need not conduct a formal

‘competency’ hearing prior to adjudicating a self-

representation request”. In view of the record as a

whole, the court had no reason to believe that the

defendant suffered from a mental illness that affected

his ability to waive counsel and proceed pro se.

21

Id. (citations omitted). Finally, the Appellate Division held

that the Petitioner’s “remaining contentions, including those

raised in his pro se supplemental brief, are unpreserved for

appellate review and, in any event, without merit.” Id.

On February 10, 2022, the New York Court of Appeals denied

Petitioner’s application for leave to appeal. People v. James,

184 N.E.3d 851 (N.Y. 2022) (Garcia, J.).

II. Petitioner’s N.Y. Crim. Proc. Law § 440.10 Motions

On January 18, 2019, Petitioner filed his first motion under

CPL § 440.10(1)(h) to vacate his judgment of conviction (“First §

440.10 motion”). (ECF No. 18-1, State Court Record Part II

(“Record Pt. II”), at 152-61.) Petitioner asserted that he had

been denied the right of effective assistance of counsel in

violation of the Sixth and Fourteenth Amendments, and specifically

that he had a “lack of pre-trial hearings (only had a Huntley

hearing), lack of communication, lack of knowledge on the law,

lack of assistance from counsel.” (Id. at 152-56.) Defendant

further claimed that he was denied effective assistance of counsel

due to his pro se status and lack of knowledge regarding the law.

(Id. at 156.)

By its Order dated March 7, 2019, the trial court denied

Petitioner’s First § 440.10 motion. (Record Pt. I at 118.) The

Court found that the defendant had a legal advisor present at all

22

times during the trial who he could have consulted with, was

properly advised of the risks of proceeding pro se but chose to do

so anyway, and could not subsequently claim he was denied effective

assistance of counsel due to his own legal representation. (Id.)

Petitioner subsequently brought a second CPL § 440.10 motion

(“Second § 440.10 Motion”) on March 4, 2019. (Id. at 114.)

Petitioner claimed that he was “mentally unstable and was not in

my right [state] of mind to undergo a trial, especially as my own

lawyer.” (Id.) Petitioner further stated that he suffered from

bipolar disorder, social anxiety disorder, post-traumatic stress

disorder, and schizophrenia, and was hospitalized in 2010 and 2012

for behavioral problems. (Id. at 114-15.) Petitioner offered

examples of his behavior at trial, including asking a witness on

cross-examination if she was gay, as evidence that he was mentally

incompetent at trial. (Id.) Petitioner also requested an

examination pursuant to CPL § 730.30. (Id.)

By Order dated August 1, 2019, the trial court denied

Petitioner’s Second § 440.10 motion. (Id. at 119.) The trial

court noted that Petitioner had failed to sustain his burden of

establishing that he was mentally incompetent at trial. (Id.)

The trial court continued:

The fact that some of the defendant's behavior during

the trial may have been inappropriate, does not

establish that the defendant was mentally incompetent.

Furthermore, prior to proceeding pro se, this Court

23

properly advised the defendant of all of the risks of

proceeding pro se and conducted a searching inquiry to

make sure that the defendant's waiver of his right to

counsel was knowing, intelligent, and voluntary. In

doing so, the Court advised the defendant numerous times

of the dangers and disadvantages of proceeding pro se.

However, the defendant continued to assert that he

wished to proceed pro se. At no time during this

searching inquiry did the defendant appear to be

mentally incompetent.

(Id.) Regarding Petitioner’s request for an examination pursuant

to CPL § 730.30, the trial court also denied it based on the

following findings:

Where a court is of the opinion that a defendant may be

incapacitated and unable to understand the proceedings

or assist in his own defense, it must order that the

defendant be examined pursuant to CPL 730.30. Here,

there was never any request made by the defendant or his

legal advisor, or by the defendant's attorney in his

first trial, which ended in a mistrial, for such an

examination. Furthermore, during the searching inquiry

conducted by this Court after the defendant insisted

upon representing himself at trial, the defendant

appeared competent as he understood everything the Court

asked him, and even communicated well with the Court.

Therefore, a CPL 730.30 exam was unwarranted and

continues to be unwarranted.

(Id. (citations omitted).) The trial court rejected Petitioner’s

contention that he had ineffective assistance of counsel as barred

under CPL § 440.10(3)(b) because it had been raised and denied in

Petitioner’s First § 440.10 Motion. (Id.) Petitioner was denied

leave to appeal by the Appellate Division on May 22, 2020, and his

application for leave to appeal the Appellate Division’s order was

24

dismissed by the Court of Appeals on August 25, 2020. (State Opp.

at ¶84.)

Petitioner subsequently brought a third CPL § 440.10 motion

(“Third § 440.10 Motion”) dated December 30, 2019. (Record Pt. II

at 40.) Petitioner claimed that his conviction should be vacated

on the grounds that his constitutional and state statutory right

to a speedy trial was violated, and that his re-trial violated his

constitutional right against double jeopardy. (Id.) The state

responded in opposition on October 19, 2020. (Id.)

By its Order dated January 19, 2021, the trial court denied

Petitioner’s Third § 440.10 motion. (Id. at 41.) The trial court

noted that Petitioner currently had an appeal pending before the

Appellate Division which raised the double jeopardy claim, so the

motion must be denied with respect to that contention pursuant to

CPL § 440.10(2)(b). Regarding Petitioner’s speedy trial claims,

the Court noted that because “the defendant failed to raise this

issue in his first two prior motions to vacate his judgment of

conviction, the Court denies defendant's motion based on this

ground. In any event, since the right to a speedy trial is a

record based claim, it is something that should be raised on a

direct appeal, and not before this Court.” (Id. (citing CPL §

440.10(2)(b)).)

III. Habeas Corpus Petition

25

On February 28, 2022, Petitioner filed this petition, raising

a subset of the claims raised on appeal: (1) the trial court

violated his constitutional right to a speedy trial, (2) the trial

court violated his constitutional right to counsel by allowing him

to represent himself pro se despite his “distorted” state of mind,

(3) his retrial following an initial mistrial violated the double

jeopardy clause of the Fifth Amendment, (4) the trial court

erroneously ruled on an evidentiary issue between his first and

second trial, (5) the trial court denied his right against self-

incrimination, and (6) he is sovereign and his arrest was a

violation of federal law. (Pet. at 5, Pet. Letter at 1-3.)

On July 8, 2022, Respondent filed an affidavit in opposition

to the petition, (State Opp.), as well as a memorandum of law,

(ECF No. 16, State’s Memorandum of Law in Opposition (“State

Mem.”)). On July 15, 2022, Petitioner filed a reply noting that

he chose not to make any reply to the Respondent, placing his

“faith in the record as it is.” (ECF No. 23 (“Pet. Reply”), at

1.) Petitioner subsequently moved on July 29, 2022, to be released

on bond pending this Court’s adjudication of his habeas petition,

(ECF No. 24), which this Court denied on October 9, 2022, (Docket

Order dated October 9, 2022). Petitioner subsequently moved for

discovery, (ECF No. 28), which was denied, and renewed his motion

to be released on bond, (ECF No. 29), which was again denied on

26

November 2, 2022. Petitioner subsequently submitted other filings

to this Court to serve as “evidence” of his mental health, and

specifically regarding his disciplinary issues while incarcerated.

(ECF Nos. 31, 32, 33, 34, 36.)

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) requires a federal court reviewing a state prisoner's

habeas petition to give deference to a state court's decision on

the merits. 28 U.S.C. § 2254(d). A federal court may not issue

a writ of habeas corpus unless the state court's decision was

“contrary to, or involved an unreasonable application of, clearly

established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” Id.; see also Johnson v. Williams,

568 U.S. 289, 292 (2013); Chrysler v. Guiney, 806 F.3d 104, 116-

17 (2d Cir. 2015).

For the purposes of federal habeas review, “clearly

established law” means “the holdings, as opposed to the dicta, of

[the Supreme] Court's decisions as of the time of the relevant

state-court decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000). A state court decision is “contrary to” or an

“unreasonable application of” clearly established law if the

decision: (1) is contrary to Supreme Court precedent on a question

27

of law; (2) arrives at a conclusion different than that reached by

the Supreme Court on “materially indistinguishable” facts; or (3)

identifies the correct governing legal rule but unreasonably

applies it to the facts of the petitioner's case. Id. at 412-13.

The court reviews the last reasoned state court decision in the

case. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v.

Stinson, 229 F.3d 112, 118 (2d Cir. 2000). The state court's

factual determinations are presumed to be correct, and the

petitioner bears the burden of rebutting that presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1).

State procedural default or failure to exhaust state court

remedies will operate as a bar to review unless the petitioner can

(1) establish cause for his or her default and actual prejudice

resulting from the alleged violation of federal law, or (2)

demonstrate that the failure to consider the petitioner's claims

would result in a fundamental miscarriage of justice. See

Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012); Carvajal v.

Artus, 633 F.3d 95, 104 (2d Cir. 2011).

A petitioner can fulfill the cause requirement for default in

two related ways. First, the petitioner can demonstrate that “some

objective factor, external to Petitioner’s defense, interfered

with his ability to comply with the state’s procedural rule.”

Gutierrez, 702 F.3d at 111. Alternatively, the petitioner can

28

establish cause by demonstrating futility — specifically, that

“prior state case law has consistently rejected a particular

constitutional claim.” Id. at 112 (quoting DiSimone v. Phillips,

461 F.3d 181, 191 (2d Cir. 2006)). To establish prejudice, the

petitioner must demonstrate that the alleged error resulted in “in

“substantial disadvantage, infecting [the] entire trial with error

of constitutional dimensions.” Id. (internal quotation marks and

citation omitted).

Even if the petitioner is unable to establish cause and

prejudice, the court may excuse the procedural default if the

petitioner can show that a fundamental miscarriage of justice would

result, i.e., “that he is actually innocent of the crime for which

he has been convicted.” Dunham v. Travis, 313 F.3d 724, 730 (2d

Cir. 2002). “‘[A]ctual innocence’ means factual innocence, not

mere legal insufficiency.” Id. (alteration in original) (quoting

Bousley v. United States, 523 U.S. 614, 623 (1998)).

In reviewing the instant petition, the court is mindful that

“[a] document filed pro se is to be liberally construed, and a pro

se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations

and citations omitted); Williams v. Kullman, 722 F.2d 1048, 1050

(2d Cir. 1983) (noting that courts should review pro se habeas

29

petitions with a lenient eye). Consequently, the court is obliged

to interpret Petitioner’s pleadings as raising the strongest

arguments they suggest. Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

2009).

A petitioner can seek federal habeas corpus relief only after

he exhausts state court remedies and thus provides the state courts

a fair and full opportunity to review the merits of the claim. 28

U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842

(1999). In other words, a petitioner must present “the essential

factual and legal premises of his federal constitutional claim to

the highest state court capable of reviewing it.” Jackson v.

Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray,

396 F.3d 210, 217 (2d Cir. 2005)).

DISCUSSION

I. Speedy Trial

Petitioner renews his claim that the trial court violated his

constitutional right to a speedy trial. Specifically, he claims

that following his mistrial he “consistently asserted to Suffolk

County Court that . . . [he] would like a ‘speedy trial.’” (Pet.

at 5.) Petitioner points to the “numerous” adjournments and

postponements of his trial following his assertion that he would

like a speedy trial, and states that the delay prejudiced him as

it caused him “anxiety, fear, and anger” prior to his retrial.

30

(Id.) Petitioner presented this claim on direct appeal to the

Appellate Division, which found that Petitioner’s speedy trial

claim was “unpreserved for appellate review and, in any event,

without merit.” James, 157 N.Y.S.3d at 309.

A. State Law Speedy Trial Rights

To the extent Petitioner bases his claim on state law,

specifically CPL § 30.30, such claims are not cognizable on Federal

habeas review. “A federal court may only review federal claims

and lacks the power to review a conviction on state law speedy

trial grounds.” Clinkscales v. Collado, No. 20-CV-3757 (RPK)(LB),

2021 WL 11448463, at *8 (E.D.N.Y. Oct. 12, 2021); see also Cadilla

v. Johnson, 119 F. Supp. 2d 366, 374 (S.D.N.Y. 2000) (“Because

C.P.L. § 30.30 is merely a state law provision requiring the

prosecution to be ready for trial, a § 30.30 claim does not raise

a federal constitutional claim.”). Petitioner also cites his Sixth

Amendment right to a speedy trial in his Petition, however, so

this Court will also examine his claim for a constitutional

violation, accordingly.

B. Procedural Bar

The Appellate Division found that Petitioner’s claim of a

speedy trial violation was unpreserved for appellate review, and

this Court agrees. Petitioner did emphasize at status conferences

his desire to proceed to his retrial in an expedient manner. For

31

example, on May 14, 2018, after stating his desire to proceed pro

se, Petitioner stated “I just want to go to trial. That’s it.

Whenever the People [are] ready.” (ECF No. 18-20, Hearing

Transcript for May 14, 2018, at 8.) Subsequently, following the

hearing in which the trial court conducted an inquiry regarding

Petitioner’s desire to proceed pro se, the trial court asked

Petitioner if he wished to “go to trial as early as the end of

next week, beginning of the following week” and Petitioner stated

“Yes.” (ECF No. 18-21, Hearing Transcript for May 16, 2018, at

30.) After that, at the final pre-trial conference prior to

Petitioner’s second trial, on September 10, 2018, Petitioner

raised his concern with the trial court that his right to a speedy

trial had been violated because more than 180 days had elapsed

since October 18, 2017. (ECF No. 18-26, Hearing Transcript for

September 10, 2018, at 3-5.) The trial court disagreed, and the

trial moved forward. (Id.)

However, Petitioner did not move to dismiss the indictment

when jury selection began on September 26, 2018, or prior to

opening statements on October 15, 2018. (See generally ECF Nos.

18-27, 18-33.) In addition, Petitioner’s objection on September

10, 2018, appears to have been made with regards to his state

statutory speedy trial rights, and not his constitutional speedy

trial rights, given the reference to 180 days. See CPL § 30.30

32

(listing the time limitation for prosecution to be ready for a

felony trial as “six months of the commencement of a criminal

action”). Accordingly, Petitioner’s claim regarding a

constitutional violation was not preserved for state appellate

review. People v. Mandes, 91 N.Y.S.3d 194, 197 (2d Dep’t 2019)

(“insofar as the issue is raised for the first time on appeal, the

defendant's contention that his constitutional speedy trial rights

were violated is unpreserved for appellate review”); see also

People v. Card, 968 N.Y.S.2d 803 (2d Dep’t 2013) (because “the

defendant never made a pretrial motion to dismiss the indictment

on the ground that he was denied his statutory right to a speedy

trial, he waived his right to a dismissal on statutory speedy trial

grounds”). Because the Appellate Division clearly and expressly

stated that its judgment rested on a state procedural bar, federal

habeas review of the claim is foreclosed unless Petitioner can

show either “cause for the default and prejudice,” or that “failure

to consider the claim will result in a miscarriage of justice

(i.e., the petitioner is actually innocent).” Aparicio v. Artuz,

269 F.3d 78, 90 (2d Cir. 2001). Here, Petitioner fails to

demonstrate cause and prejudice, or that a fundamental miscarriage

of justice would result from the procedural bar.

C. Merits

33

Even if the Court were to review Petitioner's speedy trial

claim on constitutional grounds, the claim would be denied as

without merit because the state court's decision was not contrary

to or an unreasonable application of clearly established Federal

law. “[T]he Supreme Court [has] articulated four factors to be

considered in determining whether a defendant's constitutional

right to a speedy trial had been violated: ‘Length of delay, the

reason for the delay, the defendant's assertion of his right, and

prejudice to the defendant.’” United States v. Howard, 443 F.

App'x 596, 599 (2d Cir. 2011) (quoting Barker v. Wingo, 407 U.S.

514, 530 (1972)).

As noted previously, much of the delay between Petitioner’s

mistrial being declared and his subsequent retrial was due to

Petitioner’s change in counsel, his subsequent decision to proceed

pro se, and the trial court’s efforts to ensure Petitioner was

appropriately notified of the risks and prepared to proceed with

his self-representation. Some of the delays were attributable to

the trial court’s own trial schedule, (see ECF No. 18-25, Hearing

Transcript for August 14, 2018), or the prosecutor’s other

scheduled trials, (see ECF No. 18-24, Hearing Transcript for June

18, 2018). While the Court does not discount Petitioner’s claims

about the toll of pre-trial confinement on his mental wellbeing,

Petitioner does not cite any other prejudice that resulted from

34

the delay between his trial and retrial. “Of course, incarceration

in the pretrial period [is] a hardship and must be included in the

assessment of ‘prejudice.’” United States v. Vasquez, 918 F.2d

329, 338 (2d Cir. 1990). However, Petitioner does not cite that

he suffered “the ‘most serious’ form of prejudice, namely,

prejudice to his defense.” Smith v. La Clair, 353 F. App'x 486,

489 (2d Cir. 2009) (quoting Barker, 407 U.S. at 532); see also

United States v. Abad, 514 F.3d 271, 275 (2d Cir. 2008) (stating

that Barker's prejudice prong “is concerned with impediments to

the ability of the defense to make its own case”).

Altogether, the Plaintiff waited approximately 11 months from

the time of his mistrial in October 2017 to the time that his trial

restarted with jury selection in September 2018. (Record Pt. I at

1-2.) “While an eleven-month delay may be presumptively

prejudicial, it does not, per se, establish a violation of

petitioner's Sixth Amendment right to a speedy trial.” Rodriguez

v. Superintendent, Collins Corr. Facility, 549 F. Supp. 2d 226,

239 (N.D.N.Y. 2008). When analyzed under the remaining three

Barker factors, the delay in the instant case did not violate

Petitioner’s constitutional right to a speedy trial. The reason

for the delay in Petitioner’s retrial was primarily due to the

trial court’s efforts to ensure Petitioner was adequately

represented – first, by allowing newly-appointed counsel time to

35

prepare and review the case file following relief of Petitioner’s

original trial counsel; and second, by taking the time to conduct

an inquiry regarding Petitioner’s desire to proceed pro se and

ensure Petitioner had legal counsel available on standby. (See,

e.g., ECF No. 18-12, Trial Transcript for October 18, 2017, at 8-

9 (Petitioner confirms he is comfortable with new counsel taking

over and being “ready sometime after the new year”); ECF No. 18-

19, Hearing Transcript for May 9, 2018, at 3-4 (Petitioner asks to

proceed pro se rather than have new counsel appointed when defense

counsel requested to be relieved due to “family issues”).)

Petitioner cites no evidence of any undue delay on the part of the

prosecution, and in the absence of further details, there does not

appear to have been any “deliberate attempt to delay the trial in

order to hamper the defense.” Barker, 407 U.S. at 531.

Accordingly, because the delay was not deliberate on the part

of the prosecution, and there is no indication of actual prejudice,

Petitioner does not sufficiently allege a violation of his

Constitutional speedy trial rights. Accordingly, even if

Petitioner’s claim were not procedurally defaulted, it is without

merit.

II. Petitioner’s Competence to Proceed Pro Se

Petitioner renews his claim that he was not mentally competent

at his second trial and that the trial court abused its discretion

36

when it permitted him to proceed pro se with his “distorted” state

of mind.5 (Pet. at 5.) The Appellate Division’s decision rejecting

Petitioner’s claims and finding that “the court had no reason to

believe that the defendant suffered from a mental illness that

affected his ability to waive counsel and proceed pro se” is

entitled to AEDPA deference. James, 157 N.Y.S.3d at 309. As a

result, Petitioner must show that the state court’s decision was

either “contrary to, or involved an unreasonable application of,

clearly established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d).

For the foregoing reasons, this Court finds that the Appellate

Division’s decision regarding Petitioner’s competence to proceed

pro se was consistent with clearly established federal law and was

based on a reasonable determination of the facts in light of the

record as a whole.

A. Waiver of the Right to Counsel

The right to counsel is explicitly safeguarded by the Sixth

Amendment, which states that “[i]n all criminal prosecutions, the

accused shall enjoy the right ... to have the Assistance of Counsel

5 As noted by the Respondent, Petitioner does not raise this claim directly,

but rather includes it as a subset of his speedy trial claim. The Court

liberally interprets the claim as a separate constitutional violation in light

of Petitioner’s pro se status. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

2009).

37

for his defence.” U.S. Const. amend. VI. “It is clearly

established federal law as determined by the Supreme Court that no

defendant can be convicted and imprisoned unless he has been

accorded the right to the assistance of counsel.” Dallio v.

Spitzer, 343 F.3d 553, 560 (2d Cir. 2003) (citing Powell v.

Alabama, 287 U.S. 45 (1932)). “Although not expressly stated in

the Sixth Amendment, a clearly established corollary to the right

to counsel is the right to dispense with a lawyer's help, and to

represent oneself.” Id. (internal quotation marks and citations

omitted). In Faretta v. California, the Supreme Court vacated a

state court conviction because a defendant’s request to proceed

pro se was denied, explaining:

The Sixth Amendment does not provide merely that a

defense shall be made for the accused; it grants to the

accused personally the right to make his defense. . . .

Although not stated in the Amendment in so many words,

the right to self-representation—to make one's own

defense personally—is thus necessarily implied by the

structure of the Amendment.

422 U.S. 806, 819 (1975).

So long as a criminal defendant “knowingly, voluntarily, and

unequivocally” waives his right to appointed counsel,”

considerations such as a “lack of legal training, college

education, and skills” do not provide a basis to refuse such a

waiver. Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994).

Notwithstanding a defendant’s right to proceed pro se, “the

38

Constitution permits judges to take realistic account of the

particular defendant's mental capacities by asking whether a

defendant who seeks to conduct his own defense at trial is mentally

competent to do so,” and may in some instances insist on

representation by counsel. Indiana v. Edwards, 554 U.S. 164, 177–

78 (2008).

The Supreme Court has explained that “a competency

determination is necessary only when a court has reason to doubt

the defendant's competence.” Godinez v. Moran, 509 U.S. 389, 401

n.13 (1993). “There are . . . no fixed or immutable signs which

invariably indicate the need for further inquiry to determine

fitness to proceed.” Drope v. Missouri, 420 U.S. 162, 180 (1975).

“[E]vidence of a defendant's irrational behavior, his demeanor at

trial, and any prior medical opinion on competence to stand trial

are all relevant in determining whether further inquiry is

required.” Id. (citing Pate v. Robinson, 383 U.S. 375 (1966)).

Further, “the trial court is required to consider only that

evidence actually before it when deciding whether a competency

hearing is required.” Nicks v. United States, 955 F.2d 161, 169

(2d Cir. 1992) (citations omitted).

B. Petitioner’s Waiver of the Right to Counsel

As noted by the Appellate Division, the trial court “engaged

in a ‘searching inquiry’ to clarify that the defendant understood

39

the ramifications of proceeding pro se before accepting the

defendant's waiver.” James, 157 N.Y.S.3d at 309. This Court

agrees with the Appellate Division’s characterization of the

record. Most importantly, after Petitioner asserted his desire to

proceed pro se at a court conference on May 9, 2018, the trial

court appropriately scheduled a separate hearing to ensure

Petitioner’s waiver was knowing, voluntary, and intelligent, prior

to accepting the Petitioner’s waiver of his right to counsel. (ECF

No. 18-19, Hearing Transcript for May 9, 2018, at 5.) The trial

court appropriately ensured that counsel was available for

Petitioner to consult prior to the hearing, both regarding the

waiver and additional evidence being offered by the prosecution.

(ECF No. 18-20, Hearing Transcript for May 14, 2018, at 6.)

Subsequently, at the conference on May 16, 2018, the trial

court explained to Petitioner, after confirming he still wished to

proceed pro se, that “before permitting you to give up that right

and proceed as your own lawyer, I must decide whether you fully

understand the significance and consequences of doing so.” (ECF

No. 18-21, Hearing Transcript for May 16, 2018, at 6.) The trial

court went on to conduct an extensive inquiry regarding

Petitioner’s waiver of his right to counsel, and also devoted

significant time to warning Petitioner regarding the risks of

proceeding to trial pro se. (See generally id.) At the conclusion

40

of the hearing, Petitioner reaffirmed his desire to proceed pro

se:

THE COURT: . . . I can't force you to have an attorney,

but I just want to make sure that you're making this

decision fully aware of the ramifications that can take

place as a result of this decision.

Are you aware of that?

THE DEFENDANT: Yes.

THE COURT: And you still want to go forward and represent

yourself?

THE DEFENDANT: Yes.

(Id. at 23.) The trial court accepted Petitioner’s request to

proceed pro se, but nonetheless assigned a legal advisor to be

present for Petitioner to advise during the trial. Throughout the

subsequent pre-trial proceedings and during the trial, Petitioner

never wavered in his desire to proceed pro se, or gave any

indication to the trial court that he was not competent to continue

making such a waiver (as discussed further infra). Accordingly,

the Appellate Division’s decision rejecting Petitioner’s claim was

not an “unreasonable application of, clearly established Federal

law” nor was the decision “based on an unreasonable determination

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

proceeding.” 28 U.S.C. § 2254(d).

C. Proceeding to Trial without a Competency Hearing

Petitioner contended in his direct appeal that the Court erred

in failing to order an examination to determine his competency to

waive counsel, which the Appellate Division rejected. Although

41

Petitioner does not raise the claim directly in his brief, this

Court will examine the issue as ancillary to Petitioner’s claims

about his “distorted” state of mind.

When determining whether to order a hearing regarding

Petitioner’s competence, the trial court was “required to consider

only that evidence actually before it.” Nicks, 955 F.2d at 169.

At no point prior to Petitioner’s decision to proceed pro se was

there any evidence or indication that Petitioner was not competent

to stand trial. Neither of the two attorneys tasked with

representing Petitioner called Petitioner’s competency into

question or moved for a competency examination, which courts in

this district have considered an important factual consideration.

See, e.g., Rodriguez v. Lamanna, No. 18-CV-07196 (ENV), 2020 WL

4926358, at *4 (E.D.N.Y. Aug. 19, 2020) (“quite significantly, as

the record memorializes, neither of the two lawyers who appeared

on behalf of [Petitioner] suggested that [Petitioner] was

incompetent to stand trial, assist in his own defense or enter a

guilty plea; nor did either of them at any time, during the

pendency of these proceedings in the trial court through the

imposition of sentence, request that a competency hearing be

ordered”). Furthermore, though Petitioner had occasional

instances of disruptive behavior during the trial, following

admonishment by the trial court, Petitioner complied and resumed

42

appropriate conduct at the proceedings. (See, e.g., ECF No. 18-

35, Trial Transcript for October 18, 2018, at 148-49.) Viewing

the record as a whole, there is no evidence to suggest that the

Appellate Division’s decision rejecting Petitioner’s claim was an

“unreasonable application of, clearly established Federal law” or

was “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

III. Double Jeopardy

Petitioner renews his claim that his retrial following his

initial mistrial violated the double jeopardy clause of the Fifth

Amendment. (Pet. Letter at 1.) Petitioner presented this claim

on direct appeal to the Appellate Division, which found that

Petitioner “failed to preserve for appellate review his

contentions that a demonstration of ‘manifest necessity’ was

required prior to the declaration of a mistrial in his first trial,

and that his retrial was barred by double jeopardy because no such

manifest necessity for a retrial was established” and, “[i]n any

event, these contentions are without merit.” James, 157 N.Y.S.3d

at 308.

A. Double Jeopardy

The Double Jeopardy Clause of the U.S. Constitution states:

“[N]or shall any person be subject for the same offense to be twice

43

put in jeopardy of life or limb.” U.S. Const. amend. V. The

Supreme Court has described the clause as “afford[ing] a defendant

three basic protections: It protects against a second prosecution

for the same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And it protects

against multiple punishments for the same offense.” Ohio v.

Johnson, 467 U.S. 493, 497-98 (1984) (quoting Brown v. Ohio, 432

U.S. 161, 165 (1977)). The purpose behind these “protections

stem[s] from the underlying premise that a defendant should not be

twice tried or punished for the same offense.” Schiro v. Farley,

510 U.S. 222, 229 (1994). The clause thus “operates as a bar

against repeated attempts to convict, with consequent subjection

of the defendant to embarrassment, expense, anxiety, and

insecurity, and the possibility that he may be found guilty even

though innocent” so that “[w]hen a defendant has been acquitted,

the Clause guarantees that the State shall not be permitted to

make repeated attempts to convict him.” Id. at 229-30 (internal

quotation marks and citations omitted); see also Johnson, 467 U.S.

at 498 (describing the bar to retrial following acquittal or

conviction).

“Where a defendant either objects or fails to consent to a

trial court's declaration of a mistrial, double jeopardy will bar

a second prosecution unless there was a ‘manifest necessity’ for

44

the mistrial.” Maula v. Freckleton, 972 F.2d 27, 28–29 (2d Cir.

1992) (citing United States v. Dinitz, 424 U.S. 600, 606–07

(1976)). “No ‘manifest necessity’ analysis is required, however,

when a defendant requests a mistrial, or consents to one.” Id. at

29; see also United States v. Huang, 960 F.2d 1128, 1133 (2d Cir.

1992) (“[T]he Double Jeopardy Clause guards against government

oppression; it does not relieve a defendant of the consequences of

his voluntary choice to accept a mistrial.”) Accordingly, when a

defendant in a criminal prosecution “consent[s] to the mistrial,

double jeopardy could not attach unless the prosecution

intentionally provoked the mistrial.” United States v. Bright,

356 F. App'x 474, 476 (2d Cir. 2009) (citing Oregon v. Kennedy,

456 U.S. 667, 673 (1982)). Consent may be inferred from a failure

to object. Maula, 972 F.2d at 29 (“Inferring consent from

counsel's failure to object in this case is not only consistent

with the requirements of the double jeopardy clause; it also tracks

the general principle applied in other areas of trial practice,

when failure to object to a ruling, which at the time it is made

or proposed could readily be changed, will bar future attempts to

review that ruling.”)

B. Procedural Bar

The Appellate Division found that Petitioner’s claim of a

double jeopardy violation was unpreserved for appellate review.

45

However, at the final pre-trial conference prior to Petitioner’s

second trial, on September 10, 2018, Petitioner raised his concern

with the trial court that a retrial would violate his double

jeopardy rights:

THE DEFENDANT: Why it’s illegal right now for me to be

held here. Because if I were go to trial –

THE COURT: No, it’s not. There was a mistrial declared.

Double jeopardy does not attach.

THE DEFENDANT: I’ll read you this.

THE COURT: Great.

THE DEFENDANT: [Reads from People v. Zendano, 136

N.Y.S.2d 106, 108 (Erie Co. Ct. 1954)] . . . Basically

improper conclusion of the trial is mistrial. A verdict

wasn’t reached. So it will be double jeopardy for me to

go back to trial.

THE COURT: . . . . Wrong. See you on the 24th.

(ECF No. 18-26, Hearing Transcript for September 10, 2018, at 6-

7.) While Petitioner may not have perfectly complied with New

York’s criminal procedure rules for raising a double jeopardy

objection, there is no “indication that formally perfect

compliance with the Rules would have changed the trial court's

decision.” Lee v. Kemna, 534 U.S. 362, 387 (2002). The trial

court clearly understood and decided the legal question presented

– whether Petitioner’s retrial would violate his double jeopardy

rights. As such, and in light of the Appellate Division’s

alternative merits-based decision, this Court will address

Petitioner’s claim on the merits.

C. Merits

46

Petitioner’s claims that his retrial was barred by double

jeopardy absent a finding of manifest necessity by the trial court

are without merit and were properly denied by the Appellate

Division. Upon receiving notice from the trial court in the first

trial that a juror had fallen ill, was at the hospital, and might

not be able to continue deliberating, the trial court asked defense

counsel what they wished to do regarding the remaining alternate

jurors:

[DEFENSE COUNSEL]: Judge, I have spoken to my client, and we

are going to request that the alternates be discharged at

this point.

THE COURT: Okay. So under no circumstances would you

allow either one of those alternates to replace any juror

and, in particular, Juror Number 9.

[DEFENSE COUNSEL]: Correct.

THE COURT: Okay. Is that correct, Mr. James?

THE DEFENDANT: Yes.

(ECF No. 18-32, Trial Transcript for October 11, 2017, at 7-8.)

Subsequently, the juror who had fallen ill called the trial court,

and a phone conference was held with all parties, at which the

juror stated that she would not be able to continue with jury

service on the advice of her physician. (Id. at 16-17.) The trial

court allowed defense counsel time to confer with Petitioner

regarding the situation, and to discuss whether Petitioner would

like to proceed with the remaining eleven jurors, as the alternates

had been discharged. (Id. at 19.) Subsequently, the trial court

stated:

47

THE COURT: . . . [Defense Counsel], I'm sure that you

just privately conferred with your client, telling him

about the conversation that we just had with Juror Number

9 that was on-the-record in chambers, wherein she

indicated to us that she had seen her regular doctor

this afternoon and was being advised by that doctor and

is being advised by that doctor that she is not to come

back to jury duty because of her heart condition, I think

is the way it was referred to.

[DEFENSE COUNSEL]: Yes, Judge.

THE COURT: And, in fact, she's being referred by that

doctor to a cardiologist to followup. And I think we

both heard from Juror Number 9 indicating that clearly

she was disabled at this point and being strenuously

advised by her doctor not to return to jury duty.

Am I describing that conversation correctly?

[DEFENSE COUNSEL]: Yes, your Honor.

[THE PROSECUTOR]: Yes, your Honor.

THE COURT: Okay. So, [Defense Counsel], do you wish to

be heard at this point?

[DEFENSE COUNSEL]: Nothing further, Judge.

THE COURT: [Prosecution]?

[THE PROSECUTOR]: No, your Honor.

THE COURT: All right. We are in a position where clearly

[Juror Number 9], is incapacitated and physically unable

to proceed with this trial. So even without an

application by either side, I'm in a position where I

need to declare a mistrial in this case.

Anybody wish to be heard further before we bring the

jury out?

[THE PROSECUTOR]: No, your Honor.

[DEFENSE COUNSEL]: Nothing further, Judge.

(Id. at 20-22.) The trial court subsequently declared a mistrial

without objection from either party. (Id. at 23-24.)

Reviewing the record, it is clear that the mistrial was

declared without objection and on consent of both parties. As

such, no finding of “manifest necessity” was required by the court

to allow a retrial to proceed without violating double jeopardy.

Maula, 972 F.2d at 29. Furthermore, Petitioner does not allege,

48

and the record does not reflect, that the prosecution or the trial

court acted in a “a manner intended to provoke a defendant to move

for a mistrial.” Id. Accordingly, Petitioner's double jeopardy

claim presents no basis for habeas relief, and the Appellate

Division’s decision rejecting it was not an “unreasonable

application of, clearly established Federal law” or “based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

IV. Evidentiary Ruling regarding Foot Impressions

Petitioner argues that the trial court erroneously issued an

order allowing the prosecution to take foot impressions from

petitioner. (Pet. Letter at 2.) Petitioner presented this claim

on direct appeal to the Appellate Division, which found that the

claim was “unpreserved for appellate review and, in any event,

without merit.” People v. James, 157 N.Y.S.3d at 309.

A. Habeas Review of State Evidentiary Rulings

Where a petitioner alleges an incorrect evidentiary ruling at

trial, this Court must first ascertain whether the state court

ruling was proper under state law; if the ruling correctly applied

the state evidentiary rule, there is no constitutional violation.

Delancy v. Lee, No. 15-CV-891 (RRM) (CLP), 2019 WL 9051134, at *17

(E.D.N.Y. Nov. 4, 2019), report and recommendation adopted, 2020

WL 3084285 (E.D.N.Y. June 10, 2020). Second, if this Court finds

49

the evidentiary ruling was made in error, it must determine whether

the error violated a constitutional right. Id. For a ruling to

rise to such a level, the error must have deprived petitioner of

a fundamentally fair trial. Collins v. Scully, 755 F.2d 16, 18

(2d Cir. 1985). Courts have clarified that such deprivation occurs

when the error in question has removed reasonable doubt that was

otherwise present in the context of the entire record. Rosario v.

Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (citing United States v.

Agurs, 427 U.S. 97, 112-13 (1976)).

Under New York state law, for a court to issue an order for

a suspect in a homicide investigation to supply the prosecution

“with corporeal evidence,” the prosecution must establish: “(1)

probable cause to believe the suspect has committed the crime, (2)

a “clear indication” that relevant material evidence will be found,

and (3) the method used to secure it is safe and reliable.” Matter

of Abe A., 437 N.E.2d 265, 266 (N.Y. 1982). “In addition, the

issuing court must weigh the seriousness of the crime, the

importance of the evidence to the investigation and the

unavailability of less intrusive means of obtaining it, on the one

hand, against concern for the suspect's constitutional right to be

free from bodily intrusion on the other.” Id.

B. Procedural Bar

50

The Appellate Division found that Petitioner’s claim

regarding the taking of foot impressions was not preserved for

appellate review, and this Court agrees.

Subsequent to the mistrial in Petitioner’s first trial, the

prosecution moved the trial court for an order pursuant to CPL §

240.40(2)(b)(v) compelling Petitioner to permit the taking of foot

impressions. (Record Pt. I at 121.) Petitioner, through counsel,

opposed the motion, arguing that probable cause did not exist to

believe Petitioner committed the crime. (Id.) The trial court

granted the order requested by the prosecution, finding that

probable cause existed “to believe the defendant committed the

crime” and that the prosecution “established a clear indication

that relevant material evidence will be found.” (Id.)

Specifically, the trial court cited the DNA evidence connecting

Petitioner to the crime scene, Petitioner’s incriminating

statements to detectives, and the fact that an expert testified at

the first trial that “the foot impressions [inside the bathroom]

could not have belonged to the victim.” (Id. at 122.) After the

order was entered, Petitioner did not move to appeal the order or

otherwise object to the entry of the foot impressions into evidence

at trial. (ECF No. 18-34, Trial Transcript for October 16, 2018,

at 91.) Accordingly, as noted by the Appellate Division,

Petitioner’s claim was not properly preserved. See Richardson v.

51

Greene, 497 F.3d 212, 218 (2d Cir. 2007) (CPL § 470.05(2)

“requires, at the very least, that any matter which a party wishes

the appellate court to decide have been brought to the attention

of the trial court at a time and in a way that gave the latter the

opportunity to remedy the problem and thereby avert reversible

error.”)

Because the Appellate Division clearly and expressly stated

that its judgment rested on a state procedural bar, federal habeas

review of the claim is foreclosed unless Petitioner can show either

“cause for the default and prejudice,” or that “failure to consider

the claim will result in a miscarriage of justice (i.e., the

petitioner is actually innocent).” Aparicio v. Artuz, 269 F.3d

78, 90 (2d Cir. 2001). Here, Petitioner fails to demonstrate cause

and prejudice, or that a fundamental miscarriage of justice would

result from the procedural bar.

C. Merits

Even if this Court were to review Petitioner’s claim regarding

the taking of foot impressions on the merits, his claim would fail.

Contrary to Petitioner’s claims, the trial court reasonably

determined that taking his foot impressions would result in

“relevant material evidence” – specifically, impressions of his

feet that could be compared against “the crime scene-photographs

of sock clad bloodied footprints.” (Record Pt. I at 122.)

52

Combined with the fact that probable cause existed to believe

Petitioner committed the crime in question, and given that there

was no serious challenge that the method used to create the foot

impressions was not “safe and reliable,” the trial court reasonably

determined that an order under CPL § 240.40(2)(b)(V) was

appropriate. (Id. at 121-22.); see also Matter of Abe A., 437

N.E.2d at 266. As a result, even if Petitioner’s claim were not

procedurally defaulted, it is without merit.

V. Right Against Self-Incrimination

Petitioner renews a claim made in his supplemental pro se

appellate brief that the prosecution made inappropriate remarks

during summation, that the trial court did not appropriately

address the remarks, and that Petitioner’s only recourse would

have been to incriminate himself by rebutting the remarks directly.

(Pet. Letter at 2-3.) Petitioner presented this claim on direct

appeal to the Appellate Division, which found that Petitioner’s

claim was “unpreserved for appellate review and, in any event,

without merit.” People v. James, 157 N.Y.S.3d at 309.

A. Background

Although Petitioner does not cite directly to the record

regarding the portion of the summation with which he takes issue,

the Court liberally construes his argument and will examine his

argument in the strongest light possible given his pro se status.

53

See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Following the

prosecutor’s summation at Petitioner’s second trial, after

conferring with his legal advisor, Petitioner objected to the

summation “specifically [the prosecutor] using impermissible

burden shifting.” The trial court responded as follows:

THE COURT: Are you referring to the portion where she

indicated only you could be the source of some

information?

THE DEFENDANT: Yes.

THE COURT: Mr. James, if you're asking for a mistrial,

I'm going to deny that application. However, if you wish

to bring that to the attention of the jury before they

leave, I'll bring them back and tell them to absolutely

disregard that portion of [the prosecutor’s] summations.

[The trial court orders the jury to return, and both

sides waive the roll call.]

THE COURT: Ladies and gentlemen, at a certain point in

[the prosecutor’s] summations she indicated something to

the effect that only Mr. James could be the source of

certain information. I don't recall exactly the quote,

but please understand, you are to disregard that portion

of her summations absolutely. The defendant is not

required to say anything, do anything, or prove

anything. It is the obligation of the People to prove

this case beyond a reasonable doubt. The defendant has

no obligation to do anything and he's not required to be

any source of any information whatsoever.

Does everybody understand that?

If you remember what she said, you are absolutely to

disregard that, put it out of your mind and do not

consider it one bit.

(ECF No. 18-39, Trial Transcript for October 24, 2018, at 94-96.)

During the summation, the prosecutor stated the following, which

may have been the basis of the Petitioner’s objection:

What does [Petitioner] tell you in [the car while

speaking to Detective Mahan]?

54

He tells you again, I've never been at [the victim’s]

place. Same thing that he said six years earlier. But,

the more important thing in that conversation is he says,

how are you going to charge with me murder when the

weapon was never recovered. How does he know that? How

does he know that? The only people that know that are

the Suffolk County Police Department and the person who

killed Kevin Pierson, and that person is Christopher

James.

. . .

Now, I told you from the beginning I'm not going to give

you motive. I’m not going to be able to answer why. The

only person that can tell you why is sitting right there.

I can't tell you why. The evidence can't tell you why.

It can tell you how and it can tell you who.

(Id. at 80-83.) Petitioner did not raise any further objection to

the prosecutor’s summation and did not object to the curative

instruction given by the trial court. (Id. at 94-95.)

B. Procedural Bar

The Appellate Division found that Petitioner’s claim

regarding the prosecutor’s summation was not preserved for

appellate review, and this Court agrees.

As discussed supra, though Petitioner objected to the

prosecutor’s summation at trial, he did not make it clear he was

moving for a mistrial and did not object to the curative

instruction offered by the trial court. Accordingly, Petitioner’s

claim was not properly preserved. See Richardson v. Greene, 497

F.3d 212, 218 (2d Cir. 2007).

Because the Appellate Division clearly and expressly stated

that its judgment rested on a state procedural bar, federal habeas

55

review of the claim is foreclosed unless Petitioner can show either

“cause for the default and prejudice,” or that “failure to consider

the claim will result in a miscarriage of justice (i.e., the

petitioner is actually innocent).” Aparicio v. Artuz, 269 F.3d

78, 90 (2d Cir. 2001). Here, Petitioner fails to demonstrate cause

and prejudice, or that a fundamental miscarriage of justice would

result from the procedural bar.

C. Merits

Petitioner claims that the prosecutor’s statement in

summation required a “mandatory” rebuttal as its only cure, and as

such, violated his right against self-incrimination. However,

Petitioner does not cite any authority for his claim, and this

Court is not aware of any that holds the same. In the alternative,

the Court will examine Petitioner’s claim as alleging

prosecutorial misconduct that deprived him of a fundamentally fair

trial.

As a preliminary matter, the trial court warned Petitioner

regarding the risks of representing himself, and the fact that it

would be “difficult” to deliver an opening and summation “where

you’ll likely have to speak about your alleged conduct and in doing

so, you run the risk of saying something in such a way as to make

it appear you are guilty.” (ECF No. 18-21, Hearing Transcript for

May 16, 2018, at 13-14.) Petitioner stated that he understood the

56

risks and nonetheless desired to proceed pro se. Regardless,

Petitioner had the right to testify and to decline to testify if

he so desired, and “the decision whether to testify belongs to the

defendant.” Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997).

Notwithstanding the above, it is well settled law that the

prosecution may not improperly comment on the accused’s silence

during a trial. See United States v. Whitten, 610 F.3d 168, 199

(2d Cir. 2010) (“The test governing whether a prosecutor's

statements amount to an improper comment on the accused's silence

in violation of the Fifth Amendment looks at the statements in

context and examines whether they naturally and necessarily would

be interpreted by the jury as a comment on the defendant's failure

to testify.”) In the present context of habeas review, a federal

court reviewing a claim of prosecutorial misconduct must find that

“the prosecutor's comments constituted more than mere trial error,

and were instead so egregious as to violate the defendant's due

process rights,” in order to grant relief.” Tankleff v. Senkowski,

135 F.3d 232, 252 (2d Cir. 1998); see also Darden v. Wainwright,

477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974) (“it is not enough that the prosecutors'

remarks were undesirable or even universally condemned. The

relevant question is whether the prosecutors' comments ‘so

57

infected the trial with unfairness as to make the resulting

conviction a denial of due process.’”)).

As explained by the Second Circuit in Tankleff, “[t]o be

entitled to relief, [petitioner] must show ‘that he suffered actual

prejudice because the prosecutor's comments during summation had

a substantial and injurious effect or influence in determining the

jury's verdict.’” Tankleff, 135 F.3d at 252 (quoting Bentlev v.

Scully, 41 F.3d 818, 823 (2d Cir. 1994)). “To determine whether

the alleged comments rise to the level of a violation of

petitioner's right to due process, reviewing courts routinely

inquire as to: (1) the severity of the misconduct; (2) the nature

of the curative measures taken to remedy the prejudice, if any,

and (3) the certainty of the conviction absent the improper

conduct. Morales v. Walsh, No. 05-CV-2251 (DGT), 2008 WL 2047632,

at *6 (E.D.N.Y. May 12, 2008) (citing Tankleff, 135 F.3d at 252).

Here, it is clear that relief is not warranted. Although the

prosecutor does appear to have indirectly commented on

Petitioner’s decision not to testify, the statements made were

quite limited, and were promptly addressed by the trial court with

an instruction to the jury after Petitioner’s objection. The

Petitioner did not object to the curative instructions that were

given, further indicating that the trial court had cured any error

to his satisfaction. Thus, given the instructions to the jury by

58

the trial court, and viewing the trial record overall, the Court

cannot conclude that the prosecutor’s few improper comments during

summation deprived petitioner of a fundamentally fair trial. In

conclusion, even if Petitioner’s claim were not procedurally

defaulted, it would be without merit.

VI. Jurisdiction of the Trial Court

Petitioner raises for the first time the claim that he is

“sovereign” and as such, his arrest was a violation of federal law

and an “intrusion” on his “being” without “just compensation.”

(Pet. Letter at 3.) Petitioner’s claim is procedurally barred as

it was not presented before the trial court or on direct appeal,

and is, in any event, frivolous.

A. Analysis

Respondent notes that Petitioner failed to fairly present his

sovereignty claim to the highest state court from which review is

available, and this Court agrees. (State Mem. at 31.) Petitioner

failed to raise the issue of his alleged “sovereign” status in any

of his appeals in state court, leaving the issue unexhausted. See

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to exhaust a claim

petitioner must fairly present claim to highest court of the state

before filing federal writ). Given Petitioner has already

completely litigated his direct appeal, he is without any state

remedy, making the claim procedurally defaulted. See Aparicio v.

59

Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (“when the petitioner failed

to exhaust state remedies and the court to which the petitioner

would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally

barred, federal habeas courts also must deem the claims

procedurally defaulted”). As discussed previously, Petitioner

would be required to either “show cause for the default and

prejudice, or demonstrate that failure to consider the claim will

result in a miscarriage of justice (i.e., the petitioner is

actually innocent)” in order to present a procedurally defaulted

claim for merits review. Id. Petitioner has failed to make any

such showing.

Nonetheless, Petitioner’s claim would clearly fail on the

merits. As the Second Circuit has described, “sovereign citizens”

are “a loosely affiliated group who believe that the state and

federal governments lack constitutional legitimacy and therefore

have no authority to regulate their behavior.” United States v.

Ulloa, 511 F. App'x 105, 106 n.1 (2d Cir. 2013). While Petitioner

does not directly link himself to the larger sovereign citizen

movement, and appears to have created declared himself a sovereign,

the Court notes that the same legal analysis applies. Similar

arguments regarding the “sovereignty” of an individual have been

repeatedly rejected by courts within the Second Circuit. See,

60

e.g., Santana v. United States, No. 16-CV-5750 (PKC), 2017 WL

2470834, at *2 (S.D.N.Y. June 6, 2017) (“[sovereign citizen]

theories on which [petitioner] bases these arguments have been

uniformly rejected by the courts as legally invalid and

frivolous”); Paul v. New York, No. 13-CV-5047 (SJF), 2013 WL

5973138, at *3 (E.D.N.Y. Nov. 5, 2013) (finding that “sovereign

citizens” are “subject to the laws of the jurisdiction in which

they reside”). In the absence of any persuasive legal authority

to the contrary from Petitioner, this Court joins others in this

circuit who have dismissed “sovereign citizen” theories as legally

frivolous, and finds that Petitioner’s claim fails on the merits.

CONCLUSION

For the foregoing reasons, Petitioner’s Section 2254 petition

is respectfully denied and dismissed in its entirety. Because

Petitioner has not made a substantial showing of the denial of a

constitutional right, a certificate of appealability shall not

issue. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (discussing

certificate of appealability standard); Rules Governing Section

2254 and 2255 Cases, Rule 11 (“The district court must issue or

deny a certificate of appealability when it enters a final order

adverse to the applicant.”).

The Clerk of Court is directed to enter judgment in favor of

Respondent and close this case. In accordance with 28 U.S.C. §

61

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). The Clerk of Court is

respectfully requested to serve a copy of this Order and the

Judgment on Petitioner and note such service on the docket by

February 2, 2024.

SO ORDERED

Dated: February 1, 2024 b “7 _—

Brooklyn, New York “) te yw

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

62