# Gonzales v. Graham

> District Court, N.D. New York · December 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10313432

## Case

- **Court:** District Court, N.D. New York
- **Decided:** December 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10313432

## How later opinions describe it (automated extraction)

- applying a de novo standard to a federal claim not reached by the state court
- finding that, under California’s Three Strikes law, a sentence of two consecutive terms of 25 years to life imprisonment for two counts of petty theft did not 25 warrant relief under the AEDPA

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
JOSUE GONZALES,
No. 9:17-cv-01321-JKS
Petitioner,
MEMORANDUM DECISION
vs.
HAROLD D. GRAHAM,
Respondent.
Josue Gonzales, a New York state prisoner proceeding pro se, filed a Petition for a Writ
of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Gonzales is in the custody of
the New York State Department of Corrections and Community Supervision (“DOCCS”) and
incarcerated at Auburn Correctional Facility. Respondent has answered the Petition, and
Gonzales has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 22, 2012, Gonzales was charged with second-degree murder and second-
degree criminal possession of a weapon in connection with the August 2011 shooting of Angel
Olmo in a gas station parking lot. At Gonzales’s arraignment, the People noticed its intent to use
identification testimony from four witnesses who had identified Gonzales from a photo array.

The defense subsequently moved to suppress the identification evidence, and a Wade1
suppression hearing was held. At the hearing, the four witnesses were called and five photo

1 United States v. Wade, 388 U.S. 218 (1967). The term “Wade hearing” is a
shorthand reference to a pretrial proceeding to determine the admissibility of identification
evidence. Id. at 242.
arrays were marked and admitted as evidence. The defense called no witnesses. After hearing
oral argument, the court issued a written decision denying the suppression motion.
The defense also moved prior to trial for the court to review the grand jury minutes to
determine if lesser-included crimes should have been charged, if exculpatory evidence had been

withheld from the grand jury, and whether a defense of justification should have been charged.
In response, the court issued a written order concluding that the prosecutor improperly
impeached a recalcitrant witness with his prior written statement, but that this “misconduct” was
not “intentional or malicious” but was “borne of frustration stemming from the obstreperous and
uncooperative behavior of the witness.” Finding that the misconduct was isolated to that
witness, and that there was legally sufficient evidence to support the indictment even without the
testimony of the recalcitrant witness, the court denied Gonzales’s motion to dismiss the
indictment. After the defense orally reargued its dismissal motion, the court again denied the
motion to dismiss the indictment.

Gonzales then proceeded to a jury trial. During the prosecutor’s opening statement, he
said that the “evidence will come in one little piece at time. . . . You’ll hear what the witnesses
saw and heard, see photographs, maps, diagrams, physical evidence, scientific evidence. . . .
And undoubtedly, there will be some questions in your mind that go unanswered.” The People
then presented the testimony of eyewitnesses who testified that they had seen Gonzales and
Olmo in an altercation at a bar on the evening of the shooting. A witness who had also been at
the bar that evening, Travis Stachurski, testified that he drove to a gas station after the bar
closed, where he saw Gonzales shoot Olmo.

2
After the People rested its case, the defense moved for a trial order of dismissal on the
ground that the People failed to present proof that Gonzales had a weapon or that he was close
enough to the victim to have fired the fatal shots. The court denied the motion. The defense
rested without presenting proof, and renewed the dismissal motion, which the court again denied.

During summation, the prosecution presented certain exhibits, including an autopsy
photograph of Olmo. The prosecutor also argued that the People’s witnesses were not less
reliable because of their criminal histories or reluctance to testify, and referred to a
demonstrative showing a jigsaw puzzle of a gun.
Following deliberations, the jury found Gonzales guilty of second-degree murder and
second-degree criminal possession of a weapon. After being polled at Gonzales’s request, the
jury was excused, and Gonzales asked to reserve any motions until sentencing. Prior to
sentencing, Gonzales moved to set aside the verdict, arguing that the prosecutor had committed
misconduct during opening and summation and that the trial evidence was legally insufficient.

The court denied the motion and subsequently sentenced Gonzales to an indeterminate term of
25 years to life imprisonment and a determinate term of 15 years’ imprisonment, with five years
of post-release supervision on each conviction, to be served concurrently.
Through counsel, Gonzales appealed his conviction, arguing that: 1) the trial court erred
by allowing the prosecution to introduce a prior consistent statement of the People’s primary
witness; 2) the prosecutor committed misconduct in the grand jury proceedings by acting as a
witness, usurping the role of the grand jury, and improperly bolstering an eyewitness
identification; 3) defense counsel was ineffective for failing to call an expert on identification

testimony and for failing to request a missing witness instruction; 4) the verdict was against the
3
weight of the evidence; 5) the prosecutor committed misconduct at trial by diluting the burden of
proof, bolstering the credibility of the People’s witnesses, and displaying prejudicial photographs
to the jury; 6) the photo array identification procedure was unduly suggestive and deprived
Gonzales of a fair trial; and 7) his sentence of 25 years to life imprisonment was harsh and

excessive. Gonzales also argued in a pro se supplemental brief that: 1) he was denied of his
right to be present at all material stages of the trial; 2) his absence from a proceeding during
which a jury inquiry was received and answered violated his right to be present; 3) the trial
court’s failure to solicit unequivocal answers from potential jurors warrants reversal of his
conviction; and 4) a reconstruction hearing is required to permit determination of the merit of
certain of his claims. The Appellate Division of the New York Supreme Court unanimously
affirmed the judgment against Gonzales in a reasoned opinion issued on December 23, 2016.
People v. Gonzales, 43 N.Y.S.3d 616, 619 (N.Y. App. Div. 2016). The New York Court of
Appeals denied leave without comment on June 8, 2017. People v. Gonzales, 86 N.E.3d 256,

256 (N.Y. 2017).
Gonzales then timely filed the instant undated pro se Petition for a Writ of Habeas
Corpus to this Court, which was received and docketed on December 6, 2017. Docket No. 1
(“Petition”); see 28 U.S.C. § 2244(d)(1)(A). Briefing is now complete, and the Petition is before
the undersigned judge for adjudication.
II. GROUNDS RAISED
In his pro se Petition before this Court, Gonzales raises the arguments he unsuccessfully
raised to the New York state courts on direct appeal through his counseled and pro se briefs.

Specifically, Gonzales argues that: 1) the trial court erred by allowing the prosecution to
4
introduce a prior consistent statement of the People’s primary witness; 2) the prosecutor
committed misconduct in the grand jury proceedings by acting as a witness, usurping the role of
the grand jury, and improperly bolstering an eyewitness identification; 3) defense counsel was
ineffective for failing to call an expert on identification testimony and for failing to request a

missing witness instruction; 4) the verdict was against the weight of the evidence; 5) the
prosecutor committed misconduct at trial by diluting the burden of proof, bolstering the
credibility of the People’s witnesses, and displaying prejudicial photographs to the jury; 6) the
photo array identification procedure was unduly suggestive and deprived Gonzales of a fair trial;
7) his sentence of 25 years to life imprisonment was harsh and excessive; 8) he was denied of his
right to be present at all material stages of the trial; 9) his absence from a proceeding during
which a jury inquiry was received and answered violated his right to be present; 10) the trial
court’s failure to solicit unequivocal answers from potential jurors warrants reversal of his
conviction; and 11) a reconstruction hearing is required to permit determination of the merit of

certain of his claims.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that

contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
5
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The term unreasonable is a
common term in the legal world. The Supreme Court has cautioned, however, that the range of
reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly

established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating
whether a rule application was unreasonable requires considering the rule’s specificity. The
more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.”).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson,
229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision of the state court
addressing the ground or grounds raised on the merits and no independent state grounds exist for

not addressing those grounds, this Court must decide the issues de novo on the record before it.
6
See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d
200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo
standard to a federal claim not reached by the state court). In so doing, the Court presumes that
the state court decided the claim on the merits and the decision rested on federal grounds. See

Coleman v. Thompson, 501 U.S. 722, 740 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see
also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman
interplay); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This
Court gives the presumed decision of the state court the same AEDPA deference that it would
give a reasoned decision of the state court. Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011)
(rejecting the argument that a summary disposition was not entitled to § 2254(d) deference);
Jimenez, 458 F.3d at 145-46. Under the AEDPA, the state court’s findings of fact are presumed
to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

IV. DISCUSSION
A. Evidentiary Error (Ground 1)
Gonzales first argues that the trial court erred by allowing the People to introduce on
redirect examination Stachurski’s prior consistent statement. The record reflects that, on cross-
examination, the defense elicited testimony from Stachurski regarding his invocation of the right
to remain silent before his grand jury testimony, and also asked Stachurski about how he had to
be cautioned in front of the grand jury about the rules regarding contempt before he answered the
prosecutor’s questions. The defense likewise elicited testimony that Stachurski learned

Gonzales’s name from one of the detectives on August 23, 2011, and asked Stachurski if he
7
recalled telling the grand jury, “I don’t know. I can’t remember” and “I was drunk” when asked
if he saw Olmo “get shot by a person who was later identified as Josue Gonzales.”
Prior to redirect examination and outside the presence of the jury, the prosecutor asked
the court for permission to pursue during redirect examination questioning about Stachurski’s

prior recalcitrance as a witness and his prior identification of Gonzales. The prosecutor argues,
“by asking Mr. Stachurski questions about not knowing Mr. Gonzales’ name, about the police
telling him Mr. Gonzales’ name . . . [the defense] has suggested to the jury in such a way . . . that
opens the door . . . for me to ask him on redirect that he did give a description to the police . . .
that he did identify the person, and . . . the person he identified was Josue Gonzales.” Over
defense objection, the court ruled that the prosecutor could elicit testimony regarding Stachurki’s
identification of Gonzales prior to being given Gonzales’s name by police:
My understanding is that Mr. Stachurski testified before the grand jury with
respect to the issue of the identification of the shooter, that basically, “I don’t know”
and/or “I don’t remember.” It’s been brought out on cross-examination by [defense
counsel] that during the grand jury presentation that there was a perceived threat, if you
will, of the potential prosecution of that witness, Mr. Stachurski, for Criminal Contempt.
The trial testimony of Mr. Stachurski, as I understand it now, is that, in fact, the
defendant, Mr. Gonzales, was the shooter and he identifies Mr. Gonzales as the shooter.
Prior to the grand jury testimony, which was, again, “I don’t know,” “I don’t remember”
— prior to the grand jury testimony my understanding is there was a statement that [the
prosecutor] now seeks to introduce that . . . allegedly made by this witness to the police
implicating Mr. Gonzales as the shooter which was given, obviously, prior to grand jury
testimony. That original statement was given prior to the threat of prosecution regarding
Criminal Contempt. The prior consistent statement he, Mr. Gonzales, was the shooter,
predates the event which was brought up on cross-examination, the contempt prosecution
as the alleged cause of the motive to slant the trial testimony. . . . For those reasons and
the reasons previously discussed on the record I will allow that course of redirect
examination.
On direct appeal, counsel argued that the trial court’s evidentiary ruling was erroneous.
The Appellate Division disagreed:
8
Contrary to [Gonzales’s] contention, the court did not err in allowing the
prosecutor to introduce, on redirect examination, the prior consistent statement of a
prosecution witness. Even assuming, arguendo, that the court erred in allowing the prior
consistent statement under the rationale that the trial testimony of the witness was
“assailed-either directly or inferentially-as a recent fabrication” by defense counsel on
cross-examination (People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611
N.E.2d 265), we conclude that the court properly determined, as a second rationale, that
defense counsel had opened the door to that testimony on cross-examination (see People
v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324). It is well
established that “[w]here . . . the opposing party ‘opens the door’ on cross-examination to
matters not touched upon during the direct examination, a party has the right on redirect
‘to explain, clarify and fully elicit [the] question only partially examined’ on
cross-examination” (id.). “[A] trial court should decide ‘door-opening’ issues in its
discretion, by considering whether, and to what extent, the evidence or argument said to
open the door is incomplete and misleading, and what if any otherwise inadmissible
evidence is reasonably necessary to correct the misleading impression” (People v.
Massie, 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102). In our view, once
defense counsel elicited selected portions of the prior statement of the witness on
cross-examination, the prosecutor was free to elicit the balance of the statement in order
to give the evidence before the jury its full and accurate context. Contrary to
[Gonzales’s] further contention on this point, the court “allow[ed] [only] so much
additional evidence to be introduced on redirect as [was] necessary to ‘meet what ha[d]
been brought out in the meantime upon the cross-examination’” (Melendez, 55 N.Y.2d at
452, 449 N.Y.S.2d 946, 434 N.E.2d 1324).
Gonzales, 43 N.Y.S.3d at 617-18.
Gonzales fares no better on federal habeas review. The Supreme Court has
acknowledged its “traditional reluctance to impose constitutional restraints on ordinary
evidentiary rulings by state trial courts.” Crane v. Kentucky, 476 U.S. 683, 689 (1986). The
Supreme Court has further made clear that federal habeas power does not allow granting relief
on the basis of a belief that the state trial court incorrectly interpreted the state evidence code in
ruling on the admissibility of evidence. Estelle, 502 U.S. at 72 (citing Cupp v. Naughten, 414
U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). A petitioner seeking habeas relief from an allegedly
erroneous evidentiary ruling bears the burden of establishing that the evidentiary error deprived
9
the petitioner of due process because it was so pervasive that it denied the petitioner a
fundamentally fair trial. See Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985).
Here, Gonzales’s evidentiary error claim is based on a New York state law which
prohibits corroborating trial testimony with pretrial statements of that witness. People v.

McDaniel, 81 N.Y.2d 10, 16 (N.Y. 1993). Such testimony is admissible, however, if, upon
cross-examination, the witness’s testimony is challenged as having been recently fabricated. Id.
at 18; see also People v. Ramos, 83 N.Y.S.3d 580, 582 (N.Y. App. Div. 2018), leave denied, 32
N.Y.3d 1128 (N.Y. 2018) (finding that, where counsel challenged the testimony of a witness as a
recent fabrication, the trial court “correctly admitted the prior consistent statement of the
complainant on direct examination of a law enforcement witness”). Gonzales argues, as he did
on direct appeal, that counsel did not “directly or inferentially” raise a claim of recent fabrication
such that the exception rule would apply. But as this argument involves only the application of
state law and does not present any constitutional issues, it does not provide a basis for habeas

review. See Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (noting that there is no
“Supreme Court case that clearly establishes that the admission of evidence that improperly
bolsters a prosecution witness’s testimony constitutes a violation of the Fourteenth
Amendment.”); see also Bryson v. Sheahan, No. 11-CV-0749, 2013 WL 5502835, at *24
(E.D.N.Y. Oct. 1, 2013) (“Courts in this circuit have repeatedly held that ‘the concept of
bolstering really had no place as an issue in criminal jurisprudence based on the United State
Constitution,’ and is a state law evidentiary issue.”) (quoting Castadi v. Poole, No. 07-CV-1420,
2013 WL 789986, at *7 (E.D.N.Y. Mar. 1, 2013)).

10
Moreover, the rule upon which the Appellate Division relied in finding the questioning
proper—that the opening up of a part of a transaction in cross-examination opens up an inquiry
into the transaction “in [its] entirety,”—is a likewise a long-recognized evidentiary rule in
federal jurisprudence as well. See Carver v. United States, 164 U.S. 694, 696-97 (1897); Gilmer

v. Higley, 110 U.S. 47, 50 (1884). The instant case is comparable to United States v. Maultasch,
596 F.2d 19 (2d Cir. 1979), where the Second Circuit Court of Appeals stated:
Maultasch also argues that the district court erred in permitting Truen to testify on
re-direct to Helman’s prior consistent statements. The trial court proceeded, however, on
the basis that Maultasch’s counsel opened the door on cross-examination by asking Truen
whether he and Helman had had discussions “concerning the Galaxy arrangements”
before and after a meeting with appellants. We believe that Judge Frankel correctly
admitted this evidence as to “precisely what those discussions were,” the subject of the
re-direct testimony.
Id. at 25. Having brought out on cross-examination a part of what Stachurcki had previously
said, Gonzales cannot now complain that the prosecutor brought out the rest of the prior
statement on re-direct examination. In any event, Gonzales has not shown how this testimony
could have served to have denied him a fair trial. Gonzales is therefore not entitled to federal
habeas relief on this ground.
B. Prosecutorial Misconduct - Grand Jury (Ground 2)
Gonzales next contends that the prosecutor committed misconduct during the grand jury
proceedings by acting as a witness , usurping the role of the grand jury, and improperly
bolstering the eyewitness identification made by Stachurski. According to Gonzales, the alleged
misconduct tainted the grand jury proceedings, at which Stachurski testified that he did not see
who shot Olmo. Gonzales avers that the remaining evidence was insufficient to support the
indictment, which should have been dismissed.
11
However, Gonzales’ subsequent conviction on the charges in the indictment forecloses
any potential relief with respect to such claim. For federal constitutional purposes, a jury
conviction transforms any defect in the grand jury’s charging decision into harmless error
because the trial conviction establishes probable cause to indict and also proof of guilt beyond a

reasonable doubt. See, e.g., United States v. Mechanik, 475 U.S. 66, 67 (1986) (“[T]he petit
jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable
cause to charge the defendants with the offenses for which they were convicted. Therefore, the
convictions must stand despite the [grand jury] rule violation.”). In Lopez v. Riley, the Second
Circuit relied on Mechanik in holding that “[i]f federal grand jury rights are not cognizable on
direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand
jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.” Lopez
v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); see also Davis v. Mantello, 42 F. App’x 488, 490-91 (2d
Cir. 2002) (“[C]laims of deficiencies in state grand jury proceedings are not cognizable in a

habeas corpus proceeding in federal court.” (citing cases)). Accordingly, Gonzales’s defective
grand jury claim also fails on federal habeas review.
C. Ineffective Assistance of Counsel (Ground 3)
Gonzales additionally avers that defense counsel was ineffective for failing to present
expert witness testimony on faulty identifications and for failing to request a missing witness
instruction. According to Gonzales, counsel should have retained and called an expert to testify
on identification issues because “the case depended entirely on Stachurski’s identification,”
which he contends was “particularly weak.” Gonzales likewise faults counsel for not requesting

a missing witness instruction after the People rested its case without calling Joshua Kirkland,
12
who observed the shooting and testified at the pre-trial Wade hearing. The Appellate Division
rejected these claims on direct appeal as follows:
Contrary to the contention of [Gonzales], he received effective assistance of
counsel (see generally People v. Baldi, 54 N.Y.2d 137, 141, 444 N.Y.S.2d 893, 429
N.E.2d 400). Defense counsel’s failure to obtain an expert on identification evidence
does not constitute ineffective assistance of counsel inasmuch as “‘[Gonzales] has not
demonstrated that such testimony was available, that it would have assisted the jury in its
determination or that he was prejudiced by its absence’” (People v. Jurgensen, 288
A.D.2d 937, 938, 732 N.Y.S.2d 815, lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764
N.E.2d 403). Furthermore, “[d]efense counsel’s failure to request a missing witness
charge did not constitute ineffective assistance of counsel [inasmuch as t]here was no
indication that the witness would have provided noncumulative testimony favorable to
the People” (People v. Smith, 118 A.D.3d 1492, 1493, 988 N.Y.S.2d 819, lv. denied 25
N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173). Lastly, [Gonzales] failed to demonstrate
the absence of strategic or other legitimate explanations for counsel's alleged error in
failing to request an “expanded” single eyewitness jury instruction (see generally People
v. Stanley, 108 A.D.3d 1129, 1130, 970 N.Y.S.2d 136, lv. denied 22 N.Y.3d 959, 977
N.Y.S.2d 190, 999 N.E.2d 555).
Gonzales, 43 N.Y.S.3d at 618.
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a
reasonable probability that the outcome might have been different as a result of a legal error, the
defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376,
1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at
393-95. Thus, Gonzales must show that his counsel’s representation was not within the range of
competence demanded of attorneys in criminal cases, and that there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
13
474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).

New York’s test for ineffective assistance of counsel under the state constitution differs
slightly from the federal Strickland standard. “The first prong of the New York test is the same
as the federal test; a defendant must show that his attorney’s performance fell below an objective
standard of reasonableness.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citing People
v. Turner, 840 N.E.2d 123 (N.Y. 2005)). The difference is in the second prong. Under the New
York test, the court need not find that counsel’s inadequate efforts resulted in a reasonable
probability that, but for counsel’s error, the outcome would have been different. “Instead, the
‘question is whether the attorney’s conduct constituted egregious and prejudicial error such that
the defendant did not receive a fair trial.’” Id. at 123 (quoting People v. Benevento, 697 N.E.2d

584, 588 (N.Y. 1998)). “Thus, under New York law the focus of the inquiry is ultimately
whether the error affected the ‘fairness of the process as a whole.’” Id. (quoting Benevento, 697
N.E.2d at 588). “The efficacy of the attorney’s efforts is assessed by looking at the totality of
the circumstances and the law at the time of the case and asking whether there was ‘meaningful
representation.’” Id. (quoting People v. Baldi, 429 N.E.2d 400, 405 (N.Y. 1981)).
The New York Court of Appeals views the New York constitutional standard as being
somewhat more favorable to defendants than the federal Strickland standard. Turner, 840
N.E.2d at 126. “To meet the New York standard, a defendant need not demonstrate that the

outcome of the case would have been different but for counsel’s errors; a defendant need only
14
demonstrate that he was deprived of a fair trial overall.” Rosario, 601 F.3d at 124 (citing People
v. Caban, 833 N.E.2d 213, 222 (N.Y. 2005)). The Second Circuit has recognized that the New
York “meaningful representation” standard is not contrary to the federal Strickland standard. Id.
at 124, 126. The Second Circuit has likewise instructed that federal courts should, like the New

York courts, view the New York standard as being more favorable or generous to defendants
than the federal standard. Id. at 125.
Gonzales’s ineffective assistance claim must fail, however, even under the more
favorable New York standard. With respect to his claim that counsel should have retained an
expert witness who could have opined on identification issues, it is unlikely that, but for the
omission of expert testimony regarding the eyewitness identifications, the outcome of
Gonzales’s case would have been different. Three eyewitnesses, two of whom were familiar
with Gonzales, placed him at the bar in question of the night of the murder. Two of those
witnesses saw Gonzales confront Olmo immediately before hearing gunfire and then seeing

Gonzales running away. Given the fact that at least two of the witnesses were familiar with
Gonzales and identified him shortly after the shooting, it is not clear that the trial court would
have even permitted expert testimony regarding the inaccuracy of eyewitness identifications,
much less than such proffered testimony would have affected the verdict.
Similarly, the Court cannot find unreasonable the Appellate Division’s determination that
Gonzales failed to show that Kirkland’s testimony would have been both noncumulative and
favorable to the People such that Kirkland would qualify as a “missing witness” under New York
law. Because Gonzales fails to prove that a missing witness instruction was warranted, he

necessarily fails to show that counsel was ineffective for failing to request such instruction.
15
Gonzales is therefore not entitled to relief on either argument advanced in support of his
ineffective assistance claim.
D. Verdict Against the Weight of the Evidence (Ground 4)
Gonzales next argues, as he did in his counseled appellate brief, that the verdict was

against the weight of the evidence presented at trial. As an initial matter, claims that challenge
verdicts as against the weight of the evidence are not cognizable on federal habeas review. See
McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69, 75 (2d Cir. 2011).
“Unlike a sufficiency of the evidence claim, which is based upon federal due process principles,
a weight of the evidence claim is an error of state law, for which habeas review is not available.”
Garrett v. Perlman, 438 F. Supp. 2d 467, 470 (S.D.N.Y. 2006) (citation and internal quotation
marks omitted). “A weight of the evidence argument is a pure state law claim grounded in
[Criminal Procedural Law (“CPL”)] § 470.15(5) which empowers New York state intermediate

appellate court[s] to make weight of the evidence determinations.” Id. (citation and internal
quotation marks omitted). The Court therefore denies Gonzales’s weight of the evidence claim
on that basis.
Moreover, even if Gonzales had properly raised before this Court a sufficiency of the
evidence claim, he would not be entitled to relief.2 As articulated by the Supreme Court in

2 At least some federal courts in this Circuit have concluded that presenting a
weight of the evidence claim without more also raises a federal sufficiency of the evidence claim
for purposes of habeas exhaustion. See, e.g., Williams v. LaValley, No. 9:12-cv-01141, 2014 WL
1572890, at *3 (N.D.N.Y. Apr. 17, 2014); Martin v. Brown, No. 08-CV-0316, 2010 WL
1740432, at *7-8 (E.D.N.Y. Apr. 29, 2010). Indeed, the Second Circuit has suggested in dicta
that a petitioner who raises a state law weight of the evidence claim on direct appeal has both
raised and exhausted a constitutional sufficiency of the evidence claim for federal habeas
purposes. See Liberta v. Kelly, 839 F.2d 77, 80 n.1 (2d Cir. 1988); see also Wilson v. Heath, 938
F. Supp. 2d 278, 290 (N.D.N.Y. 2013) (noting that “the Second Circuit [in Liberta] has
16
Jackson, the constitutional standard for sufficiency of the evidence is whether, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33

(2010) (reaffirming this standard). This Court must therefore determine whether the New York
court unreasonably applied Jackson. In making this determination, this Court may not usurp the
role of the finder of fact by considering how it would have resolved any conflicts in the
evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19.
Rather, when “faced with a record of historical facts that supports conflicting inferences,” this
Court “must presume–even if it does not affirmatively appear in the record–that the trier of fact
resolved any such conflicts in favor of the prosecution, and defer to that resolution.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).

Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system
is “that a state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw, 546 U.S. at 76;

suggested that a petitioner who raises a state law weight of the evidence claim on direct appeal
has exhausted a constitutional sufficiency of the evidence claim for federal habeas purposes”).
In an abundance of caution, this Court will assume that the Second Circuit will ultimately clearly
hold that, for exhaustion purposes, the presentation of a weight of the evidence claim is
sufficient to exhaust a federal sufficiency of the evidence claim and address the merits of the
claim.
17
see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter
of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts
as defining state law . . . .”). “Federal courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of constitutional dimension.” Sanchez-

Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221
(1982)) (internal quotation marks omitted).
In support of his claim, Gonzales attacks the value of the evidence against him by
alleging that the identification testimony of the eyewitnesses was unreliable and incredible due
to the primary witness’s intoxication and the “chaotic environment” circumstances of the
shooting, . But this Court is precluded from either re-weighing the evidence or assessing the
credibility of witnesses. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing
habeas claim because “assessments of the weight of the evidence or the credibility of witnesses
are for the jury and not grounds for reversal on appeal” and deferring to the jury’s assessments of

the particular weight to be accorded to the evidence and the credibility of witnesses). Under
Jackson, this Court’s role is simply to determine whether there is any evidence, if accepted as
credible by the trier of fact, sufficient to sustain conviction. See Schlup v. Delo, 513 U.S. 298,
330 (1995).
Here, two witnesses placed Gonzales at the bar on the night in question, one of whom
saw Gonzales arguing with Olmo. Two witnesses placed Gonzales in a location where he could
have shot Olmo at the time of the shooting, and one of the witnesses testified that he saw
Gonzales shoot Olmo with a gun. The location of the victim’s body in relation to the spent

shells supported the testimony of the two witnesses to the shooting. All of this evidence was
18
before the jury, who, after having an opportunity to review a video record that captured part of
the area at the time the shooting occurred, apparently chose to credit the People’s witnesses.
Although it might have been possible to draw a different inference from the evidence
presented at trial based on the inconsistencies and motivations identified by Gonzales, this Court

is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326.
Gonzales bears the burden of establishing by clear and convincing evidence that these factual
findings were erroneous. 28 U.S.C. § 2254(e)(1). He has failed to carry such burden. The
record does not compel the conclusion that no rational trier of fact could have found proof that
Gonzales was guilty of second-degree murder and second-degree criminal possession of a
weapon, especially considering the double deference owed under Jackson and the AEDPA.
Gonzales therefore cannot prevail on an insufficiency of the evidence claim either.
E. Prosecutorial Misconduct (Ground 5)

In Ground 5, Gonzales claims that the prosecution committed misconduct by bolstering
the credibility of its witnesses, diluting the burden of proof, eliciting damaging hearsay
statements and displaying prejudicial photographs to the jury. Federal habeas review of
prosecutorial misconduct claims is limited to the narrow issue of whether the alleged misconduct
violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A habeas petition
will be granted for prosecutorial misconduct only when the misconduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 171 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). To
constitute a due process violation, the prosecutorial misconduct must be “of sufficient

significance to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 485
19
U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667 (1985)). Under this
standard, a petitioner must show there is a reasonable probability the error complained of
affected the outcome of the trial—i.e., that absent the alleged impropriety, the verdict probably
would have been different.

Gonzales fails to satisfy this heavy standard with respect to any of his contentions. As an
initial matter, his arguments with respect to many of the instances of alleged misconduct are
procedurally barred from federal habeas review. Specifically, Gonzales did not object to the
prosecutor’s use of a jigsaw puzzle, the prosecutor’s display of the victim’s autopsy, or the
prosecutor’s reference in redirect examination to Stachurski’s fear of being labeled a “snitch.”
As to those contentions, the Appellate Division found that Gonzales “failed to preserve his
contention for [appellate] review.” Gonzales, 43 N.Y.S.3d at 618. “[A]n adequate and
independent finding of procedural default will bar federal habeas review of the federal claim.”
Harris, 489 U.S. at 262. In finding the majority of Gonzales’s claim unpreserved for appellate

review, the Appellate Division relied upon CPL §§ 330.30(1) and 470.05(2), New York’s
contemporaneous objection rule, which “provides that, with a few exceptions . . . New York
appellate courts will review only those errors of law that are presented at a time and in a manner
that reasonably prompted a judge to correct them during criminal proceedings,” Downs v. Lape,
657 F.3d 97, 103 (2d Cir. 2011).
New York’s contemporaneous objection rule has long been considered an “adequate and
independent ground” that bars federal habeas review. See Whitley v. Ercole, 642 F.3d 278, 292
(2d Cir. 2011); see also Downs, 657 F.3d at 102-04. As the record supports the Appellate

Division’s conclusion that Gonzales failed to raise the majority of his challenges before the trial
20
court, the Appellate Division properly applied CPL § 470.05(2), and Gonzales’s claim is largely
subject to dismissal on that basis.
In any event, Gonzales fails to show that the Appellate Division was unreasonable in
concluding that, in the alternative, Gonzales was not entitled to relief on the merits of any

portion of his claim. Gonzales complains that the prosecutor referred to the analogy of a
partially-completed jigsaw puzzle. But an independent review of the record reflects that the
prosecutor’s reference to the jigsaw puzzle was a fair response to defense counsel’s use of a
jigsaw puzzle metaphor to argue that there were significant gaps in the People’s evidence.3 See
Knight v. Walsh, 524 F. Supp. 2d 255, 287 (W.D.N.Y. 2007).

3 The Sixth Circuit Court of Appeals recently expressed concern over such analogy
in the direct appeal of a federal conviction:
The use of this metaphor for the beyond-a-reasonable-doubt standard was also
improper. One can easily imagine trying to put together a 1000-piece jigsaw puzzle
based on the picture on the box that the puzzle came in. Whether half of the puzzle
pieces are missing or only ten of them are missing, one could still piece together enough
of the puzzle to be able to recognize that it resembled the picture on the box.
Accordingly, jurors could understand the metaphor to describe a far less demanding
standard of proof than true proof beyond a reasonable doubt.
United States v. Bradley, 917 F.3d 493, 508 (6th Cir. 2019).
The Sixth Circuit nonetheless concluded that “the use of this metaphor was not flagrant
misconduct requiring reversal under the plain-error standard.” Id. As discussed above, the
“narrow” standard of review employed for due process claims in § 2254 cases is substantially
more deferential to the lower court decision than the plain error standard employed on federal
direct appeal. This is particularly true here given that, as aforementioned, it appears to have
been defense counsel that introduced the concept of the puzzle analogy to the jury. In any event,
there is simply no United States Supreme Court authority indicating that a prosecutor’s use of
the jigsaw puzzle analogy rises to the level of a federal constitutional violation. In the absence
of any clearly established federal law on this issue, AEDPA relief is foreclosed. See Carey, 549
U.S. at 77.
21
Gonzales also contends that he was deprived of due process by the prosecutor’s use of
Olmo’s autopsy, which the prosecutor displayed while commenting on how little the jury knew
about the victim’s life, because it impermissibly appealed to the jury’s sympathies. Similarly,
Gonzales challenges on the same ground certain comments made by the prosecutor, who urged

the jury not to acquit Gonzales simply because the eyewitnesses were reluctant to speak to the
police, and to not their let prejudices about the witnesses or the victim affect their deliberations.
But the photo and comments at issue are less egregious than the types of statements that the
Supreme Court has found to be insufficient to establish a due process violation based on
prosecutorial misconduct. See Darden, 477 U.S. at 180 n. 10-12 (prosecutor did not deprive
defendant of right to fair trial where prosecutor urged jury to impose death penalty by arguing
that “as far as I am concerned, . . . [the defendant is] an animal,” and “I wish [the decedent] had a
shotgun in his hand . . . and blown [the defendant’s] face off. I wish that I could see him sitting
here with no face, blown away by a shotgun”).

Finally, Gonzales argues that the prosecutor impermissibly vouched for Stachurski’s
credibility. It is well-established that “[a]ttorney statements vouching for the credibility of
witnesses are generally improper because they imply the existence of” evidence not before the
jury. United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (quoting United States v. Rivera,
22 F.3d 430, 438 (2d Cir. 1994)). Prosecutorial “vouching,” in particular, is improper because it
“carries with it the imprimatur of the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the evidence.” United States v. Newton, 369
F.3d 659, 681 (2d Cir. 2004) (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)). Here,

however, a fair reading of the record supports that the prosecutor was merely arguing that the
22
witnesses (who did not know each other) would not have corroborating accounts unless their
testimony was truthful. The prosecutor’s comments did not suggest that he was relying on any
extra-judicial evidence, and therefore did not constitute vouching. See United States v.Young,
470 U.S. 1, 18-19 (1985) (prosecutor’s statement evincing “belief . . . [that] contained no

suggestion that he was relying on information outside the evidence presented at trial” does not
implicate due process). In sum, Gonzales cannot prevail on any argument advanced in support
of his prosecutorial misconduct claim either.
F. Unduly Suggestive Photo Array (Ground 6)
Gonzales further avers that the photographic array identification procedure used in his
case was unduly suggestive and deprived him of a fair trial. The admission at trial of
identification testimony derived from an impermissibly suggestive photo array may violate a
criminal defendant’s right to due process. See United States v. Thai, 29 F.3d 785, 807-08 (2d

Cir. 1994). “In general, a pretrial photographic identification procedure used by law
enforcement officials violates due process if the procedure ‘is so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misrepresentation.’” Jarrett v. Headley,
802 F.2d 34, 40-41 (2d Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).
“Case law has developed no requirement, however, that photos in an array present only
individuals who match petitioner’s appearance in every detail.” Velazquez v. Poole, 614 F.
Supp. 2d 284, 300-01 (E.D.N.Y. 2007); Jarrett, 802 F.2d at 41 (“It is not required . . . that all of
the photographs in the array be uniform with respect to a given characteristic.”). Rather,
“[d]ifferences among the physical characteristics of individuals in a photo array are

constitutionally permissible, provided that they are not significant enough to suggest that the
23
defendant was the culprit.” Velazquez, 614 F. Supp. 2d at 301; see United States v. Bautista, 23
F.3d 726, 731 (2d Cir. 1994).
The Appellate Division’s conclusion on direct appeal that the photo array did not create a
substantial risk that Gonzales was unfairly singled out for identification was neither

unreasonable nor contrary to federal law. Gonzales argues, as he did on direct appeal, that the
photo array was unduly suggestive because there were only two other Hispanic men in the array,
one of which had “visible neck tattoos and [wa]s clearly heavier than the other individuals,” and
“[t]he background of [Gonzales]’s photograph [wa]s also considerably lighter than the other
photographs.” But a review of the photo array supports that the differences among the physical
characteristics of the six young men shown in the array was not significant enough to suggest to
an identifying witness that Gonzales was likely to be the culprit. See See Velazquez, 614 F.
Supp. 2d at 301 (finding photo array not unduly suggestive where the array showed men of
similar age, complexion, facial hair, eye color and hair color and style); United States v. Valdez,

No. S1 92 Cr. 76, 1993 WL 14650, at *3 (S.D.N.Y. Jan. 14, 1993) (photo array not unduly
suggestive where four of the five men pictured had skin color and facial hair comparable to the
defendant). Gonzales is therefore not entitled to relief on this ground.
G. Harsh and Excessive Sentence (Ground 7)
Gonzales further avers that his sentence of 25 years to life imprisonment is harsh and
excessive. It is well-settled, however, that an excessive sentence claim may not be raised as
grounds for federal habeas corpus relief if the sentence is within the range prescribed by state
law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Bellavia v. Fogg, 613 F.2d 369, 373

(2d Cir. 1979) (setting mandatory sentences is solely the province of state legislature);
24
Hernandez v. Conway, 485 F. Supp. 2d 266, 284 (W.D.N.Y. 2007) (excessive sentence claim
does not present a federal question cognizable on habeas review where the sentence was within
the range prescribed by state law). Here, under New York Penal Law §§ 70.00(2)(a), 3(a)(i), and
125.25(1), the court was required to sentence Gonzales to a sentence of 15 years to life

imprisonment up to 25 years to life. Gonzales has never disputed, and does not dispute here, that
his sentence of 25 years to life imprisonment is within the applicable range .
And to the extent that Gonzales’s claim could be construed to assert an Eighth
Amendment claim of cruel and unusual punishment, he cannot prevail on that claim either.
While the Supreme Court has stated that “[a] gross disproportionality principle is applicable to
sentences for terms of years,” it has further cautioned that it would be the “exceedingly rare” and
“extreme” case which would involve a sentence which is “contrary to” or an “unreasonable
application of” this principle. Lockyer v. Andrade, 538 U.S. 63, 72, 73 (2003) (quoting
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and

concurring in judgment)); 28 U.S.C. § 2254(d)(1). “‘[A] reviewing court rarely will be required
to engage in extended analysis to determine that a sentence is not constitutionally
disproportionate’ because ‘the decision of a sentencing [court] is entitled to substantial
deference.’” Edwards v. Marshall, 589 F. Supp. 2d 276, 290 (S.D.N.Y. 2008) (quoting United
States v. Persico, 853 F.2d 134, 138 (2d Cir. 1988)). Here, the sentence imposed by the trial
court and subsequently affirmed by the Appellate Division “does not remotely approach the
realm of grossly disproportionate punishments.” Edwards, 589 F. Supp. 2d at 291 n.11; see
Lockyer, 538 U.S. at 67-68, 77 (finding that, under California’s Three Strikes law, a sentence of

two consecutive terms of 25 years to life imprisonment for two counts of petty theft did not
25
warrant relief under the AEDPA); Rummel v. Estelle, 445 U.S. 263, 285 (1980) (mandatory life
sentence imposed under Texas statute upon defendant’s third felony conviction, which was for
obtaining $120.75 by false pretenses, did not constitute cruel and unusual punishment).
Gonzales is therefore not entitled to relief on his sentencing claim in any event.

H. Denial of Right to be Present at Trial (Grounds 8, 9, 11)
Gonzales additionally argues, as he did in his pro se supplemental brief on direct appeal,
that he was deprived of his right to be present at all material stages of his trial. A criminal
defendant’s right to be present at trial is rooted in the Confrontation Clause of the Sixth
Amendment, which guarantees a defendant the right to be present at trial to confront the
witnesses and evidence against him. United States v. Tureseo, 566 F.3d 77, 83 (2d Cir. 2009)
(citing United States v. Gagnon, 470 U.S. 522, 526 (1985)); see also Grayton v. Ercole, 691 F.3d
165, 170 (2d Cir. 2012). “[T]his right to be present has been extended to other critical stages of

trial beyond those related to the defendant’s rights to confronting witnesses and evidence.”
Tureseo, 566 F.3d at 83. A defendant “has a due process right to be present in his own person
whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge.” Id. (internal quotation marks and citation omitted); see also Faretta
v. California, 422 U.S. 806, 819 n.15 (1975) (stating that a criminal defendant “has a right to be
present at all stages of the trial where his absence might frustrate the fairness of the
proceedings”); United States v. Rivera, 22 F.3d 430, 438 (2d Cir. 1994) (“Due Process requires
that a defendant be present at all stages of the trial to the extent that a fair and just hearing would
be thwarted by his absence.”) (internal quotation marks and citation omitted)).

26
Here, however, as the Appellate Division reasonably determined, Gonzales fails to show
that he was absent from a material stage of his trial. In his supplemental brief on direct appeal,
Gonzales refers to bench and sidebar conferences held between the judge, the prosecutor, and
defense counsel to discuss legal issues. Gonzales does not argue, and he fails to demonstrate,

that these conferences either required Gonzales’s presence or that his absence from them
frustrated the fairness of his trial, and an independent review of the trial transcript provides no
such support either. Notably lacking from the instant Petition is any claim of prejudice as a
result of Gonzales’s exclusion from sidebar and bench conferences; nor is there any reason to
conclude that Gonzales’s presence at such conferences would have had any “reasonably
substantial” relation to his opportunity to defend against the charges. See Wilson v. Bennett, 188
F. Supp. 2d 347, 356 (S.D.N.Y. 2001). Consequently, Gonzales’s absence at the bench and
sidebar conferences did not substantially affect his ability to defend his case, and he is not
entitled to relief on this claim. See Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996)

(concluding that petitioner’s presence at sidebar was not required because it would not have had
a substantial effect on her ability to defend).
Gonzales also argued on direct appeal that the Appellate Division should remit the matter
for a reconstruction hearing to adjudicate the merits of this due process claim. Gonzales’s
inclusion of that argument in the instant Petition, construed liberally, Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam), may indicate that Gonzales believes he is entitled to an
evidentiary hearing in this Court on his claim that he was deprived of his right to be present at all
material stages of his trial. But the AEDPA requires that a petitioner must allege a colorable

claim for relief to obtain an evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465, 474-75
27
(2007). As there is no support in the record or the instant Petition for Gonzales’s claim that he
was excluded from a material stage of his trial, Gonzales fails to show that it is a colorable claim
warranting development in an evidentiary hearing.
I. Failure to Solicit Equivocal Answers from Potential Jurors (Ground 10)

Finally, Gonzales claims that the trial court erred during jury selection when it
questioned jurors in a blanket fashion and did not obtain individual, unequivocal answers to its
questions. The Appellate Division denied this claim on procedural grounds, finding that
Gonzales failed to preserve such contention for appellate review. As more thoroughly discussed
supra, the Appellate Division’s reliance on New York’s contemporaneous objection rule renders
the claim procedurally barred from federal habeas review here.
In any event, Gonzales’s claim is based on CPL § 270.15, which governs the procedures
in New York regarding examination of prospective jurors. To the extent Gonzales again

contends that the trial court’s actions violated § 270.15, such claim presents only a state law
issue not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68 (“We have stated
many time that ‘federal habeas corpus relief does not lie for errors of state law.”); see also Afrika
v. Conway, No. 06-CV-0280, 2011 WL 582618, at *9 (W.D.N.Y. Feb. 9, 2011) (holding
violation of CPL § 270.20 not cognizable on federal habeas review). Moreover, Gonzales does
not point to, and this Court is not aware of any, clearly-established Supreme Court authority
disapproving of the trial court’s procedures in questioning the jurors collectively, particularly
given that Gonzales has provided no evidence that the jury who convicted him was anything
other than fair and impartial. Lacking such clearly-established Supreme Court authority, it

cannot be concluded that the appellate court’s ruling contravened or unreasonably applied
28
federal law. Carey, 549 U.S. at 77 (noting that, where the Supreme Court has not adequately
addressed a claim, a federal court cannot find a state court ruling unreasonable). Gonzales is
therefore not entitled to relief on this claim in any event.
V. CONCLUSION

Gonzales is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 17, 2020.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313432. Public record. Not legal advice.