Whitehead v. LaManna

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

NORMAN WHITEHEAD,

Petitioner,

-against- 9:18-CV-1436 (LEK/TWD)

JAMIE LAMANNA,

Respondent.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Petitioner Norman Whitehead seeks federal habeas relief pursuant to 28 U.S.C. § 2254.

Dkt. No. 1 (“Petition”); Dkt. No. 1-1 (“Petition Memorandum”). Petitioner challenges his New

York State convictions. He argues that he was denied effective assistance of appellate counsel

during state court proceedings in violation of the Sixth Amendment. See generally Pet. Mem.

On March 12, 2019, Respondent Jamie LaManna filed a response to the Petition. Dkt.

No. 5 (“Response”). After this Court granted Petitioner’s request for more time to reply to

Respondent, Dkt. No. 11, Petitioner submitted his reply on May 2, 2019, Dkt. No. 12 (“Reply”).

Now before the Court is a Report-Recommendation issued by the Honorable Thérèse

Wiley Dancks, United States Magistrate Judge, recommending that the Petition be denied and

dismissed, and no certificate of appealability be issued. Dkt. No. 13 (“Report-

Recommendation”). Petitioner filed objections to the Report-Recommendation. Dkt. No. 20

(“Objections”).1 Respondent has filed a response to the objections. Dkt. No. 23 (“Response to

1 On February 11, 2022, Petitioner requested a 30-day extension to file objections to the Report-

Recommendation, Dkt. No. 15, which the Court granted on February 14, 2022. Dkt. No. 16.

Objections”).

For the reasons that follow, the Court approves the Report-Recommendation in part and

rejects the Report-Recommendation in part. The Court rejects the Report-Recommendation to

the extent it recommends denying habeas relief for the following claim advanced by Petitioner:

Petitioner’s appellate counsel was constitutionally ineffective for failing to argue that Petitioner’s

trial counsel was constitutionally ineffective for not moving to dismiss the five facially defective

counts (225, 226, 227, 228, and 229) in the indictment. Therefore, the Court grants habeas relief

with respect to that Sixth Amendment claim. Accordingly, Petitioner’s convictions stemming

from those five counts are vacated and this action is remanded to the Albany County Court for

proceedings consistent with this Memorandum-Decision and Order. The Report-

Recommendation is otherwise approved and adopted.

II. BACKGROUND

A. Factual Background

The factual circumstances relevant to Petitioner’s convictions for the possession,

purchase, and sale of controlled substances, as well as for conspiracy, were detailed in the

Report-Recommendation, familiarity with which is assumed. R. & R. at 2–3. Likewise, the

factual allegations underlying Petitioner’s request for habeas relief were detailed in the Report-

Recommendation. See id.

B. Procedural History

Petitioner was one of more than 26 individuals named in a 278-count indictment

concerning various drug-related crimes. Dkt. No. 6-2 at 6–125. Petitioner was initially charged

with eleven of the counts. See id. These counts included (1) conspiracy in the second degree

(Count 1); (2) criminal possession of a controlled substance in the second degree (Count 225);

(3) criminal possession of a controlled substance in the third degree (Counts 226 and 229); (4)

criminal sale of a controlled substance in the first degree (Count 227); (5) criminal possession of

a controlled substance in the first degree (Count 228); (6) criminal sale of a controlled substance

in the third degree (Counts 224, 232, 244, and 245); and (7) attempted criminal possession of a

controlled substance in the third degree (Count 242). See id. Before trial, however, the

prosecution dismissed Counts 224 and 242, leaving just nine counts remaining. Dkt. No. 6 at

370–72.

Following an Albany County Court jury trial on July 30, 2012, Petitioner was convicted

of all nine counts and sentenced to an aggregate term of 29 years in prison. Dkt. No. 6-6 at 22–

23; Dkt. No. 7-10 at 8–10. Thereafter, Petitioner appealed to the Third Department and submitted

his papers on November 20, 2014. Dkt. No. 6 at 11–69. Petitioner’s appellate counsel raised

several arguments that sought to overturn Petitioner’s convictions. See id. However, the Third

Department rejected every argument, except for Petitioner’s arguments related to Counts 244 and

245. See People v. Whitehead, 130 A.D.3d 1142, 1143 (N.Y. App. Div. 2015). The Third

Department found that Petitioner’s “convictions on counts 244 and 245 [we]re not supported by

the weight of the evidence,” and reversed Petitioner’s convictions on those counts. After the

Third Department’s decision, only seven counts remained from the eleven counts Petitioner

initially faced.

Petitioner subsequently sought review before the New York State Court of Appeals,

which was granted. Dkt. No. 6-3 at 97. Petitioner argued that the remaining seven counts were

unsupported by legally sufficient evidence, but the Court of Appeals disagreed. See People v.

Whitehead, 29 N.Y.3d 956, 958 (N.Y. 2017). In a two-page order on March 28, 2017, the Court

of Appeals rejected Petitioner’s arguments concerning the sufficiency of the evidence, in

addition to Petitioner’s “remaining claims.” Id.

On May 24, 2018, Petitioner filed a writ of error coram nobis before the Third

Department. Dkt. No. 6-5 at 235–68. Petitioner argued that his right to effective assistance of

counsel was violated by his appellate counsel’s failure to raise the following issues on appeal: (1)

trial counsel’s previous representation of a key prosecution witness which purportedly presented

a conflict of interest; (2) the trial court’s error in permitting the prosecution to amend Counts

227, 228, and 229 during trial; (3) the indictment being impermissibly amended under New York

Law; and (4) trial counsel’s ineffectiveness in failing to: (a) move to dismiss as facially defective

Counts 225, 226, 227, 228, 229, and 244 of the indictment because the counts did not allege

Petitioner’s conduct had a particular effect in Albany County; (b) argue that the eavesdropping

warrants were procedurally and substantively defective; and (c) move to dismiss Counts 225,

227, and 228 because the prosecution had failed to prove the aggregate weight of the illegal

drugs. Dkt. No. 6-5 at 240–49, 472–90.

On September 7, 2018, the Third Department summarily denied the petition. Dkt. No. 6-6

at 24. And on November 15, 2018, the Court of Appeals denied Petitioner’s request for leave to

appeal. Dkt. No. 6-5 at 30.

Petitioner commenced suit in this Court on December 12, 2018, raising arguments

concerning his alleged deprivation of effective assistance of appellate counsel. Dkt. No. 1. On

February 8, 2022, the Magistrate Judge issued a Report-Recommendation, recommending that

the Petition should be denied and no certificate of appealability be issued. See generally R. & R.

C. The Report-Recommendation

As discussed, the Magistrate Judge reviewed the Petition and the Response and

recommended that the Petition should be denied and that no Certificate of Appealability be

issued. See generally id.

First, the Magistrate Judge addressed Petitioner’s claim regarding the eavesdropping

warrant that enabled Petitioner’s indictment. Id. at 12. Petitioner asserted that his appellate

counsel was ineffective for failing to argue that Petitioner’s trial counsel should have challenged

the warrant’s alleged deficiencies. Id. Specifically, Petitioner contended that the warrant was in

violation of New York Criminal Procedure Law (“NYCPL”) § 700.65 because it (1) had

terminated before it was amended, (2) exceeded the thirty-day duration permitted for warrants,

and (3) relied on an “impermissible transfer of necessity and or probable cause.” Id. at 12–13.

However, the Magistrate Judge rejected each argument because the “necessary factual predicate

for each of Petitioner’s arguments [was] unsupported by the record.” Id. at 13.

Second, the Magistrate Judge analyzed Petitioner’s argument regarding the facial

deficiencies in the indictment. Id. at 14. Petitioner argued that his appellate counsel was

ineffective because appellate counsel failed to argue that trial counsel should have moved to

dismiss six defective counts in the indictment. Id. Petitioner specifically posited that these counts

were facially defective because they did not allege that Petitioner’s offense took place in the

county in which the crimes were charged. Id. The Magistrate Judge began by noting that despite

Respondent’s argument to the contrary, the indictment did not contain a preamble establishing

the indictment’s jurisdiction for the challenged counts. Id. at 18. The Magistrate Judge further

found that Respondent’s alleged theory of jurisdiction—the narrow and rarely used “particular

effect jurisdiction”—was not properly pleaded anywhere in the indictment. Id. She thus

concluded that the “indictment does not plead effect jurisdiction . . . under Counts 225 through

229.” Id. The Magistrate Judge thus agreed with Petitioner that “[t]hese facts should have been

obvious to appellate counsel, who should have realized that this was a significant issue.” Id.

(citation omitted). However, despite finding that the indictment failed to plead jurisdiction, she

ultimately rejected Petitioner’s arguments. The Magistrate Judge stated that although “the

language” from Court of Appeals cases supports Petitioner’s argument, “fairminded jurists could

disagree on whether there is a reasonable probability that this argument would have succeeded

before the Court of Appeals.” Id. at 19 (citation omitted). The Magistrate Judge thus found: “In

the absence of any New York appellate decision granting relief on the theory that Petitioner

advances, fairminded jurists could disagree on whether it was correct for New York’s appellate

courts to deny Petitioner’s claim.” Id. at 20–21.

Third, the Magistrate Judge turned to Petitioner’s argument that “appellate counsel was

ineffective in failing to argue trial counsel should have moved to dismiss Counts 225, 227, and

228 because the prosecution failed to prove the aggregate weight of the drugs.” Id. at 21 (citing

Pet. Mem. at 9, 17–18). The Magistrate Judge rejected this argument because, when “[v]iewing

this evidence in the light most favorable to the prosecution, any rational trier of fact could have

found that” Petitioner committed the crimes for which he was convicted. Id. at 23.

Fourth, the Magistrate Judge analyzed Petitioner’s argument that “appellate counsel was

ineffective for failing to argue the trial court should have denied the prosecution’s mid-trial

motion to amend Counts 227, 228, and 229.” Id. The Magistrate Judge was unpersuaded by this

argument because she found that “Petitioner’s claim is unsupported by the text” of the New York

criminal statute at issue, which requires a showing of prejudice that Petitioner could not satisfy.

Id. at 26. She also found that this argument was not so “significant and obvious” that appellate

counsel should have been on notice of it. Id. at 27.

Fifth, the Magistrate Judge found Petitioner’s next argument—“that appellate counsel

was ineffective for failing to argue trial counsel had an actual conflict of interest that adversely

affected his performance”—unavailing. Id. Petitioner contended that this was a Sixth

Amendment violation because the alleged conflict from trial counsel’s prior representation of a

key prosecution witness should have been obvious to appellate counsel. However, the Magistrate

Judge did not identify a conflict. She instead concluded that: “Petitioner fails to identify trial

counsel’s divergent obligations and relevant conflicting interests.” Id. at 31. She also stated that

“Petitioner has failed to demonstrate how trial counsel’s alleged errors while cross-examining the

prosecution witness were caused by counsel’s ongoing professional obligations to the witness.”

Id. Accordingly, she rejected this argument and recommended that this Court deny the Petition

and decline to issue a Certificate of Appealability. Id. at 32–33.

III. LEGAL STANDARD

“Rule 72 of the Federal Rules of Civil Procedure and Title 28 United States Code Section

636 govern the review of decisions rendered by Magistrate Judges.” A.V. by Versace, Inc. v.

Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405 (S.D.N.Y. 2002); see also 28 U.S.C. § 636;

Fed. R. Civ. P. 72. Review of decisions rendered by Magistrate Judges are also governed by the

Local Rules. See L.R. 72.1. As 28 U.S.C. § 636 states:

Within fourteen days after being served with a copy [of the

magistrate judge’s report and recommendation], any party may

serve and file written objections to such proposed findings and

recommendations as provided by rules of the court. A judge of the

court shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which

objection is made. A judge of the court may accept, reject, or

modify, in whole or in part, the findings of recommendations made

by the magistrate [judge]. The judge may also receive further

evidence or recommit the matter to the magistrate [judge] with

instructions.

28 U.S.C. § 636(b)(1). When written objections are filed and the district court conducts a de

novo review, that “de novo determination does not require the Court to conduct a new hearing;

rather, it mandates that the Court give fresh consideration to those issues to which specific

objections have been made.” A.V. by Versace, 191 F. Supp. 2d at 406 (emphasis in original); see

also 12 Wright & Miller, Fed. Prac. & Proc. Civ. § 3070.2 (3rd ed.) (2022) (“[T]he judge to

whom the objection is made must review the record and magistrate’s recommendations, and

must make a de novo determination of the facts and legal conclusions, receiving additional

evidence and rehearing witnesses at his or her discretion. The district judge must not be a rubber

stamp.” (footnote omitted)).

“The district court may adopt those portions of a report and recommendation to which no

timely objections have been made, provided no clear error is apparent from the face of the

record.” DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). “When a party

makes only conclusory or general objections, or simply reiterates the original arguments, the

Court will review the [report and recommendation] strictly for clear error.” New York City Dist.

Couns. of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334, 336 (S.D.N.Y. 2018) (quoting

Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)).

Moreover, an application for a writ of habeas corpus may not be granted until a state

inmate “has exhausted the remedies available in the courts of the State” unless “there is an

absence of available State corrective process” or “circumstances exist that render such process

ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254 (b)(1)(A), (B)(i), (ii).

To satisfy the exhaustion requirement under § 2254, a state inmate must “rais[e] his

federal claim before the state courts in accordance with state procedures.” Shinn v. Ramirez, 142

S. Ct. 1718, 1732 (2022) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

Additionally, a state inmate must also “‘fairly present’ his claim in each appropriate state court

(including a state supreme court with powers of discretionary review), thereby alerting that court

to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations omitted).

In other words, a state inmate “must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate review

process.” O’Sullivan, 526 U.S. at 845.

“Where as here, the state court does not provide reasons for its dismissal of a petitioner’s

claim, [courts] consider ‘what arguments or theories . . . could have supported[] the state court’s

decision,’” and a federal court “may grant habeas [relief] only if ‘fairminded jurists could [not]

disagree that those arguments or theories are inconsistent with the holding in a prior decision of

the Supreme Court.” Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (quoting Harrington v.

Richter, 562 U.S. 86, 102 (2011)).

The Supreme Court has long recognized that that the Sixth Amendment guarantees “the

right to effective assistance of counsel on [direct] appeal.” Evitts v. Lucey, 469 U.S. 387, 396–97

(1985). “In assessing a claim that a lawyer’s representation did not meet the constitutional

minimum, [courts] ‘indulge a strong presumption that counsel’s conduct f[ell] within the wide

range of professional assistance.’” Lynch, 789 F.3d at 311 (quoting Strickland v. Washington,

466 U.S. 668, 689 (1984)). To defeat this presumption, a petitioner “must establish both parts of

the familiar Strickland test, showing first, that his attorney’s performance ‘fell below an

objective standard of reasonableness,’ and, second, that there was prejudice, meaning a

‘reasonable probability’ that but for counsel’s error, the outcome would have been different.” Id.

(quoting Strickland, 466 U.S. at 694) (internal citations omitted). The Supreme Court has

instructed that this standard applies in both the appellate and trial context. See Smith v. Robbins,

528 U.S. 259, 285 (2000) (“[T]he proper standard for evaluating [a] claim that appellate counsel

was ineffective . . . is that enunciated in Strickland[.]”).

Therefore, “a petitioner may establish constitutionally inadequate performance of

[appellate counsel] if he shows that counsel omitted significant and obvious issues while

pursuing issues that were clearly and significantly weaker.” Lynch, 789 F.3d at 311 (alteration in

original) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). The issue omitted may

be based in either federal or state law. See id. (citing Mayo, 13 F.3d at 533). And “[t]o establish

prejudice in the appellate context, a petitioner must show that, had his claim been raised on

appeal, there is a reasonable probability that it would have succeeded before the state’s highest

court.” Lynch, 789 F.3d at 311 (citing Claudio v. Scully, 982 F.2d 798, 805 (2d Cir. 1992)).

“Whereas counsel’s performance is evaluated based ‘on the facts of the particular case, viewed

as of the time of counsel’s conduct,’” id. (citing Strickland, 466 U.S. at 690), “the prejudice

determination ‘may be made with the benefit of hindsight.’” Id. (quoting Mayo, 13 F.3d at 534).

IV. DISCUSSION

Petitioner objected to every single one of the Magistrate Judge’s conclusions. See

generally Objs. Because Petitioner lodged specific objections to many of the Magistrate Judge’s

findings, the Court will conduct a de novo review of the Report-Recommendation unless

otherwise noted. The Court thus must determine whether it should accept, reject, or modify the

Magistrate Judge’s recommendation to (1) deny and dismiss the Petition and (2) decline to grant

a Certificate of Appealability.

A. Appellate Counsel’s Alleged Failure to Argue That Trial Counsel Failed to

Preserve a Meritorious Challenge to the Eavesdropping Warrant

Petitioner objected to the portion of the Report-Recommendation that rejected his

argument about the eavesdropping warrant used to surveil him. In particular, Petitioner asserted

that appellate counsel was ineffective for failing to argue that trial counsel should have

challenged the deficiencies in the eavesdropping warrant. Objs. at 1. Petitioner states that “the

Magistrate Judge did not directly rule on Petitioner’s claim that NY CPL 700.65 does not permit

a court to issue an ‘amended’ eavesdropping warrant to add a new target. Petitioner argued that

the New York statute does not allow for the amendment of an eavesdropping warrant to add new

targets and that a new warrant must be obtained to eavesdrop on new subjects.” Id. Likewise:

“Petitioner [also] objects to the R&R’s findings and conclusions concerning his claims that the

February 11, 2011 warrant and prior warrants impermissibly transferred necessity and probable

cause between multiple orders combined in one application in violation of NY CPL 700.20.” Id.

at 5. Thus, this objection focuses on (1) the Magistrate Judge’s alleged failure to address

Petitioner’s argument that New York State investigators did not comply with state law in

obtaining the warrant at issue; and (2) the R. & R.’s analysis of whether probable cause and

necessity were transferred in a way that complied with NY CPL 700.20.

The Magistrate Judge found that appellate counsel was not ineffective for declining to

raise arguments concerning trial counsel’s failure to challenge the alleged deficiencies because:

“The necessary factual predicate for each of Petitioner’s arguments is unsupported by the record.

First, there appears to be no lapse in the warrants between November 19, 2010, and April 30,

2011. The warrants were timely amended and did not expire during this period.” R. & R. at 13

(internal citations omitted). The Magistrate Judge also found that, “none of the warrants appear

to have exceeded 30 days. Importantly, the warrant that investigators used to track Petitioner’s

conduct before and on February 27, 2011, took effect on February 11, 2011 and was prohibited

from exceeding March 12, 2011. The evidence accordingly does not support Petitioner’s claim

that the warrants exceeded 30 days.” Id. (citations omitted). Finally, the Magistrate Judge found

no reason to disagree with the “judge who reviewed and granted the investigators’ warrant

application [who] specifically concluded there was probable cause to believe Petitioner was

about to engage in drug-related criminal activity.” Id. at 13–14. Thus, according to the

Magistrate Judge: “Petitioner’s appellate counsel did not err in failing to raise these issues, which

were unlikely to prevail on appeal.” Id. at 14 (citation omitted).

The Court agrees with the Magistrate Judge. Petitioner first takes issue with the

Magistrate Judge’s finding that there was “no lapse in the warrants between November 19, 2010,

and April 30, 2011.” R. & R. at 13. Petitioner contends that contrary to the Magistrate Judge’s

conclusion, “the original warrant, issued on November 19, 2010 [to surveil alleged co-

conspirator] Roehr[], had expired when the February 11, 2011 ‘amendment’ was issued

authorizing the surveillance of Whitehead and his phone.” Objs. at 3. Petitioner finds support for

his theory of the expiration date in NY CPL 700.65(4). That statute states:

When a law enforcement officer, while engaged in intercepting

communications . . . in the manner authorized by this article,

intercepts a communication or makes an observation which was not

otherwise sought and which constitutes evidence of any crime . . .

the contents of such communications or observation, and evidence

derived therefrom, may be disclosed . . . and any evidence derived

therefrom may be used . . . when a justice amends the eavesdropping

or video surveillance warrant to include such contents.

NY CPL 700.65(4). From this language Petitioner gleans that the statute, “allow[s] for the

surveillance of electronic communications for a new crime that was discovered under the initial

warrant, not for the investigation of new targets and new phones. In this case, the February 2011

warrant added Norman Whitehead and his phone as targets—an ‘amendment’ that was not

authorized by law.” Objs. at 2. And furthermore, Petitioner states that the New York Practice

Commentaries supports this interpretation of NY CPL 700.65(4). The relevant language from the

Commentaries includes:

[T]here is a distinction between amending the warrant to include

discovery of a new crime and expanding the warrant for further

electronic surveillance. The purpose of the amendment pursuant to

[CPL § 700.65 (4)] is to serve as assurance that the information was

obtained through a valid order and in good faith, but if an extension

of electronic surveillance is based upon the inadvertent discovery, a

new warrant must be obtained, which involves compliance with all

the criteria for the original warrant

Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL § 700.65.

Although Petitioner’s argument concerning Section 700.65 proscribing the use of a

warrant in this manner may be plausible, the Court is unpersuaded that this argument “raise[d] a

significant obvious issue” that appellate counsel should have raised. Lynch, 789 F.3d at 312.

While it is certainly possible that this argument could theoretically succeed, the issue must be

“patently obvious on the face of the record” to meet the first prong of the Strickland test. Id.

Petitioner does not cite any New York State cases addressing CPL 700.65(4) that would put

appellate counsel on notice that this argument was obvious. Objs. at 2–6; cf. Lynch, 789 F.3d at

314 (“A simple Shepard-search of that precedent would have revealed the recent Court of

Appeals case applying the precedent in a highly analogous context.”). Instead, Petitioner

principally supports this interpretation of New York law by relying on non-controlling New

York Practice Commentaries, propositions of law concerning wiretap applications from out of

circuit courts, and a Court of Appeals case dealing with a different subsection of NY CPL 700.

Objs. at 2–6.

As a result, it is not evident to this Court that the warrants exceeded thirty days under

each new application in violation of New York State law, Dkt. No. 6 at 110–241. Likewise, it is

not obvious that there was a lapse in the warrants between November 19, 2010, and April 30,

2011. See id.2 It thus follows that appellate counsel was not ineffective for failing to raise these

arguments, since they were not “patently obvious on the face of the record.” Lynch, 789 F.3d at

312. Therefore, the Third Department’s rejection of this ineffective assistance of counsel claim

was not “contrary to, or involved an unreasonable application of, clearly established Federal

law.” 28 U.S.C. § 2254(d)(1).

Petitioner also “objects to the R&R’s findings and conclusions concerning his claims that

the February 11, 2011 warrant and prior warrants impermissibly transferred necessity and

probable cause between multiple orders in one application of violation of NY CPL 700.20.”

Objs. at 5.

However, this argument was already made before the Magistrate Judge in Petitioner’s

initial habeas application. See Pet. Mem. at 14 (“The amended eavesdropping warrant was also

[sic] because it exceeded the thirty-day limitations provided in NY CPL §700.10(2). Further,

there was an impermissible transfer of necessity and/or probable cause between multiple orders

combined in one application in violation of NY CPL §700.20(2) when a new application was

submitted for Petitioner to be surveilled.”). As a result, Petitioner is “simply relitigating a prior

argument.” DiPilato, 662 F. Supp. 2d at 340. Indeed, Petitioner re-asserts the same arguments,

with the new additions including only citations to Ninth Circuit and Supreme Court cases

supporting the relitigated argument that the statute at issue “did not allow for the transfer of

2 Petitioner appears to further support this argument by stating that the Magistrate Judge declined

to take issue with a “typographical error” from investigators that permitted the warrant to extend

for over a year, an amount of time that would be in violation of NY CPL 700.10(2), which limits

unrenewed warrants to thirty days. Objs. at 4. However, after a searching review of the Report-

Recommendation, the Court does not see this acknowledgment from the Magistrate Judge

anywhere, and Petitioner does not cite a page in the Report-Recommendation where it is found.

See generally Objs. Accordingly, without more information, the Court cannot conclude that this

argument has merit.

probable cause and necessity within multiple orders for extended and amended or new

applications in one eavesdropping warrant application. [Petitioner] contends that the warrant in

his case was defective and did not comply with CPL 700.20(2) that sets forth what each

application separately must contain.” Objs. at 6. Thus, because Petitioner reiterates his prior

argument, the Court reviews this portion of the Report-Recommendation for clear error and finds

none. Accordingly, the Court must reject the argument that the Third Department’s denial of this

ineffective assistance of counsel claim “was contrary to, or involved an unreasonable application

of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

B. Appellate Counsel’s Alleged Failure to Argue that Trial Counsel Had a Conflict

of Interest

Petitioner next objects to the Report-Recommendation with respect to its analysis of

whether appellate counsel was constitutionally ineffective for failing to raise trial counsel’s

alleged conflict of interest. Objs. at 11. Petitioner states: “The R. & R. says ‘Petitioner fails to

identify trial counsel’s divergent obligations and any relevant conflicting interests.’ This is

wrong” because “[trial counsel] Goldberg represented a key witness against Petitioner in a

criminal case in which the circumstances provided a basis for him to cross-examine his former

client to [sic] as to advance the defendant’s theory of the case—but this he failed to do.” Id.

“Where a constitutional right to counsel exists, [the Supreme Court’s] Sixth Amendment

cases hold that there is a correlative right to representation that is free from conflicts of interest.”

Wood v. Georgia, 450 U.S. 261, 271 (1981) (citations omitted); see also United States v.

Schwarz, 283 F.2d 76, 90 (2d Cir. 2002) (“A defendant’s Sixth Amendment right to effective

assistance of counsel includes the right to representation by conflict-free counsel.”) (quoting

United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998)). In the Second Circuit, attorney conflicts

of interest are grouped into three general categories. See United States v. Williams, 372 F.3d 96,

102 (2d Cir. 2004).

“The first category describes those conflicts that are so severe that they are deemed per se

violations of the Sixth Amendment. Such violations are unwaivable and do not require a showing

that the defendant was prejudiced by his representation.” Id. (citations omitted). The Second

Circuit has “found such conflicts of interest only where trial counsel is not authorized to practice

law and where trial counsel is implicated in the ‘same or closely related criminal conduct’ for

which the defendant is on trial.” Id. at 103 (citations omitted).

The second category, known as an “actual conflict of interest[,] occurs when the interests

of a defendant and his attorney ‘diverge with respect to a material factual or legal issue or to a

court of action.’ To violate the Sixth Amendment, such conflicts must adversely affect the

attorney’s performance.” Id. (cleaned up). An actual conflict of interest is more than “a mere

theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171 (2002). “In Cuyler v.

Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent representations

to give rise to an actual conflict.” Hyman v. Brown, 927 F.3d 639, 670 n.30 (2d Cir. 2019).

“Once an actual conflict is established, a defendant ‘need not prove prejudice, but simply that a

lapse in representation resulted from the conflict.’” Williams, 372 F.3d at 106 (quoting United

States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995)). “A defendant can prove a lapse in

representation by demonstrating ‘that some plausible alternative defense strategy or tactic might

have been pursued, and that alternative defense was inherently in conflict with or not undertaken

due to the attorney’s other loyalties or interests.’” Id. (quoting Levy, 25 F.3d at 157).

“Lastly, a client’s representation suffers from a potential conflict of interest ‘if the

interests of the defendant may place the attorney under inconsistent duties at some time in the

future.’” Williams, 372 F.3d at 106 (emphasis in original) (quoting United States v. Kliti, 156

F.3d 150, 153 n.3 (2d Cir. 1998). “To violate the Sixth Amendment such conflicts must result in

prejudice to the defendant.” Id. at 102–03 (citing United States v. Levy, 25 F.3d 146, 152 (2d

Cir. 1994)).

The Magistrate Judge rejected Petitioner’s arguments concerning his appellate counsel’s

failure to raise his trial counsel’s alleged conflict of interest. R. & R. at 30. The Magistrate Judge

found that: “Petitioner appears to claim that trial counsel’s prior representation of the prosecution

witness caused a conflict between trial counsel’s obligation to Petitioner and the prosecution

witness.” R. & R. at 30–31 (citing Dkt. No. 1 at 12–14). She elaborated:

Yet, Petitioner fails to identity trial counsel’s divergent obligations

and any relevant conflicting interest. Instead, Petitioner simply

argues that an actual conflict existed between trial counsel once

represented the prosecution witness in an unrelated matter and was

tasked with cross-examining the prosecution in Petitioner’s case.

The Court is unconvinced these facts without more give risk to an

actual conflict.

Id. at 31 (internal citations omitted).

The Magistrate Judge also rejected Petitioner’s other conflict of interest theory. She

stated: “Petitioner has failed to demonstrate how trial counsel’s alleged errors while cross-

examining the prosecution witness were caused by counsel’s ongoing professional obligations to

the witness.” Id. And the Magistrate Judge further concluded: “Petitioner does not claim trial

counsel’s cross-examination was impaired because counsel’s prior representation was

substantially related to Petitioner’s case. Nor does Petitioner claim trial counsel’s cross-

examination was deficient because he failed to utilize confidential information from the prior

representation that was relevant in Petitioner’s case.” Id. at 32 (internal citations omitted). But

“[r]ather, Petitioner argues trial counsel should have impeached the prosecution witness with

information that was publicly available and with questions directed at inconsistencies in the

witness’s testimony.” Id. (citing Dkt. No. 1-1 at 13–14). The Magistrate Judge further found:

“This alternative strategy—impeaching the witness with information that was publicly available

and inconsistencies in the witness’s testimony—bears no obvious relation to trial counsel’s

previous representation of the prosecution witness, and Petitioner makes no argument that they

do.” Id.

The Court agrees with the Magistrate Judge. As an initial matter, Petitioner’s first

objection in this section of his memorandum of law merely reiterates what he stated in his

Petition concerning the presence of a conflict of interest—a fact that even Petitioner concedes.

Specifically, Petitioner’s first objection to the Magistrate Judge’s conflict of interest analysis

includes the following language:

In his moving papers before this Court and in the coram nobis,

Petitioner carefully explained (Dkt. 2-2 at 10–12, Dkt. 12 at 5–8 and

Dkt. 6-5 at 3237–42, 3253–58) how there was an actual conflict of

interest and just how Goldberg utterly failed to take advantage of

obvious means to impeach his former client. Petitioner showed that

the conflict “actually affected the adequacy of his representation.”

Mickens v. Taylor, 535 U.S. 162, 171 (2002). Petitioner showed the

means by which Goldberg could have confronted his former client

. . . Petitioner has shown the conflict caused Goldberg to forgo a

plausible defensive strategy.

Id. at 11. However, as discussed above, the Magistrate Judge expressly considered this argument

and found that Petitioner failed to show how a conflict of interest was present from these facts.

Put another way, Petitioner responds to the Magistrate Judge’s alleged errors by merely referring

this Court to his previous papers. But simply reiterating an argument without specific objections

is insufficient to trigger de novo review. As a result, Petitioner is “simply relitigating a prior

argument.” DiPilato, 662 F. Supp. 2d at 340. The Court thus reviews this portion of the Report-

Recommendation for clear error and finds none.

Next, Petitioner states: “The Magistrate is also wrong when she says that we only say

Goldberg should have ‘impeached the prosecution witness with information that was publicly

available and with questions directed at inconsistencies in the witness’s testimony.’” Objs. at 10–

11 (citing R. & R. at 32). Instead, according to Petitioner:

Much of what Goldberg could have used to cross Mansaray related

to information he imparted to the trial court about the circumstances

under which Mansaray was arrested in the case in which Goldberg

represented him, including how Goldberg could have, but failed to,

cross-examine Mansaray concerning his possession of marijuana

and cash at a time when he had testified he was only earning “a little

over $9 an hour.[”]

Id. at 11. The Court nevertheless agrees with the Magistrate Judge. As the Magistrate Judge

correctly found, Petitioner has not demonstrated how trial counsel’s alleged errors while cross-

examining the prosecution witness were caused by counsel’s ongoing professional obligations to

the witness. LoCascio, 395 F.3d at 56–57. For instance, this is not a case where an actual conflict

stemmed from the attorney-client privilege barring effective impeachment from an attorney’s

previous representation. Malpiedi, 62 F.3d at 469. Nor is this a case where counsel’s prior

representation was substantially related to Petitioner’s case. Quinones v. Miller, No. 01-CV-

10752, 2005 WL 730171, at *6 (S.D.N.Y. Mar. 31, 2005), aff’d, 224 Fed. App’x 44 (2d Cir.

2007) (explaining that “several courts have held that a petitioner is relieved of his burden to

show prejudice where (1) counsel’s prior representation was substantially related to his

representation of the petitioner, or (2) counsel learned confidential information from the prior

representation that was relevant to the petitioner’s case”).

Moreover, trial counsel’s representation of the witness at issue occurred in “2007 or

2008” which resulted in an “ACD or dismissal.” Dkt. No. 1-1 at 5. Thus, “Petitioner’s preferred

defense strategy could not possibly have been materially adverse to the interests of [the

prosecution witness], as the strategy could have no practical adverse effect on [the witness].”

Medrano v. United States, No. 06-CR-0061, 2015 WL 4522857, at *5 (S.D.N.Y. July 27, 2015),

aff’d, 691 F. App’x 663 (2d Cir. 2017). “Thus . . . the successive representation did not present

an actual conflict.” Id. As a result, the Court is unpersuaded that “appellate counsel should have

seen [that the alleged conflict] was plain as day in the record.” Objs. at 12. If Petitioner’s

preferred defense strategy could not have had an adverse effect on the prosecution’s witness, it

follows that a conflict of interest from trial counsel’s prior representation of this witness is likely

absent.

Petitioner’s remaining objections rehash arguments made before the Magistrate Judge

and state in a conclusory manner that a conflict was present despite the Magistrate Judge’s

findings to the contrary. Id. at 12–14. These objections are therefore subject to clear error review.

Having found no clear error, the Court adopts the Magistrate Judge’s conclusions regarding the

absence of a conflict of interest.

Petitioner has accordingly failed to demonstrate that appellate counsel was ineffective for

failing to argue trial counsel had an actual conflict of interest that adversely affected his

performance. See Lynch, 789 F.3d at 311, 313. Consequently, the Third Department’s denial of

Petitioner’s ineffective assistance of counsel claim was not contrary to—and did not involve an

unreasonable application of—clearly established federal law. See 28 U.S.C. § 2254(d)(1).

C. Appellate Counsel’s Failure to Argue Trial Counsel Was Ineffective for Not

Raising the Indictment’s Facial Deficiencies

Petitioner also objects to the Report-Recommendation’s analysis of his claim concerning

the defectiveness of five counts in the indictment. Objs. at 6. According to the Magistrate Judge,

appellate counsel was not constitutionally ineffective for failing to argue that trial counsel should

have moved to dismiss these counts (225, 226, 227, 228, and 229).

But Petitioner objects. Petitioner states: “The R&R correctly concludes that ‘the

indictment does not plead particular effect jurisdiction, it lacks any allegation that Petitioner’s

actions under Counts 225 through 229 caused a concrete and identifiable injury to Albany

County, and a searching review of the record reveals no clarification of the prosecution’s theory

of particular effect jurisdiction in a bill of particulars.’” Id. (quoting R. & R. at 19). From this

admission, Petitioner asserts that the “R & R agrees that the [five] errant counts were defective.”

Id. However, Petitioner objects to the Magistrate Judge’s subsequent analysis, which found that

Petitioner did not suffer prejudice from how appellate counsel handled these facts. The

Magistrate Judge stated that the prejudice analysis required Petitioner to identify an appellate

case that dismissed an indictment solely for failing to plead particular effect jurisdiction,

regardless of whether evidence of particular effect jurisdiction was put before the grand jury. See

R. & R. at 20–21. According to Petitioner, however, all that is required to show prejudice is “a

reasonable probability” that his argument concerning the indictment’s defectiveness would have

succeeded before the Court of Appeals. See Objs. at 6. Petitioner argues that he has met this

standard. Petitioner thus maintains that the Magistrate Judge employed the wrong legal standard,

and “improperly grafted . . . a burden on Petitioner to point to a state appellate case in which the

obvious facial defect [of an indictment] was struck.” Id. at 7. Lastly, Petitioner objects to the

Magistrate Judge’s “erroneous finding that Petitioner’s claim is not grounded in a challenge to

the prosecution’s proof before the grand jury.” Id. at 6.

Therefore, Petitioner primarily objects to the Magistrate Judge’s Right to Effective

Assistance of Counsel prejudice analysis in light of the New York State Law governing where a

defendant must be tried. As such, the Court will conduct a de novo review of this specific portion

of the Report-Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

As discussed, the Court must examine whether appellate counsel was ineffective for

failing to argue that trial counsel should have moved to dismiss Counts 225, 226, 227, 228, and

229. This requires the Court to examine whether appellate “counsel omitted significant and

obvious issues while pursuing issues that were clearly and significantly weaker.” Lynch, 789

F.3d at 311. “The claim whose omission forms the basis of an ineffective assistance of counsel

claim may either be a federal-law or a state-law claim.” Id. (emphasis added). Moreover,

Petitioner must also show that “there is a reasonable probability that it would have succeeded

before the state’s highest court . . . [which] may be made with the benefit of hindsight.” Id.

(citation and quotations omitted). The Supreme Court has stated that a “reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Hinton v. Alabama, 571 U.S.

263, 275 (2014). With these standards in mind, the Court now turns to New York State law

concerning where a defendant must be tried.

The New York Court of Appeals has held: “At common law and under the State

Constitution, a defendant has the right to be tried in the county where the crime was committed

unless the Legislature has provided otherwise.” People v. Zimmerman, 9 N.Y.3d 421, 426–27

(N.Y. 2007) (citations omitted). Importantly: “The burden is on the People to prove by a

preponderance of the evidence that the county where the crime is prosecuted is the proper venue

because either the crime was committed there or one of the statutory exceptions is applicable.”

People v. Ribowski, 77 N.Y.2d 284, 291–92 (N.Y. 1991). Therefore, “[a]bsent [a] statutory

exception, . . . . the territorial unit for criminal prosecutions is [a] county.” Zimmerman, 9

N.Y.3d 421 at 427 (quoting People v. Fea, 47 N.Y.2d 70, 75 (N.Y. 1979)) (alteration in original).

One statutory exception to this right is known as “particular effect” jurisdiction. NY CPL

§ 20.30(2)(c). Under this exception, a defendant may be convicted in a criminal court of a

particular county “[e]ven though none of the conduct constituting the offense may have occurred

within such county” as long as “[s]uch conduct had, or was likely to have, a particular effect

upon such county . . . and was performed with intent that it would, or with knowledge that it was

likely, to have such particular effect therein.” Id. (emphasis added).

The Court of Appeals has stated that “[a] ‘particular effect’ within the county is defined

as a ‘materially harmful impact upon the governmental processes or community welfare of’ the

county seeking to assert jurisdiction.” Matter of Steingut v. Gold, 42 N.Y.2d 311, 318 (N.Y.

1977) (citation omitted). The Court of Appeals subsequently elaborated on this exception, stating

that material harm “must be more than minor or incidental, and the conduct must harm ‘the well

being of the community as a whole,’ not merely a particular individual.’” Matter of Taub v.

Altman, 3. N.Y.3d 30, 33–34 (N.Y. 2004) (citing Fea, 47 N.Y.2d at 77). Moreover, “particular

effect jurisdiction is to be applied only in limited circumstances, [and] it has been rarely

invoked.” Id. at 36 (emphasis added)

The rare circumstances identified as bases for particular effect jurisdiction by the Court

of Appeals include “when, for example, a defendant’s out-of-county conduct has interfered with

the county’s courts or administration of justice; has exposed a large number of county residents

to a specific harm; has caused a physical intrusion upon the county; or has involved the theft of

funds from the county itself.” Id. Other examples by the Court of Appeals for this “particular and

readily identifiable,” form of jurisdiction, id. — would be if, “for example, a person commits

criminal mischief by maliciously blowing up a dam in Putnam County near the Westchester

County line, thus flooding some Westchester territory.” Id. The Court of Appeals has repeatedly

rejected attempts by district attorneys to expand this narrow statutory exception. See Altman, 3

N.Y.3d 30, 33–34; Fea, 47 N.Y.2d at 77; Steingut, 42 N.Y.2d at 318.

The facts of Steingut are illustrative. There, defendants were prosecuted in Kings County,

New York. The alleged criminal conduct emanated from a meeting in New York County, where

the defendants allegedly discussed and later transacted a corrupt election scheme in violation of

New York election law. Steingut, 42 N.Y.2d at 313–14. The Kings County prosecutor relied on

“particular effect jurisdiction” to initiate the prosecution. The prosecutor argued that because the

election at issue was to take place in Kings County, particular effect jurisdiction was met. Id. at

317. But the Court of Appeals rejected the argument. The court stated: “The type of injury or

offense contemplated by the statute must be perceptible and of the character and type which can

be demonstrated by proof before a Grand Jury.” Id. Importantly, the Court of Appeals chided the

prosecution, stating, “in the most conclusory fashion, the indictment simply states ‘the

defendants’ conduct had and was likely to have a particular effect on Kings County.’ Certainly

the invoking of the extraordinary injured forum jurisdictional statute requires the specification of

a more concrete and identifiable injury.” Id. at 318. Finally, in rejecting Kings County’s

jurisdictional authority, the Court of Appeals concluded:

[E]ven if we were to presume that the statute could have application

in connection with an offense of this sort, the county seeking to

prosecute would be required to establish before the Grand Jury both

the materially harmful impact upon the governmental processes of

that county and that the criminal activity in question was performed

with the intent or knowledge that such a materially harmful impact

was likely to occur in that county. In the case now before us, the

prosecutor failed to put before the Grand Jury any evidence either

that there was a materially harmful impact upon the governmental

processes of Kings County or that the allegedly criminal activity was

performed with the intent or knowledge that such a particular effect

would occur in that county.

Id. Consequently, the Court of Appeals held that the conclusory assertion of particular effect

jurisdiction is insufficient to sustain an indictment in the absence of “specification” and a

“concrete and identifiable injury.” Id.

Conversely, in Taub, the Court of Appeals rejected a facial challenge to an indictment

because the circumstances differed from Steingut. Like in Steingut, the indictment in Taub

“merely asserted without specificity that the charged conduct ‘had and was likely to have a

particular effect [on the target county with the requisite intent],’” but unlike in Steingut, “the bill

of particulars provided by the People set forth in detail both the prosecution’s theory of venue

and specific facts in support of their contention . . . that there had been a particular effect.” Taub,

3 N.Y.3d at 40. Thus, the Court of Appeals reiterated that prosecutors must plead specificity and

concrete injuries to the target county, but the indictment need not state those specifications if a

bill of particulars provides the requisite specificity. With this precedent in mind, the Court now

turns to the facts in the present case.

Here, the Court concurs with the Magistrate Judge that Respondent misrepresents that the

relevant counts in the indictment contain a preamble. R. & R. at 18. As the Magistrate Judge

points out, “Count 1 has a preamble, but nothing in the indictment suggests the preamble from

Count 1 applies to the rest of the indictment.” Id.; see also Dkt. No. 6-2 at 8. This is a critical

detail because Respondent supports his theory of particular effect jurisdiction (and presumably

the Third Department accepted this theory) by incorrectly stating that Petitioner’s “general

scheme was set forth in the preamble of the indictment, which explained that the conspiracy

existed to obtain, control, and sell cocaine in, among others, Albany, Orange, and Schenectady

counties.” Dkt. No. 5 at 28.

Likewise, the Court also agrees with the Magistrate Judge regarding the indictment’s

blatant absence of specificity concerning pleading particular effect jurisdiction. R. & R. at 18.

Counts 225 through 229 accuse Petitioner of committing several drug crimes in Schenectady

County on February 27, 2011. Dkt. Nos. 6-2 at 104–06. However, Petitioner was prosecuted for

these crimes in Albany County. Tellingly, Respondent concedes that the indictment “does not

explicitly plead the statutory ‘particular effect’ language.” Dkt. No. 5-1 at 30. The Court also

concurs with the Magistrate Judge that a searching review of the record reveals no bill of

particulars, and Respondent does not advance any argument whatsoever that a bill of particulars

clarified his unpled theory of particular effect jurisdiction. Cf. Altman, 3 N.Y. 3d at 39.

Concerningly, unlike the prosecution in Steingut, the prosecution here did not even state in “the

most conclusory fashion” that particular effect jurisdiction was met; it just simply omitted the

threshold requirement altogether, thus robbing Petitioner of his right to be tried in the county

where he committed the alleged crimes.

The Court further agrees with the Magistrate Judge that “[t]hese facts should have been

obvious to appellate counsel, who should have realized this was a significant issue.” R. & R. at

18 (citing Lynch, 789 F.3d at 311). Therefore, the Court concurs with the Magistrate Judge’s

findings that

The indictment does not plead particular effect jurisdiction, it lacks

any allegation that Petitioner’s actions under Counts 225 through

229 caused a concrete and identifiable injury to Albany County, and

a searching review of the record reveals no clarification of the

prosecution’s theory of particular effect jurisdiction in a bill of

particulars. Petitioner’s appellate counsel could have argued for

dismissal of Counts 225 through 229 based on a claim of ineffective

assistance of trial counsel. Indeed, the language in Steingut and

Taub would have supported such an argument.

Id. at 19. Accordingly, the Court concurs with the Magistrate Judge that appellate “counsel’s

performance was deficient” for Sixth Amendment purposes. Strickland, 571 U.S. at 682. “[T]he

issue [of jurisdiction] was patently obvious on the face of the record.” Lynch, 789 F.3d at 314.

Appellate counsel was thus constitutionally deficient for omitting this “patently obvious” failure

of trial counsel because appellate counsel pursued issues that were “significantly weaker.” Id. at

315. Moreover, appellate “[c]ounsel did not face a choice between . . . arguments,” id. at 314, he

simply omitted an obvious argument that trial counsel failed to raise, which further advises in

favor of finding that Petitioner’s claim satisfied the first Strickland prong.

However, despite the obvious defect in the indictment that Steingut and Taub have

identified as a basis for dismissal, the Magistrate Judge (and presumably the Third Department)

declined to find a constitutional violation because she found that Petitioner failed to satisfy the

prejudice prong of the Strickland test. The Magistrate Judge explained that Steingut and Taub

alone were insufficient to support an inference that there would be a reasonable probability that

Petitioner’s argument would succeed before the Court of Appeals. See R. & R. at 19–20. The

Magistrate Judge explicated:

Petitioner has failed to cite a single Court of Appeals or Appellate

Division case—and the Court is unaware of any—dismissing an

indictment on the sole grounds that it did not adequately plead

particular effect jurisdiction. When appellate courts in New York

dismiss indictments for lack of particular effect jurisdiction, they

appear to rely—in one way or another—on the prosecution’s failure

to prove jurisdiction before the grand jury. See, e.g., Taub, 3 N.Y.3d

at 34–35; Steingut, 42 N.Y.2d at 318; Gentner, 193 A.D.3d at 1131.

Petitioner’s second layered ineffective assistance of counsel claim

is not grounded in a challenge to the prosecution’s proof before the

grand jury—it rests solely on a challenge to pleading defects in the

indictment.

Id. at 20. The Magistrate Judge further supported this argument by citing a Second Department

decision interpreting Steingut which stated that Steingut “does not stand for any particular

pleading requirements to be met by an indictment relying upon CPL 20.40(2)(c) for geographic

jurisdiction.” Id. (quoting People v. Guzman, 153 A.D.3d 1273, 1276 (N.Y. App. Div. 2017)).

From this analysis, she concluded: “The Court is unconvinced there is a reasonable probability

that such an argument would have been successful before the Court of Appeals.” Id. at 20.

The Court respectfully disagrees with the Magistrate Judge. As an initial matter, the

Court disagrees with the legal standard articulated by the Magistrate Judge. The Magistrate

Judge rejected Petitioner’s argument because she was “unaware of any [case] dismissing an

indictment on the sole grounds that it did not adequately plead particular effect jurisdiction.” R.

& R. at 20.3

However, Petitioner is correct that this was an “improper[] graft . . . onto th[e] . . .

standard” imposed by the Supreme Court. Objs. at 7. The standard described by the Magistrate

Judge is more akin to the Supreme Court’s articulation of qualified immunity, where a factually

similar case must typically foreshadow a certain outcome. See, e.g., Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). But in the ineffective assistance of counsel context, once deficient

performance is established, the Supreme Court’s prejudice analysis requires petitioners only to

“show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 571 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Hinton, 571 U.S.

at 275. The Magistrate Judge declined to address what reasonable probability means under

Supreme Court precedent, as described in Strickland and Hinton. See R. & R. at 14–21. Instead,

she impermissibly heightened the prejudice standard by requiring Petitioner to present a specific

case with identical facts that she said did not exist. However, the Supreme Court made clear in

Hinton and Strickland that a reasonable probability does not require a specific case on point to

demonstrate a constitutional violation; prejudice will be found if the “probability [is] sufficient to

undermine confidence in the outcome.” Strickland, 571 U.S. at 694.

3 This appears to be because the Magistrate Judge mistakenly conflated the “reasonable

probability” test from Strickland with the “fairminded jurist” language from Richter, which

resulted in a single novel test for Sixth Amendment ineffective assistance of counsel claims. This

error created a much higher bar for Petitioner to clear than is required under Strickland.

Using this incorrect legal standard, the Magistrate Judge next stated: “When appellate

courts in New York dismiss indictments for lack of particular effect jurisdiction, they appear to

rely—in one way or another—on the prosecution’s failure to prove jurisdiction before the grand

jury.” Id. And because Petitioner supposedly challenges only the indictment’s pleading defects,

the Magistrate Judge rejected Petitioner’s claim. The Court disagrees with this reasoning for

several reasons.

First, the Court disagrees with the Magistrate Judge’s narrow characterization of

Petitioner’s claim. The Court does not agree that Petitioner’s claim is only challenging the

pleading defects of the indictment. Instead, Petitioner is raising counsel’s failure to challenge the

prosecution’s inability to prove jurisdiction before the grand jury. The Petition states: “Trial

counsel failed to move to dismiss the improper counts in his pretrial motion pursuant to NY CPL

210.20(1)(h). Appellate counsel failed to raise this meritorious claim on appeal.” Pet. Mem. at

13. The pretrial motion that Petitioner says should have been raised would have moved to

dismiss the indictment by arguing that particular effect jurisdiction did not lie in Albany County

because the prosecution failed to establish particular effect jurisdiction before the grand jury, just

as these pretrial motions routinely do. See, e.g., Steingut, 42 N.Y.2d at 314; Taub, 3 N.Y.3d at

34. In fact, Petitioner alludes to the fact that this is the basis of his challenge, stating in his

Petition (directly before mentioning counsel’s failure to file the motion) that “[t]he only means

the state legislature has provided [to be tried in the county in which the crime was committed] is

to permit the grand jury to allege that the offense conduct had a ‘particular effect’ on the county

in which the charge is laid pursuant to NY CPL 20.40(2)(c).” Pet. Mem. at 13 (emphasis added).

Therefore, contrary to the Magistrate Judge’s suggestion that Petitioner is not challenging the

prosecution’s failure to prove jurisdiction before the grand jury, this statement from Petitioner

heavily suggests otherwise. Indeed, it appears that Petitioner envisioned that trial counsel would

challenge the prosecution’s glaring failure to prove jurisdiction before the grand jury; and when

that did not happen, it appears he envisioned that appellate counsel would have raised trial

counsel’s constitutional ineffectiveness in failing to do so. Therefore, the Court cannot agree

with the Magistrate Judge’s narrowly construed interpretation of Petitioner’s challenge. And as

discussed above, the Court of Appeals has repeatedly affirmed the dismissal of indictments when

prosecutors fail to prove particular effect jurisdiction before the grand jury. See Steingut, 42

N.Y.2d at 316 (affirming the Appellate Division’s dismissal of an indictment for lack of

particular effect jurisdiction, stating that the indictment was “defective on its face”);

Zimmerman, 9 N.Y.3d at 4 (affirming a pretrial motion dismissing an indictment that “argued

that ‘particular effect’ venue . . . did not lie in New York County”) (internal citation omitted).

The Court thus agrees with Petitioner that, in light of the well-established New York Law on

particular effect jurisdiction, appellate counsel’s performance clearly “undermined confidence in

the outcome” of the state court proceedings. Strickland, 571 U.S. at 694. Accordingly, prejudice

in these circumstances is glaringly apparent because if counsel had raised this argument “on

appeal, there is a reasonable probability that it would have succeeded before the state’s highest

court.” Lynch, 789 F.3d at 311 (citations omitted).

Second, even assuming arguendo that Petitioner is challenging only the pleading defects

of the indictment, his claim would likely have succeeded before the Court of Appeals. A facial

challenge to an indictment’s failure to plead particular effect jurisdiction succeeded before the

Court of Appeals in Steingut; the only minor difference in procedure there (by how the

Magistrate Judge construed the Petition at least) was that the defendant challenged the

prosecution’s ability to prove jurisdiction before the grand jury. Steingut, 42 N.Y.2d at 318. And

Taub further confirmed that facial challenges to indictments lacking specific pleading in the

particular effect jurisdiction context could be successful without an accompanying bill of

particulars pleading the jurisdiction. Taub, 3 N.Y.3d at 40. Likewise, this Court is unaware of

any Court of Appeals case that differentiates between facial challenges to an indictment’s

particular effect pleading defects, versus a facial challenge to the prosecution’s failure to prove

particular effect jurisdiction before the grand jury. The Magistrate Judge does not provide a case

delineating this distinction either. R. & R. at 19–20.

Third, the Magistrate Judge relies on the Second Department’s decision in People v.

Guzman to support her position. In particular, the Magistrate Judge relies on Guzman’s

interpretation of NY CPL 20.30(2)(c), stating that Steingut “does not stand for any particular

pleading requirements to be met by an indictment relying upon CPL 20.40(2)(c) for geographic

jurisdiction.” Guzman, 153 A.D.3d at 1275. From this quote, the Magistrate Judge casts doubt

that Petitioner’s argument would have been successful before the Court of Appeals because she

states that Guzman holds that particular effect jurisdiction does not mandate particular pleading

requirements for geographic jurisdiction.

Yet Guzman is inapposite. The quote relied on from Guzman is plainly not relevant to the

facts here. The indictment in Guzman directly alleged that the offense took place in the county

where the indictment was charged. Id. Here, by contrast, there was plainly no mention of

particular effect jurisdiction in the indictment at all for counts 225–229. See Dkt. No. 6-2. As a

result, Guzman does not support the Magistrate Judge’s argument because there was no

indication from the indictment that it relied on CPL 20.40(2)(c), a fact that even Respondent

concedes. Dkt. No. 5-1 at 30; see also id. Adopting the Magistrate Judge’s leap that a particular

pleading requirement is not required under NY CPL 20.40 if the prosecution specifically pleads

the requirement, to dispensing with the requirement altogether, would flout the holdings of

Steingut and Taub, as well as the plain language of NY CPL 20.40. Consequently, the Court

must reject the Magistrate Judge’s conclusion. It is evident to the Court that Petitioner suffered

prejudice because, “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 571 U.S. at 694.

This is not the end of the inquiry. The Third Department denied Petitioner’s coram nobis

petition without opinion. “In that circumstance, [courts] must still defer to its decision, and deny

relief if there is any reasonable basis on which it can be found consistent with the governing

precedent.” Lynch, 789 F.3d at 320 (citing Richter, 562 U.S. at 102, 131). The Court has

“applied that standard here.” Id. As mentioned above, the Court has “considered every argument

that Respondent has offered and [the ones the Court] could hypothesize.” Id. Respondent

principally argued that the preamble (which this Court and the Magistrate Judge found non-

existent) to Counts 225–229 supported the indictment’s sufficiency, but both this Court and the

Magistrate Judge rejected this misleading argument. In addition, the Court considered and

rejected the lengthy prejudice prong analysis hypothetically relied on in the State Court decision,

which the Magistrate Judge raised.4

Therefore, “[h]aving considered these arguments, [the Court] finds[s] no basis on which

to conclude that a court could reasonably determine that failing to raise a clearly meritorious

claim of” an indictment’s failure to plead particular effect jurisdiction “that would likely lead to

reversal of . . . [several] counts of conviction—accounting for a significant increase in the

defendant’s sentence—while raising other, weaker arguments can be considered a strategic

4 The Court hypothesizes that the Third Department would have raised the argument concerning

prejudice that this Court has rejected.

choice within the range of decisions that constitute professional competent assistance.” Id. at

319. There is a reasonable probability, “that had counsel raised the [facial deficiency] issue, the

outcome of the appeal would have been different.” Id. (citing Richter, 562 U.S. at 101, 131).

“The Appellate Division’s denial of [Petitioner’s] coram nobis petition was therefore objectively

unreasonable.” Id.

In sum, the Court agrees with the Magistrate Judge that Petitioner’s appellate counsel

“fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 689. Appellate

counsel “omitt[ed] significant and obvious issues while pursuing issues that were clearly and

significantly weaker.” Lynch, 789 F.3d at 311. However, the Court disagrees with the Magistrate

Judge concerning the prejudice prong of the Strickland test. The Court finds that there was a

reasonable probability that, but for appellate counsel’s error—in this case, the failure to argue

that trial counsel was ineffective for failing to raise the glaringly apparent argument concerning

the indictment’s defective counts—Petitioner’s outcome would have been different. Strickland,

466 U.S at 694. This error plainly “undermine[d] confidence in the outcome.” Hinton, 571 U.S.

at 275. Thus, Petitioner suffered prejudice from appellate counsel’s performance under

Strickland.

D. Remedy for Petitioner

Having found that the Petition should be granted for Petitioner’s claim with respect to the

indictment’s facial insufficiency concerning Counts 225–229, the Court must fashion an

appropriate remedy. Congress has authorized federal habeas courts to “dispose of the matter as

law and justice require.” 28 U.S.C. § 2243. Additionally, the Second Circuit has stated that: “In

general, the appropriate remedy for ineffective assistance of appellate counsel is to grant a new

appeal.” Lynch, 789 F.3d at 320 (citations omitted).

Here, however, the factual circumstances are much more unusual than the run-of-the-mill

ineffective assistance of appellate counsel case contemplated by Lynch. Unlike the typical

ineffective assistance of appellate counsel case, the underlying failure of counsel stemmed from

an indictment containing obvious defects that never pleaded jurisdiction on five counts. Plainly,

the Albany County District Attorney lacked the geographic jurisdiction to initiate the prosecution

against Petitioner on five of the seven remaining counts for which he was convicted. See

Steingut, 42 N.Y.2d at 318 (“[The] County lacked the power to indict and prosecute these

petitioners because jurisdiction to proceed was not conferred on it by virtue of the injured forum

statute since that statute does not apply in this type of case, and even it if did, there was no

showing before the Grand Jury of the elements requisite to the triggering of its provisions.”).

Thus, the usual remedy envisioned by the Second Circuit in these circumstances—a new

appeal—appears inapt given that the Albany County District Attorney never had the authority to

initiate a prosecution against Petitioner on Counts 225, 226, 227, 228, and 229 in the first place.

See id. These deficiencies ultimately resulted in the deprivation of Petitioner’s Sixth Amendment

Right to Effective Assistance of Appellate Counsel and his New York State right to be tried in

the county where he committed his alleged crimes.

Petitioner’s sentence also complicates the question of whether Petitioner is serving a

sentence on the flawed counts that this Court has already identified. Specifically:

[Petitioner] received a prison term of 5 to 15 years on count 1 to run

concurrently with all sentences. Counts 225 and 226 were

concurrent to each other with a longest term of eight years in prison.

Consecutive thereto, but concurrent with each other, were counts

227, 228 and 229, with a longest term of 12 years in prison.

Consecutive thereto and consecutive to each other were the

remaining counts — 232, 244 and 245 — with each being three

years in prison.

Whitehead, 130 A.D.3d at 1143 n.1. Thus, the only remaining unflawed counts include Counts 1

and 232, given that Counts 244 and 245 have already been reversed by the Third Department.

See id.

In light of the unusual circumstances stemming from the Albany County District

Attorney lacking the geographic jurisdiction to initiate the prosecution against Petitioner

concerning Counts 225–229, and the fact that Petitioner has already served more than a decade

of his sentence, the Court exercises its authority pursuant to 28 U.S.C. § 2243 to “dispose of the

matter as law and justice require” and vacates Petitioner’s flawed convictions stemming from

facially defective Counts 225, 226, 227, 228 and 229 of the indictment. See Aparicio v. Artuz,

No. 97-CV-2183, 2000 WL 713744 (E.D.N.Y. May 25, 2000) (vacating constitutionally

deficient convictions that stemmed from an ineffective assistance of counsel claim on a partial

grant of a writ of habeas corpus, but reversed on the merits of the claim rather than on the

vacatur remedy), aff’d in part, rev’d in part, 269 F.3d 78 (2d Cir. 2001).; cf. Robinson v.

Graham, 671 F. Supp. 2d 338, 356 (N.D.N.Y. 2009) (“[I]n an absence of a retrial, adjustment of

the sentence eliminating the sentence imposed as a result of [petitioner’s] conviction on that

count, is an appropriate remedy” in a habeas proceeding raising successful ineffective assistance

of counsel claims.).

In light of the five vacated counts, the Court remands this action to the Albany County

Court for proceedings consistent with this Memorandum-Decision and Order. The Court

anticipates a prompt resolution of this action.5

5 Because Petitioner’s other claims challenge only convictions that this Court has vacated, Pet.

Mem. at 13, 15, the Court need not reach the merits of these arguments. See R. & R. at 21, 23

(discussing how Petitioner’s arguments concerning the prosecution’s alleged failure to prove the

aggregate weight of the drugs challenged Counts 225, 227, and 228 of the indictment, and

E. Certificate of Appealability

“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not

be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by a State court.” 28 U.S.C. §

2253(c)(1); see also Fed. R. App. P. 22(b)(1). “A certificate of appealability may issue . . . only if

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2); Hohn v. United States, 524 U.S. 236, 240 (1998). Petitioner’s claims unrelated to the

facial defectiveness of counts 225–229 of the indictment have not satisfied this standard.

Accordingly, the Court declines to issue a Certificate of Appealability.

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Report-Recommendation, (Dkt. No. 13), is ADOPTED in part and

REJECTED in part; and it is further

ORDERED, that the Report-Recommendation, (Dkt. No. 13), is REJECTED to the

extent it recommended denying federal habeas relief for Petitioner’s Sixth Amendment claim

concerning appellate counsel’s failure to argue that trial counsel gave constitutionally deficient

representation for not moving to dismiss the indictment’s facially defective counts that include

225, 226, 227, 228, and 229 of the indictment; and it is further

ORDERED, that the Report-Recommendation, (Dkt. No. 13), is otherwise APPROVED

and ADOPTED; and it is further

Petitioner’s challenge to the trial court permitting the prosecution’s mid-trial motion to amend

the indictment concerns counts 227, 228, and 229).

ORDERED, that the Petition, (Dkt. No. 1), is GRANTED in part and DENIED in

part; and it is further

ORDERED, that the Petition, (Dkt. No. 1), is GRANTED to the extent it seeks federal

habeas relief pursuit to the Sixth Amendment’s Right to Effective Assistance of Appellate

Counsel for appellate counsel’s failure to argue that trial counsel gave constitutionally deficient

representation for not moving to dismiss the indictment’s facially defective counts that include

225, 226, 227, 228, and 229 of the indictment; and it is further

ORDERED, that Petitioner’s convictions for (1) criminal possession of a controlled

substance in the second degree (Count 225), (2) criminal possession of a controlled substance in

the third degree (Counts 226 and 229), (3) criminal sale of a controlled substance in the first

degree (Count 227), and criminal possession of a controlled substance in the first degree (Count

228) are VACATED; and it is further

ORDERED, that the Petition (Dkt. No. 1) is otherwise DENIED; and it is further

ORDERED, that this action is REMANDED to the Albany County Court for

proceedings consistent with this Memorandum-Decision and Order; and it is further

ORDERED, that the Clerk is directed to serve a copy of this Memorandum-Decision and

Order on all parties, the Albany County Court, and the Third Department, in accordance with the

Local Rules.

IT IS SO ORDERED.

DATED: May 17, 2023

Albany, New York

LAWRENCE E. KAHN

United States District Judge

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