Lamb v. Capra

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JERMAINE LAMB,

Petitioner, MEMORANDUM & ORDER

20-CV-599 (EK)

-against-

SUPERINTENDENT MICHAEL CAPRA,

Respondent.

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ERIC KOMITEE, United States District Judge:

Introduction

Petitioner Jermaine Lamb seeks a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Lamb was convicted of nine

crimes, including Attempted Murder, in connection with the 2011

shooting of a pregnant woman named Jermoine Brayboy in Queens

County. The trial judge sentenced Lamb as a “second violent

felony offender” to a prison term of twenty-eight-and-a-half to

thirty-two years. He is currently incarcerated at the Attica

Correctional Facility in Wyoming County, New York.

Proceeding pro se, Lamb raises eight arguments in his

petition: first, that police violated the Fourth Amendment by

accessing his cell phone location data without a warrant;

second, the State impermissibly obtained (and used as evidence)

recordings of certain phone calls he made while in custody at

Rikers Island; third, the trial court’s remarks during jury

selection violated his due process rights; fourth, the trial

court erroneously admitted evidence regarding the circumstances

surrounding his arrest, depriving him of due process and a fair

trial; fifth, his trial counsel rendered ineffective assistance;

sixth, the State presented evidence of uncharged crimes without

proper notice to defense counsel; seventh, the State committed a

Brady violation by failing to provide him with certain

discovery, either at all or in a timely manner; and eighth, his

sentence is unlawful because it resulted from an inconsistent

verdict.

Background

Officers of the New York City Police Department

arrested Lamb in Brooklyn on the morning of June 15, 2011.

Arce1, 389:14-24, 394:4-13.2 He was charged pursuant to Queens

County Indictment Number 1591/2011. H1 at 1, ECF No. 8 at 1.3

Prior to trial, Lamb moved to suppress certain

“short-term historical cell-site location data” that the

prosecution had obtained from T-Mobile. New York City police

1 Citations to a name indicate testimony given by that witness during

the trial before Justice Margulis on August 13, 14, 19-22, and 26-28, 2013.

“Tr.” denotes non-testimonial portions of the trial record.

2 All pagination cited in this Order reflects the transcript of the

identified part of the record rather than the “ECF” pages of the files

submitted on the docket.

3 “H1” refers to the transcript of the suppression hearing held before

Justice Zayas on April 4, 2012. “H2,” ECF No. 8 at 143, refers to the

follow-up pretrial hearing held before Justice Zayas on August 15, 2012.

officers used this data to track (and arrest) Lamb. H1 at 2-3.

Justice Joseph Zayas conducted a suppression hearing, see id.,

and ruled that the location data was properly obtained without a

warrant pursuant to 18 U.S.C. § 3125(a) because an emergency

situation existed at the time. H2 at 10. The case then

proceeded to jury selection and trial before Justice Ira

Margulis in August 2013. Tr. at 1.

C. Trial

1. State’s Case-in-Chief4

The State called thirteen witnesses. The shooting

victim, Jermoine Brayboy, and her partner Sean Lee both

testified. Lee had known Lamb for years through mutual friends

because they were from the same neighborhood. Lee 570:14-25.

Brayboy testified that in June of 2011, she and Lee

were living together on 145th Street in Queens with their four

children, and she was nine months pregnant with their fifth

child. Brayboy at 353:16-17, 355:1-10. Approximately a week

before the shooting, Lamb had left Danielle Forrester, who was

also pregnant, and her two children at Lee and Brayboy’s home.

Lee at 569:21-25. Lamb was the father of one of Forrester’s

children and of her unborn child. Id. at 570:3-8. Brayboy

testified that on the afternoon of June 15, Forrester

4 The facts that follow are drawn from the state court trial transcript.

accompanied her to her prenatal appointment, leaving Lee at home

with their oldest daughter and Forrester’s two children.

Brayboy at 356:24-357:15.

While Brayboy and Forrester were out, Lamb arrived at

the 145th Street residence, driving a black Toyota Avalon. Lee

at 572:17-573:21. Lamb was looking for Forrester and waited for

her return. Id. at 574:11-575:4. Brayboy testified that when

she and Forrester returned home at 4:30 p.m., Lamb asked to

speak with Forrester in the basement and the pair went to the

basement together. Brayboy at 358:4-12. Lee testified that

while they were in the basement, he heard “two minutes of

screaming back and forth” followed by silence. Lee at 575:16-

22. Lee then saw Forrester come out of the basement covered in

blood. He testified that Forrester said her teeth had been

“rearranged.” Id. at 575:25-576:8. Lee saw that Lamb’s car was

gone, although he had not seen him leave, and called an

ambulance for Forrester. Id. at 576:10-18. Police officers

arrived along with the ambulance. Id. at 576:19-20.

One of those officers, Angel Rolon, also testified.

Officer Rolon and his partner, Lane Broncado, arrived at around

4:50 p.m. Rolon at 375:10-376:12. Rolon testified that

although hysterical, Forrester informed the officers that “she

had a dispute with her child’s father” and “was struck and

knocked unconscious.” Id. at 377:8-19. Forrester was

transported to a nearby hospital for treatment. Id. at 377:22-

378:5.

Lee testified that while the officers accompanied

Forrester to the hospital, he received a call from Lamb, who

asked to speak with Forrester. Lee at 578:4-15. After Lee

informed Lamb that he had called the police and that Forrester

was in the hospital, Lamb called back several more times that

night. Id. at 578:11-22. Lee testified that Lamb threatened to

“button up my shirt,” which Lee understood to mean that he would

“shoot me up in my chest.” Id. at 578:17-22. Lee testified

that, on another phone call between 8:00 and 9:00 p.m., Lamb

told him that he was “going to show [Lee] how we young boys

ride.” Id. at 579:2-8. Later, at about 10:00 p.m., Lee heard

the sound of gunshots “start to fire through the window.” Id.

at 579:19-580:6. He shouted for Brayboy to get down, but by the

time she did she had already been shot in the leg. Id. at

580:8. Meanwhile, the couple’s children hid in the kitchen and

behind a couch. Id. at 579:2-14, 580:20-22.

Lee testified that as the shooting was ongoing, he

moved to the front door to brace it in case anyone attempted to

enter. Id. at 582:13-19. As he did so, he told the jury, he

was able to see who was doing the shooting: Lamb was leaning out

of the window of his black Toyota Avalon, shooting at the house.

Id. at 581:11-582:4. When the shooting stopped, Lee called 911.

Id. at 583:22-23. The police and an ambulance soon arrived, and

Brayboy was taken to the hospital to have the bullet removed

from her left leg. Brayboy at 363:13-18.

One of the officers called to the scene was Detective

Robert Reed. Reed at 452:7-453:10. Reed testified that

although Brayboy had already been moved to the hospital, he

spoke with Lee, from whom he learned that Lamb had fired on the

house. Id. at 455:1-5. Detective Reed also testified that Lee

provided him with a cell phone number and a description of Lamb

and his black Toyota Avalon. Id. at 455:23-25, 456:1-6.

The police then contacted T-Mobile to obtain location

data for the cell phone associated with Lamb’s phone number.

Id. at 457:10-20. T-Mobile sent “electronic information as to

latitude/longitude, GPS-type coordinates within a range of where

the phone could be located.” Id. at 457:18-20. Detective Reed

testified that with the help of this data, he found the black

Avalon at around 4:00 a.m. on 57th Street near Linden Boulevard.

Id. at 459:17-22. Through the car window, Reed saw several

spent shell casings. Id. at 459:1. He remained nearby to

conduct surveillance, on the theory that Lamb might return to

the car or be nearby. Id. at 459:24-460:5. Detective Reed also

called Lee, who told him that he was familiar with that area,

that he had been to a specific house on the block with Lamb

before, and that Lamb was friendly with the resident of that

house’s basement. Id. at 460:19-24.

Detective Reed testified that around 6:00 a.m., an

individual he later identified as the homeowner, John Hill,

exited the house. Id. at 463:20-464:5. They spoke. Hill

informed the detective that he knew the driver of the black

Toyota Avalon as someone who occasionally visited his basement

tenant, Harold Reed, and confirmed that a picture of Lamb showed

that visitor. Id. at 464:1-8. The detectives evacuated Hill

and his family from the home and called for more police vehicles

and personnel. Id. at 464:17-22. At around 9:30 a.m., Harold

Reed emerged from the basement, and Detective Reed learned that

Lamb was in the basement with “a girlfriend of his by the name

of Jateria Wright.” Id. at 465:24-25, 466:11-19. Hours later —

shortly after noon that day — Lamb and Wright exited the

basement, and Lamb was arrested. Id. at 467:6-7, 468:2-3.

Lamb was held at Rikers Island following his arrest.

Tarsha Brown, an investigator with the New York City Department

of Corrections, testified that Lamb made a series of phone calls

from Rikers following his arrest. Brown at 636:9-638:23,

641:18-642:5. On these calls, Lamb — using what the prosecution

contended was coded language referring to a gun and bullets —

asked Wright to get his “daughter” from Hill’s basement along

with “the Gerber bottles” and bury them in the ground. Tr. 845.5

2. Defense Case

The defense called two witnesses, Danielle Forrester

and her son, Devante Lewis. Contradicting her statement to the

police on the day of the shooting, Forrester testified that she

had accidentally fallen and hit her mouth while talking to Lamb

and that he did nothing to harm her. Forrester at 667:10-22.

She claimed that Detective Reed had told her that if she did not

blame Lamb, she would lose her children to protective services.

Forrester at 669:9-12. Lewis, who was in Lee’s house when

Brayboy was shot, testified that Lee had not gone to the door

during the shooting, as he’d claimed — and therefore that Lee

would not have been able to identify Lamb as the shooter. Lewis

at 767:2-11.

D. Verdict and Sentence

At the conclusion of trial, Lamb was convicted of

Attempted Murder in the Second Degree, Reckless Endangerment in

the First Degree, Attempted Assault in the First Degree, Assault

5 Testimony at trial indicated that all calls out of Rikers are

recorded, apart from calls to “attorneys, clergymen or physicians with prior

authorization by DOC.” Brown at 634:1-5. Brown testified that inmates are

notified in a variety of ways that calls will be recorded: in the inmate

handbook, in signs posted next to the phones, and by a recorded message that

plays automatically through the phone before a call can be placed. Id. at

634:9-21. Brown also explained that the Department of Corrections keeps

those phone calls in the regular course of business in a searchable database.

Id. 635:4-20.

in the Second Degree, Criminal Possession of a Weapon in the

Second Degree, Criminal Possession of a Weapon in the Third

Degree, Assault in the Third Degree, Criminal Possession of a

Forged Instrument in the Second Degree, and Criminal Contempt in

the First Degree. Tr. 900:24-901:11. On September 19, 2013,

Lamb was sentenced as second violent felony offender to an

aggregate prison term of from 28.5 to 32 years, to be followed

by five years of post-release supervision. Sentencing Tr., at

1-7, ECF No. 8-4; ECF No. 8-5. Lamb is currently serving that

sentence.

E. Appeals and Collateral Proceedings

Shortly before sentencing, Lamb’s counsel filed a

motion to set aside the guilty verdicts pursuant to Article

330.30 of New York’s Criminal Procedure Law. ECF No. 8-6, at 1.

The trial court denied that motion. Weeks later, Lamb —

proceeding pro se — asked the trial judge to vacate the judgment

and sentence pursuant to C.P.L.R. §§ 440.10 and 440.20. Id. at

6. The trial court also denied that motion. Id. at 25-26.

Lamb then filed a supplemental motion seeking the same relief on

the same grounds, which the trial court again denied. Id. at

43.

Following a series of denials of motions for leave to

appeal to the Appellate Division, Lamb perfected his appeal on

June 30, 2017. ECF No. 8-7, at 30. His counseled appellate

brief raised four claims, all of which Lamb has raised again in

his habeas petition: (i) that using “using [Lamb’s] phone as a

tracking device” without a warrant violated his Fourth Amendment

rights; (ii) that the admission of Lamb’s calls Lamb from Rikers

Island violated his Fourth Amendment rights; (iii) that the

trial court deprived Lamb of due process by virtue of statements

it made during jury selection before the venire; and (iv) that

the trial court deprived Lamb of due process and a fair trial by

permitting certain witness testimony. See Second Dep’t Brief at

26, 35, 40, 49, ECF No. 8-7.

The Second Department also granted Lamb leave to file

a supplemental, pro se brief. In that brief, he raised three

additional claims, each of which he has also raised in his

habeas petition: (v) that his trial counsel was constitutionally

ineffective because (a) he “didn’t enhance” a tape recording of

Lamb’s Rikers phone call or ”call for a translator” of the phone

call, (b) he “failed to secure independent medical testimony of

the victim’s injury,” (c) he “failed to object on several

meritorious [evidentiary] issues,” and (d) he “neglected to move

for dismissal of indictment or dismissal of Attempted Murder

. . . on the grounds of insufficient evidence”; (vi) that the

“prosecutor illegally submitted evidence [of a] prior uncharged

crime” without “holding a Ventimiglia Hearing”; (vii) and that

the prosecutor violated Lamb’s rights under Brady v. Maryland by

“failing to provide [him] with a 911 Sprint material associated

with the alleged crime,” as well as failing to turn over “the

discovery sheet” until “the middle of trial.” See Lamb’s Pro Se

Second Dep’t Brief at 7-9, ECF Nos. 8-7, 8-8.

The Second Department considered Lamb’s counseled

brief and all three claims in his “pro se supplement brief,” and

affirmed Lamb’s conviction and sentence in their entirety.

People v. Lamb, 164 A.D.3d 1470 (2d Dep’t 2018).

Lamb then sought leave to appeal to the Court of

Appeals, which that court denied on February 25, 2019. People

v. Lamb, 32 N.Y.3d 1206 (2019). Lamb’s conviction therefore

became final on April 28, 2019 — when his time to seek a writ of

certiorari at the United States Supreme Court expired. See

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

Lamb filed this petition on January 29, 2020 — within

the one-year statute of limitations in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C.

§ 2244(d)(1). This Court accepted Lamb’s amended petition on

March 31, 2022.

Legal Standard

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

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

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

petitioner challenging a determination that was “adjudicated on

the merits” in state court must demonstrate that the state

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

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

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

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

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

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

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

§ 2254(e)(1).

A legal conclusion is “contrary to” clearly

established federal law if it “contradicts the governing law set

forth in” the Supreme Court’s cases or “confronts a set of facts

that are materially indistinguishable from a decision” of the

Supreme Court, yet “arrives at a result different from [that]

precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003). And a

decision involves an “unreasonable application” of federal law

“if the state court identifies the correct governing legal

principle” in the Supreme Court’s decisions but “unreasonably

applies that principle to the facts of the prisoner’s case.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). It is the

petitioner’s burden to show that the state court applied the

governing principle in an objectively unreasonable manner.

Price, 538 U.S. at 641.

It is not enough that the federal court conclude, in

its independent judgment, that the state court’s decision was

incorrect or erroneous: “a state prisoner must show that the

state court's ruling on the claim being presented in federal

court was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011).

Discussion

A. Fourth Amendment Claims

Lamb’s first two claims implicate the Fourth

Amendment’s prohibition on unreasonable searches. In his

“Ground One,” he contends that police officers used his “phone

as a tracking device without first obtaining a warrant.”

Amended Petition (“Pet.”) at 5, ECF No. 15. In Ground Two, he

contends that his phone calls at Rikers Island were recorded

without his knowledge. Id.

Fourth Amendment claims may not be raised on habeas

review, so long as the State provided the petitioner with “an

opportunity for full and fair litigation” of the claims. Stone

v. Powell, 428 U.S. 465, 482 (1976); see also Cardwell v.

Taylor, 461 U.S. 571, 572-73 (1983). The Second Circuit has

held that “New York state courts provide facially adequate

procedures to redress Fourth Amendment violations.” Ethridge v.

Bell, 49 F.4th 674, 686 (2d Cir. 2022). Thus, to show that he

was denied an adequate opportunity to litigate these claims,

Lamb must establish an “unconscionable breakdown” in the

process, which requires showing that the state courts “failed to

conduct a reasoned method of inquiry into relevant questions of

fact and law.” Capellan v. Riley, 975 F.2d 67, 71 (2d Cir.

1992).

1. Location Data From Lamb’s Cell Phone

Lamb’s first argument is that law enforcement

illegally obtained his location information from T-Mobile

without a warrant. The N.Y.P.D. obtained this information by

requesting it from T-Mobile pursuant to 18 U.S.C. § 3125(a). H2

at 10:21-11:8.6 That provision is unchanged, as relevant here,

since the action that Lamb challenges. It authorizes “any

[designated] investigative or law enforcement officer” to “have

installed and use a pen register or trap and trace device”

without court approval, so long as two criteria are satisfied.

18 U.S.C. § 3125(a). The first criterion is that the officer

“reasonably determines” that “an emergency situation exists,”

involving an “immediate danger of death or serious bodily injury

6 The N.Y.P.D. first attempted to “get surveillance or a pen register on

[Lamb’s] phone,” but they “were unable to obtain one at that exact moment.”

H1 at 14:1-15. Officers therefore “conferred with T-Mobile,” and “with their

assistance an exigent circumstances form was prepared,” and “at some point

after that T-Mobile began to relay latitude and longitude coordinates for

that phone to us.” Id.

to any person.” Id. The second is that law enforcement obtain

“an order approving the installation or use” of the tracking

device within forty-eight hours of installation. Id.

Lamb’s counsel moved to suppress the location data and

the fruits thereof before trial. Defendant’s Motion to

Suppress, ECF No. 16, at 6; H2 at 10:12-20. Justice Zayas held

a suppression hearing on April 4, 2012, see generally H1, and

subsequently “received [Lamb’s counsel’s] memo” and the

government’s reply on the issue. June 15, 2012 Conference Tr.

at 2:8-9, ECF No. 8. At an August 15 hearing, Justice Zayas

discussed Lamb’s suppression motion at length on the record; he

concluded that there were exigent circumstances sufficient to

satisfy the requirements of 18 U.S.C. § 3125. H2 at 10:21-11:8.

On appeal, Lamb raised the same issue, and the Appellate

Division affirmed, agreeing that the State had “established that

the police were justified in proceeding without a warrant due to

the existence of exigent circumstances.” Lamb, 164 A.D.3d at

1471.

Lamb has alleged no facts that would suggest an

“unconscionable breakdown” in the state court’s process.

Capellan, 975 F.2d at 71. Given the process did occur, as

discussed above, this claim cannot succeed. Stone, 428 U.S. at

469.

2. Recording of Lamb’s Calls at Rikers

Lamb’s second Fourth Amendment argument is that the

admission of his Rikers calls violated his right to be free from

unreasonable searches and his due process rights. He asserts

that he was “never informed” that the recordings could “be

turned over to the Prosecution” — only that his calls were

“recorded for security purposes.” Pet. at 5. Lamb’s Fourth

Amendment objection is barred (again) by the rule of Stone v.

Powell. And both arguments — Fourth Amendment and due process —

are barred because the state appellate court denied them on an

independent and adequate state-law ground: that Lamb did not

preserve them for appellate review.

Lamb raised this issue, too, before the Appellate

Division. See Lamb, 164 A.D.3d at 1471. The Appellate Division

rejected it, relying on New York’s contemporaneous objection

rule. Id. Under that rule, in order to preserve a question of

law for appeal, “a protest thereto” must be made “by the party

claiming error, at the time of such ruling or instruction or at

any subsequent time when the court had an opportunity of

effectively changing the same.” N.Y. Crim. Proc. Law §

470.05(2). The Appellate Division held that Lamb failed to

preserve this Fourth Amendment objection for appellate review,

and that “[i]n any event, the [trial] court properly admitted

the recordings and transcripts of the telephone calls.” Lamb,

164 A.D.3d at 1471.7

“In all cases in which a state prisoner has defaulted

his federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the

claims is barred unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). The

contemporaneous-objection rule is a “firmly established and

regularly followed New York procedural rule.” Downs v. Lape,

657 F.3d 97, 102-104 (2d Cir. 2011). Thus, Lamb’s failure to

comply with it constitutes an independent and adequate state

ground for the state court’s rejection of this Fourth Amendment

claim.

And Lamb has not alleged — let alone demonstrated —

either cause and prejudice, or that any failure to consider the

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

Coleman, 501 U.S. at 750. Accordingly, claim is denied.

7 “[F]ederal habeas review is foreclosed when a state court has

expressly relied on a procedural default as an independent and adequate state

court, even where the state court has also ruled in the alternative on the

merits of the federal claim.” Green v. Travis, 414 F.3d 288, 294 (2d Cir.

2005).

B. Trial Judge’s Remarks During Jury Selection

Lamb next argues that the trial court violated his due

process rights (and a state procedural rule8) by making two

statements at jury selection. First, Lamb claims that the trial

judge made false statements to prospective jurors during

selection. Pet. at 5. According to Lamb, these statements

suggested to jurors that if they were excused for lack of

language proficiency they would not be paid for their services

and could be required to take English classes. Id. at 5; see

Tr. 4:6-11. Second, he refers to comments “suggesting” that “it

was unimportant whether jurors understood [the court’s] legal

instructions.” Pet. at 5. This refers to a comment Justice

Zayas made to a potential juror who claimed not to be “able to

answer if you ask any questions.” Tr. 179:13-14. Following a

series of questions and answers from the juror, Justice Zayas

commented that “[s]o far you’ve answered all my questions

without any problems,” and “I guarantee you that most of the

people here don’t understand the intricacies of the criminal

8 Lamb says that the trial judge violated Section 270.15 of the state’s

Criminal Procedure Law. But the Supreme Court held long ago that “it is not

the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle v. McGuire,

502 U.S. 62, 67–68 (1991). This rule was enshrined in AEDPA. See 28 U.S.C.

§ 2254(a) (providing relief to people in state custody “in violation of the

Constitution or laws or treaties of the United States”).

process or the laws that I explain, the rights that the

defendant has.” Id. at 180:22-25.

Again, however, Lamb failed to preserve these

arguments. The Appellate Division expressed its “strong

disapproval” of the trial court’s remark concerning English

language proficiency, but nonetheless held that Lamb “failed to

preserve [his objection] for appellate review” because he did

not contemporaneously object. Lamb, 164 A.D.3d at 1471-72.

This court is therefore barred from reviewing Lamb’s argument

absent a showing that cause existed for Lamb’s procedural

default, that he suffered actual prejudice, or that a

miscarriage of justice would result from this court’s denial of

the claim. But Lamb has made no arguments to that effect, and

again, nothing in the record suggests that such exceptions

apply.

C. Admission of Evidence Regarding Arrest

Lamb argues that his rights to a fair trial and due

process were violated when the trial court allowed witnesses to

testify “extensively and in detail about the circumstances of

[his] arrest.” Pet. at 5-6. In particular, he suggests that

the witnesses sensationalized the events in question by

referring to “a ‘Hostage Situation’ that never existed and

detailing tactical measures taken by the Police.” Id. at 6.

Once again, Lamb’s argument is procedurally barred,

because it was not preserved for appellate review. Lamb raised

this contention before the Appellate Division; that court held

that he “failed to preserve for appellate review his contention

that the Supreme Court erred in admitting testimony at trial

regarding the manner of his arrest.” Lamb, 164 A.D.3d at 1472.

The court further held that the trial court had “providently

exercised its discretion in admitting that testimony.” Id.

And again, Lamb has not proffered facts that would

suggest cause for the failure, actual prejudice, or that a

miscarriage of justice would result from this court denying

review of the claim. This claim, too, must therefore be

dismissed.

D. Ineffective Assistance of Counsel

Lamb raises four arguments in support of his

ineffective assistance claim. First, he contends that Glenda

Callender, the lawyer who represented him at the pretrial

suppression hearings, was ineffective in her challenge to the

cell-site location data. Second, he contends that his trial

counsel — Ernest Dubois9 — was ineffective in dealing with an

audio recording of a call between Sean Lee and Danielle

Forrester. (Lamb contends Lee admitted, on that call, to not

9 “Dubois” is alternatively spelled “Dubose” by Lamb in his petition.

The court adopts the spelling “Dubois” because it is the spelling used in the

trial transcript.

having seen the shooter on the night of the crime.) Third, he

contends that Dubois was ineffective for failing to move to

dismiss the indictment for “repugnancy” of the attempted murder

and reckless endangerment charges. And fourth, he contends that

Dubois was ineffective for failing to properly move to dismiss

the attempted murder charge at trial on the ground of

insufficient evidence. These arguments were rejected on the

merits in state court. Lamb, 164 A.D.3d. at 1472.

On habeas claims alleging ineffective assistance,

“AEDPA review is doubly deferential”: the underlying Strickland

standard “strongly” presumes that counsel “rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment,” Woods v. Etherton, 578 U.S.

113, 117 (2016), and AEDPA layers on the requirement that the

state court’s decision can be disturbed only if it was “contrary

to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1). In these

circumstances, federal courts must give “both the state court

and the defense attorney the benefit of the doubt.” Burt v.

Titlow, 571 U.S. 12, 15 (2013).

Under Strickland v. Washington, a criminal defendant

must first overcome the “strong presumption” that counsel’s

performance fell “within the wide range of reasonable

professional competent assistance.” 466 U.S. 668, 688 (1984).

This is an “objective standard of reasonableness.” Id. Even if

the defendant makes this showing, he does not yet qualify for

relief. He must also establish prejudice: “a reasonable

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

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

694.

1. Pretrial Counsel’s Challenge to Location Data

Lamb first argues that his pretrial counsel, Glenda

Callendar, failed to render an effective objection to the

N.Y.P.D.’s collection of real-time cell-site location data.

Pet. at 9-17. Specifically, he argues the Callendar “failed to

conduct any legal research” at all and did not “properly state

the law of exigency,” the requirements of which he argues were

not met. Id. at 10, 16. Had she conducted proper research,

Lamb contends, she would have surfaced United States v. Jones,

565 U.S. 400 (2012), which held that the attachment of a GPS

tracking device to a vehicle, and the subsequent use of that

device to ascertain the vehicle’s location on public roads,

constituted a search under the Fourth Amendment. Id. (Lamb’s

petition acknowledges that Jones is cited in his brief to the

Appellate Division, see Pet. at 16, but suggests — inaccurately,

as discussed below — that pretrial and trial counsel failed to

invoke the case. See id.) Lamb contends that counsel’s error

prejudiced him because the prosecution “used the results of the

illegal search to establish how Mr. Lamb was located.” Id.10

Lamb did not raise this argument on direct appeal.

But the State maintains that the “defendant exhausted this claim

by filing a pro se motion to vacate his judgment in state court

pursuant to N.Y.C.P.L. § 440.10 in which he asserted the same

claim,” Respondent’s Supplement Brief at 3, ECF No. 16 at 3, and

that motion was denied summarily by the trial court. August 27,

2021 Order, ECF No. 16 at 22. Because the State “explained in

its brief” that Lamb “exhausted this particular ineffective

assistance of counsel claim,” it has “explicitly waived” the

exhaustion argument, and the Court “may consider this claim on

the merits.” Cornell v. Kirkpatrick, 665 F.3d 369, 376 (2d Cir.

2011) (citing 28 U.S.C. § 2254(b)(3)).

As a threshold issue, the record belies Lamb’s

characterization of the underlying facts. Notwithstanding his

claim that counsel “failed to conduct any legal research,” Pet.

at 16, counsel submitted a memorandum of law with relevant case

citations. Most notably, and contrary to Lamb’s suggestion that

trial counsel missed the import of the Supreme Court’s decision

in Jones, the brief cites that case prominently. See ECF 16 at

10 Under Kimmelman v. Morrison, 477 U.S. 365, 371-73 (1986), the

restrictions on federal habeas review of Fourth Amendment complaints under

Stone v. Powell do not extend to claims of ineffective assistance of counsel

based on deficient performance in a Fourth Amendment context at a suppression

hearing. Instead, the usual Strickland analysis applies.

14-15 (citing Jones and arguing that the “use of a cell phone as

a tracking device implicates these same concerns and also

constitutes a ‘search’”). The memorandum went on to argue that

the prosecution had not satisfied Section 3125’s requirement of

an “emergency situation,” as the State “failed” to “establish

that exigent circumstances justified the police decision to not

wait until morning and get a warrant.” Id. at 15.11

Lamb argues that this was ineffective because

Callendar did not address the requirement that there “be

evidence of a threat of immediate danger or death or serious

bodily injury” to meet the statute’s emergency element. Pet. at

10. And it is true that Callendar’s memorandum did not address

Section 3125(a)’s requirement of an “emergency situation”

involving “immediate danger of death or serious bodily injury.”

18 U.S.C. § 3125(a)(1)(A).12

But Lamb suffered no prejudice from this omission,

because Justice Zayas considered that requirement anyway. He

found that the N.Y.P.D. had “reasonably determined that an

emergency situation existed that involved immediate danger or

death or serious bodily injury.” H2 at 11:14-17. He based that

11 Callendar argued (among other things) that at the hearing, “Lee never

indicated that he received any further phone calls from defendant after the

shooting,” and the “occupants of the house had apparently been removed from

any further danger.” Id. at 16.

12 Section 3125(a) permits finding an “emergency situation” on three

other bases not relevant here in subsections (B), (C), and (D).

finding on hearing testimony concerning Lamb’s “prior assault

and the irrational threats made by” him to Lee, “as well as

Detective Reed[’]s own observation of the bullet holes in

[Lee’s] house.” Id. at 11:9-13.

This ruling did not violate, or constitute an

unreasonable application of, the rule announced in Jones. Jones

did not consider an emergency situation. Eleven days into the

long-term surveillance of an nightclub owner by the FBI, “agents

installed a GPS tracking device” on his car “while it was parked

in a public parking lot,” and proceeded to track it over the

course of “the next 28 days.” Jones, 565 U.S. at 402. The FBI

suspected Jones was trafficking narcotics. Id. Section 3125(a)

was not at issue, and the Supreme Court did not consider the

emergency exception to the Fourth Amendment at all, despite that

exception’s having long predated Jones. See generally Kentucky

v. King, 563 U.S. 452, 460 (2011) (“One well-recognized

exception [to the Fourth Amendment’s warrant requirement]

applies when the exigencies of the situation make the needs of

law enforcement so compelling that a warrantless search is

objectively unreasonable under the Fourth Amendment.”) (citing

Mincey v. Arizona, 437 U.S. 385, 394 (1978)). The Jones Court’s

holding turned explicitly on the fact that “[t]he Government

physically occupied private property for the purpose of

obtaining information” by planting a physical GPS device on

Jones’s car. Jones at 404-5. Such a “physical intrusion”

constitutes a Fourth Amendment search, and thus generally

requires a warrant. Id. Given these distinctions, Lamb cannot

meet AEDPA’s exacting standard.

2. Trial Counsel’s Use of the Sean Lee Recording

Lamb next argues that his lead trial counsel, Ernest

Dubois, made four constitutionally relevant errors. Two of

these errors relate to the recording of a call between Sean Lee,

who Lamb describes as “the State’s chief witness,” Pet. at 18,

and Danielle Forrester, the mother of one of Lamb’s children.

Lamb says that Forrester recorded this call, and that

the recording “allegedly” — Lamb’s word — captured Lee admitting

that he did not see the shooter outside his home. Id.; see also

Tr. 659:7-9 (according to Dubois, the tape captured Lee

admitting that “I didn’t see it[,] it was the people upstairs

who saw the vehicle alone”). The State moved to suppress the

tape on the grounds that “[i]t’s very difficult to hear what

Sean Lee is saying.” Tr. at 654:22-23. Justice Margulis

listened to the tape in camera and concurred that “Sean [Lee]

cannot be heard on this tape” — that it captured only

Forrester’s side of the conversation — and therefore granted the

suppression motion. Id. at 657:11-20. Under New York law,

“[a]n audiotape recording should be excluded from evidence if it

is so inaudible and indistinct that a jury must speculate as to

its contents.” People v. Bailey, 12 A.D.3d 377, 377 (2d Dep’t

2004). On that basis, Justice Margulis excluded the audio.

Lamb argues that his lawyer should have had the audio

recording “enhanced” or, barring that, should have

cross-examined Lee about the contents of this conversation.

Pet. at 9 (arguing that counsel should have asked Lee to

“translate what he said and what was said to him during that

recorded phone call”).

Enhancement of the Recording. In his pro se

supplemental brief to the Appellate Division, Lamb contended

that Dubois was ineffective because he “didn’t enhance the

tape.” Lamb’s Pro Se Second Dep’t Brief at 31. The Appellate

Division rejected that argument on the merits, holding that “the

defendant was not denied the effective assistance of counsel, as

defense counsel provided meaningful representation.” Lamb, 164

A.D.3d at 1472. Lamb therefore adequately exhausted this claim.

Lamb has not established that the Appellate Division’s

conclusion was contrary to, or an unreasonable application of,

Strickland or any later Supreme Court decision. In the

Appellate Division (as here), Lamb did not explain what

particular enhancement process he had in mind. Nor did he (or

does he) indicate precisely what the enhanced audio would have

revealed. That “absence of evidence cannot overcome the strong

presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.” Dunn v. Reeves, 594 U.S.

731, 733-34 (2021).

In Harrington v. Richter, the Supreme Court reversed a

circuit court’s grant of habeas relief. 562 U.S. 86 (2011).

The petitioner contended that his trial counsel was

constitutionally ineffective for failing to consult an expert

(in that case, a “forensic blood expert”). Id. at 106. The

Court observed that “[i]n many instances cross-examination will

be sufficient to expose” the issues that a retained expert would

speak to. Id. at 111.

Relying on Harrington and the Court’s subsequent

decision in Dunn, the Second Circuit recently summarized the

applicable standard as follows: a habeas petitioner “claiming

that counsel was constitutionally ineffective in failing to

consult with or call an expert witness must show that ‘every

fair-minded jurist would agree that every reasonable lawyer

would have’ consulted or called [the given expert] witness in

the particular case.” Englert v. Lowerre, --- F.4th ----, 2024

WL 3818574, at *10 (2d Cir. August 15, 2024) (quoting Dunn, 594

U.S. at 740).

Lamb has not cleared this high hurdle. There are

innumerable reasons why trial counsel would devote his efforts

(and budget) to other endeavors besides the enhancement of the

audio at issue. As the Sixth Circuit once noted (also on habeas

review), it is possible that “trial counsel’s decision not to

enhance the tape was strategic: [that] trial counsel believed

that a more accurate transcript might have further incriminated

the petitioner.” Covington v. Mills, 253 F. App’x 495, 501 (6th

Cir. 2007). Here, given that Forrester made the recording

(presumably surreptitiously), the jury could have concluded that

Lamb induced her to attempt to extract a (false) statement by

Lee that he had not actually seen Lamb commit the shooting. In

the end, we simply do not know.

Cross-Examination of Lee. Lamb did not argue the

point about Lee’s cross-examination to the Appellate Division.

Even assuming Lamb’s arguments about Lee’s cross-examination

were properly exhausted, however, Lamb has not demonstrated

ineffective assistance.13 Given Lee’s direct testimony, Dubois

could very well have believed — reasonably — that Lee would not

have described the inaudible conversation on cross the way Lamb

does now. Dubois did cross-examine Lee about his ability to see

Lamb clearly, but Lee did not yield. Dubois asked: “So you saw

the car and it’s 10 o’clock at night and its dark and you can

13 See Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (stating that

bypassing procedural questions to reach the merits of a habeas petition is

justified “if the [underlying issues] are easily resolvable against the

habeas petitioner, whereas the procedural-bar issue involved complicated

issues of state law”); see also 28 U.S.C. § 2254(b)(2) (“An application for a

writ of habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the courts of

the State.”).

see exactly everything that’s going on?” Lee at 613:24-25. Lee

responded, “Yes, sir.” Id. at 614:1.

Counsel is afforded broad deference in making such

strategic choices, because “advocacy is an art and not a

science.” Strickland, 466 U.S. at 681. Indeed, the Second

Circuit has counseled that decisions about “whether to engage in

cross-examination, and if so to what extent and in what manner,

are . . . strategic in nature and generally will not support an

ineffective assistance claim.” Dunham v. Travis, 313 F.3d 724,

732 (2d Cir. 2002). Given the finding that Lee’s voice was

inaudible on the recording, it was eminently reasonable not to

belabor the issue by asking Lee to explain the conversation at

issue or “translate” the recording.

Moreover, Lamb has not demonstrated prejudice from

counsel’s actions. Lamb elicited other evidence aimed at

showing that Lee did not see him through the door through other

means. Devante Lewis, one of Forrester’s children, was with Lee

in the house during the shooting and testified at trial. Lewis

at 764:3-25. He testified that during the shooting he saw that

Lee “was going to go to the door but he didn’t,” and therefore

would not have been able to identify Lamb as the shooter. Id.

at 766:18-25. Lamb therefore cannot show that “but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

3. Inconsistency or Repugnancy of Charges

Lamb’s next ineffective-assistance argument is that

Dubois was ineffective because he failed to object to “the

repugnant charges of attempted murder and reckless

endangerment,” and “failed to move for dismissal of the

indictment due to repugnancy” — that is, inconsistency — of the

charges. Pet. at 9.14 Lamb raised a version of these arguments

in his pro se supplemental brief to the Appellate Division.

There, he argued that “counsel was not prepared and failed to

conduct any legal research, as evidence at trial of the charges

of Attempted Murder and Reckless Endangerment in the first

degree were inconsistent with each other,” and that “[c]ounsel

neglected to move for dismissal of the indictment.” Lamb’s Pro

Se Second Dep’t Brief at 7-8. The Appellate Division rejected

these arguments on the merits, holding that Lamb was afforded

meaningful representation. Lamb, 164 A.D.3d at 1472.

That decision was not contrary to, or an unreasonable

application of, Strickland. If counsel had moved to dismiss the

indictment on the ground that the attempted murder and reckless

endangerment charges were “repugnant” (or inconsistent) with

14 Lamb raises this argument twice in his petition under separate

headers. Compare Pet. at 17 (arguing that “Counsel failed to object on

several meritorious issues . . . to wit, the repugnant charges of attempted

murder and reckless endangerment) with id. at 23 (arguing that “Counsel

failed to move for dismissal of the indictment due to the repugnancy of the

charges”).

each other, that motion would have been denied. “[R]eckless

endangerment [is] properly chargeable as a lesser included

offense of attempted murder.” People v. Teasley, 73 A.D.2d 548,

548 (1st Dep’t 1979). As to the eventual verdict, as the New

York Court of Appeals has explained, under New York law a

“verdict is inconsistent or repugnant — the difference is

inconsequential — where the defendant is convicted of an offense

containing an essential element that the jury has found the

defendant did not commit.” People v. Trappier, 87 N.Y.2d 55, 58

(1995). That is to say that a verdict is repugnant if “the jury

reached an inherently self-contradictory verdict.” Id.

But even if the jury convicted Lamb on both charges

based on the same conduct — shooting at Lee — that would not be

inherently self-contradictory under New York law. The Appellate

Division has held that “a jury could reasonably conclude that

when the defendant fired his handgun at [one person] with the

intent to kill him he also recklessly engaged in conduct that

created a grave risk of death to [a different person].” People

v. Campbell, 208 A.D.2d 641, 642-43 (2d Dep’t 1994). As a

result, that defendant’s attempted murder conviction was “not

inconsistent with his reckless endangerment conviction because

guilt of one does not necessarily negate guilt of the other.”

Id. at 643 (emphasis added).

Regardless, this claim fails under the concurrent

sentence doctrine because all of Lamb’s counts run concurrently.

That doctrine “allows courts, in their discretion, to avoid

reaching the merits of a claim altogether in the presence of

identical concurrent sentences since a ruling in the defendant’s

favor would not reduce the time he is required to serve or

otherwise prejudice him in any way.” Kassir v. United States, 3

F.4th 556, 561 (2021); see Terry v. Collado, 2023 WL 5350829, at

*3 (E.D.N.Y. Aug. 21, 2023) (collecting cases). Justice Zayas

imposed a twenty-five year sentence for attempted murder and a

maximum sentence of seven years for reckless endangerment.

Sentencing Tr. at 19:4-10, ECF No. 8-4. He ran both sentences

“concurrently with each other.” Id. at 20:9-13. Even if this

Court were to grant Lamb the relief he seeks and lift the

reckless endangerment sentence, it would not reduce his overall

time in prison. See Kassir, 3 F.4th at 564 (declining to reach

the merits of a habeas petition because “[n]o matter the success

of [the petitioner’s] argument, we cannot shorten the time he

will remain in prison”).

Because neither the charges nor the eventual verdict

were inconsistent or repugnant, and because even if they were

Lamb has suffered no prejudice given his concurrent sentences,

trial counsel’s failure to object on that basis does not

constitute a ground for habeas relief.

4. Motion to Dismiss the Attempted Murder Count

Lamb also argues that his trial counsel was

ineffective because he “failed to move for dismissal of

attempted murder on [the] ground of insufficient evidence.”

Pet. at 9. Lamb raised this argument before the Appellate

Division, which rejected it. Lamb, 164 A.D.3d at 1472.

Under New York law, in order to preserve a sufficiency

claim, a defendant must do more than make a blanket objection

(akin to a Rule 29 motion in federal court). Instead, he must

make arguments “specifically directed” at the alleged

deficiencies in the State’s proof. People v. Gray, 86 N.Y.2d

10, 19 (1995).

Lamb is correct that his trial counsel did not make a

specific argument regarding why the State’s evidence had failed

to establish a prima facie attempted-murder case. Rather than

pointing to specific flaws in the State’s case, Dubois argued

only that “[w]e don’t believe there is enough going forward to

allow the jury to properly deliberate.” Tr. 795:21-796:1.

Justice Margulis denied the motion, noting that “[t]his is

strictly [a] credibility question that the jury will decide.”

Id. 796:7-8. However, even properly made, such a motion would

not have succeeded, given the extensive evidence of Lamb’s

guilt. And counsel is not ineffective for failing to raise a

meritless argument. Aparicia v. Artuz, 269 F.3d 78, 88 (2d Cir.

2001) (concluding, on habeas review, that failure to raise a

“meritless” claim did not constitute ineffective assistance of

counsel under Strickland).

Courts have held as much in connection with the

failure to make fully developed insufficiency-of-the-evidence

motions for acquittal: counsel is not ineffective when “such a

motion would have been futile” in light of the substantial

evidence of guilt presented. Rodriguez v. United States, No.

11-CV-6707, 2013 WL 3388223, at *10 (S.D.N.Y. July 8, 2013);

accord Finley v. Graham, No. 12-CV-9055, 2014 WL 10965412, at

*20 (S.D.N.Y. Aug. 26, 2014) (counsel not ineffective where “the

evidence was legally sufficient to convict”).

Lamb contends the evidence was insufficient to sustain

the attempted-murder conviction because the State presented no

evidence that he “had reason to believe that there were people

in the house, much less than Sean Lee was in the home at that

time.” Pet. at 34. But that is not a fair reading of the trial

record. In fact, Lamb knew Lee was home because he had spoken

to Lee that night by phone, and Lee said as much: that the

“police have been here” — i.e., at the scene of the earlier

assault on Forrester — “and we have the kids.” Lee at

578:11-15. Lee also testified that he told Lamb to “come and

get your children,” who (as Lamb knew) were at the house with

Lee. Id. at 578:5-9. Given this, Lamb’s argument is

contradicted by the trial record, and his counsel was not

ineffective for failing to press the insufficiency claim with

more specificity.

E. Evidence of Uncharged Crimes

Lamb next argues that the trial court erred by

allowing the State to present evidence at trial of uncharged

crimes committed by Lamb without giving proper notice to defense

counsel in the form of a “Ventimiglia hearing.” Pet. at 6. In

New York state courts, “a Ventimiglia hearing is held to

determine whether evidence of uncharged crimes is admissible as

direct evidence.” Jones v. Artuz, 96 F. App’x 742, 743 n.1 (2d

Cir. 2004). It is a creature of state, not federal, law, and

Lamb cites no federal case, statute, or constitutional provision

in either his pro se Appellate Division brief or his petition

here in support of this claim. To the contrary, he expressly

argues that a Ventimiglia hearing is required “under New York

Law.” Pet. at 6.

Such a claim is beyond the scope of federal habeas

review. See 28 U.S.C. § 2254(a) (writ available to state

prisoners who are “in custody in violation of the Constitution

or laws or treaties of the United States”). “It is not the

province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle, 502 U.S. at

67-68.

F. Brady Allegations

Lamb argues that the State violated his

“Rosario/Brady” rights by failing to provide him with “911

Sprint material associated with the alleged crime/incident,”

although he does not specify the nature of that material. Pet.

6-7. Lamb did raise this argument in passing in his pro se

supplemental brief to the Appellate Division, thereby exhausting

it, Lamb’s Pro Se Second Dep’t Brief at 9, although the court

did not address the argument in its opinion. See Dye v.

Hofbaur, 546 U.S. 1, 3 (2005) (claim is exhausted when raised in

state appellate briefing, even if state court fails to address

the claim squarely). But in his Appellate Division brief, as in

his petition before this Court, Lamb treats this argument as an

afterthought — he addresses it (briefly) only at its highest

level of abstraction — and he never explains, for example, what

the “911 Sprint material” is.

Lamb has not identified a basis for relief. The New

York Court of Appeals held in People v. Rosario that the State

is required to disclose any statement of a witness whom it

intends to call at the hearing or trial. 9 N.Y.2d 286 (1961).

But Rosario relied entirely on New York law, and thus presents

no federal constitutional question. See Cruz v. Scully, 716 F.

Supp. 766, 769 n.5 (S.D.N.Y. 1989); United States ex rel. Butler

v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974), aff’d, 508

F.2d 837 (2d Cir. 1975).

Lamb’s claim under Brady v. Maryland also fails.

Brady requires the State to turn over material, exculpatory

evidence in its possession. 313 U.S. 83 (1963). This duty is

broad: it applies even absent a request by the defendant, United

States v. Agurs, 427 U.S. 97, 107 (1976); encompasses

impeachment evidence as well as exculpatory evidence, United

States v. Bagley, 473 U.S. 667, 676 (1985); and applies even to

evidence in the possession of cooperating agencies — for example

evidence in the possession of “police investigators and not the

prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438 (1995). “To

make out a Brady violation, a petitioner much show that material

exculpatory or impeachment evidence was suppressed by the state,

either willfully or inadvertently.” Jimenez v. Stanford, 96

F.4th 164, 199 (2d Cir. 2024).

But Lamb does not indicate why the “Sprint material”

would have tended to exculpate him or allow impeachment of a

witness, just that the prosecution’s failure to disclose it

“prevented the defendant’s counsel [from] properly investigating

these [unspecified] issues.” Pet. at 6-7. And furthermore,

Lamb’s counsel did question Detective Reed regarding “the Sprint

Report” extensively at the pretrial suppression hearing,

indicating that it had in fact been disclosed to the defense.15

H1 at 50:5-25. Having omitted to describe the exculpatory (or

impeachment) value of the material in any substantial way, Lamb

cannot establish prejudice — that is, a “reasonable probability

that his conviction or sentence would have been different had

these materials been disclosed.” Strickler v. Greene, 527 U.S.

263, (1999). This argument therefore fails.

G. Inconsistent Verdict

Finally, Lamb argues that his sentence was illegal

because it was the result of an inconsistent verdict. Pet. at

7. This, too, appears to be an argument under New York state

law, rather than federal law — Lamb nowhere argues that his

sentence was unconstitutional, or violated any specific federal

statute. Regardless, the argument would be procedurally barred.

As discussed above, the Appellate Division held that Lamb’s

contention “that the verdict finding him guilty of both

attempted murder in the second degree and reckless endangerment

in the first degree is repugnant” was “unpreserved for appellate

review,” and denied the claim based on New York’s

15 Callender asked Detective Reed if the Sprint Report had “any

information about a license plate being an Alabama dealer plate,” and he

replied that he did not remember, but that reviewing the Spring Report itself

would refresh his recollection. H1 at 50:16-19. Justice Zayas asked counsel

if “either of you have it.” Id. at 51:2-3. The State prosecutor replied,

“I’m looking, Judge,” and Callender replied “Hold on,” while searching for a

copy. Id. at 51:4-5. Callender proceeded to ask Detective Reed specific

questions about the contents of the Sprint Report, such as how it described

the vehicle, and whether it listed Lamb as the shooter. Id. at 51:22-52:12.

contemporaneous objection rule. Lamb, 164 A.D.3d at 1472.

Again, that rule is sufficient to bar review in this court in

most circumstances, see Downs, 657 F.3d at 102-104; see also

Coleman, 501 U.S. at 729-30, and Lamb offers no argument that

cause existed for his procedural default, that he suffered from

actual prejudice, or that a miscarriage of justice would result

from this court denying review of the claim.

Conclusion

Lamb’s petition is cogent and thoughtfully written.

Nonetheless, the Court must deny all of Lamb’s claims as either

meritless or procedurally barred. Accordingly, the petition is

dismissed in its entirety. Because Lamb has not made a

“substantial showing of the denial of a constitutional right,” a

certificate of appealability will not issue. 28 U.S.C. § 2253.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

appeal would not be taken in good faith and in forma pauperis

status is therefore denied for purposes of an appeal. Coppedge

v. United States, 369 U.S. 438, 444-45 (1962). Lamb, however,

has a right to seek a further certificate of appealability from

the Court of Appeals for the Second Circuit. See 28 U.S.C. §

2253(c)(1).

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: September 13, 2024

Brooklyn, New York