Young v. Eckert

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

TALARICO YOUNG,

Petitioner,

v.

9:19-CV-1243

STEWART ECKERT, Superintendent of (TJM)

Wende Correctional Facility,

Respondent.

APPEARANCES: OF COUNSEL:

TALARICO YOUNG

Petitioner, pro se

14-B-1425

Wende Correctional Facility

P.O. Box 1187

HON. LETITIA JAMES JODI A. DANZIG, ESQ.

Attorney for Respondent Ass't Attorney General

New York State Attorney General

28 Liberty Street

New York, NY 10005

THOMAS J. McAVOY

Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Petitioner Talarico Young seeks federal habeas corpus relief pursuant to 28 U.S.C. §

2254. Dkt. No. 1, Petition ("Pet.").1 Respondent has opposed the Petition and filed pertinent

records from the state court proceedings. Dkt. No. 15, Memorandum of Law in Opposition

("Resp. Mem."); Dkt. No. 16 ("Answer"); Dkt. No. 17-1, State Court Record ("SR"); Dkt. Nos.

1 Citations to the Petition herein refer to the page number generated by the Court's electronic filing system,

CM/ECF.

18-1, 18-2, Pretrial Transcripts ("PT");2 Dkt. Nos. 18-3, 18-4, 18-5, 18-6, 18-7, Trial

Transcripts ("T.");3 Dkt. No. 18-8, Sentencing Transcript ("S.").4 Petitioner has also filed a

reply. Dkt. No. 24, Traverse.

For the reasons that follow, the Petition is denied and dismissed.

II. RELEVANT BACKGROUND

On or about May 9, 2013, Petitioner was arrested by the Syracuse Police Department

and charged with Second Degree Murder (New York Penal Law ("Penal Law") § 125.25(1))

for allegedly causing the death of Johanna Pagan earlier that day. SR 0004. On June 6,

2013, after waiving immunity, Petitioner testified before the grand jury. SR 0044, 0046,

0048-74. Petitioner appeared before the grand jury in shackles. SR 0044, 0046, 0116.

In July, 2013, Petitioner was indicted by the grand jury for the crimes of Murder in the

Second Degree and Perjury in the First Degree (Penal Law § 210.15). SR 0335-336. The

murder charge arose from an accusation that Petitioner stabbed Johanna Pagan multiple

times, including three times in the heart, resulting in her death. Id. The perjury charge arose

from an accusation that Petitioner offered false testimony to the grand jury that Pagan was

already dead when he arrived at the apartment where she died. Id.

Following the indictment, Petitioner moved for an order suppressing statements made

by him to the police on the grounds that such statements were obtained involuntarily within

2 The cited page numbers for the pretrial transcripts refer to the page numbers located at the top right corner

of each page.

3 The cited page numbers for the trial transcripts refer to the page numbers located at the top right corner

of each page.

4 The cited page numbers for the sentencing transcript refers to the page numbers located at the top right

corner of each page.

2

the meaning of Criminal Procedure Law § 60.45. SR 0323-324. Petitioner also moved for an

order suppressing identification evidence on the grounds that the show-up procedures were

tainted and unduly suggestive. Id. On November 20 and November 26, 2013, the trial court

held a combined Wade/Huntley hearing.5 SR 0323-333.

Following the hearing, the trial court denied Petitioner's request to suppress

identification evidence, and granted in part and denied in part Petitioner's request to

suppress statements made by him to the police on May 9, 2013. SR 0330-333. Specifically,

the trial court granted the motion with respect to statements that occurred "at approximately"

6:38 p.m., when Petitioner invoked his right to counsel, and denied the motion with respect to

all statements made before this time. Id.

Petitioner proceeded to trial on March 31, 2014. T. 1, 20. During the voir dire of the

first panel of prospective jurors, the prosecutor exercised peremptory challenges against

jurors four and six. T. 121. With respect to the challenge against juror number four, defense

counsel made a Batson motion.6 T. 122-23.

In response to defense counsel's Batson motion, the trial court asked the prosecutor

for a race-neutral explanation for the challenge to juror number four, who was the only

African-American prospective juror on the panel. T. 124. The prosecutor responded that he

had no obligation to provide an explanation because defense counsel failed to make a prima

5 "In People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179, 183 (1965), the New York Court

of Appeals held that a trial court must find the voluntariness of a defendant's statement beyond a reasonable doubt

before it can be submitted to a jury, and that the burden of showing voluntariness is on the People. A Wade hearing,

named after United States v. Wade, 388 U.S. 218, 232, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), is held to determine

if a witness's identification is tainted by unduly suggestive identification procedures." Black v. Rock, 103 F. Supp. 3d

305, 311 (E.D.N.Y. 2015) (citing Maldonado v. Burge, 697 F.Supp.2d 516, 521, 529-31 (S.D.N.Y. 2010)).

6 Batson v. Kentucky, 476 U.S. 79 (1986).

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facie showing of purposeful discrimination. T. 124-25. The prosecutor then explained that

he removed juror number four because her background in early childhood education

indicated that she "want[ed] to see the best in everyone and ha[d] a difficult time judging

people." T. 125. The trial court denied the Batson motion, finding that defense counsel

failed to make the requisite prima facie showing. Id.

Following voir dire, the prosecutor and defense counsel gave opening statements.

During the prosecutor's opening statement, he referenced Petitioner's statement to law

enforcement officials when he was initially taken into custody that they would have to "prove

it," i.e., prove that he stabbed Ms. Pagan. T. 252-53, 258.

After opening statements, the prosecutor called the following witnesses, among

others: (1) an eleven-year-old referred to herein as Z.F.; (2) Z.F.'s neighbor, John Phillips; (3)

Syracuse Firefighter Christopher Birmingham; (4) Joseph Inzalaco, an employee of The Art

Store on Erie Boulevard; (5) Onondaga County Medical Examiner Deborah Johnson; (6)

Daniel Cowen, a scientist at the Onondaga County Center for Forensic Sciences; and (7)

George Washington, an inmate who was incarcerated at the Onondaga County Justice

Center with Petitioner following his arrest. T. 272-343, 434-66, 496-544.

Z.F. and John Phillips each testified that on May 9, 2013, they were outside talking to

each other on Gertrude Street between 3:30 and 4:00 p.m. when they witnessed a person

each later identified as Petitioner run past them and away from an area where Z.F. heard the

sound of broken glass. T. 273-80, 284, 295, 301-04, 307-309. They both further testified

that after Petitioner ran past, they heard Ms. Pagan call out of a window for help, and

indicate that she had been stabbed. T. 276-77, 280, 289-90, 304, 307-08. Z.F. also testified

that he noticed Petitioner's hand was tucked under his shirt and something that resembled "a

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pair of socks balled up" was hanging from his back, left pocket as he ran past. T. 277-79,

291.

Christopher Birmingham testified that at around 3:45 p.m. on May 9, 2013, he was

dispatched to 121 Gertrude Street in response to a stabbing. T. 327-28. Birmingham further

testified that a few blocks from the house, he saw a tall, black male wearing a long-sleeved

black shirt run past his vehicle and up North Crouse Street. T. 329-31. Birmingham also

testified that after he arrived at the scene, he went to The Art Store and was shown a shirt,

which was "the same type of shirt that [he] had seen on the person that [he] . . . saw

running." T. 334-35.

Joseph Inzalaco, an employee of The Art Store on Erie Boulevard, testified that on

May 9, 2013, just before 4:00 p.m., he noticed Petitioner "parading" up and down the aisles

of the store, continually looking out the store's windows, and acting in a suspicious manner.

T. 337-41, 349. Inzalaco spoke with Petitioner, who was wearing a white t-shirt and carrying

a dark-colored sweater under his arm, and provided directions to the store to a person on

Petitioner's phone. T. 339-42. Inzalaco then walked outside after seeing "all kinds of squad

cars going by" and approached two police officers who were behind the store. Id. Inzalaco

asked the officers if they were looking for a tall, dark-skinned man, and when they said that

they were, he told them the man was inside the store. T. 340-42. The officers then went

into the store, saw Petitioner, who was no longer holding the dark-colored sweater, and

placed him in handcuffs. T. 341-342. Thereafter, under a rack inside the store, the police

found a dark sweater that Inzalaco indicated did not belong to the store. T. 342-43.

Onondaga County Medical Examiner Deborah Johnson testified that she went to the

crime scene on May 9, 2013, and saw bloody footprints and "a lot of blood" on the floor of

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the apartment. T. 501. Johnson found Pagan lying on her back with her feet angled toward

an open window that was covered with blood, and pronounced her dead. T.503-05. At the

autopsy the following morning, Johnson determined that Pagan suffered eight distinct stab

wounds and five superficial cuts. T. 506-07.

Daniel Cowen, a scientist at the Onondaga County Center for Forensic Sciences,

testified that he analyzed the sneakers and long-sleeved shirt that Petitioner was wearing on

May 9, 2013, and that one sneaker and the shirt tested positive for the presence of blood. T.

526-34, 536-37. Cowen further testified that the DNA profiles obtained from the blood stains

on the sneaker and the long-sleeved shirt matched the DNA profile obtained from Johanna

Pagan. T. 533-34, 536-37.

George Washington testified that on May 12, 2013, he spoke to Petitioner while the

two were incarcerated at the Onondaga County Justice Center. T. 436-39, 443-44.

Washington testified that an inmate introduced him to Petitioner because the inmate believed

Washington could help Petitioner with his case. Id. Washington further testified that

Petitioner initially told him that the people accusing Petitioner of killing Pagan were "crazy,"

but after Washington said he did not believe Petitioner's story, Petitioner admitted to stabbing

Pagan because she would not pay him for drugs he provided to her. T. 438-39, 444-49.

The following day, Washington told Petitioner that he would have to admit he was at

the apartment on Gertrude Street around the time that Pagan was stabbed because too

many people saw him running away. T. 449-50. Washington advised Petitioner to say that

Pagan was already dead when he got to the apartment, and that he panicked and ran away.

T. 450. Sometime later, Washington decided that Petitioner did not deserve his assistance

and contacted the District Attorney's Office with the information Petitioner gave him. T.

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451-52.

In addition to the prosecution's witness testimony, Petitioner's grand jury testimony

was read into the record at trial. T. 468-496. Petitioner presented no witnesses on his

behalf. T. 551-561.

After defense counsel rested and moved for a trial order of dismissal on both charges,

which was denied, the trial court issued pre-summation instructions to the jury. T. 561-65.

The prosecutor and defense counsel then made closing statements. T. 561-639.

At the start of the prosecutor's summation, he made the following comment: "Did

[defense counsel] offer an explanation for why Johanna Pagan's blood is on the back of the

elbow of the shirt that [Petitioner] stashed at The Art Store?" T. 606. Immediately, defense

counsel objected, and the trial court instructed the jury as follows: "[T]he defendant does not

have a burden of proof in this case. I will remind you of that fact, and also remind you what

the lawyers have said and will say during their closing arguments are not evidence. You have

heard the evidence." T. 606-07.

The prosecutor then continued with his summation, which included the following

remarks:

Her blood is on the back of the elbow of the shirt that he stashed at The

Art Store. There is no innocent explanation for that. [Defense counsel]

also proposed a series of questions about why would somebody who had

just committed a heinous crime run down the middle of the street. Why

wouldn't they hide in the yards. Why would somebody -- just why wouldn't

they drop the glove, right? Why would he keep that glove in his pocket at

The Art Store if he had just committed this heinous crime. Well, the

assumption is that people who end up in criminal trouble are smart

enough to get out of it. Right? They make completely rationale decisions

so they wouldn't make mistakes. If they were really smart, they wouldn't

be here. People make mistakes in the middle of horrific mistakes. They

don't always make logical decisions. Probably would have been better for

the defendant to run through the backyards or hide under a porch

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somewhere. He didn't do that. So he was caught and now he is here. He's

here on two charges.

. . .

I saw this very cute chart [defense counsel] put together, and my

immediate thought as he was going through it was this is why people hate

lawyers, right? . . . . Take your definitions about the law from Judge Miller,

not this stupid chart.

T. 607-09.

Following the prosecutor's summation, the trial court gave its final charge to the jury,

during which the court stated as follows, among other things:

The accused is not required to prove that he is not guilty. In fact, the

accused is not required to prove or disprove anything. To the contrary, the

People have the burden of proving the accused guilty beyond a

reasonable doubt. That means before you can find the accused guilty of a

crime, the People must prove beyond a reasonable doubt every element

of the crime, including that the accused is the person who committed that

crime. The burden of proof never shifts from the People to the accused.

T. 649.

On April 4, 2014, the jury convicted Petitioner of Murder in the Second Degree and

Perjury in the First Degree. T. 711-13. On April 29, 2014, the trial court sentenced Petitioner

to an indeterminate prison term of twenty-five years to life for murder and a consecutive

indeterminate prison term of two and one-third to seven years for perjury. S. 15.

On January 31, 2016, Petitioner filed a motion to vacate the judgment of conviction

pursuant to Criminal Procedure Law ("CPL") § 440.10 ("440 Motion"). SR 0001-0160. In his

motion, Petitioner contended, among other things, that (1) he was denied the effective

assistance of counsel because his attorney failed to conduct an investigation and contact

potentially exculpatory witnesses, SR 0124, 0159, and (2) the prosecutor introduced perjured

testimony at trial, SR 0139. The People opposed the motion, see SR 0161, and Petitioner

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filed a reply, SR 0173.

On April 27, 2016, the trial court denied the 440 Motion without a hearing. SR 0185-

191. The court rejected Petitioner's ineffective-assistance claim as "unsubstantiated and

without merit[,]" noting that the record showed that counsel was thoroughly familiar with the

facts of the case, made appropriate motions throughout the proceedings, and vigorously

cross-examined the People's witnesses. SR 0188-91. The trial court further ruled that

Petitioner provided no support for his claim that the prosecutor knowingly presented false

testimony at trial. SR 0191.

Petitioner sought leave to appeal to the Appellate Division. SR 0192. The People

opposed his application, and Petitioner filed a reply. SR 0238-41. On October 24, 2016, the

Appellate Division denied leave. SR 0242. Petitioner sought to reargue his leave

application, SR 0244, and the Appellate Division denied that request. SR 0265.

Petitioner also pursued a direct appeal and, in a counseled brief to the Appellate

Division, Fourth Department, argued, among things, as follows: (1) he was denied the

effective assistance of counsel because his attorney failed to object to him being visibly

shackled during the grand jury proceeding and insufficiently cross-examined the People's

DNA expert at trial; (2) the prosecutor made improper remarks during his opening statement

and summation and violated the trial court's suppression order; and (3) the trial court erred in

denying Petitioner's Batson motion. SR 0281-90, 0296-301, 0309-10.

On September 29, 2017, the Appellate Division unanimously affirmed Petitioner's

judgment. People v. Young, 153 A.D.3d 1618, 1621 (4th Dep't 2017). In so doing, the

Appellate Division rejected Petitioner's argument that the trial court should have suppressed

all of his statements to the police, and not just a portion thereof, and found that the trial court

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"properly determined that [Petitioner] did not make at any time an unequivocal request for the

assistance of an attorney during the interrogation . . . [and] did not invoke his right to remain

silent until approximately 6:38 p.m., and all statements thereafter were suppressed." Young,

153 A.D.3d at 1619. The Appellate Division further concluded that any error regarding the

admission of the statements was harmless because "[t]he evidence of [Petitioner's] guilt is

overwhelming, and there is no reasonable possibility that any error in admitting . . . [the]

statements contributed to his conviction . . . ." Id.

The Appellate Division separately found that the trial court "properly denied

[Petitioner's] Batson challenge" because Petitioner "failed to meet his burden of making out a

prima facie case of 'purposeful discrimination with respect to the prosecutor's exercise of a

peremptory challenge to a black prospective juror' inasmuch as he failed to articulate 'any

facts or circumstances that would raise an inference that the prosecutor excused the

prospective juror for an impermissible reason[.]'" Young, 153 A.D.3d at 1620 (quoting

People v. Bryant, 12 A.D.3d 1077, 1079, lv. denied 4 N.Y.3d 761).

With respect to Petitioner's contention that he was denied a fair trial by several

instances of alleged prosecutorial misconduct, the Appellate Division noted as follows:

[Petitioner] objected to only two instances of alleged misconduct, thereby

rendering the remaining instances unpreserved for our review . . . . We

note that, in any event, none of the unpreserved instances constitutes

misconduct. Specifically, . . . the prosecutor did not engage in misconduct

during his opening remarks, and he did not violate the court's suppression

ruling. In addition, all of the unpreserved instances of alleged misconduct

during summation were either fair comment on the evidence or fair

response to defense counsel's summation . . . .Turning to the two

preserved instances of alleged misconduct, we agree with [Petitioner] that

a comment by the prosecutor during summation constituted impermissible

burden-shifting . . . . The court, however, instructed the jury after

[Petitioner's] objection that [he] did not have the burden of proof, and that

instruction alleviated any prejudice to [Petitioner] . . . . We further agree

10

with [Petitioner] that the prosecutor improperly denigrated the defense and

defense counsel during summation . . . ., but . . . such misconduct was not

so pervasive or egregious as to deny [Petitioner] a fair trial . . . .

Young, 153 A.D.3d at 1620.

Lastly, the Appellate Division rejected Petitioner's ineffective assistance of counsel

argument, noting that "[d]efense counsel objected to the two instances of prosecutorial

misconduct during summation[,]" and Petitioner "was not denied effective assistance of

counsel by counsel's alleged failure to object to the [other instances of] claimed

misconduct[,]" or "by counsel's alleged failure to object to the use of restraints on [Petitioner]

while he testified before the grand jury." Young, 153 A.D.3d at 1620-21.

Petitioner filed a counseled leave application in the New York Court of Appeals, which

the People opposed. SR 0449, 0457. On December 13, 2017, the Court of Appeals denied

leave. SR 0458-59. Petitioner then moved for reconsideration, which was denied on June

20, 2018. SR 0460, 0470, 0473.

Petitioner also petitioned the U.S. Supreme Court for a writ of certiorari, which was

denied on October 1, 2018. SR 0474.

III. THE PETITION, RESPONSE, AND REPLY

In his Petition, Petitioner argues that he is entitled to federal habeas relief on the

following grounds: (1) he received ineffective assistance of trial counsel (Ground One); (2)

the prosecutor engaged in misconduct (Ground Two); and (3) the trial court improperly

denied defense counsel's Batson motion (Ground Three). Pet. at 5, 7-8, 16-35.

Respondent argues that the Petition should be dismissed because (1) Petitioner's

ineffective assistance of counsel claim is meritless, (2) Petitioner's prosecutorial misconduct

11

claim is partially procedurally barred and entirely meritless, and (3) Petitioner's Batson claim

is meritless. Resp. Mem. at 10-28.

In his Reply, Petitioner offers additional arguments in support of his Batson claim and

certain aspects of his ineffective assistance of trial counsel claim. See generally, Traverse.

IV. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal

court may grant habeas corpus relief with respect to a claim adjudicated on the merits in

state court only if, based upon the record before the state court, the state court's decision: (1)

was contrary to, or involved an unreasonable application of, clearly established federal law,

as determined by the Supreme Court of the United States; or (2) was based on an

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

proceeding. 28 U.S.C. §§2254(d)(1), (2); Cullen v. Pinholster, 563 U.S. 170, 180-81, 185

(2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465,

473 (2007). This standard is "highly deferential" and "demands that state-court decisions be

given the benefit of the doubt." Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam)

(quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted)).

The Supreme Court has repeatedly explained that "a federal habeas court may

overturn a state court's application of federal law only if it is so erroneous that 'there is no

possibility fairminded jurists could disagree that the state court's decision conflicts with th[e

Supreme] Court's precedents.'" Nevada v. Jackson, 569 U.S. 505, 508-509 (2013) (per

curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Metrish v.

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Lancaster, 569 U.S. 351, 358 ( 2013) (explaining that success in a habeas case premised on

§ 2254(d)(1) requires the petitioner to "show that the challenged state-court ruling rested on

'an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.'") (quoting Richter, 562 U.S. at 103)).

Additionally, the AEDPA foreclosed "'using federal habeas corpus review as a vehicle

to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, 567 U.S.

37, 132 S. Ct. 2148, 2149 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state

court's findings are not unreasonable under §2254(d)(2) simply because a federal habeas

court reviewing the claim in the first instance would have reached a different conclusion.

Wood v. Allen, 558 U.S. 290, 301 (2010). "The question under AEDPA is not whether a

federal court believes the state court's determination was incorrect but whether that

determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at

473.

Federal habeas courts must presume that the state courts' factual findings are correct

unless a petitioner rebuts that presumption with '"clear and convincing evidence.'" Schriro,

550 U.S. at 473-74 (quoting § 2254(e)(1)). "A state court decision is based on a clearly

erroneous factual determination if the state court failed to weigh all of the relevant evidence

before making its factual findings." Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d

Cir. 2015). Finally, "[w]hen a state court rejects a federal claim without expressly addressing

that claim, a federal habeas court must presume that the federal claim was adjudicated on

the merits[.]" Johnson v. Williams, 568 U.S. 289, 301 (2013).

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B. Ground One - Ineffective Assistance of Trial Counsel Claim

Petitioner argues that trial counsel was ineffective for failing to do the following: (1)

contact potential exculpatory witnesses and investigate evidence of "third party culpability";

(2) conduct meaningful cross-examination of the People's DNA evidence and "expose false

testimony that was material to the case"; and (3) meaningfully object to Petitioner being

shackled during his grand jury testimony. Pet. at 5, 16-33.

Respondent argues that Petitioner's ineffective assistance of counsel claims are

wholly meritless. R. Mem. at 10-18. The Court agrees.

1. Legal Standard

To demonstrate constitutionally ineffective assistance of counsel, a petitioner must

show that counsel's performance fell below an objective standard of professional

reasonableness, and but for counsel's alleged errors, the result of the proceedings would

have been different such that the petitioner suffered prejudice. Premo v. Moore, 562 U.S.

115, 121-22 (2011) (noting that petitioner "must show both deficient performance by counsel

and prejudice") (citation and internal quotation marks omitted); Strickland v. Washington, 466

U.S. 668, 694 (1984). The standard "must be applied with scrupulous care" in habeas

proceedings because such a claim "can function as a way to escape rules of waiver and

forfeiture and raise issues not presented at trial [or in pretrial] proceedings[.]" Premo, 562

U.S. at 122. "Strickland does not guarantee perfect representation, only a reasonably

competent attorney." Richter, 562 U.S. at 110 (quoting Strickland, 466 U.S. at 687) (internal

quotation marks and further citation omitted). To establish a deficient performance by

counsel, a petitioner must overcome "a strong presumption that counsel's conduct falls within

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the wide range of reasonable professional assistance . . . [and] that, under the

circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland,

466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Demonstrating constitutionally ineffective assistance of counsel is "never an easy task

. . . [and] establishing that a state court's application of Strickland was unreasonable under §

2254(d) is all the more difficult." Premo, 562 U.S. at 122 (citations and internal quotation

marks omitted); Burt v. Titlow, 571 U.S. 12, 19 (2013) (noting that "AEDPA erects a

formidable barrier" to federal habeas review of claims that have been adjudicated in state

court). When reviewing a state court's decision under section 2254, "[t]he question is not

whether a federal court believes the state court's determination under the Strickland standard

was incorrect but whether that determination was unreasonable–a substantially higher

threshold." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks and

citation omitted). Federal habeas courts "must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under § 2254(d)" because

"[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable."

Richter, 562 U.S. at 105. Instead, "[t]he question is whether there is any reasonable

argument that counsel satisfied Strickland's deferential standard." Id.

2. Analysis

Here, trial counsel provided Petitioner with an effective defense overall. Counsel

made an omnibus pretrial motion in which he sought dismissal of the indictment and

preclusion of certain evidence, and succeeded in suppressing a portion of Petitioner's police

interview on May 9, 2013. SR 0323-34; SR 0338-57. At trial, counsel conducted vigorous

15

cross-examination of the People's witnesses, made several objections to testimony offered

by the People, and moved for a trial order of dismissal at the close of the People's case and

at the conclusion of evidence. See, e.g., T. 282-89, 425-26, 452-60, 551, 561. As the

Supreme Court has noted, "it is difficult to establish ineffective assistance when counsel's

overall performance indicates active and capable advocacy," as it does here. Richter, 562

U.S. at 111.

Thus, whether Petitioner's ineffective assistance claims are considered individually or

in combination, Petitioner has failed to establish trial counsel's representation was deficient

or that he was prejudiced. As a result, the state courts' rejection of Petitioner's ineffective

assistance claims was not contrary to, or an unreasonable application of, clearly established

Supreme Court precedent, nor did it constitute an unreasonable determination of the facts in

light of the evidence presented. Accordingly, and for the reasons discussed more fully

below, Petitioner's ineffective assistance claims are denied.

a. Defense Witnesses

As noted, Petitioner contends that trial counsel was ineffective for not contacting

potential exculpatory witnesses and pursuing a defense of third-party guilt. Pet. at 5, 20-26.

According to Petitioner, trial counsel could have pursed this defense through the following

witnesses: (1) Pagan's neighbor Maryanne Dunnigan, who provided statements to police

following Pagan's murder that (i) another person told her that a six-foot-tall black male with

braids had slept on Pagan's couch the night before her murder, and was seen arguing with

Pagan on the day of the murder at around 3:10 p.m.,7 and (ii) Pagan did not have a boyfriend

7 At the time of his arrest, Petitioner had short hair. SR 0097.

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and preferred to have relationships with women; (2) Pagan's neighbor Rupert Dawson, who

provided statements to police that he saw a man walking around in Pagan's yard at

approximately 3:00 p.m. wearing a dark hooded sweatshirt with the hood up, and was unable

to identify Petitioner as the person he saw at Pagan's building on the day of the stabbing at a

show-up procedure; (3) Merrie Pagano, a resident of the neighborhood, who provided a

statement to the police that she saw a man standing in the middle of Gertrude Street near

the building where Pagan was murdered approximately ten minutes before police arrived on

the scene, and was also unable to identify Petitioner as the person she saw standing in the

street at a show-up procedure; (4) Kathleen Blake, a resident of 121 Gertrude Street, who

provided a statement to police that she heard people working in the apartment building

before she left at approximately 3:00 p.m. on the day of the murder; and (5) Laura A. Walker,

a certified SABIS Latent Examiner from the Syracuse Police Department, who prepared a

"latent examination report" of the murder scene, and lifted multiple prints that did not match

Petitioner, including a print from a person who previously worked at the apartment who was

never questioned and prints from individuals who could not be identified. Pet. at 20-26; see

also SR 0076-88.

As an initial matter, many of the aforementioned statements would have had little, if

any, probative value with respect to a defense of third-party guilt. For example, the

proposed testimony by Dunnigan about what she heard on the street would not have been

helpful to Petitioner because (1) Pagan was not murdered at her home, and (2) the murder

occurred almost one hour after Pagan was claimed to be involved in an argument with a

17

male who had braided hair.8 Similarly, Blake's statement to police that she heard more than

one person working in the apartment where Pagan was working at some point before 3:00

p.m. would not have been helpful to Petitioner because (1) Blake did not identify who was

working in the apartment, and thus could not exclude Petitioner's presence, and (2) what she

heard took place roughly one hour or more before Pagan was murdered.

In addition, Mary Gilson, the property manager of 121 Gertrude Street, testified that

she contracted with a property maintenance company to replace carpeting and paint the

apartment where Pagan was murdered, and that this company finished working in the unit a

day or two before she hired Pagan to clean the apartment. T. 373-77. In light of this

testimony, Walker's "latent examination report" of the murder scene , which revealed the

presence of multiple prints that did not match Petitioner, also would have had little to no

probative value.

Thus, trial counsel was not ineffective under Strickland for failing to pursue the

aforementioned testimony. See Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) ("The

decision not to call a particular witness is typically a question of trial strategy that [reviewing]

courts are ill-suited to second-guess." (internal quotation marks and citation omitted)); United

States v. Luciano, 158 F.3d 655, 660-62 (2d Cir. 1998) (to show prejudice from the failure of

counsel to call witnesses, petitioner must show that the uncalled witnesses would have

provided relevant testimony); Williams v. Phillips, 297 Fed. App'x 56, 58-59 (2d Cir. 2008)

(counsel not ineffective for failing to prepare alibi witness where witness "did not account for

[petitioner's] whereabouts during the entire time period in question"); Castellano v. United

8 The proposed testimony by Dunnigan about what she heard another person say also would have been

inadmissible hearsay. See, e.g., Morales v. Portuondo, 154 F. Supp. 2d 706, 723 (S.D.N.Y. 2001) (defining hearsay);

People v. Nieves, 67 N.Y.2d 125, 131 (N.Y. 1986) (citation omitted).

18

States, 795 F. Supp. 2d 272, 278-79 (S.D.N.Y. 2011) ("Emille Castellanos's testimony

regarding Castellano's whereabouts on the afternoon and evening of May 1, 2001, would not

have been probative of Castellano's involvement in Ferreira's murder because Ferreira was

murdered before 11:10 a.m. on that date. As a result, Maffeo was not ineffective for failing to

present Emille Castellanos's testimony."); Buitrago v. Scully, 705 F. Supp. 952, 954

(S.D.N.Y.1989) (counsel not ineffective for failing to present alibi witness where petitioner

fails to show witness knew where petitioner was at the time of the crime).

Furthermore, some of the proposed testimony might have harmed Petitioner's case.

For example, Dunnigan's statement to police regarding what she knew about Pagan would

have confirmed that Pagan used drugs with men, without eliminating the possibility that

Pagan had relationships with men. See SR 0086.9 Thus, her potential testimony could have

bolstered, instead of discredited, the testimony of George Washington.

Similarly, with respect to Pagano and Dawson – Pagan's two neighbors who might

have testified that they were unable to identify Petitioner as the person they observed near

the murder scene around the time it occurred – it is entirely possible that these individuals

may have testified that Petitioner resembled the person they observed in the area. Indeed,

at the show-up procedure, Pagano stated that the man she saw shortly before the murder

was wearing the same clothing as, and had similar facial features to, Petitioner. SR 0086. In

addition, Dawson told police at the show-up procedure that Petitioner resembled the man he

saw at approximately 3:00 p.m. in Pagan's yard, but that he could not be sure if it was the

same person because the man in Pagan's yard had the hood of his sweatshirt over his head.

9 Dunnigan did not tell police that Pagan never had relationships with men, and she confirmed that Pagan

used drugs with men. See SR 0086.

19

SR 0083.

In light of the foregoing, trial counsel's failure to pursue the aforementioned witnesses

and statements was clearly a matter of trial strategy, which cannot be second-guessed at this

stage as unreasonable. See Strickland, 466 U.S. at 691 (holding that when there is "reason

to believe that pursuing certain investigations would be fruitless or even harmful, counsel's

failure to pursue those investigations may not later be challenged as unreasonable"); United

States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical

reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."),

cert. denied, 538 U.S. 1021 (2003).

Lastly, it bears emphasizing that the evidence of Petitioner's guilt was overwhelming.

First, Petitioner's own grand jury testimony placed him at the crime scene near the time of

the stabbing. Indeed, Petitioner testified that he ran from the scene upon discovering Pagan

dead. T. 473-75. In addition, two eye-witnesses testified that Petitioner fled the crime scene

after the victim was stabbed and before she died, the victim's DNA was discovered on blood

stains found on Petitioner's clothing, and Petitioner made a jailhouse confession to Mr.

Washington. Thus, calling the aforementioned witnesses also would not have changed the

result of the proceedings in any respect.

Petitioner's ineffective assistance claim on this basis is therefore denied and

dismissed.

b. Cross-Examination

Petitioner argues that trial counsel failed to conduct a "meaningful" cross-examination

of Z.F., George Washington, and Daniel Cowen. Pet. at 5, 26-31.

20

(i) Z.F.

Petitioner contends that on the day of the murder, Z.F. identified him as the person

Z.F. saw run from 121 Gertrude Street shortly after hearing glass break and Pagan's calls for

help, based on an item of material Z.F. saw protruding from Petitioner's back pocket. Pet. at

27-28. Petitioner contends that trial counsel improperly failed to question Z.F. about why he

described this item to police officers on the day of the murder as something "brown/tanish,"

but testified at trial that he thought the item was a pair of balled up socks, which is how the

item was described by one of the police officers on the scene. Id. at 28-29. Petitioner further

contends that the discrepancy suggests that Z.F. was coached on what to say, which counsel

should have explored. Id.

Contrary to Petitioner's argument, trial counsel did in fact explore the issue of whether

Z.F. had been coached on how to testify. First, trial counsel questioned Z.F. about whether

he spoke with the prosecutor prior to testifying, and got him to admit that (1) the prosecutor

told him the types of questions he would be asked, and (2) he and the prosecutor discussed

the answers he would provide. T. 282-83. Then, later during cross-examination, trial

counsel asked Z.F. whether "somebody" told him what to say to the jury. T. 285. Even

though Z.F.'s response was "[n]o," trial counsel pushed the issue further after Z.F. testified as

to the time he arrived home from school on the day of the murder, asking him whether

"somebody" went over specific times that events occurred to make sure he had it correct. Id.

Although Z.F. responded in the negative, trial counsel probed the issue of potential coaching

for a third time by asking Z.F. if he was wearing a watch in response to his testimony that he

spoke with Phillips for three to four minutes before hearing glass break. T. 288-89.

In light of the aforementioned testimony, and particularly Z.F.'s testimony that nobody

21

told him what to say to the jury, there would have been little, if any, potential benefit to

questioning Z.F. about the minor discrepancy Petitioner identifies, and doing so may have

served to inflame one or more jurors, particularly in light of Z.F.'s age, and the absence of a

logical reason for him to be untruthful. Thus, trial counsel's failure to cross-examine Z.F.

regarding the discrepancy between his statement to the police and his trial testimony related

to the item he saw in Petitioner's back pocket does not render trial counsel's cross-

examination objectively unreasonable. See, e.g., Jackson v. Lee, 10-CV-3062, 2010 WL

4628013, at *42 (S.D.N.Y. Nov. 16, 2010) (given extent of other cross-examination of

witness, "trial counsel's failure to question [the witness] on [a] minor point was not

unreasonable nor ineffective conduct" (citing, inter alia, Lavayen v. Duncan, 311 Fed. App'x

468, 471 (2d Cir. Feb. 24, 2009)), report and recommendation adopted by 2010 WL 5094415

(S.D.N.Y. Dec. 10, 2010); Duell v. Chappius, No. 9:17-CV-00341 (JKS), 2018 WL 4938563,

at *5 (N.D.N.Y. Oct. 11, 2018) ("Witness cross-examination is generally viewed as a matter

of trial strategy; accordingly, it is virtually unchallengeable 'unless there is no . . . tactical

justification for the course taken.'" (quoting United States v. Luciano, 158 F.3d 655, 660 (2d

Cir. 1998)).10

Petitioner's ineffective assistance claim on this basis is therefore denied and

dismissed.

(ii) George Washington

Petitioner argues that trial counsel improperly failed to challenge George Washington

10 Although Petitioner states that Z.F.'s testimony about hearing glass break and then seeing Petitioner run

past him was "critical" because it placed Petitioner at the scene of the apartment immediately before Pagan died,

see Pet. 27-29, there was also testimony from Phillips that Pagan was alive after he saw Petitioner run past him

outside. T. 302-05.

22

on two issues. First, Washington's testimony that Petitioner stated during one of their

conversations that he had sexual intercourse with Pagan, which is inconsistent with the

statement Maryanne Dunnigan made to police on the day of the murder – which was not

introduced at trial – that Pagan preferred to have relationships with women. Pet. at 29-30.

Second, Washington's testimony that Petitioner stated during one of their conversations that

he began having feelings for Pagan, used drugs with her on the day of the murder, and then

"went out on the block to make more sales to get more money[,]" which differed from

Washington's grand jury testimony insofar as that testimony did not indicate where Petitioner

went after having sexual intercourse with Pagan on the day of the murder, before he went to

the apartment where she was murdered. Id.

As an initial matter, trial counsel questioned Washington about lying, and got him to

admit that he had lied to prosecutors and the police on occasions prior to the day of his

testimony. T. 452-53. Trial counsel also asked Washington questions about his efforts to

offer testimony against Petitioner in exchange for a plea deal for himself and his girlfriend,

introduced a letter Washington sent to the District Attorney's Office in this regard, and

accused Washington of lying to the jury about why he agreed to testify against Petitioner. T.

453-57. In addition, trial counsel highlighted Washington's criminal history to further attack

his credibility. T. 459-60.

Although Petitioner takes issue with trial counsel's failure to question Washington

about a potential discrepancy between his grand jury testimony and his testimony on direct

examination at trial, as well as his testimony about the nature of Petitioner's relationship with

the victim, probing these issues would have invited re-direct examination that further

highlighted the scope of Washington's knowledge about the crime scene and events in the

23

moments immediately preceding and following Pagan's murder, which could only have come

from Petitioner.

Simply put, there was certainly a tactical justification for counsel not cross-examining

Washington on the subjects about which Petitioner takes issue, and instead attacking

Washington's credibility more broadly. Furthermore, trial counsel's cross-examination of

Washington was not objectively unreasonable.

Petitioner's ineffective assistance claim on this basis is therefore denied and

dismissed.

(iii) Daniel Cowen

Petitioner contends that trial counsel improperly failed to cross-examine Daniel Cowen

on his testimony that three DNA contributors were obtained from Petitioner's sneaker and

long-sleeved shirt, with Pagan's DNA being "the major contributor." Pet. at 30. According to

Petitioner, trial counsel should have probed Mr. Cowen regarding how he concluded that

Pagan's DNA was "the major contributor," the basis for his use of the word "major[,]" and

whether the victim's DNA could have been transferred to Petitioner's sneaker and shirt during

an encounter before the date and time of the murder. Id.

To be clear, Cowen testified on direct examination that he obtained DNA profiles from

blood stains on Petitioner's left sneaker and long-sleeved shirt, and that the "major

component" of those profiles matched the DNA profile of the victim. T. 531-33. Cowen

further testified that the probability of an unrelated individual having a matching profile was

less than one in 9.66 quadrillion. T. 533.

On cross-examination, trial counsel questioned Cowen about a variety of subjects,

including the procedure he used to perform the DNA analyses, and the fiber and hair

24

analyses that he performed on items at the crime scene. T. 535-41. Counsel established

that (1) only a droplet of blood was present on Petitioner's left sneaker, (2) no blood was

found on Petitioner's pants, t-shirt, or right sneaker, (3) it is possible for a person to transfer

DNA from the surface of one object to the surface of another, (4) Cowen did not test

Petitioner's DNA, (5) Cowen did not know how the blood stains arrived on the sneaker and

long-sleeved shirt that contained Pagan's DNA profile, and (6) Cowen could not determine

whether Petitioner was the owner of the sweatshirt found at the crime scene. T.535-41,

543-44.

Trial counsel was not required to challenge every statement made by Mr. Cohen on

direct examination in order to be considered effective in his representation of Petitioner.

See, e.g., Felder v. United States, No. 20-CV-7531, 2021 WL 3537164, at *3 (S.D.N.Y. Aug.

10, 2021) ("[D]ecisions about whether to engage in cross-examination, as well as the scope

of cross-examination, are 'strategic in nature and generally will not support an ineffective

assistance claim.'" (quoting Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)). Moreover,

the testimony elicited by trial counsel on cross-examination supported the overall defense

theory that Petitioner could not be guilty of murder because no significant amount of Pagan’s

blood was found on his clothing, and nobody witnessed Petitioner stab Pagan, which trial

counsel highlighted during summation. See T. 585-86, 593-94.

In light of the foregoing, trial counsel's cross-examination of Daniel Cowen certainly

satisfies an objective standard of professional reasonableness. Furthermore, as noted

above, in light of the overwhelming evidence of Petitioner's guilt unrelated to Mr. Cowen’s

DNA testimony, potentially yielding an admission from Mr. Cowen that Pagan's DNA could

have been transferred to Petitioner's sneaker and shirt during an encounter before the date

25

and time of the murder would not have changed the result of the proceedings in any respect.

Petitioner's ineffective assistance claim on this basis is therefore denied and

dismissed.

c. Shackling During Grand Jury testimony

Petitioner contends that counsel was ineffective for (1) allowing him to testify before

the grand jury in shackles, and (2) not objecting to the shackling after the conclusion of the

grand jury proceeding. Pet. at 31-33.11

As an initial matter, "[i]t is well-settled that a claim involving an error in a grand jury

proceeding is not cognizable upon federal habeas review" because "[t]here is no federal

constitutional right to a grand jury" and "any defect in the grand jury proceeding is cured by

[a] petitioner's subsequent conviction." Zimmerman v. Superintendent Conway, No. 10-CV-

1393, 2013 WL 12379648, at *23 (S.D.N.Y. May 7, 2013) (rejecting argument that trial court

erred when it failed to dismiss the indictment on the ground that the petitioner was presented

to the grand jury in shackles and surrounded by corrections officers) (internal quotation

marks and citations omitted), report and recommendation adopted sub nom. Zimmerman v.

Conway, 2018 WL 6413144 (S.D.N.Y. Dec. 6, 2018); see also Lopez v. Riley, 865 F.2d 30,

32 (2d Cir. 1989) ("If federal grand jury rights are not cognizable on direct appeal where

rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are

a fortiori foreclosed in a collateral attack brought in a federal court."); Davis v. Mantello, 42

Fed. App'x 488, 490-91 (2d Cir. 2002) ("Claims of deficiencies in state grand jury

proceedings are not cognizable in a habeas corpus proceeding in federal court." (citing

11 Donald Kelly, Esq. represented Petitioner following his arraignment, and during the grand jury proceeding.

SR 0005-0006, 0044, 0046. Following the grand jury proceeding, through trial, Petitioner was represented by Paul

Carey, Esq. SR 0007; PT 1; T. 1.

26

cases)); May v. Warden, No. 07-CV-2176, 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010)

(dismissing habeas claim that prosecutor knowingly presented false evidence to grand jury);

Bingham v. Duncan, No. 01-CV-1371, 2003 WL 21360084, at *4 (S.D.N.Y. June 12, 2003)

("[C]laims of error relating to state grand jury proceedings are not cognizable on federal

habeas review, since '[t]he right to testify before a grand jury is a state statutory right, and is

not of constitutional dimension.'" (quoting Green v. Artuz, 990 F. Supp. 267, 273 (S.D.N.Y.

1998)).

Additionally, even if this claim was cognizable on federal habeas review, the record

makes clear that counsel raised a concern about Petitioner's placement in shackles before

Petitioner entered the grand jury room, and asked that the shackles be removed or, if that

could not be done, that the prosecution make no reference to the shackling. SR 0044. In

response, the prosecutor advised counsel that the decision to handcuff Petitioner had been

made by the court deputies, and that he would not make reference to the shackling. Id.; SR

0189-90, 0399, 0435. In other words, counsel made a strategic decision regarding how to

handle Petitioner's shackling, which was not objectively unreasonable under the

circumstances. See Martinez v. Colvin, No. 17-CV-0757, 2018 WL 7047148, at *11

(S.D.N.Y. Nov. 6, 2018) ("The law recognizes a presumption that counsel makes reasonable

strategic decisions.").

Furthermore, any failure of trial counsel to raise this issue with the trial court after the

indictment was returned was not a violation of Petitioner's constitutional rights because (1)

as noted by the Fourth Department, "[t]he 'overwhelming nature of the evidence adduced

before the grand jury eliminated the possibility that [Petitioner] was prejudiced as a result of

[any] improper shackling[,]'" Young, 153 A.D.3d at 1621 (quoting People v. Brooks, 140

27

A.D.3d 1780, 1781 (4th Dept 2016)), and (2) Petitioner was subsequently found guilty

beyond a reasonable doubt by a petit jury.

Petitioner's ineffective assistance claim on this basis is therefore denied and

dismissed.

C. Ground Two - Prosecutorial Misconduct Claim

Petitioner argues that the prosecutor engaged in misconduct by doing the following:

(1) indicating during his opening statement that Petitioner told police to "prove it" while being

questioned about Pagan's murder; (2) allowing Z.F. to present false testimony; (3)

introducing suppressed statements during trial; and (4) attempting to shift the burden of proof

to Petitioner and making inflammatory and denigrating remarks about Petitioner and defense

counsel during his summation. Pet. at 7, 33-34.

Respondent argues that Petitioner's prosecutorial misconduct claims are partially

procedurally barred by the independent-and-adequate-state-ground doctrine, and wholly

meritless. R. Mem. at 18-26. The Court agrees.

1. Procedural Bar

As noted by Respondent, the Appellate Division ruled that Petitioner failed to

preserve, with contemporaneous objections, his claim that the prosecutor made improper

remarks during his opening statement. See Resp. Mem. at 18 (citing SR 0447).12

Federal habeas review of a state court decision is prohibited if the state court rested

its judgment on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255,

261-62 (1989); Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003). "[T]his rule applies

12 The Appellate Division also ruled that Petitioner failed to preserve his claim that the prosecutor violated

the trial court's suppression order, see Young, 153 A.D.3d at 1620, but that ruling was incorrect. See T. 423-28.

28

whether the state law ground is substantive or procedural." Coleman v. Thompson, 501 U.S.

722, 729 (1991). If the state court "explicitly invokes a state procedural bar rule as a

separate basis for decision," a federal court is precluded from considering the merits of

federal claims in a habeas petition. Harris, 489 U.S. at 264 n. 10; see Fama v. Comm’r of

Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (In order for federal review to be barred, "[t]he

state court must actually have relied on the procedural bar as an independent basis for its

disposition of the case" (quoting Harris, 489 U.S. at 261-62)).

In ruling that Petitioner failed to preserve his claim that the prosecutor made improper

remarks during his opening statement, the Appellate Division applied New York's

contemporaneous objection rule, N.Y. C.P.L. § 470.05(2). This rule provides that a question

of law is properly presented to the appellate courts when "a protest thereto was registered,

by the party claiming error, at the time of such ruling . . . or at any subsequent time when the

court had an opportunity of effectively changing the same." CPL § 470.05(2). The Second

Circuit has held that "the contemporaneous objection rule is a firmly established and

regularly followed New York procedural rule." Downs v. Lape, 657 F.3d 97, 104 (2d Cir.

2011), cert. denied 132 S. Ct. 2439 (2012); see also Romero v. Sheahan, No. 13-CV-4048,

2016 WL 3460372, at *9 (E.D.N.Y. June 21, 2016) (declining to reach merits of claim that

sentence was "punishment for [petitioner] having exercised his constitutional right to a jury

trial" where petitioner failed to preserve it in state court). Since the Appellate Division relied

on the contemporaneous objection rule when it denied Petitioner's claim that the prosecutor

engaged in misconduct during his opening statement, and nothing in the record suggests that

the invocation of the preservation rule was exorbitant, federal habeas review of the claim is

barred by an adequate and independent state court ground. See Hamilton v. Lee, 707 Fed.

29

App'x 12, 14 (2d Cir. 2017) (summary order) ("'[T]here is no question that the claimed

procedural bar,' the failure to comply with New York's contemporaneous objection rule,

'constitutes an 'independent' state ground of decision.") (quoting Cotto, 331 F.3d at 239);

Garcia v. Lewis, 188 F.3d 71, 77, 82 (2d Cir. 1999) ("[T]he Appellate Division['s] rul[ing] that

[the petitioner] failed to preserve his public trial claim for appellate review" constituted "an

independent and adequate state ground of decision that precludes federal habeas review.").

Petitioner can avoid this procedural bar by showing cause for the default and resulting

prejudice, or that the failure to review the claim will result in a miscarriage of justice, i.e., that

he is actually innocent. House v. Bell, 547 U.S. 518, 536-39 (2006); Schlup v. Delo, 513

U.S. 298, 327 (1995). To establish cause, a petitioner must show that some objective

external factor impeded his ability to comply with the relevant procedural rule. Maples v.

Thomas, 565 U.S. 266, 280 (2012); Coleman, 501 U.S. at 753. If a petitioner fails to

establish cause, a court need not decide whether he suffered actual prejudice, because

federal habeas relief is generally unavailable as to procedurally defaulted claims unless both

cause and prejudice are demonstrated. See Murray v. Carrier, 477 U.S. 478, 496 (1986)

(referring to the "cause-and-prejudice standard"); Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir.

1985).

Petitioner alleges no cause for his procedural default. Indeed, he does not even

acknowledge the default. Accordingly, this Court need not decide whether he suffered actual

prejudice. Murray, 477 U.S. at 496.

However, even assuming Petitioner could demonstrate cause, he would be unable to

establish that he suffered actual prejudice because his prosecutorial misconduct claim based

on remarks made during opening statements is meritless (as discussed in Section IV.C.2

30

below).

In addition, Petitioner has failed to present any evidence that he is "actually innocent"

of the crimes for which he was convicted. House, 547 U.S. at 536-39; Schlup, 513 U.S. at

327. Rather, he merely challenges the sufficiency of the evidence at trial in his Petition and

Traverse. Thus, there is no basis to review the merits of Petitioner's procedurally barred

prosecutorial misconduct claim under the "miscarriage of justice" exception. See Clark v.

Perez, 510 F.3d 382, 393 (2d Cir. 2008) ("Actual innocence is not in issue here; so cause

and prejudice analysis is the only route to the merits."); Calderon v. Thompson, 523 U.S.

538, 559 (1998) ("The miscarriage of justice exception is concerned with actual . . .

innocence."); Schlup, 513 U.S. at 316 ("Without any new evidence of innocence, even the

existence of a concededly meritorious constitutional violation is not in itself sufficient to

establish a miscarriage of justice that would allow a habeas court to reach the merits of a

barred claim."); Calderon v. Perez, No. 10-CV-2562, 2011 WL 293709, at *21 (S.D.N.Y. Jan.

28, 2011) (Petitioner fails to meet Schlup burden when he "essentially relies on his legal

sufficiency claim" and "fails to provide any new evidence to support his actual innocence

claim.").

Based on the foregoing, Petitioner's prosecutorial misconduct claim based on remarks

made by the prosecutor during his opening statement is procedurally barred.

2. Merits

As noted, Petitioner argues that the prosecutor engaged in misconduct by doing the

following: (1) indicating that Petitioner told police to "prove it" during his opening statement;

(2) allowing Z.F. to present false testimony; (3) introducing suppressed statements during

trial; and (4) attempting to shift the burden of proof to Petitioner and making inflammatory

31

and denigrating remarks about Petitioner and defense counsel during his summation. Pet. at

7, 33-34.

In addition to ruling that the alleged misconduct that occurred during the prosecution's

opening statement was not preserved, the Appellate Division rejected as meritless both this

aspect of Petitioner's prosecutorial misconduct claim, as well as Petitioner's prosecutorial

misconduct claim based on the prosecution's alleged violation of the trial court's suppression

order. See Young, 153 A.D.3d at 1620. The Appellate Division also found that although the

prosecutor engaged in misconduct during his summation, Petitioner was not deprived of a

fair trial as a result. Id. Furthermore, in denying Petitioner's 440 Motion, the trial court

rejected Petitioner's contention that the prosecutor introduced perjured testimony at trial. SR

0191. Because these rulings were neither contrary to, nor unreasonable applications of,

clearly established Supreme Court law, Petitioner's prosecutorial misconduct claim fails

under AEDPA as discussed more fully below.

a. Alleged Improper Remarks During Opening Statement

Petitioner claims that the prosecutor engaged in misconduct during his opening

statement when he advised the jury that Petitioner told police on the day of his arrest to

"prove it," that is, prove that he stabbed Pagan. See Pet. at 7, 33-34; T. 252-53, 258. Even

if this claim were not procedurally barred from federal habeas review, which it is, the

Appellate Division ruled that the prosecutor committed no misconduct during his opening

statement. See SR 0454. That ruling was neither contrary to, nor an unreasonable

application of, clearly established Supreme Court law.

Petitioner's statement to the police about the strength of the proof against him was

ruled admissible prior to trial. SR 0329-34. The prosecutor's "prove it" remark described the

32

evidence that the jurors were going to hear when he played the videotape of Petitioner's

interview with the police. See T. 418-24 (playing videotape). See also Boytion v. Phillips, No.

03-CV-1466 (JFB), 2006 WL 941793, at *8 (E.D.N.Y. Apr. 12, 2006) (the prosecutor's

opening statement did not infect the trial with unfairness where she "merely provided a

preview of her case and the evidence that was to be set forth at trial").

Accordingly, Petitioner is not entitled to habeas relief on the basis of the prosecutor's

remarks during his opening statement.

b. Alleged Introduction of False Testimony

Petitioner claims that the prosecutor knowingly introduced false testimony at trial from

eleven-year-old Z.F. Pet. at 27-28, 34. In denying Petitioner's 440 Motion, the trial court

found that this claim was meritless, noting that Petitioner "ha[d] not provided the Court with

any basis upon which to conclude that the People knowingly presented false testimony at

trial[.]" SR 0191. That ruling was certainly not contrary to, or an unreasonable application of,

federal law.

As an initial matter, the discrepancy identified by Petitioner with respect to Z.F.'s

statement to the police on the day of the murder and his testimony at trial does not render

Z.F.'s trial testimony false. Indeed, there is not even an inconsistency between describing an

item of material on one occasion as "brown/tanish" and on another occasion as looking like

"a pair of socks balled up." Compare T. 277 with SR 0110. One description relates to the

color of the object, and the other relates to the shape of the object.

Furthermore, to establish a wrongful conviction based on perjured testimony, a

petitioner must show that "(1) 'the prosecution knew, or should have known, of the perjury,'

and (2) 'there is a[ ] reasonable likelihood that the false testimony could have affected the

33

judgment of the jury.'" Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (footnote

omitted; quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). In this case, Petitioner

has failed to establish that the prosecutor (1) knew that Z.F. did not believe that the item he

saw in Petitioner's back pocket on the day of the murder looked like a "pair of socks balled

up," and (2) nonetheless allowed Z.F. to offer this testimony. Petitioner has also failed to

establish that Z.F.'s testimony regarding the item he saw in Petitioner's back pocket affected

the judgment against him, which he of course cannot establish because Z.F. was not the only

witness who placed Petitioner at the scene of the crime after Pagan was stabbed and before

she died.

For these reasons, Petitioner is not entitled to habeas relief on the basis of the

prosecutor's introduction of, and failure to correct, Z.F.'s testimony.

c. Alleged Violation of the Suppression Order

Petitioner claims that the prosecutor violated the suppression order because, when he

played the videotape of Petitioner's conversation with the police to the jury, he allowed the

recording to run until the time index read twenty seconds past 6:38 p.m. See Pet. at 34.

The Appellate Division found that this "did not violate the [trial] court's suppression ruling."

SR 0447. This Court agrees with that factual finding, which also must be presumed correct

on habeas review. See 28 U.S.C. § 2254(e)(1).

In its pretrial Decision and Order on Petitioner's motion to suppress his statements to

the police, the trial court specifically quoted the statement that Petitioner made during his

police interview that constituted, in the court's view, an exercise of his right to remain silent,

and noted that this statement occurred at "approximately 6:38:34 p.m." See SR 0329-30.

Later in that same Decision and Order, the trial court expressly found that Petitioner "invoked

34

his right to silence at approximately 6:38 p.m.[,]" after which it again quoted the statement

that occurred at "approximately 6:38:34 p.m." before ruling that "all statements" taken after

Petitioner invoked his right to silence "at approximately 6:38 p.m." were suppressed. SR

0333.

At trial, the prosecutor stopped the recording of Petitioner's police interview several

seconds before Petitioner invoked his right to silence. See T. 423-28. Thus, the prosecutor's

conduct with respect to playing the recording of Petitioner's police interview did not violate

the trial court's suppression order, or Petitioner's constitutional rights. Accordingly, Petitioner

is not entitled to habeas relief on the basis of the prosecutor's conduct with respect to playing

the recording of Petitioner's police interview

d. Alleged Improper Remarks During Summation

Petitioner claims that the prosecutor engaged in two separate acts of misconduct

during his summation, which improperly shifted the burden of proof to, and denigrated, the

defense. Pet at 7, 33-34.

"As a general matter, the Supreme Court has stated that prosecutorial comments

constitute a constitutional violation only if they 'so infected the trial with unfairness as to make

the resulting conviction a denial of due process.'" Summa v. Plescia, No. 07-CV-4668, 2008

WL 1818794, at *8 (E.D.N.Y. Apr. 22, 2008) (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974)). "The threshold question is whether the comments were improper." Id.

"This determination must be made by considering the cumulative effect of the comments as

a whole, see, e.g., Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir.1990), in the context of the

entire trial." Id. (citing Donnelly, 416 U.S. at 643; Miranda v. Bennett, 322 F.3d 171, 181 (2d

Cir. 2003) ("The merits of a fair trial claim will depend on the likely impact of the misconduct

35

in light of the trial proceedings as a whole.")).

"If the comments at issue are improper the court must determine whether the

challenged remarks 'were so prejudicial that they rendered the trial in question fundamentally

unfair.'" Summa, 2008 WL 1818794, at *8 (quoting Floyd, 907 F.2d at 353 (quoting Garofolo

v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986)). "It is not enough that the prosecutors' remarks

were undesirable or even universally condemned. The relevant question is whether the

prosecutors' comments so infected the trial with unfairness as to make the resulting

conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(citations omitted); see also United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002) (noting

that typically, "[r]emarks of the prosecutor in summation do not amount to a denial of due

process unless they constitute egregious misconduct" (quoting United States v. Shareef, 190

F.3d 71, 78 (2d Cir. 1999) (internal quotation marks omitted))).

In collateral attacks on state court convictions, as on direct appeal, the Second Circuit

considers the following three factors in assessing whether the challenged comments created

"substantial prejudice": (1) "the severity of the misconduct;" (2) "the measures adopted to

cure the misconduct;" and (3) "the certainty of conviction absent the improper statements."

Floyd, 907 F.2d at 355 (internal quotation marks and citation omitted).

(i) Burden-Shifting Comment

Petitioner contends that the prosecutor improperly shifted the burden of proof to the

defense when he stated as follows: "Did [defense counsel] offer an explanation for why

Johanna Pagan's blood is on the back of the elbow of the shirt that [Petitioner] stashed at

The Art Store?" Pet. at 7, 33-34; T. 606.

While the Court agrees with the Appellate Division that this comment was

36

inappropriate, immediately after it was made, defense counsel objected, and the trial court

instructed the jury as follows: "[T]he defendant does not have a burden of proof in this case. I

will remind you of that fact, and also remind you what the lawyers have said and will say

during their closing arguments are not evidence. You have heard the evidence." T. 606-07.

The trial court then reiterated this burden of proof in its final charge to the jury, stating as

follows:

The accused is not required to prove that he is not guilty. In fact, the

accused is not required to prove or disprove anything. To the contrary, the

People have the burden of proving the accused guilty beyond a

reasonable doubt. That means before you can find the accused guilty of a

crime, the People must prove beyond a reasonable doubt every element

of the crime, including that the accused is the person who committed that

crime. The burden of proof never shifts from the People to the accused.

T. 649.

In light of the brief and isolated nature of the prosecutor's comment, the curative

measures taken by the trial court,13 and the overwhelming evidence of Petitioner's guilt, the

prosecutor's comment was not so prejudicial that it rendered the trial fundamentally unfair.

Thus, the Appellate Division's denial of the aspect of Petitioner's appeal based upon the

prosecution's burden-shifting comment was neither contrary to, nor represented an

unreasonable application of, clearly established Supreme Court precedent.

(ii) Denigration of the Defense

Petitioner contends that the prosecutor denigrated the defense and defense counsel

with the following remarks:

[Defense counsel] also proposed a series of questions about why would

13 The Court must assume, based on the absence of evidence to the contrary, that the jury followed the trial

court's instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206

(1987) (noting the "almost invariable assumption of the law that jurors follow their instructions").

37

somebody who had just committed a heinous crime run down the middle

of the street. Why wouldn't they hide in the yards. Why would somebody --

just why wouldn't they drop the glove, right? Why would he keep that

glove in his pocket at The Art Store if he had just committed this heinous

crime. Well, the assumption is that people who end up in criminal trouble

are smart enough to get out of it. Right? They make completely rationale

decisions so they wouldn't make mistakes. If they were really smart, they

wouldn't be here. People make mistakes in the middle of horrific mistakes.

They don't always make logical decisions. Probably would have been

better for the defendant to run through the backyards or hide under a

porch somewhere. He didn't do that. So he was caught and now he is

here. He's here on two charges. (T. 607)

. . .

I saw this very cute chart [defense counsel] put together, and my

immediate thought as he was going through it was this is why people hate

lawyers, right? . . . . Take your definitions about the law from Judge Miller,

not this stupid chart. (T. 608-09)

. . .

And here's my favorite part [of Petitioner's grand jury testimony], I hope

they find the person that did this. . . . after 75 or 80 words that's what he's

got to say, and then he says, I don't know what else to say. I don't know

what else to say. Seriously?

Like you're in jail for murder, something you didn't do. Right? You didn't do

it. This friend of yours is filleted, brutally, blood everywhere, this friend of

yours, you saw it, you came upon it, you're the first one, and you ran,

panicked and ran, and then they thought you did it, and they arrested you,

and you sat in jail for a month, and after 75 words, when you finally get

the chance to explain yourself you run out of things to say. Are you

kidding me[?] Does that make any sense at all? No. (T. 627-28)

. . .

[Petitioner] tells him this story and George says, man, if you want me to

help you, you have to tell the truth. Right? So he's got to change this

story. The one he told the police isn't going to fly. So how does he explain

why he didn't tell this story the first time to the police. Xanax. The Xanax

defense. The, oops, I forgot to tell the truth drugs. (T. 629)

. . .

38

Takes him three pages before he even starts to tell his story. It's

ridiculous. It's false. (T.631)

. . .

When a defendant, when someone facing criminal charges decides,

makes a decision, a conscious decision to waive [his] right [to remain

silent] and give an account this makes your job easier. Because the only

reason somebody who is facing criminal charges says something that isn't

absolutely forthcoming, the reason they do that is that they're guilty.

They're guilty. There is no other explanation. (T. 635-36)

The Appellate Division ruled that the above remarks, while improper, were not so

egregious as to deny Petitioner a fair trial. Young, 153 A.D.3d 1620. This Court agrees.

The majority of the aforementioned remarks related to the evidence in the case –

specifically, Petitioner's flight from the crime scene, statements to the police, and grand jury

testimony. As the Second Circuit has held, "a prosecutor is not precluded from vigorous

advocacy, or the use of colorful adjectives, in summation." United States v. Jaswal, 47 F.3d

539, 544 (2d Cir. 1995) (citation and internal brackets omitted).

Moreover, with respect to the prosecutor's denigrating remarks regarding Petitioner's

intelligence, and defense counsel's visual aid and defense theory, there can be no doubt that

"[i]t is improper as a matter of both state and federal law for a prosecutor to impugn defense

counsel's integrity, denigrate or ridicule the defense theory, or make ad hominem attacks on

defense counsel." Norcutt v. Miller, No. 9:15-CV-0221 (JKS), 2016 WL 7429440, at *9

(N.D.N.Y. Dec. 23, 2016). However, as noted above, prosecutorial misconduct of this nature

results in a constitutional error only when the remarks were so prejudicial that they rendered

the trial in question fundamentally unfair. See Darden, 477 U.S. at 181; Summa, 2008 WL

1818794, at *8.

Before defense counsel and the prosecution began their summations, the trial court

39

issued pre-summation instructions to the jury, which included the following charge:

If you find that the evidence as summed up and analyzed by the attorney

is accurate, and if you find that the inferences and conclusions which

you're asked to draw from such evidence are reasonable, are logical and

consistent with the evidence, then you may adopt such inferences and

conclusions.

But bear in mind the following points. First, you are the finders of the

facts, and it's for you and you alone to determine the facts from the

evidence which you find to be truthful and accurate.

Secondly, remember that the lawyers are not witnesses in this case. So if

a lawyer asserts as fact something that is not based on the evidence, you

must disregard that. Remember, nothing that the lawyers say at any time

is evidence. So nothing the lawyers say in their summations is evidence.

You have heard the evidence, and you must decide this case on the

evidence and on the law as I will explain it to you later today.

Thirdly, during the summations, one lawyer's recollection of the evidence

may in good faith differ with the recollection of the other or with yours, and

the lawyers I'm sure will undoubtedly differ with each other on their

understanding and their evaluation of the facts that have been presented

by the evidence. It is your own recollection, your own understanding and

your evaluation of the evidence which controls, regardless of what the

lawyers have said or will say about the evidence. Remember also under

our law I'm responsible for setting forth the law, not the lawyers.

T. 563-64.

Then, following the close of the prosecutor's summation, the trial court included the

following statement in its charge to the jury:

[A]rguments of the attorneys made during the course of the trial are not

evidence and must also be disregarded by you. Each of these lawyers is

an officer of the court owing a high duty to his or her client. Their function

is to represent their client to best of their ability. If in the interest of

advocacy the lawyer did or said something which you feel as though was

objectionable, you must not let such feelings interfere with your primary

duty to judge the facts impartially and to be fair to both the People and to

the accused.

T. 647-48.

40

In light of these instructions, as well as the overwhelming evidence of Petitioner's

guilt, there is no basis to conclude that the prosecution's summation remarks, even when

viewed as a whole, were so prejudicial that they rendered the trial in question fundamentally

unfair. See Darden, 477 U.S. at 181; Fuentes v. Ebert, No. 06-CV-5813, 2009 WL 1755500,

at *16 (S.D.N.Y. June 22, 2009) ("When viewed in its entirety and in context, and in light of

the trial court's instructions and strength of the prosecution's evidence, the prosecutor's

summation in this case[, although inappropriate in parts,] did not so infect[ ] the trial with

unfairness as to make the resulting conviction a denial of due process[,]" and "there is

therefore no basis for this Court to find that the Appellate Division erred or unreasonably

applied the law, habeas relief on this claim would not be warranted." (citing, inter alia, Player

v. Artus, No. 06-CV-2764, 2007 WL 708793, at *10 (E.D.N.Y. Mar. 6, 2007) (although the

"prosecutor's comments were at times unnecessarily inflammatory," any injurious effect was

ameliorated by the court's instructions and, in any event, comments were "not so egregious

as to support a finding that the Appellate division's rejection of this claim was an

unreasonable application of clearly established federal law"))); Warren v. Ercole, No. 07-CV-

3175, 2007 WL 4224642, at *8 (E.D.N.Y. Nov. 27, 2007) (finding prosecutor's comments on

summation did not deprive the petitioner of a fair trial and "given the overwhelming evidence

of guilt, even if those statements were inappropriate, they would not warrant a grant of

habeas relief because they did not have a substantial and injurious effect or influence on the

jury's verdicts"). Thus, the Appellate Division's denial of the aspect of Petitioner's appeal

based upon the prosecution's denigrating remarks was neither contrary to, nor represented

an unreasonable application of, clearly established Supreme Court precedent.

Ground Two of the Petition is therefore denied and dismissed.

41

D. Ground Three - Batson claim

Petitioner argues that the trial court erred in denying his claim that the prosecutor's

use of a peremptory challenge to strike an African-American juror violated his rights to equal

protection under Batson v. Kentucky, 476 U.S. 79 (1986). Pet. at 8, 34-35.

Respondent argues that Petitioner's Batson claim is wholly meritless. R. Mem. at 26-

30. The Court agrees.

Racial discrimination in the jury selection process violates the Equal Protection

Clause. Batson, 476 U.S. at 85. Under the three-step Batson analysis, once a party has

objected to a peremptory strike and established a prima facie case of racial discrimination,

"the burden of production shifts to the proponent of the strike to come forward with a

race-neutral explanation." Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam); Batson,

476 U.S. at 96-98. The race-neutral explanation does not have to be "persuasive, or even

plausible," as long as the explanation is not discriminatory on its face. Purkett, 514 U.S. at

768 (citing Hernandez v. New York, 500 U.S. 352, 360 (1991)). "[T]he third step of the

Batson inquiry requires a trial judge to make an ultimate determination on the issue of

discriminatory intent based on all the facts and circumstances." Jordan v. Lefevre, 206 F.3d

196, 200 (2d Cir. 2000) (internal quotation and citation omitted); Hernandez, 500 U.S. at

363-64; Batson, 476 U.S. at 98. Trial courts applying the third Batson prong are not required

to recite any particular words, but must make clear whether they credit "the non-moving

party's race-neutral explanation for striking the relevant panelist." Messiah, 435 F.3d at 198.

A trial court's determination of whether a peremptory challenge resulted from

purposeful discrimination is a finding of fact based primarily on an assessment of credibility,

and is therefore entitled to significant deference. Felkner, 131 S. Ct. at 1307; Purkett, 514

42

U.S. at 769; Batson, 476 U.S. at 98 n.21; see Hernandez, 500 U.S. at 365 (treating

discriminatory intent as a finding of fact makes "particular sense" because the trial court can

best assess the credibility of the prosecutor). The trial court's determination "must be

sustained unless it is clearly erroneous." Felkner, 131 S. Ct. at 1307 (quoting Snyder v.

Louisiana, 552 U.S. 472, 477 (2008)).

Here, Petitioner's trial counsel raised a Batson challenge, arguing that the

prosecutor's use of the peremptory strike for juror number four, an African American woman,

demonstrated purposeful discrimination. T. 122. In an effort to establish a prima facie case

of discrimination, defense counsel noted that there were only two African Americans in the

jury pool comprised of about sixty people, one was excused due to expressed difficulty with

impartiality, and the only remaining African American – juror number four – had not "said

anything . . . that would warrant her rejection as a juror." T. 123.

In response, the prosecutor objected to the challenge on the grounds that defense

counsel failed to establish a prima facie case because "one person is not a pattern." T. 124.

Notwithstanding this objection, the prosecutor then offered the following explanation for his

use of the peremptory strike for juror number four: "the reason I'm challenging Miss Williams

is based on her education background, the early childhood education background to me is

indicative of a person who wants to see the best in everyone and has a difficult time judging

people." T. 125. After hearing from the attorneys, the trial court found that Petitioner had

not made a prima facie case under Batson, noting as follows: "in light of the fact that this is

the first African-American juror that has been challenged, I do not see any type of pattern at

this point so I'm going to deny the Batson challenge." Id.

The Appellate Division agreed with the trial court's conclusion, ruling that "[Petitioner]

43

failed to meet his burden of making out a prima facie case of purposeful discrimination with

respect to the prosecutor's exercise of a peremptory challenge to a black prospective juror

inasmuch as he failed to articulate any facts or circumstances that would raise an inference

that the prosecutor excused the prospective juror for an impermissible reason[.]" Young, 153

A.D.3d 1620 (internal quotation marks and citation omitted). That finding was "fairly

supported and cannot be deemed inherently 'unreasonable,' under AEDPA § 2254(d)(2)."

Baker v. Bennett, 235 F. Supp. 2d 298, 311 (S.D.N.Y. 2002); see also Rice v. Collins, 546

U.S. 333, 341 (2006) (the fact that "the prosecutor claimed to hold . . . concerns despite [the

challenged panelist's] voir dire averments does not establish that [the prosecutor] offered a

pretext."); Messiah v. Duncan, 435 F.3d 186, 200 (2d Cir. 2006) (finding nothing

inappropriate about striking a social service professional who might have sympathy for the

defendant); Isaac v. Brown, 205 Fed. App'x 873, 876-77 (2d Cir. 2006) (finding no prima

facie showing of discrimination where the prosecutor struck an African American juror who

believed that his brother had been "falsely accused of a crime"); McCall v. Rivera, 965 F.

Supp. 2d 311, 328 (S.D.N.Y. 2013) ("Petitioner has failed to show that the trial court's

decision to accept the prosecutor's explanation with regard to the juror's lack of eye-contact

was contrary to or involved an unreasonable application of Batson and its progeny."); Welch

v. Burge, No. 9:03-CV-01423 (LEK/VEB), 2007 WL 2028048, at *4 (N.D.N.Y. July 12, 2007)

(accepting, as non-pretextual, prosecutor's explanation that he struck prospective juror

because of, among other things, her "religious affiliation"); DeBerry v. Portuondo, 277 F.

Supp. 2d 150, 159-60 (E.D.N.Y. 2003) (trial court properly accepted prosecutor's explanation

that he struck a prospective juror because of her "stubborn" and "intractable" demeanor),

aff'd on other grounds, 403 F.3d 57 (2d Cir. 2005); Copeland v. Walker, 258 F. Supp. 2d

44

105, 127 (E.D.N.Y. 2003) (challenged jurors "were legal secretaries who may have claimed

greater knowledge of the legal system than other members of the jury."); Giles v. Kuhimann,

No. 1:98-CV-7368, 2002 WL 1751401, at *5, *7 (E.D.N.Y. July 11, 2002) (denying habeas

petition and upholding peremptory challenge based on, among other factors, the juror's "poor

rapport and bad eye contact with" the prosecutor and that the juror worked for a lawyer).

Accordingly, Ground Three of the Petition is denied and dismissed.

V. CONCLUSION

WHEREFORE, it is hereby

ORDERED that the Petition (Dkt. No. 1) is DENIED AND DISMISSED IN ITS

ENTIRETY; and it is further

ORDERED that no Certificate of Appealability ("COA") shall issue because Petitioner

failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. §

2253(c)(2) requires;"* and it is further

ORDERED that any further request for a Certificate of Appealability must be

addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further

ORDERED that the Clerk serve a copy of this Decision and Order on the parties in

accordance with the Local Rules.

Dated: September 14, 2021

Binghamton, NY

Thomas J. es

Senior, U.S. District Judge

4 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.

2007) (holding that if the court denies a habeas petition on procedural grounds, "the certificate of appealability must

show that jurists of reason would find debatable two issues: (1) that the district court was correct in its procedural

ruling, and (2) that the applicant has established a valid constitutional violation" (emphasis in original)).

45