Williams v. Shanley

UNITED STATES DISTRICT COURT Carne

WESTERN DISTRICT OF NEW YORK |

Yan, ow

ISIAH WILLIAMS, Les Te □□□ or

Petitioner,

Vv. 20-CV-688 (JLS)

RAYMOND SHANLEY,

Respondent.

DECISION AND ORDER

Pro se petitioner Isiah Williams, a prisoner in Respondent’s custody, has filed

an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. Dkt. 39.

Williams challenges the constitutionality of the December 4, 2015 judgment entered

against him in New York State Supreme Court, Monroe County (Reed, A.J.),

following a jury verdict convicting him of two counts of second-degree criminal

possession of a forged instrument (New York Penal Law (“PL”) § 170.25) and one

count of second-degree scheme to defraud (PL § 190.60). Williams also has filed

motions seeking an evidentiary hearing, Dkt. 45, appointment of counsel, Dkt. 47,

leave to file excess pages, Dkt. 54, striking of Respondent’s memorandum of law in

opposition to the amended petition, Dkt. 61, and the removal of the New York

Attorney General’s Office as counsel for Respondent, Dkt. 64. For the reasons

below, the Court grants Williams’s motion for leave to file excess pages (Dkt. 54),

denies the remaining motions for miscellaneous relief (Dkt. 45, 47, 61, 64), and

dismisses the amended petition (Dkt. 39).

FACTUAL AND PROCEDURAL BACKGROUND

I, STATE COURT PROCEEDINGS

A. The Indictment

The challenged conviction arises from Williams’s 2015 retrial on Monroe

County Indictment 2008-0446 (“Indictment 446”). Dkt. 20-7, at 96-116. Indictment

446 charged Williams with fifteen offenses stemming from his alleged involvement

as the leader of a counterfeit check-cashing ring operating in Monroe County, New

York, from August to December 2007.

B. The First Trial

Williams’s first trial on Indictment 446 was conducted in November 2009, in

New York State, Monroe County Court (Connell, J.). Dkt. 20-7, at 131. Willams

represented himself without standby counsel. Jd., at 149-50, 158, 160-62. Prior to

jury deliberations, Count 7, which charged fourth-degree grand larceny (PL §

155.30), was reduced to petit larceny (PL § 155.25).! The jury returned a verdict

convicting Williams of Counts 3 through 15. Jd., at 131, 284—85.

The jury acquitted Wiliams of Counts 1 and 2, which involved the passing of

a counterfeit check at Five Star Bank on November 23, 2007, by Shameka Canady.

Id., at 96-97, 108, 284-85. On January 21, 2010, Williams was sentenced as a

persistent felony offender, see PL § 70.10(1), to an aggregate term of twenty years to

life in prison. Jd., at 131.

1 Count 7 was reduced to petit larceny because the counterfeit check supporting this

charge was for less than $1,000. It therefore did not meet fourth-degree grand

larceny’s stolen-value element.

C. The Motion to Vacate the 2009 Conviction

On June 27, 2011, while his direct appeal of the 2009 conviction was pending,

Wilhams filed a pro se motion to vacate the judgment pursuant to New York

Criminal Procedure Law (“CPL”) § 440.10. A copy of this CPL § 440.10 motion and

the order disposing of it are not in the state court records. However, the state court

records contain a copy of the prosecutor’s letter to Monroe County Court Judge

Vincent M. Dinolfo dated August 1, 2011, which was written in response to the

motion. Dkt. 20-3, at 643-45; Dkt. 20-4, at 1-6. In this letter, the prosecutor noted

that she apparently had not disclosed an investigative report to Williams prior to

the 2009 trial. Dkt. 20-3, at 643. Accordingly, the prosecutor provided a copy of the

report to Williams and his appellate counsel. Jd.

The prosecutor also indicated that, based on that report, Dkt. 20-4, at 6, and

further discussions with Key Bank, it appeared that Tameka Jones (“Jones”) had

provided factually incorrect testimony before the grand jury regarding Count 4 of

Indictment 446 charging petit larceny. Dkt. 20-8, at 648. The prosecutor explained

that, contrary to Jones’s testimony, Key Bank did not distribute any money to Jones

when she passed check number 407759 for $961.11 on November 29, 2007.2 Id.:

2 On direct appeal, Williams challenged his conviction on Count 4 as against the

weight of the evidence, and the Appellate Division, Fourth Department (“Fourth

Department”), of New York State Supreme Court rejected the claim as “academic.”

The Fourth Department noted that the parties did not dispute that Count 4 “was

later dismissed on the People’s consent by an order of County Court (Vincent

Dinolfo, J.) determining defendant’s motion pursuant to CPL article 440.” People v.

Williams, 101 A.D.3d 1730, 1731-32, 957 N.Y.S.2d 548, 551 (4th Dep’t 2012)

“Williams I’).

Dkt. 20-4, at 6. The prosecutor indicated that she was reviewing all crime report

numbers associated with Williams to determine if any other items had not been

disclosed to him. Dkt. 20-3, at 644.

On September 30, 2011, the prosecutor filed an answering affirmation, Dkt.

20-4, at 7— 10, with exhibits, Jd., at 11-18, in opposition to the CPL § 440.10 motion.

The prosecutor noted that it was unclear whether she had provided Williams with

“approximately twenty-five additional documents.” Jd., at 8. Although the

prosecutor believed that the information in the documents was cumulative to

information in other documents she previously had disclosed, she forwarded the

“approximately twenty-five documents” to Williams as exhibits to her answering

affirmation. Id.

The “approximately twenty-five documents” themselves are not in the state

court records, but there is a copy of the table describing each of the documents that

the prosecutor attached to her affirmation. Jd., at 11-18. According to this table,

the twenty-five documents consisted of various reports, notes, and witness

depositions generated by the Monroe County Sheriffs Office during their

investigation into Williams’s check-cashing activities. Id.

D. Reversal of the 2009 Conviction

On direct appeal, Williams was represented by assigned appellate counsel

who asserted numerous grounds for reversal. Dkt. 20-7, at 117-206. The Fourth

Department unanimously reversed the conviction on December 28, 2012. See

Williams I, 101 A.D.3d 1780, 957 N.Y.S.2d 548.3 The Fourth Department concluded

that the County Court did not “undertake a searching inquiry” to ensure that

Williams was “aware of the dangers and disadvantages of proceeding without

counsel” and, therefore, it erred in granting Williams’s request to proceed pro se.

Id., 101 A.D.3d at 1738, 857 N.Y.S.2d at 552. Additionally, the County Court

erroneously determined that Williams had forfeited his right to counsel because, in

the Fourth Department’s view, Williams’s conduct was not sufficiently egregious to

warrant such a harsh sanction. Jd., 101 A.D.3d at 1738, 857 N.Y.S.2d at 552.

Because the “tainted proceedings adversely impacted” Williams, the Fourth

Department reversed the conviction. Jd., 101 A.D.3d at 1733, 857 N.Y.S.2d at 552.

3 This memorandum decision disposed of two appeals, denominated by the Fourth

Department as “appeal no. 2” and “appeal no. 3.” Williams I, 101 A.D.3d at 1730,

957 N.Y.S.2d at 549. “Appeal no. 3” was the challenge to the 2009 conviction on the

charges in Indictment 0446. “Appeal no. 2” involved Monroe County Indictment

2008-0495 (“Indictment 495”), which charged Williams with various offenses based

on his possession of stolen checks when he was arrested on December 24, 2007.

Williams I, 101 A.D.3d at 1730, 957 N.Y.S.2d at 549. After a jury trial on

Indictment 495, Williams was convicted of four counts of second-degree criminal

possession of a forged instrument and one count of fifth-degree criminal possession

of stolen property. Id. The Fourth Department vacated the sentence (but not the

convictions) in appeal no. 2 and remitted for resentencing because the County Court

did not make a “searching inquiry” into whether Williams understood the hazards

of representing himself at the sentencing hearing. Jd., 101 A.D.3d at 1733, 957

N.Y.S.2d at 552. This habeas proceeding does not concern the convictions obtained,

or the sentences imposed, under Indictment 495.

E. The Motion for Substitution of Counsel

The retrial was conducted in Monroe County Court in June 2015.4 Shortly

before jury selection began, Williams made a pro se request for substitution of his

most recently assigned counsel, Matthew Mix, Esq. (“Attorney Mix” or “trial

counsel’). Dkt. 20-9, at 22-34. The gist of Williams’s dissatisfaction with Attorney

Mix was that he did not communicate sufficiently with Williams in preparation for

trial, did not conduct a full investigation, and did not adopt Williams’s pro se

motions. /d., at 31-34. The prosecutor responded that Williams had a “history .. .

of trying to remove attorneys on the eve of trial” and characterized the current

substitution motion as “just as baseless as what happened before.” Jd., at 33. In

addition to his request for new counsel, Williams raised numerous complaints about

the prosecutor’s office and the trial court.

The trial court denied Williams’s “pro se motions in all aspects,” observing

that “Mr. Mix may be like the twelfth attorney involved in [Williams]’s case.” Id., at

34, 51, 54-55. The trial court denied the substitution motion from the bench:

4 Justice Frederick G. Reed (“Justice Reed” or “the trial court”) of the New York

State Supreme Court, Ontario County presided over the retrial in Monroe County

Court. Justice Reed previously had presided over Williams’s 2009 criminal trial in

Ontario County Court. People v. Williams, 101 A.D.3d 1728, 957 N.Y.S.2d 788 (4th

Dep’t 2012) (vacating May 1, 2009 conviction in Ontario County Court of second-

degree criminal possession of a forged instrument and dismissing conviction of

fourth-degree grand larceny without prejudice to re-represent to another grand

jury). Justice Reed presided over the 2015 retrial on the Ontario County charges,

which later was reversed. People v. Williams, 163 A.D.3d 1418, 80 N.Y.S.2d 608

(4th Dep’t 2018) (vacating August 5, 2015 conviction following retrial in Ontario

County Court on charge of second-degree criminal possession of a forged

instrument).

And I do not find any basis in [Williams]’s motions to have Matt Mix

removed.

If I granted that, there is absolutely no one else that could represent

[Williams] because he’s exhausted all of the assigned counsel in

Ontario County and all of the assigned counsel in Monroe County. And

frankly, even the Court system is unable to appoint any other

attorneys. So he is denied in all aspects of this motion.

Id., at 37-38.

F. The 2015 Retrial

At the retrial on Indictment 446, the prosecution presented evidence

regarding Counts 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, and 15. As noted above, at the 2009

trial, Williams was acquitted of Counts 1 and 2, and Count 7 was reduced from

fourth-degree grand larceny to petit larceny. In addition, Count 4 was dismissed

with the prosecution’s consent in connection with the C.P.L. § 440.10 motion

challenging the 2009 judgment.

Prior to jury deliberations, the trial court dismissed Counts 6, 8, 9, 10, 11, 12,

13, and 14 with prejudice due to various deficiencies in the proof presented. Dkt.

20-9, at 1118-19. Counts 3, 5, and 15 were submitted to the jury. Count 3 charged

Williams with second-degree criminal possession of a forged instrument (PL §

170.25) based on the passing of a check in the amount of $961.11 payable to Jones

on November 29, 2007. Count 5 also charged second-degree criminal possession of a

forged instrument (PL § 170.25) and involved the passing of a check in the amount

of $931.16 payable to Veronica Hay-Boler (“Hay-Boler’) on December 13, 2007.

Count 15 charged Williams with first-degree scheme to defraud (PL § 190.65(1)(b))

based on his involvement in multiple counterfeit check transactions that occurred

between August 380, 2007, and December 20, 2007.

The following summary of the prosecution’s proof does not include the

testimony of the witnesses who testified relative to the dismissed counts.

1. The Prosecution’s Case

Danielle Ruise (“Ruise’”) testified that, in 2007, she lived next-door to

Williams, who resided at 12 Arnett Boulevard. Dkt. 20-9, at 574—75. Williams

asked Ruise if she “wanted to make some money” and explained the check-cashing

scheme to her. Id., at 575-76. He said he would give Ruise a check payable to her,

and she would cash the check at a bank. Jd., at 576. Williams promised to pay

Ruise for cashing checks and assured her she would not “get in trouble” so long as

the check was for less than $5,000. Jd. Williams instructed Ruise that after she

cashed the check, she should report to the police that someone had stolen her

identity and then “throw [her] stuff away.” Id.

On August 30, 2007, Williams drove Ruise in a silver SUV to the Penfield

branch of Canandaigua National Bank (“CNB”). Jd., at 576-77. He gave her a

check in the amount of $968.21 from the University of Rochester payable to her.

Id., at 577-78, 582-83. Williams told Ruise to pretend the check was for a “school

loan.” Id., at 577. Ruise knew it was a “fake check” because Williams had made it

on the computer, and she had never gone to the University of Rochester. Jd., at

581.5 Willams instructed Ruise to enter the bank and try to cash the check, but if

the teller went to the back of the bank at any point during the transaction, she

should leave the bank. Jd., at 577. Williams explained that such behavior by a

bank teller meant that the teller knew the check was “not real.” Id.

Ruise successfully cashed the check and returned to Williams’s car with the

proceeds. Id., at 588. At first, he gave her just “a little bit” of the proceeds, but

when Ruise insisted he pay her more, Williams gave her $400. Id.

Jones testified that during 2007, she “cashed checks” with Williams. Id., at

779-80. On November 29, 2007, Williams drove Jones in a silver SUV to the

Perinton, New York branch of Key Bank. Jd., at 580. Williams gave Jones a check

for $961.11 from the Arc of Monroe County payable to her. Jd., at 781-82. Jones

knew it was not a valid check because she had never worked at the Arc of Monroe

County. Jd., at 785.

While Jones was inside the bank attempting to cash the check, Williams

called her on her cell phone to make sure that “everything was running smoothly.”

Id., at 785-90.

5 A University of Rochester representative testified that the school had not issued

the check Ruise cashed on August 30, 2007, at CNB. J/d., at 602, 604-06.

6 Jones testified that her cell phone number was 585-643-8516. Id., 789-90.

Records obtained from Williams’s cell phone carrier showed that, on November 29,

2007, Williams called Jones’s cell number at 2:52 p.m., 2:53 p.m., and 3:25 p.m. Id.,

at 1014-15.

Jones was unable to cash the check, and the bank teller retained it. Jd., at

785, 798, 815.7 Jones left the bank and returned to Williams’s car. [d., 790-91.

Later that day, at other banks, Jones successfully cashed “numerous” fake checks

given to her by Williams. Id., at 814. Williams paid Jones every time she cashed a

check for him. Id., at 798.

Hay-Boler met Williams in November 2007, at Mike’s Bar & Grill in

Rochester. IJd., at 633-34. On December 13, 2007, Williams drove Hay-Boler in a

silver SUV to a Citizen’s Bank branch in Henrietta, New York. /d., at 634. He gave

her a check from a “food place” in Rochester that was made out to her; however, she

left the bank without cashing that check. Jd., at 655-57, 660, 663-64.

Williams drove Hay-Boler to another Citizen’s Bank branch in Henrietta.

From an envelope he had on his lap, Williams gave her a check in the amount of

$931.16 from ETS Staffing Services payable to her. Jd., at 634—35. Williams told

Hay-Boler that if the bank teller tried to take her identification while she was

trying to cash the check, she should “always take it back and leave.” Id., at 635.

Hay-Boler had never worked for ETS Staffing and knew she had no right to

receive any money from that company. Id., at 640—-41.8 Hay-Boler presented the

7 A representative of the Arc of Monroe County testified that the check was

counterfeit. Id., 829-32.

8 A former ETS Staffing employee testified that the check presented by Hay-Boler to

the bank on December 18, 2007, was counterfeit. [d., at 668—70, 675.

check to the bank teller, displayed her identification, endorsed the check, and

received cash. /d., at 641.

While she was inside the bank, Hay-Boler received a call from cell phone

number 585-739-3390. It was Williams, and he asked her how it was going. Id., at

644—-45.9 After cashing the check, Hay-Boler returned to Williams’s car and gave

him the check proceeds, out of which he paid her $50. Jd., at 641-42. When he

asked her to cash another check, Hay-Boler refused and never spoke to him again.

Id., at 642.

George Harvey Scott (“Scott”)9 testified that he was introduced to Williams

and his nephew, Sherrell Williams (“Sherrell”), in 2006. Id., at 933-934. Soon

thereafter, Scott began passing checks with them. Id., at 934.

9 Hay-Boler’s cell phone number was 585-957-4044. Id., at 642-48. Petitioner’s cell

phone records showed that he called her on December 13, 2007, at 1:14 p.m., 1:15

p.m., 1:26 p.m., 1:30 p.m., 1:54 p.m., 1:55 p.m., and 2:25 p.m. Id., at 1015-16.

10 Scott did not provide testimony supporting the criminal charges at issue in the

retrial but instead provided so-called “Molineux evidence.” Under People v.

Molineux, 168 N.Y. 264 (1901), a court may admit evidence of defendant’s prior

crimes or uncharged criminal conduct where it is (1) probative of motive, intent,

absence of mistake or accident, common scheme or plan, or identity; and (2) the

probative value of that evidence outweighs its prejudicial effect. Jd. at 2938-94.

Prior bad acts or uncharged crimes also may be admissible under Molineux as

necessary background material or to complete the narrative of the events. People v.

Leonard, 29 N.Y.3d 1, 8 (2017). Here, the trial court held a hearing outside the

jury’s presence regarding the prosecution’s request to have Scott testify about his

participation in the check-cashing scheme. Dkt. 20-9, at 142-43. The trial court

found that Scott’s testimony was “classic Molineaux [sic] facts to complete the

narrative and [to] let the jury understand what, exactly what’s going on before those

checks were attempted to be cashed. So I would allow those in.” Jd.

On January 12, 2007, Scott went to 119 Weldon Street, in Rochester, New

York. Id., at 985-86. Williams and Sherrell were on the third floor of the house in

the finished attic area, which Williams referred to as the “lab.” Id., at 986-37.

While Scott sat and watched television, Williams and Sherell worked at the

computer about ten feet away. Id. Scott could hear Williams instructing Sherell

how to create checks on the computer and print them out. Jd., at 937-39.

Scott recalled that he, Williams, and Sherell cashed “a lot” of checks during

the week of January 12 to January 16, 2007. Jd. at 988-89. On January 16, 2007,

Williams and Sherell drove Scott in a gray Chevrolet Equinox SUV to the Webster,

New York branch of M&T Bank. Id., at 940-41. Scott went into the bank with a

counterfeit check but was arrested once he was inside. Jd., at 941. When Scott left

the bank in police custody, the gray SUV was gone. Id.!!

Monroe County Sheriffs Office Investigator Scott Peters (“Investigator

Peters’) testified that, at about 11 a.m. on December 24, 2007, he participated in a

traffic stop of Williams’s vehicle conducted by members of the New York State

Police. Id., at 1033-34. During a pat-down of Williams, a trooper retrieved two

checks from the Children’s Institute that were inside Williams’s jacket. Zd., at

1035-36. During a vehicle inventory, the trooper found a folder on the passenger

11 Scott gave a statement to police and agreed to cooperate with the Monroe County

District Attorney's Office in the prosecution of Williams and Sherell. Jd., at 942-44.

In exchange for his cooperation, Scott pleaded guilty to two counts of second-degree

criminal possession of a forged instrument and received concurrent terms of one and

one-half to four and one-half years in prison. Jd., at 943-45.

seat containing a check from the Children’s Institute and some blank check forms.

Id., at 1039-1042.2

Later that day, Williams was brought to the New York State Police barracks

in the Town of Chili. Id., at 1046. At about 12:50 p.m., Investigator Peters read

Williams his Miranda warnings, and Williams waived his rights and agreed to talk

to the police. Id., at 1048-49, 1051. During the interview, Williams was not

handcuffed. Jd., at 1048. In his written statement, Dkt. 20-7, at 280-81, Wiliams

claimed that Tryn Parker (“Parker’)!° was the leader of the counterfeit check-

cashing scheme and had hired Williams to drive people to different banks so they

could pass the counterfeit checks. Dkt. 20-9, at 1066. Williams denied any

involvement in creating counterfeit checks, recruiting people to cash checks, or

receiving check proceeds. Williams claimed that the checks found in his possession

had been given to him by a woman who had asked him to give them to Parker. Dkt.

20-7, at 204—205.14

12 Williams was not charged in Indictment 446 with possession of the Children’s

Institute checks. Rather, Investigator Peters’ testimony regarding the discovery of

these checks was permitted under the Molineux rule. Id., at 1058, 1067.

13 Investigator Peters admitted on cross-examination that he participated in an

investigation of Parker that was being conducted by the Monroe County Sheriffs

Office’s economic crimes task force. Id. at 1068-69. As a result of this

investigation, Parker was charged with creating the check that Jones attempted to

cash at the Key Bank in Perinton, New York. Id., at 1087-88.

14 Williams’s statement was received into evidence, but the trial court denied the

prosecutor’s request to have Investigator Peters read the statement to the jury. The

statement was provided to the jury during their deliberations. Dkt. 20-9, 1066-67.

2. The Defense Case

The two chief witnesses for the defense were Williams and his nephew,

Sherrell. Williams testified that he previously worked part-time as a cook at Mike’s

Bar & Grill where Parker was a frequent customer. Dkt. 20-9, at 1230~81.

Willams said that whenever Parker came to the restaurant, he would ask to borrow

Williams’s car or would ask Williams to take somebody to the bank or the store. Jd.

at 1235-36. Williams admitted that he drove two women to a bank in Churchville,

New York, where the women cashed checks that they received from Parker.

Williams stated he was charged and acquitted in connection with this incident. Id.,

at 1234-1236.

Williams testified that Parker said he would give Williams $50 to drive

people to the bank to cash checks so that they could repay debts owed to Parker. Jd.

at 1238-39. Williams said he performed this errand for Parker twice. After the

second occasion, Williams went to 12 Arnett Boulevard to drop off a food order and

discovered Parker making counterfeit checks on a computer. Id., at 1239-40, 1259—

61. Williams then told Parker, “I’m out of it,” and said he would not drive people to

cash checks anymore. J/d., at 1240, 1261-62. Two days later, after Williams denied

Parker's request to borrow his car, Parker started texting death threats to Williams.

Id., at 1240-41, 1261-62. Williams complained that he notified the police and the

Monroe County District Attorney’s Office. Nothing was done to investigate Parker’s

threats. Id., at 1240, 1242-43.

Williams testified that he was not involved in any of the bank transactions

mentioned in the prosecution’s direct case, and that he had never passed any

counterfeit checks. Jd., at 1237-38. He said he had met Scott briefly once when

Scott came to William’s mother’s house with Sherell. Jd., at 1256-57, 1291.

Williams denied knowing Jones, Ruise, and Hay-Boler. Id., at 1228-29. Wilhams

admitted that 739-3390 was a cell phone number he previously used. Jd., at 1304.

Wilhams believed that his phone records showed calls to Jones and Hay-Boler

because he used to lend his phone to patrons at the restaurant, including Parker.

Id., at 1804-06.

Williams complained that police and prosecutors are harassing him and

“setting [him] up” to be the “fall guy” for Parker’s counterfeit check-cashing scheme.

Id., at 1244, 1248, 1271-75.

Sherell testified that he learned how to make counterfeit checks from Parker

and that Scott used to cash checks for him. /d., at 1130-31, 1132-38, 1139.

However, Sherell said that Scott had never been to Sherell’s residence at 119

Weldon Street. /d., at 1131. Asa result of passing bad checks with Scott, Sherell

pleaded guilty to charges in Monroe County and Ontario County and received an

aggregate sentence of six to twelve years. Id., at 1135-36. The federal authorities

subsequently waived prosecution on these charges. /d., at 1134.

According to Sherell, Wiliams did not participate in creating counterfeit

checks at 119 Weldon Street and was never involved with Parker or Scott. Jd., at

1138-40, 1144. Sherell admitted that he and Williams had passed a counterfeit

check together once, about thirteen years ago. Id., at 1147.

3. Verdict and Sentence

The trial court found that Williams was an accomplice as a matter of law and

charged the jury on accomplice liability under PL § 20.00. /d., at 1394—96. The

trial court also instructed the jury on second-degree scheme to defraud as a lesser

included offense of Count 15 charging first-degree scheme to defraud. 15 Td., at

1405, 1408-10. On June 29, 2015, the jury returned a verdict convicting Williams

of Counts 3 and 5 (second-degree criminal possession of a forged instrument),

acquitting him of Count 15, and convicting him of the lesser-included offense of

second-degree scheme to defraud. Id., at 1484~—87.

The prosecution applied to have Williams adjudicated a persistent felony

offender under PL § 70.10, and the trial court held an evidentiary hearing on

December 4, 2015, pursuant to CPL § 400.20. Dkt. 20-9, 1530-1669. Based on the

evidence presented at the hearing, the trial found that Williams was a persistent

15 A person is guilty of first-degree scheme to defraud when, inter alia, that person

“engages in a scheme constituting a systematic ongoing course of conduct with the

intent to defraud more than one person or to obtain property from more than one

other person by false or fraudulent pretenses, representations or promises and so

obtains property with a value in excess of one thousand dollars from one or more

such persons....” N.Y. Penal Law § 190.65(1)(b). The prosecution must prove the

identity of at least one person from whom the defendant fraudulently obtained

property; 1t need not prove the identity of any other intended victim.” Id., §

190.65(2). The lesser included offense of second-degree scheme to defraud does not

require the prosecution to prove a specific amount of value. Id., § 190.60(1). The

time-period for the course of conduct in Williams’s case spanned from August 30,

2007, to December 20, 2007. Dkt. 20-7, 102.

felony offender as defined in PL § 70.10, and that extended incarceration and

lifetime supervision of Williams would best serve the public interest. Accordingly,

the trial court sentenced Williams as a persistent felony offender to an aggregate

term of 20 years to life in prison, to be served concurrently with his sentences on

convictions obtained under other indictments. Id., at 1672-74.

G. Direct Appeal of the Retrial

Williams represented himself on direct appeal. Dkt. 20-3, 1-105. On July 6,

2018, the Fourth Department unanimously affirmed the judgment. People v.

Williams (Appeal No. 3), 163 A.D.3d 1422, 80 N.Y.S.3d 610 (4th Dep’t 2018)

(“Williams II’). The Fourth Department also denied Williams’s motion for

reargument. People v. Williams, 164 A.D.8d 1671, 82 N.Y.8.3d 754 (Mem.) (4th

Dep’t 2018). On October 15, 2019, the New York Court of Appeals denied leave to

appeal. Id., at 284.

H. Collateral Motions Attacking the Verdict and Judgment

On September 3, 2015,!° Williams filed a pro se combined motion to set aside

the verdict pursuant to New York Criminal Procedure Law (“CPL”) § 330.30 and

vacate the judgment pursuant to CPL § 440.10. Dkt. 20-4, at 25. Williams argued

the motion prior to the persistent felony offender hearing and also requested, again,

that new counsel be substituted for Attorney Mix. Dkt. 20-9, 1499-1511. After the

trial court denied the request for substitute counsel, Attorney Mix argued the CPL §

16 Respondent has been unable to locate a copy of this motion. Dkt. 20-1, at 23 n.22.

330.30 motion on Williams’s behalf. Jd., at 1516-1518. The trial court summarily

denied the request to set aside the verdict. Id., at 1522.

As for the CPL § 440.10 aspect of the motion, the trial court agreed with the

prosecutor that it was premature because sentencing had not occurred. Jd., at 1524.

The trial court also found that the CPL § 440.10 motion had “no merit” and denied

it “in all aspects.” Id.

Subsequently, a different judge of the Monroe County Court considered

Williams’s CPL § 440.10 motion de novo and issued an order denying it on April 1,

2016. Dkt. 20-4, at 25-30. It is unclear whether Williams sought leave to appeal to

the Fourth Department.

Wilhams filed a second pro se CPL § 440.10 motion on August 15, 2018. Dkt.

20-3, at 285-337. The Monroe County Court denied the motion on November 8,

2018, on procedural grounds and on the merits. Jd., at 8374-77. The Fourth

Department denied leave to appeal on January 8, 2019. Dkt. 20-4, at 718.

Williams’s third pro se CPL § 440.10 motion was filed on February 14, 2019.

Id., 75-150. In an order dated April 1, 2019, the Monroe County Court denied the

motion on procedural grounds and on the merits. Id., at 171-73. The Fourth

Department denied leave to appeal. Dkt. 20-5, at 126.

Williams filed his fourth pro se CPL § 440.10 motion on August 9, 2019. Id.,

at 127-253. November 15, 2019, the Monroe County Court issued an order denying

the motion on procedural grounds and on the merits. Jd., at 264-69. Leave to

appeal was denied by the Fourth Department on May 11, 2020. Dkt. 20-7, at 95.

On November 21, 2020, during the pendency of this habeas proceeding,

Williams filed his fifth pro se CPL § 440.10 motion. Dkt. 58-2, at 1-314. The

Monroe County Court rejected the motion on procedural grounds and on the merits.

Id., at 334-37. The Fourth Department denied leave to appeal on April 25, 2022.

Id., at 402.

Il. THE FEDERAL HABEAS PROCEEDING

A. The Petition

The original petition, filed on June 5, 2020, grouped Williams’s allegations

under nine different grounds, some of which included factual allegations and legal

theories supporting more than one claim for relief. In Ground One, Williams

claimed that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by

withholding Jones and Hay-Boler’s cell phone records for November and December

2007. Dkt. 1 at 5-6.17

Ground One, along with Grounds Two and Three, also alleged ineffective

assistance of trial counsel. See Dkt. 1, at 5-7 (Ground One); id., at 8-11 (Ground

Two); id., at 11-18 (Ground Three). More particularly, Wiliams claimed that trial

counsel unreasonably failed to: (a) object to the prosecution’s failure to provide

petitioner with cell phone records for Jones and Hay-Boler (Ground One); (b) call

Monroe County Sheriffs Office employees Sergeant Phelan and Deputy Luffman,

who allegedly would have admitted to testifying falsely against Williams before an

17 Since some of Williams's pleadings contain multiple sets of page numbers, the

Court will cite to the page numbers automatically generated by CM/ECF and

located in the header of each page.

Ontario County grand jury (Ground Two); (c) impeach Investigator Peters about

how many times he arrested Williams for the same criminal conduct (Ground Two);

and (d) call his wife, Shanda Williams (“Shanda”): and bank teller Carol MacCubbin

(“MacCubbin”) as defense witnesses (Ground Three).

In addition to the ineffectiveness claim, Ground Two also asserted an actual

innocence claim and a Brady claim based on “twenty-six undisclosed items.” JId., at

9-10. The Brady claim appears to be a reference to the Brady claim raised in the

CPL § 440.10 motion attacking the original 2009 conviction, which resulted in the

disclosure of approximately twenty-five additional documents consisting of police-

generated reports and notes.

In Ground Four, Wilhams asserted that the trial court erroneously allowed

the prosecutor to introduce evidence regarding a previously dismissed fourth-degree

grand larceny charge (Count 7) that was not represented at the 2015 retrial on

Indictment 446. Jd., at 18-19.

Ground Five alleged that the grand jury proceeding was defective because the

prosecutor allowed multiple witnesses to provide false testimony. Jd., at 20-21.

In Ground Six, Williams contended that the prosecutor elicited false

testimony from Investigator Peters concerning how many times he arrested

Williams. Jd., at 22-23.

Ground Seven challenged the propriety of the prosecutor's opening and

closing statements. More specifically, Williams asserted that the prosecutor

erroneously described him as an organized crime leader; vouched for Scott’s

credibility; described Williams’s nephew, Sherell, as a liar; and referred to Williams

as “Ike,” the name by which the accomplices knew him. Jd., at 24—25.

In Ground Eight, Williams asserted that the trial court erred in denying his

motion to substitute new assigned counsel for Attorney Mix. Jd., at 26—28.

Ground Nine alleged that the prosecutor who handled the 2009 trial

erroneously issued a subpoena duces tecum for Williams’s phone records prior to the

empanelment of the grand jury. Jd., at 29-81.

At the Court’s direction, Respondent filed an answer, memorandum of law in

opposition, the state court records, and the state court transcripts. See Dkt. 20.

Williams sought and received permission, Dkt. 27, Dkt. 28, to file a belated reply to

Respondent’s answer, Dkt. 31.

B. Motions to Stay and Amend

Williams filed a motion to have his federal habeas proceeding stayed while he

completed litigation of his fifth CPL § 440.10 motion. Dkt. 21. United States

Magistrate Judge Michael J. Roemer issued a report and recommendation (“R&R”)

recommending that the stay motion be granted, Dkt. 35, to which Respondent

objected, Dkt. 36. Williams later filed a proposed amended petition, Dkt. 39, a

motion to lift the stay, Dkt. 44, a motion for an evidentiary hearing, Dkt. 45, a

motion to appoint counsel, Dkt. 47, and a motion to proceed in forma pauperis, Dkt.

48.

On December 12, 2022, this Court issued an order rejecting the R&R and

denying Williams’s request for a stay. Dkt. 51, at 23. The Court granted leave to

proceed in forma pauperis, granted leave to amend, and ordered Respondent to file

an answer or otherwise respond to the amended petition. Jd. Finally, the Court

held Wiliams’s motion for an evidentiary hearing and appointment of counsel in

abeyance pending completion of briefing on the amended petition. Jd.

C. Amended Petition

The amended petition, Dkt. 39, reasserts Grounds One through Nine from

the petition, and adds a Ground Ten consisting of multiple different claims for

relief. See Dkt. 39, at 5-33, 34-89. More specifically, Ground Ten alleges that: (1)

Williams’s wife, Shanda, and his cousin, Kenneth Miller (“Miller”), are alibi

witnesses who establish that he is actually innocent; (2) trial counsel was ineffective

for failing to present the alibi witnesses’ testimony; and (3) Williams’s phone

records were improperly obtained from an out-of-state cell phone carrier via a grand

jury subpoena.

Respondent filed a memorandum of law in opposition to the amended petition

and filed the supplemental state court records. See Dkt. 58. Williams filed a

motion to strike Respondent’s memorandum of law, Dkt. 61, which Respondent

opposed, Dkt. 63. Williams filed two sets of replies. See Dkts. 66, 67. Williams

then sought to remove the New York Attorney General’s Office as Respondent’s

attorney. Dkt. 64. Respondent opposed the motion, Dkt. 69, and filed a letter

explaining the belated service of the opposition to the motion for removal, Dkt. 70.

Williams replied to Respondent’s opposition and Respondent’s letter. See Dkts. 71,

72.

DISCUSSION

I, LIMITATIONS ON HABEAS RELIEF

The statutory authority of federal courts “to issue habeas corpus relief for

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v.

Richter, 562 U.S. 86, 97 (2011). Section 2254(a) permits a federal court to entertain

a petition for a writ of habeas corpus filed by “a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)

(emphasis supplied).

Where a claim has been “adjudicated on the merits in State court

proceedings,” 28 U.S.C. § 2254(d), AEDPA provides that a writ of habeas “shall not

be granted... unless the adjudication of the claim... 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 record before the state

court, 28 U.S.C. § 2254(d)(2). Under § 2254(e)(1), “a determination of a factual issue

made by a State court shall be presumed to be correct,” and the petitioner “shall

have the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1).

“On federal habeas review [under AEDPA], mixed questions of law and fact

... are subject to the standard set forth in 28 U.S.C. § 2254(d)(1).” Overton v.

Newton, 295 F.3d 270, 277 (2d Cir. 2002) (citing Willtams v. Taylor, 529 U.S. 362,

400 (2000) (O’Connor, J., concurring)). “For purposes of § 2254(d)(1), ‘an

unreasonable application of federal law is different from an incorrect application of

federal law.” Harrington, 562 U.S. at 101 (quoting Williams, 362 U.S. at 410).

AEDPA’s standard is “difficult to meet,” Harrington, 562 U.S. at 102, and “highly

deferential,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and

internal quotation marks omitted). “A state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fair[-]minded jurists could

disagree’ on the correctness of the state court’s decision.” Jd. at 101 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

A state court’s factual determinations are considered separately from

applications of constitutional law to fact, see Rice v. Collins, 546 U.S. 338, 342

(2006) (stating that “[t]he question whether a state court errs in determining the

facts is a different question from whether it errs in applying the law”), and are

subject to 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). Wood v. Allen, 558 U.S. 290, 293

(2010). To date, however, the Supreme Court has not resolved “the questions of how

and when § 2254(e)(1) applies in challenges to a state court’s factual determinations

under § 2254(d)(2).” Id.

“AEDPA ‘sets forth a precondition to the grant of habeas relief... , not an

entitlement to it[.]” Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013) (ellipsis in

original) (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)). Satisfying the standards

in 28 U.S.C. § 2254(d)(1) or § 2254(d)(2) 1s therefore necessary but not sufficient.

See id. “[T]he petitioner still ‘bears the ultimate burden of proving by a

preponderance of the evidence that his constitutional rights have been violated,” id.

(quoting Epps v. Poole, 687 F.8d 46, 50 (2d Cir. 2012)).

AMENDED PETITION

A. Defects in the Grand Jury Proceeding (Ground Five)

1. Legal Principles

It is well settled in this Circuit that alleged improprieties during a state

grand jury proceeding are not cognizable grounds for federal habeas relief. See

Lopez vu. Riley, 865 F.2d 30, 32 (2d Cir. 1989). In Lopez, the petitioner complained

about the prosecutor’s “presentation of prejudicial evidence and error in explaining

the law’ to the grand jury. Id.

The Second Circuit reasoned that, “[i]f federal grand jury rights are not

cognizable on direct appeal where rendered harmless by a petit jury,” as the

Supreme Court held in United States v. Mechanik, 475 U.S. 66 (1986), then “similar

claims concerning a state grand jury proceeding are a fortiori foreclosed in a

collateral attack brought in a federal court.” Id. at 32 (citing Mechanik, 475 U.S. at

70 (“Measured by the petit jury’s verdict, then, any error 1n the [federal] grand jury

proceeding connected with the charging decision was harmless beyond a reasonable

doubt.”)). The Second Circuit determined that since the petit jury later convicted

Lopez based on proof beyond a reasonable doubt—a higher standard than the

probable cause required to issue an indictment—-the “error before the grand jury, if

any, was harmless.” Jd. at 33.

2. Application

In Ground Five, Williams asserts he is entitled to habeas relief because Jones

and Dahnielle Reed (“Reed”) testified falsely before the grand jury. See Dkt. 1, at

20-21; Dkt. 39, at 19-20.18 On direct appeal, the Fourth Department rejected the

contention that the grand jury proceeding was defective because, “[a]lthough one of

the witnesses provided false testimony at the grand jury proceeding relating to

count four of the indictment, that count was properly dismissed.” Williams I, 163

A.D.3d at 1422, 80 N.Y.S.3d 610. As there was “no indication” that the prosecution

knowingly or deliberately presented false testimony before the grand jury, there

was “no basis’ for finding that the remaining counts were “rendered defective by the

alleged false testimony.” /d., 163 A.D.3d at 1422-23, 80 N.Y.S.3d 610. Respondent

argues that Ground Five cannot provide a basis for habeas relief because any errors

in the grand jury proceeding were rendered harmless by the petit jury’s guilty

verdict. Dkt. 20-1, at 38-39 (citing Lopez, 865 F.2d at 32-33).

As an initial matter, the counts based on Reed’s testimony were dismissed by

the trial court prior to jury deliberations. See Dkt. 20-9, 1118-19. Thus, to the

extent that inconsistencies in Reed’s grand jury testimony played a part in the

18 Because the amended petition, Dkt. 39, appears to be missing some pages that

were in the original petition, Dkt. 1, the Court cites to both documents.

decision to indict, any error was mooted by the trial court’s dismissal of the charges

supported by Reed’s testimony.

Williams is correct that Jones told the grand jury that she was able to cash

the fraudulent check that formed the basis for Count 4 when, in fact, Key Bank did

not allow her to do cash that check. But as the Fourth Department observed, Count

4 was dismissed with the prosecutor’s consent as a result of the CPL § 440.10

motion attacking the 2009 conviction, well before the 2015 retrial. See Dkt. 20-4, 7—

13.

With regard to the remaining charges in Indictment 446 supported by Jones’s

testimony, the fact that the petit jury rendered guilty verdicts on them shows that

any error in the grand jury’s decision to indict was rendered harmless beyond a

reasonable doubt. See, e.g., Hunter v. Annucct, No. 19-CV-1321 (MKB), 2023 WL

3179698, at *15 (E.D.N.Y. May 1, 2028) (“Petitioner’s arguments that the

Government induced perjured testimony and withheld ‘truthful’ evidence in the

grand jury proceeding are not cognizable on federal habeas review because this

claim was rendered harmless by the petit jury’s verdict.” (collecting cases)).

Wilhams’s complaints about the grand jury proceeding do not state a

cognizable claim for federal habeas relief. Furthermore, the state court did not

unreasonably apply, or rule in a manner contrary to, clearly established federal law

when it rejected them on appeal. Accordingly, Ground Five does not provide a basis

for habeas relief.

B. Unauthorized Grand Jury Subpoena (Ground Nine)

1. Legal Principles

The timing of and procedure for issuing a subpoena duces tecum in

connection with a grand jury proceeding is governed exclusively by New York State

law. See, e.g., People v. Natal, 75 N.Y.2d 379, 385, 553 N.E.2d 239, 242 (1990) (“[B]y

statute it is the District Attorney who issues a subpoena duces tecum.” (citing N.Y.

Crim. Proc. Law § 610.25(1) (“Where a subpoena duces tecum is issued on

reasonable notice to the person subpoenaed, the court or grand jury shall have the

right to possession of the subpoenaed evidence. Such evidence may be retained by

the court, grand jury[,| or district attorney on behalf of the grand jury.”)); see

generally Brunswick Hosp. Ctr., Inc. v. Hynes, 52 N.Y.2d 333, 337, 420 N.l.2d 51,

53 (1981). The Supreme Court has stated many times that “it is not the province of

a federal habeas court to reexamine state-court determinations on state-law

questions.” Hstelle v. McGuire, 502 U.S. 62, 67-68 (1991).

2. Application

In Ground Nine, Williams complains that, prior to the empanelment of the

grand jury, the prosecutor unlawfully obtained subpoenas for his cell phone records

and his inmate phone calls. See Dkt. 1, at 29-380; Dkt. 39, at 29-30. Williams

raised this claim in his fourth CPL § 440.10 motion. Dkt. 20-5, at 140. It was one of

the claims that the state court rejected under CPL § 440.10(8)(c) because it could

have been raised in an earlier motion to vacate. Dkt. 20-4, at 172. Because the

claim fails even under a de novo standard of review, the Court need not determine

whether there was an “adjudication on the merits” for purposes of 28 U.S.C. §

2254(d). See Berghuis v. Thompkins, 560 U.S. 370, 890 (2010) (“Courts can... deny

writs of habeas corpus under § 2254 by engaging in de novo review when it is

unclear whether AEDPA deference applies, because a habeas petitioner will not be

entitled to a writ of habeas corpus if his or her claim is rejected on de novo review,

see § 2254(a).”).

As an initial matter, Respondent correctly asserts that this claim is not

cognizable on federal habeas review. Dkt. 20-1, at 38. The Court agrees that

Ground Nine presents only an issue of state law that cannot form the basis for

federal habeas relief. See, e.g., Hall v. Conway, 630 F. Supp. 2d 283, 294 (W.D.N.Y.

2009) (“[A]ny error in the subpoena process would be a violation of state law only,

and does not raise a constitutional claim.” (citing Hstelle, 502 U.S. at 68)).

Moreover, Williams has not established that Ground Nine has merit as a

matter of state law. Courts in New York State have rejected claims that

empanelment of the grand jury is a prerequisite for the issuance of a subpoena. See,

e.g., Hirschfeld v. City of New York, 253 A.D.2d 53, 58, 686 N.Y.S.2d 367, 370 (1st

Dep’t 1999) (rejecting, as “contrary to the existing authorities on the subject,” the

plaintiffs contention that for a “[g]rand [j]ury subpoena to be lawful, the [g]rand

[jjjury must be impanelled [sic] prior to the issuance of the subpoena” and stating

that “[t]here is no requirement that the People open a [g]rand [j]ury proceeding

prior to the return date of a [g]rand [j]ury subpoena”). Because Ground Nine does

not present a cognizable constitutional issue and is, in any event, meritless, it does

not provide a basis for habeas relief.

C. Denial of Fifth Amendment Privilege Against Self-

Incrimination Based on Subpoenas for Phone Records (Ground

Ten)

1. Legal Principles

“(T]he Fifth Amendment protects against ‘compelled self-incrimination, not

(the disclosure of) private information.” Fisher v. United States, 425 U.S. 391, 401

(1976) (quoting United States v. Nobles, 422 U.S. 225, 233 n.7 (1975)); see also

Fisher, 425 U.S. at 402 (holding that “compelled production of documents from an

attorney does not implicate whatever Fifth Amendment privilege the taxpayer

might have enjoyed from being compelled to produce them himself’); Couch v.

United States, 409 U.S. 322, 328 (1973) (“The Constitution explicitly prohibits

compelling an accused to bear witness ‘against himself’; it necessarily does not

proscribe incriminating statements elicited from another.”).

2. Application

In Ground Ten, Williams contends that the prosecutor who handled his 2009

trial committed misconduct by issuing a grand jury subpoena duces tecum for cell

phone records to a wireless carrier in New Jersey to obtain for cell phone records,

thereby violating his Fifth Amendment privilege against being compelled to testify

against himself. Dkt. 39, at 834-87. Williams raised this claim in his fifth CPL §

440.10 motion, citing both state statutory law and the Fifth Amendment. See Dkt.

58-2, at 146. The state court rejected it, noting only that the state cases upon which

Williams relied were inapposite because they dealt with judicial subpoenas issued

after indictment and arraignment, not grand jury subpoenas. Dkt. 20-3, at 337-38.

Because the claim fails even under a de novo standard of review, the Court need not

determine whether there was an “adjudication on the merits” for purposes of 28

U.S.C. § 2254(d). See Berghuis, 560 U.S. at 390.

The Court agrees with Respondent, see Dkt. 58, at 16, that Williams has not

stated a Fifth Amendment violation. As made applicable to state defendants

through the Fourteenth Amendment, the Fifth Amendment does not permit

Williams to bar his wireless carrier from complying with the grand jury subpoena

duces tecum for the records that the wireless carrier created and maintained

regarding Williams’s cell phone account. See Matter of Grand Jury Subpoenas

Dated Oct. 22, 1991, & Nov. 1, 1991, 959 F.2d 1158, 1168 (2d Cir. 1992) (stating

that “the Fifth Amendment in and of itself would not permit Doe to bar disclosures

by [Doe’s law firm] of information given it by Doe” since “[t]he Fifth Amendment

protects a person against compelled self-incrimination, not against the compelled

disclosure of his private information by his attorneys”). The Fifth Amendment

claim alleged in Ground Ten is meritless and does not provide a basis for habeas

relief.

D. Denial of Motion for Substitute Counsel (Ground Eight)

1. Legal Principles

The Sixth Amendment right to counsel includes “the right of a defendant who

does not require appointed counsel to choose who will represent him.” United States

v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). But this “right to counsel of choice

does not extend to defendants who require counsel to be appointed for them.” Id. at

151. The Supreme Court “has stated that ‘impecunious’ defendants have no Sixth

Amendment right to choose their counsel.” Soltero v. Kuhlman, No.

99CIV10765(GEL), 2000 WL 1781657, at *8 (S.D.N.Y. Dec. 4, 2000) (citing Caplin &

Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (“The [Sixth]

Amendment guarantees defendants in criminal cases the right to adequate

representation, but those who do not have the means to hire their own lawyers have

no cognizable complaint so long as they are adequately represented by attorneys

appointed by the courts.”); Wheat v. United States, 486 U.S. 153, 158 (1988) (“[T]he

essential aim of the [Sixth] Amendment is to guarantee an effective advocate for

each criminal defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers”)).

Thus, “[a]bsent a claim of ineffective assistance, the state court’s decision to

deny [a] petitioner’s motion to substitute counsel conflicts neither with any

particular Supreme Court decision nor with any general principle of Supreme Court

jurisprudence.” Jd. Even for those defendants with retained counsel, the “Sixth

Amendment does not guarantee an absolute right to the counsel of one’s choosing . .

., a ‘meaningful’ attorney-client relationship, or complete satisfaction with counsel’s

performance.” Id. (citing Wheat, 486 U.S. at 158); Morris v. Slappy, 461 U.S. 1, 12-

15 (1983); United States v. Cronic, 466 U.S. 648, 657 n.21 (1984)).

Instead, “the appropriate inquiry focuses on the adversarial process, not on

the accused’s relationship with his lawyer as such.” Cronic, 466 U.S. at 657 n.21;

see also Lockhart v. Fretwell, 506 U.S. 364, 368-69 (1998) (stating that the right to

counsel is not recognized for its own sake but to preserve the defendant’s right to a

fundamentally fair trial). “If counsel is a reasonably effective advocate, he meets

constitutional standards irrespective of his client’s evaluation of his performance.”

Id. (collecting cases).

2. Application

In Ground Eight, Williams asserts that the trial court erroneously denied his

motion, made a few days before jury selection, to replace Attorney Mix. See Dkt. 1,

at 26-28; Dkt. 39, at 25-27. The Fourth Department rejected this argument,

concluding that the trial court “made the requisite minimal inquiry” into Williams’s

objections, and “properly determined” that there was “no basis” for substituting new

counsel or making further inquiry. Williams I, 163 A.D.3d at 1423-24, 80 N.Y.S.2d

610 Ginternal quotation marks and citations omitted). The Fourth Department

observed that, “the timing and circumstances of defendant’s [request] strongly

suggest[ed] that it was a delaying tactic.” Jd. (first alteration in original) (citation

omitted).

Respondent argues that this claim is not cognizable on habeas review and, 1n

any event, the state court’s adjudication of this claim on the merits was neither

contrary to, nor an unreasonable application of, clearly established Supreme Court

law. Dkt. 20-1, at 42-46. The Court agrees that Ground Eight does not provide a

basis for habeas relief.

First, as discussed below in this decision and order, Williams has not

established that trial counsel was ineffective. To the contrary, the alleged errors

assigned to trial counsel are not errors at all. “[I]t is difficult to establish ineffective

assistance when counsel’s overall performance indicates active and capable

advocacy.” Harrington, 562 U.S. at 111 (where petitioner's “attorney represented

him with vigor and conducted a skillful cross-examination,” “elicited concessions

from the [prosecution]’s experts[,] and was able to draw attention to weaknesses in

their conclusions stemming from the fact that their analyses were conducted long

after investigators had left the crime scene,” “it would have been reasonable to find

that [the petitioner] had not shown his attorney was deficient under Strickland”).

Notably, Attorney Mix successfully obtained dismissal of all but three counts prior

to jury deliberations and secured an acquittal on the felony charged in Count 15.

The record here refutes any suggestion that Williams had “good cause [for

substituting new counsel for Attorney Mix], such as a conflict of interest, a complete

breakdown of communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)

(internal quotation marks and citations omitted). Even after Williams sought to

have him removed from his case, Attorney Mix adopted the bulk of Williams’s then-

pending pro se motions. Attorney Mix constantly conferred with Williams

throughout the trial, involving him in what appeared to be every significant tactical

and strategic decision.

No matter how liberally Williiams’s allegations are construed, he has not

shown that Attorney Mix’s representation detracted from the fundamental fairness

of the trial process. In rejecting his substitution-of-counsel claim, the state court

did not rule in a manner contrary to, unreasonably apply federal law, or make an

unreasonable determination of the facts in light of the evidence presented at trial.

Ground Eight accordingly does not warrant habeas relief.

E. Brady Violations (Grounds One and Two)

1. Legal Principles

The suppression of evidence favorable to an accused “violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. There are “three

components of a true Brady violation: The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 268, 281-82 (1999).

It is well settled that evidence is not “suppressed” for Brady purposes if the

petitioner “either knew, or should have known, of the essential facts permitting him

to take advantage of any exculpatory evidence.” DiSimone v. Phillips, 461 F.3d 181,

197 (2d Cir. 2006) (internal quotation marks omitted).

2. Application

a. The Accomplices’ Cell Phone Records

In Ground One, Williams claims that the prosecution should have provided

him with copies of the cell phone records for two of his accomplices, Hay-Boler and

Jones. See Dkt. 1, at 5-7; Dkt. 39, at 6-7. According to Williams, these records

would have established that neither Hay-Boler nor Jones were inside a bank when

they received calls from Williams’s cell phone.

Williams raised this allegation in the second CPL § 440.10 motion filed on

August 15, 2018. The state court determined that there was no basis upon which to

conclude that the accomplices’ phone records would have been favorable to Williams

and, in any event, they were “equally available” to the prosecution and the defense.

Dkt. 20-3, at 376. The state court’s alternative holding on the merits constitutes an

“adjudication on the merits” owed deference under AEDPA. See Tatum v. Lempke,

481 F. App’x 659, 662 (2d Cir. 2012) (summary order) (stating that it “must afford

AEDPA deference” to the state court’s decision, which found the petitioner’s claim to

be procedurally barred but also addressed its merits (citing Zarvela v. Artuz, 364

F.3d 415, 417 (2d Cir. 2004) (granting AEDPA deference to state court’s alternative

holding on the merits)).

In light of the evidence presented, the state court reasonably determined the

accomplices’ cell phone records were equally available to both parties. As

Respondent points out, Williams’s own cell phone records were introduced at his

first trial in 2009, and these records showed that he called the accomplices, Hay-

Boler and Jones, while they were inside the banks. See Dkt. 20-7, at 229

(prosecution’s brief on appeal noting that “[t]he testimony of defendant’s

accomplices was corroborated by cell phones records showing defendant calling

some of his accomplices while they were actually in the banks cashing the checks”

(citations to 2009 trial transcript omitted)). Thus, at the time of the retrial in 2015,

Williams had been aware of the existence of his accomplices’ phone records for at

least six years and was on notice that they might contain relevant information.

Williams had ample time during those six years to issue subpoenas for the cell

records and review them to see if, in fact, they were favorable to the defense.

Because Williams knew of the “essential facts permitting him to take

advantage of any exculpatory evidence,” DiSimone, 461 F.3d at 197, contained in

Hay-Boler’s and Jones’s cell phone records, that evidence was not “suppressed” for

purposes of establishing a Brady violation. See, e.g., United States v. Barcelo, 628 F.

App’x 36, 39 (2d Cir. 2015) (holding that prosecution did not suppress, for Brady

purposes, cooperating witness’s version of stop of defendant’s tractor-trailer, which

differed from that of two federal agents who testified at suppression hearing in

prosecution for conspiracy to distribute cocaine; defendant knew that cooperating

witness was present during traffic stop and might have useful evidence); United

States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1982) (holding that the government was

not required to disclose allegedly exculpatory grand jury testimony where the

defendant “was on notice of the facts necessary for him to take advantage of such

exculpatory testimony as [the identified witnesses] might conceivably furnish”).

In rejecting his Brady claim, the state court did not rule in a manner

contrary to, unreasonably apply federal law, or make an unreasonable

determination of the facts in light of the evidence presented at trial. The Brady

claim in Ground One accordingly does not warrant habeas relief.

b. The Twenty-Six Undisclosed Documents

Ground Two asserts that the prosecutor failed to provide the defense with

“twenty-six undisclosed documents.” See Dkt. 1, at 9-10; Dkt. 39, at 8-9. As

Respondent notes, see Dkt. 20-1, at 38, this allegation apparently refers to the same

Brady claim he raised in the CPL § 440.10 motion to vacate the 2009 judgment. As

set forth above in the procedural and factual background, the prosecutor conceded it

was unclear whether Williams had received the documents identified in the CPL §

440.10 motion and, out of an “abundance of caution,” she turned over twenty-five

documents to Williams on September 30, 2011. See Dkt. 20-4, at 7-13.

At the outset, itis unclear whether this claim was exhausted for purposes of

challenging the 2015 retrial. This Court now has authority under 28 U.S.C. §

2254(b)(2) to deny a petition containing unexhausted claims on the merits. Because

the claim is patently meritless, the Court exercises its discretion to bypass the

exhaustion issue. See, e.g., Boddie v. New York State Div. of Parole, 285 F. Supp. 2d

421, 428 (S.D.N.Y. 2008) (concluding that “thorny issue” of exhaustion in the

context of habeas challenge to parole decision “need not be addressed” because

underlying claims were clearly without merit).

As Respondent points out, Williams apparently acknowledged that he

received these documents years before his retrial in 2015. Specifically, at an

October 10, 2013 appearance in connection with the retrial, Williams stated that at

his first trial, the prosecution had “withheld 26 [sic] documents.” Dkt. 20-9, at 9.

Although Williams did not identify those documents, he noted that the prosecution

had later “returned [sic] that [sic] over.” Jd. It is reasonable to conclude that the

documents that were “returned ... over’ are the same documents disclosed by the

prosecution to Williams on September 30, 2011, in connection with the CPL §

440.10 motion attacking the 2009 conviction. Additionally, at the retrial, when

asked by the trial court as to whether the defense had the documents from the CPL

§ 440.10 motion, Attorney Mix replied, “We have them now.” Dkt. 20-9, at 1209.

In short, the record establishes that, well before his retrial, Williams knew or

should have known of the “essential facts,” DiSimone, 461 F.3d at 197, contained in

the “twenty-six undisclosed” documents in time for him to take advantage of any

potentially favorable information contained in them. Williams therefore has failed

to establish the “suppression” element of a Brady violation with regard to the

“twenty-six undisclosed” documents. Accordingly, the claim based on these

documents does not entitle him to habeas relief.

F. Prosecutorial Misconduct in Opening and Closing Statements

(Ground Seven)

1. Procedural Default

A federal habeas court “will not review a claim rejected by a state court ‘if the

decision of [the state] court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.” Beard v. Kindler, 558

U.S. 58, 55 (2009) (alteration in original) (quoting Coleman v. Thompson, 501 U.S.

722, 729 (1991)). This is true “even where the state court has also ruled in the

alternative on the merits of the federal claim.” Velasquez uv. Leonardo, 898 F.2d 7, 9

(2d Cir. 1990). To overcome a procedural default conclusion based on the state

court’s invocation of an adequate and independent state ground, a habeas petitioner

“must show cause for the default and prejudice, or demonstrate that failure to

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

actually innocent).” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing

Coleman, 501 U.S. at 748—50).

Respondent has raised the affirmative defense of procedural default with

regard to three of the four allegations in support of Williams’s challenge to the

prosecutor's remarks—that the prosecutor vouched for Scott’s credibility; described

Williams and his nephew as liars; and referred to Williams as “Ike.” Dkt. 20-1, at

28-29. In disposing of those claims, the Fourth Department held that Williams

“failed to object to all but one of the allegedly improper remarks made by the

prosecutor during opening and closing statements, and thus failed to preserve for

our review his contention that he was denied a fair trial by those instances of

alleged prosecutorial misconduct.” Williams IT, 163 A.D.3d at 1423, 80 N.Y.S.3d at

618 (citing N.Y. Crim. Proc. Law § 470.05(2)). In the alternative, the Fourth

Department concluded that the contentions were “without merit,” id., 163 A.D.3d at

1423, 80 N.Y.S.3d at 613.

Respondent argues that the Fourth Department relied on an adequate and

independent state ground—failure to preserve through a timely and specific

objection, see CPL § 470.05(2)—to deny them, and that they are procedurally

defaulted notwithstanding the alternative ruling on the merits.

The Supreme Court has observed that it is appropriate to bypass procedural

questions to reach the merits of a habeas petition “if the [underlying issues] are

easily resolvable against the habeas petitioner, whereas the procedural bar issue

involved complicated issues of state law.” Lamobrix v. Singletary, 520 U.S. 518, 528

(1997). Because the entire prosecutorial misconduct issue 1s readily denied on the

merits, the Court elects to bypass the potentially more complex issue raised by

Respondent’s assertion of procedural default as an affirmative defense to a portion

of that claim. See, e.g., Anderson v. Graham, No. 6:15-cv-06687-MAT, 2018 WL

1428249, at *2 (W.D.N.Y. Mar. 22, 2018) (declining to “resolve the issues raised by

[the rlespondent’s assertion of the defenses of non-exhaustion and procedural

default” and proceeding to decide the claims on the merits) (citing Lambrix, 520

U.S. at 525); see also Ramos-Martinez v. United States, 638 F.3d 315, 324—25 (1st

Cir. 2011) (stating that a court “occasionally may avoid addressing” an “enigmatic

threshold issue” where “the outcome on the merits is both clear and favorable to the

party advocating the threshold issue”) (citing Lamobrix, 520 U.S. at 525).

2. Legal Principles

The appropriate standard of review “for a claim of prosecutorial misconduct

on a writ of habeas corpus is ‘the narrow one of due process, and not the broad

exercise of supervisory power.” Floyd v. Meachum, 907 F.2d 347, 3538 (2d Cir. 1990)

(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). “Thus, while the

[prosecution] has a ‘duty to refrain from improper methods calculated to produce a

wrongful conviction,” Jackson v. Conway, 763 F.3d 115, 146 (2d Cir. 2014) (quoting

Berger v. United States, 295 U.S. 78, 88 (1935)), “such methods will warrant habeas

relief only if they ‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process,” 1d. (quoting Darden, 477 U.S. at 180 (some

internal quotation marks omitted)); see also Donnelly v. DeChristoforo, 416 U.S.

637, 647-48 (1974) (vacating grant of habeas relief based on prosecutor’s

summation comment that the petitioner and his attorney “had said that they ‘hope

that you find him not guilty. I quite frankly think that they hope that you find him

guilty of something a little less than first-degree murder,” because lower court’s

“result ... leaves virtually meaningless the distinction between ordinary trial error

of a prosecutor and thle] sort of egregious misconduct held... to amount to a denial

of constitutional due process” in other Supreme Court cases). The prosecutor’s

“statements or conduct must be viewed 1n context; only by so doing can it be

determined whether the prosecutor’s conduct affected the fairness of the trial.”

United States v. Young, 470 U.S. 1, 11 (1985).

3. Application

Williams first complains about the following portion of the prosecutor's

opening statement:

What is organized crime? What makes up a criminal enterprise? Well,

first off, obviously is an organization, be it complex or be it simple. It’s

layers of interconnected people, everyone having their own jobs,

everyone having their own unique function, everyone working towards

a common goal, a plan, a team.

Dkt. 2-9, at-558. Trial counsel objected on the basis that the jury had not been

advised that any of the charges were classified as organized crime. /d., at 558-59.

The trial court overruled the objection. Id., at 559.

The Fourth Department held that this remark—the only one preserved by a

timely objection—was a “fair comment on the evidence,” and therefore “did not

constitute prosecutorial misconduct.” Williams I, 163 A.D.3d. at 1428, 80 N.Y.S.2d

610. The Fourth Department’s adjudication of this claim on the merits was not

contrary to, or an unreasonable application of, clearly established federal law. Dkt.

20-1, at 33-34.

A prosecutor has “the right ... to marshal favorable inferences, see United

States v. Wilner, 523 F.2d 68, 738 (2d Cir. 1975), and in general to make any fair

comments which the evidence supports.” Snow v. Reid, 619 F. Supp. 579, 583

(S.D.N.Y. 1985). The prosecutor’s description in his opening statement of what

constitutes “organized crime’—namely, “layers of interconnected people, everyone

having their own jobs” and “working towards a common goal’”—accurately

forecasted the testimony from Jones, Ruise, Hay-Boler, and Scott about how the

check-cashing scheme operated. Scott testified that Williams and Sherell first

created the counterfeit checks on a computer and printer. Then, as described by

Ruise, Jones, and Hay-Boler, Williams provided the counterfeit checks to the

accomplices he had recruited, instructed the accomplices about how to pass the

counterfeit checks without getting caught, drove the accomplices to the banks,

waited for the accomplices while they cashed the checks, and paid the accomplices a

portion of the check-cashing proceeds.

Based on this testimony, the prosecutor reasonably described Williams’s

check-cashing ring as an organization composed of interconnected layers of people

working towards a common goal. The prosecutor refer to matters outside the four

corners of the proof or exceed the bounds of fair comment on the evidence. See, e.g.,

United States v. Biasucci, 786 F.2d 504, 513 (2d Cir. 1986) (prosecutor’s use of

“iceberg” metaphor to describe criminal enterprise alleged in racketeering

prosecution stemming from defendants’ alleged involvement in loansharking

operation did not deprive defendants of fair trial, despite contention that the

metaphor intimated that evidence adduced at trial was only the “tip” of the

“iceberg” of other unproven criminal activity, since “iceberg” metaphor was used for

the limited purpose of describing the structure of the loansharking operation).

As far as the remaining unpreserved remarks, the Fourth Department

alternatively ruled on the merits that they “were either a fair comment on the

evidence or a fair response to defendant’s summation.” Williams I, 163 A.D.3d at

1423, 80 N.Y.S.3d at 613. This was a reasonable application of clearly established

federal law. Moreover, Williams’s allegations largely misstate the record.

First, the prosecutor did not vouch for Scott by stating his personal belief

that Scott was credible; instead, he urged the jury to consider Scott’s admission that

he was “a criminal” as a “mark of forthrightness, of credibility.” Dkt. 20-9, at 1378.

Contrary to Williams’s contentions, the prosecutor did not refer to matters not in

evidence or ask the jury to draw conclusions not fairly inferable from the testimony.

Instead, the prosecutor properly asked the jury to evaluate Scott’s truthfulness in

light of the evidence, including Scott’s ability to reveal negative qualities about

himself. See, e.g., United States v. Williams, 690 F.3d 70, 76 (2d Cir. 2012) (on

summation, the prosecutor characterized the testimony of the government’s

witnesses as “the truth” or the “absolute truth;” finding no improper vouching

where the prosecutor “did not suggest that [s]he had special knowledge of facts not

before the jury” but “in each of the instances cited... as improper, it is clear from

context that the [prosecutor] was asserting that the statements in question were

true because of specific evidence in the trial record” (first alteration in original)

(quoting United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998)).

Second, the prosecutor did not describe Sherell as a “liar.” Indeed, the

prosecutor never used that word during his opening or summation. Rather, the

prosecutor described Sherell as an “interested witness” based on his close

relationship with Williams, Dkt. 20-9, at 1374-75, which accurately reflected

Sherell’s trial testimony. Sherell admitted that, among other things, he was

“fvjery’ close to Wiliams, who had named him when he was born. Id., at 1146—47.

As the trial court later instructed, whether a witness has an interest in the outcome

of the proceeding was one of the factors the jury could consider in assessing their

credibility. Jd., at 1390.

Third, the prosecutor did not refer to facts not in evidence or misstate the

proof by saying that some of the witnesses knew Williams as “Ike.” That statement

reflected the witnesses’ actual testimony—that they knew him as “Ike” and called

him by that name. Id., 575, 688, 779, 933.

Even if the foregoing comments were improper—which they were not—

Williams cannot establish that they resulted in “actual prejudice” to the defense,

that is, “a substantial and injurious effect or influence in determining the jury’s

verdict.” Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). The evidence of guilt

introduced by the prosecution in this case was so overwhelming that there is no

possibility that any of the prosecutor’s comments, considered singly or together, had

any effect on the verdict. See id. at 825 (finding harmless error and a failure to

demonstrate a substantial or injurious effect where there was “compelling evidence

in the prosecution’s case... [and] the prosecutor’s summation comments were both

brief and isolated”).

Moreover, the trial court explicitly informed the jury that the attorneys’

opening and closing statements were merely arguments and not evidence. It is well

established that “[a] jury is presumed to follow its instructions,” Weeks v. Angelone,

528 U.S. 225, 234 (2000), and there is no basis here to depart from that

presumption.

The allegations supporting Ground Seven do not amount to “ordinary trial

error of a prosecutor,” Donnelly, 416 U.S. at 647-48, let alone the “sort of egregious

misconduct” that amounts to a denial of due process, see id. The state court did not

unreasonably apply, or rule in a manner contrary to, clearly established federal law

in rejecting the prosecutorial misconduct claim. Ground Seven therefore does not

provide a basis for habeas relief.

G. Prosecutor’s Failure to Correct Perjury by Investigator Peters

(Ground Six)

1. Legal Principles

The prosecution’s use of perjured testimony can violate the due process

clause, but only where “the prosecution knew, or should have known, of the

perjury,’ and ‘there is any reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Drake v. Portuondo, 321 F.8d 338, 345 (2d Cir.

2008) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted in

original)). That the “witness actually committed perjury,” United States v.

Zichettello, 208 F.3d 72, 102 (2d Cir. 2000), is a necessary predicate for a due

process claim, see td. (holding that “appellants’ claim fail[ed] because they have not

established that [the witness] committed perjury’).

Federal courts have repeatedly held that, “even a direct conflict in testimony

does not in itself constitute perjury.” United States v. Gambino, 59 F.3d 358, 365

(2d Cir. 1995). As the Second Circuit has explained:

[a] witness commits perjury if he gives [1] false testimony concerning a

material matter with the [2] willful intent to provide false testimony, as

distinguished from incorrect testimony resulting from confusion,

mistake, or faulty memory.

United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (emphases supplied).

“Simple inaccuracies or inconsistencies in testimony do not rise to the level of

perjury.” Id.

2. Application

Williams asserts that the prosecutor elicited false testimony from

Investigator Peters regarding how many times he placed Williams under arrest for

the same crimes. Dkt. 39, at 21-22. During trial counsel’s cross-examination of

Investigator Peters, the following exchange occurred:

Q. Investigator, you arrested Mr. Williams multiple times for the

same conduct that you were investigating in its totality [sic]

under the scheme to defraud; isn’t that right?

A. It was separate from the scheme to defraud.

Q. So you're telling me that you were investigating this scheme to

defraud, and that these checks that you arrested him for on

multiple days -- or multiple times within about two weeks were

not part of the scheme to defraud?

A. No, I don’t believe they were. I’d have -- like I said, I’d have to

see the felony complaint I filed.

Dkt. 20-9, at 1095-96. Trial counsel did not ask Investigator Peters to review any

paperwork and moved on to another line of questioning. /d., at 1096.

Subsequently, trial counsel moved for a mistrial, arguing that in the two

answers quoted above, Investigator Peters had testified untruthfully. Jd., at 1216—

22. In the alternative, trial counsel requested that all of Investigator Peters’

testimony be stricken. Jd., at 1222-24. Both requests were denied. Jd., at 1224.

Williams asserted this claim on direct appeal, but the Fourth Department did

not address it in the order affirming the judgment. Respondent argues that even

though the Fourth Department did not specifically mention the claim, this Court

must presume that it adjudicated the claim on the merits for purposes of 28 U.S.C.

§ 2254(d). Dkt. 20-1, at 31 (citing Johnson v. Williams, 568 U.S. 289, 301 (2013)

(“When 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—but that presumption can in some limited circumstances be

rebutted.”)).

Because the claim fails even under a de novo standard of review, the Court

need not determine whether there was an “adjudication on the merits” for purposes

of 28 U.S.C. § 2254(d). See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010)

(“Courts can... deny writs of habeas corpus under § 2254 by engaging in de novo

review when it is unclear whether AEDPA deference applies, because a habeas

petitioner will not be entitled to a writ of habeas corpus if his or her claim is

rejected on de novo review, see § 2254(a).”).

At the outset, Williams admits that the testimony, although allegedly false,

Dkt. 39, at 21, was “not perjury....” Jd. That admission aside, Williams has not

established the elements of a meritorious due process claim.

With regard to the materiality element, Williams contends that the testimony

offered by Investigator Peters “was inconsistent with his investigation and police

reports[] and prevented the defense from challenging his credibility....” Jd. □□ □□

well settled, however, that “[s]imple inaccuracies or inconsistencies in testimony do

not rise to the level of perjury.” Monteleone, 257 F.3d at 219. As Respondent

argues, see Dkt. 20-1, at 32, it was wholly irrelevant to the question of guilt or

innocence how many times Williams was arrested and for what criminal conduct.

Thus, Williams cannot establish the materiality element of a perjury claim.

Willams cannot establish “willful intent” because there is no basis in the

record to conclude that Investigator Peters was being deliberately untruthful.

Investigator Peters admitted on cross-examination that Williams was arrested more

than once; he simply could not remember the specific charges underlying each

arrest—not surprising given that the arrests occurred approximately eight years

prior to the retrial. Investigator Peters suggested that he could clear up any

confusion by reviewing the criminal complaint, but trial counsel did not provide him

with that opportunity. In short, it is apparent from the transcript that Investigator

Peters was endeavoring to provide accurate testimony in response to trial counsel’s

questions but had limited recall due to the passage of time.

Because Wilhams has not established that Investigator Peters willfully

provided false testimony concerning a material matter, he has not established that

the investigator committed perjury. As there was no due process violation, Ground

Six does not warrant habeas relief.

H. Erroneous Admission of Evidence (Ground Four)

1. Legal Principles

A federal court may intervene in the state judicial process “only when a

constitutional wrong is at stake.” Robinson v. Artus, 664 F. Supp. 2d 247, 264

(W.D.N.Y. 2009) (citing Wainwright v. Goode, 464 U.S. 78, 83 (1988) (per curiam)).

“In general, evidentiary rulings by a state court based upon state law do not present

a federal constitutional question upon which habeas relief may be granted.” Id.

(citing Estelle, 502 U.S. at 67-68 (“{I]t 1s not the province of a federal habeas court

to reexamine state-court determinations on state-law questions. ... [A] federal

court is limited to deciding whether a conviction violated the Constitution, laws, or

treaties of the United States.”)).

In order to determine “whether the effect of state-law evidentiary rulings can

give rise to an ‘unreasonable application of [ ] clearly established Federal law,’ 28

U.S.C. § 2254(d)(1),” Bell v. Ercole, 368 F. App’x 216, 218 (2d Cir. 2010) (brackets in

original), “a district court must first ‘start with the propriety of the trial court’s

evidentiary ruling.” Jd. (quoting Hawkins v. Costello, 460 F.3d 288, 244 (2d Cir.

2006)). Even if the state court “misapplied state evidentiary law in a state criminal

case, habeas relief is not warranted unless the erroneous admission of evidence

actually rises to the level of constitutional error so as to deprive the defendant of a

fundamentally fair trial, and, as a result, of due process of law.” Robinson, 664 □□

Supp. 2d at 264 (citing Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1988)).

2. Application

Willams asserts that the prosecutor was erroneously permitted to introduce

evidence regarding a previously dismissed fourth-degree larceny charge (Count 7).

As noted above, Count 7 charged fourth-degree larceny and was based on Hay-

Boler’s cashing of a check for $931.16 from ETS Staffing at Citizen’s Bank. At the

trial in 2009, Count 7 was reduced to petit larceny because the ET'S check cashed by

Hay-Boler was for a value less than one thousand dollars.

At the retrial in 2015, the prosecution did not re-present a larceny charge

based on the ETS Staffing check cashed by Hay-Boler. Consequently, Williams

argues, the prosecutor should not have been permitted to introduce any of Hay-

Boler’s testimony at the retrial.

When he raised this issue on direct appeal, the Fourth Department rejected

the contention that Wiliams’s right to a fair trial was violated, explaining that Hay-

Boler’s testimony regarding the ETS Staffing check “was relevant to the crimes

charged in counts 5 and 15 of the indictment and was therefore properly admitted

at trial.” Williams I, 163 A.D.3d at 1422, 80 N.Y.S.3d 610.

Although Williams and Respondent characterize this as a prosecutorial

misconduct claim, the Fourth Department analyzed it as a claim that the trial court

erroneously admitted certain evidence. The Court agrees that it is more accurately

analyzed as such. The Fourth Department’s rejection of the claim was not

erroneous as a matter of New York State law and did not violate Williams’s due

process right to a fair trial.

As a matter of New York law, “all relevant evidence is admissible unless its

admission violates some exclusionary rule.” People v. Frumusa, 29 N.Y.3d 364, 370

(2017) (quoting People v. Harris, 26 N.Y.3d 1, 5 (2015)). “Evidence is relevant if it

has any tendency in reason to prove the existence of any material fact, i.e., it makes

determination of the action more probable or less probable than it would be without

the evidence.” People v. Scarola, 71 N.Y.2d 769, 777 (1988).

Hay-Boler testified that, at Williams’s behest, she presented the ETS Staffing

check for $931.16 at Citizen’s Bank on December 18, 2007, even though she knew it

was fake; that she cashed that check and received $931.16; and that she gave the

proceeds to Williams. This testimony clearly was relevant to proving Williams’s

guilt as an accomplice to Count 5 (second-degree possession of a forged instrument

based on the ETS Staffing check) and Count 15 (first-degree scheme to defraud).

Williams has not identified any “exclusionary rule,’ Frumusa, 29 N.Y.3d at

370, or constitutional right that was violated by the admission of Hay-Boler’s

testimony; instead, he simply complains that the evidence was prejudicial because it

implicated him in a crime. But “the admission of prejudicial evidence, without

more, cannot be unconstitutional.” United States v. LeMay, 260 F.3d-1018, 1026

(9th Cir. 2001). “All evidence introduced against a criminal defendant might be

said to be prejudicial if it tends to prove the prosecution's case.” Id. Where, as here,

“the prejudicial evidence is ‘probative of [an] essential element’ in the case, its

admission does not violate the defendant’s right to due process.” Dunnigan v.

Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Estelle, 502 U.S. at 69), abrogated

on other grounds by Perry v. New Hampshire, 565 U.S. 228 (2012).

Williams has not identified an error of state law in the trial court’s

evidentiary ruling, much less a constitutional error warranting federal intervention

through habeas corpus. See Cunningham v. Conway, 717 F. Supp. 2d 389, 360

(W.D.N.Y. 2010) (denying habeas relief because the petitioner did not demonstrate

that “the allegedly-erroneous state court evidentiary rulings violated an identifiable

constitutional right.” (citing Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988)).

Ground Four accordingly does not provide a basis for habeas relief.

I. Actual Innocence (Grounds Two and Ten)

1. Legal Principles

Claims of “actual innocence based on newly discovered evidence have never

been held to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal proceeding.”

Herrera v. Collins, 506 U.S. 390, 400 (1993). Instead, “federal habeas cases have

treated claims of ‘actual innocence, not as an independent constitutional claim,” id.

at 416-17, but as a “gateway claim,” McQuiggin v. Perkins, 569 U.S. 388, 386 (2013),

that allows a habeas petitioner to “have an independent constitutional claim

considered on the merits.” Herrera, 506 U.S. at 416-17. For instance, a “gateway

claim” of actual innocence may be used to overcome the procedural default of a

constitutional claim or to equitably toll the AEDPA’s statute of limitations so that an

otherwise untimely petition may be heard. McQuiggin, 569 U.S. at 386.

To date, however, the Supreme Court “not resolved whether a prisoner may be

entitled to habeas relief based on a freestanding claim of actual innocence.” Jd. at

392 (citing Herrera, 506 U.S. at 404-05). Assuming a freestanding actual innocence

claim were cognizable in a non-capital habeas proceeding, the required showing likely

would be even higher than the demanding standard in Schlup v. Delo, 513 U.S. 298

(1995), for gateway actual innocence claims. See House v. Bell, 547 U.S. 518, 555

(2006) (“The sequence of the [Supreme] Court’s decisions in Herrera and Schlup—

first leaving unresolved the status of freestanding claims and then establishing the

gateway standard—implies at the least that Herrera requires more convincing proof

of innocence than Schlup.”).

To meet the Schlup gateway standard, an actual innocence claim must be

“credible” and “compelling.” 513 U.S. at 324-25. “Credible” means that the

petitioner has supported the claim by “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence-——-that was not presented at trial.” Schlup, 513 U.S. at 324. “Because

Schlup explicitly states that the proffered evidence must be reliable, the habeas

court must determine whether the new evidence is trustworthy by considering it

both on its own merits and, where appropriate, in light of the pre-existing evidence

in the record.” Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (citing Schlup, 513

U.S. at 827-28). “The fact that new evidence is credible does not necessarily make

it compelling under the Schlup standard for actual innocence.” Hyman v. Brown,

927 F.3d 639, 662 (2d Cir. 2019).

To meet the “compelling” prong, the petitioner must demonstrate that, “more

likely than not, in light of the new evidence, no reasonable juror would find him

guilty beyond a reasonable doubt—or to remove the double negative, that more

likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S.

at 538. “Schlup unequivocally requires that reviewing courts consider a petitioner’s

claim in light of the evidence in the record as a whole, including evidence that might

have been inadmissible at trial.” Menefee, 391 F.3d at 162. “Only after examining

all evidence is the court able to determine whether new evidence truly throws the

petitioner's conviction into doubt, or whether it is so overwhelmed by the weight of

other evidence that it is insufficient to raise a question as to a petitioner's factual

innocence.” Id. It bears emphasizing that Schlup is concerned with “factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,

6238-24 (1998).

2. Application

a. Documentation from a 2008 Ontario County

Prosecution (Ground Two)

Williams raises an actual innocence claim in Ground Two based on police

paperwork and grand jury testimony that he received concerning a 2008 grand jury

proceeding in Ontario County. See Dkt. 1, at 8-10; Dkt. 39, at 7~9. According to

Williams, this documentation would have convinced the jury that his prosecution on

Indictment 446 was based on fabricated evidence and fraudulent testimony. These

allegations are related to his ineffectiveness claim, also asserted in Ground Two,

based on trial counsel’s failure to call Sergeant Phelan and Deputy Luffman of the

Monroe County Sheriffs Office, who allegedly provided false testimony at an

Ontario County grand jury proceeding unrelated to the convictions at issue in this

habeas proceeding. In particular, Williams believes that Sergeant Phelan and

Deputy Luffman testified falsely about certain counterfeit checks and presented

fabricated fingerprint evidence, which led to the Ontario County grand jury

returning an indictment against him. See Dkt. 39, at 8-9. According to Wilhams,

the alleged misconduct by Sergeant Phelan and Deputy Luffman before the Ontario

County grand jury would have bolstered his “frame up” defense in the Monroe

County prosecution—that he was framed by multiple prosecutorial and law

enforcement agencies and made the “fall guy” for Parker's crimes. (See, e.g., Dkt.

20-4, 122-30.

Williams presented the actual innocence claim based on the 2008

documentation in his third CPL § 440.10 motion. See Dkt. 20-4, 75—150. The state

court rejected it as unsubstantiated. See id., at 172-73 (“Defendant has not made a

requisite prima facie showing of actual innocence and has not provided ‘sworn

allegations substantiating or tending to substantiate all the essential facts’ for his

claim of actual innocence.”)).

The documentation from the 2008 Ontario County prosecution is considered

“new,” since it was not presented to the jury at the 2015 retrial. See Rivas v.

Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (stating that “new evidence” is “evidence

not heard by the jury”). However, “latter-day evidence brought forward to impeach

a prosecution witness will seldom, if ever, make a clear and convincing” of actual

innocence. Sawyer v. Whitley, 505 U.S. 333, 349 (1992). Thus, even assuming it is

“credible,” to the extent it consists of documents generated in court proceedings, it

fails the “compelling” prong of the Schlup test.

First, because the documentation concerns an entirely separate criminal

proceeding, it 1s irrelevant to Williams's guilt or innocence of the charges contained

in Indictment 446. Thus, it does not “directly support[] [Williams's] factual

innocence by indicating either that he did not commit, or could not have committed,

the crimes of conviction.” Hyman, 927 F.3d at 665 (emphases removed). Second,

the evidence of Williams’s guilt at the retrial was supplied largely by civilian

witnesses (e.g., his accomplices and the financial victims of his fraudulent activities)

rather than law enforcement witnesses. The 2008 documentation does nothing to

undermine the credibility of those civilian witnesses—or, for that matter, the law

enforcement witnesses. In short, it is unlikely to the point of impossibility that “any

reasonable juror would have reasonable doubt,” House, 547 U.S. at 538, about his

guilt had the documentation regarding the Ontario County prosecution been

presented at the retrial.

Moreover, because the Supreme Court has never held that actual innocence

can afford substantive habeas relief, the state court’s rejection of this claim cannot

be contrary to clearly established Supreme Court precedent. Furthermore, the state

court’s decision did not unreasonably apply the Supreme Court’s cases concerning

gateway and freestanding actual innocence claims, or result in an unreasonable

determination of the facts in light of the evidence presented. Indeed, the evidence

proffered in support of the actual innocence claim in Ground Two does not come

close to meeting the Schlup standard for a gateway actual innocence claim. Thus, it

necessarily cannot meet the more demanding standard that a freestanding actual

innocence claim would require, were such a claim a cognizable basis for substantive

habeas relief. See House, 547 U.S. at 555 (finding that “[t]o be sure, [the petitioner]

has cast considerable doubt on his guilt—doubt sufficient to satisfy Schlup’s

gateway standard for obtaining federal review despite a state procedural default,”

but “[his] showing falls short of the threshold implied in Herrera’ for a freestanding

actual innocence claim). Even assuming that the actual innocence claim in Ground

Two is cognizable, it is nevertheless meritless and does not provide a basis for

habeas relief.

b. The Alibi Witnesses

Williams asserts another actual innocence claim in Ground Ten, primarily

based on an affidavit signed by his cousin, Kenneth Miller (“Miller”) on October 16,

2020, Dkt. 58-2, at 116-21, and supplemented by an affidavit dated October 5, 2020,

signed by his wife, Shanda, /d., at 123-28.19 According to Williams, Miller provides

him with an alibi for November 29, 2007, and December 13, 2007, because the two

were working together from 10:30 a.m. until at least 10 p.m. at Mike’s Bar and

Grill, where Williams employed him as a prep cook. /d., at 117-18. Miller says that

Williams would pick him up at 10:30 a.m. and drive him to the restaurant, and the

two would be together in the kitchen until at least 10 p.m. Jd. Miller asserts that

Willams “was unable to leave the restaurant” at any point on the dates in question

because it was “too busy.” Zd., at 118, 120.

Shanda says that, on November 29, 2007, and December 13, 2007, “Kenny”

(presumably Miller) was working for Williams as a prep cook at Mike’s Bar and

Grill, that Williams worked from 11 a.m. to midnight on those dates, and that

Williams could not leave the restaurant because it was so busy. Jd., at 124.

19 Shanda’s affidavit is mainly concerned with his claim that the prosecutor who

handled the 2009 trial improperly issued a subpoena to Williams’s wireless carrier

for his cell phone records. Dkt. 58-2, 125-28.

However, there is no indication that Shanda was at the restaurant on those dates.

See id.

To explain the delay in obtaining Muiller’s affidavit, Williams filed an affidavit

asserting that he did not know how to contact his cousin. See id., at 182~34, 138,

142-43. He also faulted trial counsel and six of his previous attorneys for failing to

investigate his alibi defense; however, he did not offer affidavits from any of them.

Williams claimed that in 2009 and 2014, he retained private investigators to locate

Miller, but they were unsuccessful. Jd., at 189. He also asserted, contradictorily,

that “no private investigator would work on [his] behalf due to the mass amount of

corruption” in the Monroe County District Attorney’s Office and Sheriff's

Department. Id., at 140.

Williams presented his actual innocence claim based on newly discovered

alibi evidence in his fifth CPL § 440.10 motion. Jd., at 1-314. The state court

rejected 1t on procedural grounds because Williams could have raised it in an earlier

motion to vacate and, in the alternative, because it was unsubstantiated. Jd., at

336. According to the state court, it “strains credulity” to believe that Miller, “more

than twelve years” later, “has a precise recollection” of Williams’s whereabouts on

the dates in question. Jd. The state court found that Miller’s affidavit “at best

provides a general recollection of the time period in question” and “has limited

evidentiary value because many of the paragraphs are sworn to upon information

and belief without stating the grounds or source for the information and belief.” Id.

And “[pJerhaps most importantly,” the state court found that Miller’s affidavit “does

not offer conclusive proof that he has an actual recollection of being with the

defendant during the time period” the crimes were committed. Id.

Because the state court made factual findings, including assessments of

witness credibility, this Court owes deference to them under the AEDPA’s

provisions dealing with factual determinations, 28 U.S.C. § 2254(d)(2) and (e)(1).

See Shabazz v. Artuz, 336 F.3d 154, 163 (2d Cir. 2003) (“Credibility determinations

are properly within the province of the state court.”); Cotto v. Herbert, 331 F.8d 217,

233 (2d Cir. 2008) (stating that the presumption of correctness in 28 U.S.C. §

2254(e)(1) “is particularly important when reviewing the trial court’s assessment of

witness credibility”).

An alibi defense was never presented at Williams’s trial. Thus, the affidavits

from Miller and Shanda constitute new evidence. See, e.g., Rivas, 687 F.3d at 543

(stating that “new evidence” under Schlup is “evidence not heard by the jury’). The

Court next must consider whether the new evidence is credible and compelling. As

discussed below, it is neither.

When evaluating a new witness’s testimony, a court should “consider the

potential motives to be untruthful that the witness may possess, corroboration or

the lack thereof, internal consistency, and the inferences or presumptions that

crediting particular testimony would require.” Menefee, 391 F.3d at 164-65. As the

trial court instructed the jury at Williams’s trial, whether a witness has an interest

in the outcome of the proceeding—that is, whether they had a motive to testify in

favor of one particular side or the other—is a factor to be considered in assessing

their credibility. Dkt. 20-9, at 1390.

Miller is Wiliams’s maternal second cousin; Shanda is Williams’s wife. As

Williams’s family members, they clearly had an interest in seeing him released from

custody. The fact that family members provided Williams’s alibi evidence comes

from family members greatly undermines its reliability. See Philbert v. Brown, No.

1:11-CV-1805 NGG, 2012 WL 4849011, at *7 (E.D.N.Y. Oct. 11, 2012) (‘The identity

of the affiants is highly relevant to this inquiry-—a reasonable juror would likely

question the credibility of the affidavits, as they were provided by Philbert’s

girlfriend and his girlfriend’s mother.” (citing Lawrence v. Greene, No. 06—CV—0202

(DLI), 2011 WL 1327128, at *7 (E.D.N.Y. Mar. 31, 2011) (“Even if the alibi evidence

had been introduced at trial, a reasonable juror would likely question whether the

alibi affidavits obtained by Petitioner in fact came from trustworthy sources, as

they were provided by Petitioner's sister, girlfriend and co-defendant as opposed to

unbiased parties.”)) Indeed, “courts generally hold alibi affidavits from relatives

insufficiently credible to compel a reasonable juror to acquit,” Dunbar v. Griffin, No.

11-CV-5858, 2022 WL 36366, at *6 (E.D.N.Y. Jan. 4, 2022) (collecting cases), “due to

concerns that these types of witnesses ‘[o]bviously ... have reason to lie to protect

petitioner.” Jd. (alteration and ellipsis in original) (quoting Garcia v. Portuondo,

334 F. Supp. 2d 446, 456 (S.D.N.Y. 2004)); see also Goodman v. Collado, No. 18-CV-

2769 (ENV), 2021 WL 4893676, at *6 (E.D.N.Y. Oct. 20, 2021) (finding that new

affidavits showed only that alibi witnesses were the petitioner’s “friends, making

them interested witnesses and providing reason to find their testimony unreliable”).

Next, the record lacks corroboration of the information in Miller and

Shanda’s affidavits. Although Miller positively stated that he “was with [Williams]

at Mike’s Bar & Grill’ on November 29, 2007, and December 13, 2007, for “that

entire day working at the restaurant|[,]’ Dkt. 58-2, at 120, he does not provide any

details that would lend veracity to his claimed recollection of two routine workdays

over twelve years ago. If Mike’s Bar & Grill was as busy as Miller and Shanda

described, 1t is reasonable to expect there to have been other patrons or employees

who could provide at least some information corroborating Miller’s account of those

days and Williams’s whereabouts. Further, to the extent Miller offered any details

about the dates in question, such as the make, model, and color of the car Williams

was driving, it was only “upon information and belief.” Jd., at 118-19. Moreover,

the fact that Miller may have known what kind of car Williams was driving does not

establish that Miller actually was in Williams’s presence all day long, as he claims.

Shanda’s affidavit is vague and appears to be made upon information and

belief about Williams’s usual routine—what he typically would do, and how busy

Mike’s Bar and Grill typically was—not her direct observations of him on the dates

in question. /d., at 123-34. The reliability of Shanda’s affidavit is further marred

by her earlier, conflicting statements. As Respondent points out, in 2019, Shanda

provided an affidavit stating that she had Williams’s car on the dates in question,

contradicting Miller’s claim that Williams picked him up for work and drove him

home.

Unexplained delay “in presenting new evidence bears on the determination

whether the petitioner has made the requisite showing.” McQuiggin, 569 U.S. at

399. The state court reasonably concluded that Miller's affidavit was unbelievable,

given that Williams did not present it until over twelve years after the relevant

dates. See Fabers v. Lamanna, No. 18-CV-2399 (PKC), 2020 WL 1875288, at *23

(E.D.N.Y. Apr. 15, 2020) (‘The reliability of Joseph’s affidavit is further undermined

by the fact that it was provided more than six years after the events in question.”

(citing Rosario v. Ercole, 582 F. Supp. 2d 541, 601 (S.D.N.Y. 2008) ([W]hile the

prosecution's witnesses testified to events that occurred over two years prior,

petitioner’s post-conviction hearing witnesses testified to events that occurred about

six years prior... .[S]ix-year[-Jold memories are inherently not as reliable as two

and a half-year[-Jold ones.”), affd, 601 F.3d 118 (2d Cir. 2010); Fernandez v.

Annucct, No. 17-CV-3943(JMA), 2019 WL 1025816, at *5 (E.D.N.Y. Mar. 4, 2019)

(seventeen-year delay between the trial and the date of the alibi affidavit “severely

undermine[d]” the claim of actual innocence).

The state court found as a fact that Williams “failed to provide a reasonable

explanation” for the delay, noting that he “was perfectly capable of contacting his

second cousin and asking him to testify at trial.” Jd., at 335. As the state court

pointed out, the delay was “especially” unreasonable “given the potential

significance of Mr. Miller’s testimony.” Jd. Similarly, Shanda did not offer any

explanation why she changed her story from her 2019 affidavit, in which she merely

claimed that she—not Williams—used Williams’s phone to call the accomplices on

the dates they were passing counterfeit checks. Notably, Shanda fails to mention

Miller or any potential alibi defense in her 2019 affidavit. It is simply not credible

that Shanda would have omitted to mention the existence of a witness who,

according to Williams, completely exonerates him. Moreover, Williams offered a

version of the restaurant alibi defense at trial but, again, Miller is conspicuously

absent.

Even if Miller and Shanda testified exactly as their affidavits state, a

reasonable juror would have to weigh it against all of the evidence. Since Williams

raised another actual innocence claim in Ground Two based on the documentation

from the 2008 Ontario County proceeding, the Court includes that evidence also.

And, of course, the Court includes the evidence offered at trial. The 2008 Ontario

County documentation and Miller and Shanda’s belated, vague, and interested

testimony had marginal value, at best, when assayed against the detailed and

consistent evidence offered by the prosecution’s witnesses. This includes, but is not

limited to, the testimony from Williams’s accomplices and crime victims, along with

documentary evidence and cell phone records corroborating that testimony.

Williams has failed to show that “more likely than not, in light of the new evidence,

no reasonable juror would find him guilty beyond a reasonable doubt,” House, 547

U.S. at 588.

In sum, because the Supreme Court has never held that actual innocence can

afford substantive habeas relief, the state court’s rejection of this claim was not

contrary to clearly established Supreme Court precedent. Furthermore, the state

court’s decision did not unreasonably apply the Supreme Court’s cases concerning

gateway and freestanding actual innocence claims, or result in an unreasonable

determination of the facts in light of the evidence presented. Because the alibi

evidence supporting Ground Ten does not fulfill the Schlup standard for a gateway

actual innocence claim, it necessarily cannot meet the more demanding standard

that a freestanding actual innocence claim would require, were such a claim a

cognizable basis for substantive habeas relief. Even assuming that the actual

innocence claim in Ground Ten is cognizable, it is nevertheless meritless and does

not provide a basis for habeas relief.

J. Ineffective Assistance of Trial Counsel (Grounds One, Two,

Three, and Ten)

1. Legal Principles

To succeed on a claim that he was denied his Sixth Amendment right to the

effective assistance of counsel, a petitioner must show that (1) “counsel’s

representation fell below an objective standard of reasonableness,” and (2) “there 1s

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). “[W]hile in some instances ‘even an isolated error’ can support an

ineffective-assistance claim if it is ‘sufficiently egregious and prejudicial,”

Harrington, 562 U.S. at 111 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)),

“it is difficult to establish ineffective assistance when counsel’s overall performance

indicates active and capable advocacy.” Id.

“Even under de novo review, the standard for judging counsel’s

representation 1s a most deferential one.” Jd. at 105. Where a state court has

rejected an ineffective assistance claim on the merits, triggering the application of

28 U.S.C. § 2254(d), the standard of review is “doubly deferential,’ Dunn v. Reeves,

1418. Ct. 2405, 2410 (2021).

2. Application

a. Failure to Object to Brady Violation (Ground One)

In Ground One, Williams faults trial counsel for failing to request a sanction

for the alleged Brady violation based on the prosecution’s failure to disclose Jones

and Hay-Boler’s cell phone records. When he raised this claim in the second 440

motion, the state court rejected it on procedural grounds because Williams was ina

position to raise it in the first 440 motion but unjustifiably failed to do so. Dkt. 20-

3, at 376 (citing N.Y. Crim. Proc. Law § 440.10(3)(c)). Alternatively, the state court

denied the claim on the merits, reasoning that, since there was no Brady violation,

there was “no issue as to counsel’s failure to request a sanction,” because “it is well

settled that effective assistance of counsel is not denied ‘merely because counsel

does not make a motion or argument that has little or no chance of success.” Id., at

376 (quoting Williams I, 163 A.D.3d at 1428, 80 N.Y.S.3d 610)).

As the state court determined, “[t]he failure to include a meritless argument

does not fall outside the ‘wide range of professionally competent assistance’ to which

[the] [pJetitioner [is] entitled.” Aparicio v. Artuz, 269 F. 3d 78, 99 (2d Cir. 2001)

(quoting Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994)). The underlying

Brady claim based on the accomplices’ cell phone records is meritless because, as

discussed above, those records were not suppressed by the prosecutor. Trial counsel

thus did not act unreasonably in declining to object or request a sanction.

Nor did trial counsel’s decision prejudice the defense since there is no

reasonable possibility, let alone reasonable probability, that the trial court would

have sustained the objection or imposed a sanction based on a non-existent Brady

violation. See, e.g., Hamilton v. Lee, 94 F. Supp. 3d 460, 478 (E.D.N-Y. 2015), □□□□□□

707 F. App’x 12 (2d Cir. 2017) (rejecting habeas petitioner’s argument that “trial

counsel was ineffective for not requesting sanctions for alleged Brady violations” as

“without merit since no Brady violations have been established”); Singh v. Greene,

No. 10-CV-4444 JFB, 2011 WL 2009309, at *29 (E.D.N.Y. May 20, 2011) (trial

counsel did not prejudice defense by failing to request adjournment or mistrial in

hght of alleged Brady violation where evidence was neither suppressed nor

material; state court “would have likely denied a defense motion for mistrial or

adjournment, meaning there is no reasonable probability that making such a

motion would have affected the outcome of the trial”).

The state court’s rejection of the ineffectiveness claim in Ground One was not

contrary to or an unreasonable application of Strickland. Accordingly, it does not

provide a basis for habeas relief.

b. Failure to Call Police Witnesses (Ground Two)

In Ground Two, Williams asserts that trial counsel erred in failing to call

Sergeant Phelan and Deputy Luffman of the Monroe County Sheriffs Office. He

alleges that they provided false testimony at an Ontario County grand jury

proceeding unrelated to the convictions at issue in this habeas proceeding.

Williams also contends that trial counsel failed to use Sergeant Phelan and Deputy

Luffman’s purportedly false grand jury testimony to impeach Monroe County

Sheriffs Investigator Peters. See, e.g., Dkt. 20-4, at 87-88. In particular, Williams

claims that trial counsel would have been able to use this impeachment evidence to

prove that Investigator Peters arrested Williams multiple times for the same

criminal conduct, which, in turn, would prove that the Monroe County Sheriffs

Office had a vendetta against him and framed him for Parker’s crimes.

When he raised this claim in the third 440 motion, the state court denied it

pursuant to CPL § 440.10(8)(c) because it could have been, but was not, raised in

the previous two motions to vacate. Dkt. 20-4, at 171~—73. Alternatively, the state

court determined that the allegations against trial counsel were unsubstantiated

and dismissed the ineffective assistance claim as meritless. Id.

The decision not to call a particular witness “is typically a question of trial

strategy that appellate courts are ill-suited to second-guess.” United States v.

Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam). Thus, “whether to call

specific witnesses—even ones that might offer exculpatory evidence—is ordinarily

not viewed as a lapse in professional representation.” United States v. Best, 219

F.3d 192, 201 (2d Cir. 2000). A petitioner “does not show that he was prejudiced by

trial counsel’s failure to call witnesses merely by asserting that they might have

supplied relevant testimony; rather, he must state exactly what testimony they

would have supphed and how such testimony would have changed the result.” Carr

v. Senkowski, No. 01-CV-689, 2007 WL 3124624, at *20 (W.D.N.Y. Oct. 23, 2007)

(citing, inter alia, Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). “[I]n

order for the [petitioner] to demonstrate the requisite Strickland prejudice, the

[petitioner] must show not only that this testimony would have been favorable, but

also that the witness would have testified at trial.” Jd. at *22 (citing Alexander, 775

F.2d at 602).

Williams has supplied no proof that Sergeant Phelan and Deputy Luffman

testified falsely before the Ontario County grand jury or presented manufactured

evidence. Instead, he relies exclusively on self-serving and unsupported conspiracy

theories. “Federal courts ‘have no obligation to entertain pure speculation and

conjecture.” Scott v. Racette, No. 1:15-CV-00043-MAT, 2018 WL 451825, at *15

(W.D.N.Y. Jan. 17, 2018) (quoting Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir.

2011)); see also Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts may not

grant “habeas relief on the basis of little more than speculation with slight

support”). The speculative nature of Williams’s allegations, standing alone, isa

sufficient basis for rejecting this claim. See Scott, 2018 WL 451825, at *15

(rejecting the habeas petitioner’s “claims of pervasive misconduct by multiple law

enforcement agencies, amounting to no less than a conspiracy to unjustly

incarcerate him,” because they were “based upon rank speculation with no record

support”) (collecting cases).

Even assuming for the sake of argument that Sergeant Phelan and Deputy

Luffman provided untruthful testimony to an Ontario County grand jury regarding

Ontario County criminal charges, Williams has provided no assurances from these

witnesses that, in fact, they would have testified in his favor at the retrial.

Williams therefore is unable to show prejudice as a result of trial counsel’s decision

not to pursue these individuals as witnesses.

The state court did not rule in a manner contrary to or unreasonably apply

Strickland’s principles in rejecting the ineffectiveness claim in Ground Two.

Therefore, it does not provide a basis for habeas relief.

Cc. Failure to Call Witnesses and Introduce Phone

Records (Ground Three)

In Ground Three, Williams claims that trial counsel erroneously failed to (1)

call Shanda and MacCubbin as witnesses and (2) introduce his cell phone records as

part of his defense at trial. Williams presented these ineffectiveness claims in the

fourth CPL § 440.10 motion. In support, he submitted an affidavit from Shanda

dated July 17, 2019. Dkt. 20-5, at 310-28, averring that she possessed Williams’s

cell phone and car on November 29, 2007, and December 18, 2007. Shanda claimed

that she redialed numbers in her husband's cell phone, believing them to belong to

his girlfriends, and reached Hay-Boler and Jones. Shanda concealed this

information for eleven years because she was angry at Willams for his infidelity.

Willams asserts that Shanda’s testimony would have shown that it was she, rather

than Williams’s, who placed the phone calls to Jones and Hay-Boler while they were

cashing counterfeit checks on November 29, 2007, and December 18, 2007.

Williams also submitted MacCubbin’s police deposition dated December 4,

2007, stating that on November 16, 2007, she learned of a “scam” involving a “black

female” named “Tameka Jones” who was trying to cash counterfeit checks. Dkt.

20-6, at 174. MacCubbin said that Key Bank had circulated to its employees some

photographs of Jones as she attempted to cash counterfeit checks at one of its

branches. On November 29, 2007, “at about 2:14 p.m.,” a black female presented

herself at MacCubbin’s teller window and presented a check payable to “Tameka

Jones” from the Arc of Monroe for $961.11, and displayed identification in the name

of “Tameka Jones.” MacCubbin immediately suspected that the customer was

Jones and went to discuss the matter with her manager. After that discussion,

MacCubbin returned and told the customer that she needed to present another form

of identification. The customer replied that she would get another form of

identification from her car; MacCubbin said she would hold onto the check. Jd. The

customer took her identification, left the bank, and got into the back-seat of a silver-

colored SUV, which drove away. Id.

Williams contends that MacCubbin would have provided favorable testimony,

specifically, that Jones entered the bank branch at “about 2:14 p.m.,” which was

thirty-eight minutes before Jones received a call from Williams’s cell phone.

According to Williams, this discrepancy shows that Jones had not been inside the

bank attempting to pass a counterfeit check when she received calls from Williams's

cell phone.

The state court denied these ineffectiveness claims pursuant to CPL §

440.10(8)(c) because Williams could have raised them in one of his previous motions

to vacate. Dkt. 20-5, at 265. Alternatively, the state court found that trial counsel

provided meaningful assistance. Id., at 266.

Willams has not shown that trial counsel acted unreasonably in declining to

call Shanda. When evaluating an attorney’s strategic decisions, Strickland

instructs the reviewing court to “reconstruct the circumstances of counsel’s

challenged conduct” and “evaluate the conduct from counsel’s perspective at the

time.” 466 U.S. at 689. At the time of trial, counsel had no inkling that Shanda had

allegedly helpful information to offer. According to her affidavit, Shanda kept that

information secret for many years out of spite. Not even Williams knew of Shanda’s

purportedly favorable testimony. Trial counsel cannot have been objectively

unreasonable in declining to pursue her as a witness under these circumstances.

Willams also cannot show prejudice because there is no possibility that, had

trial counsel called Shanda, there would have been a different verdict. Even

discounting Shanda’s status as a highly interested witness, her belated and

uncorroborated story about the phone calls would not have caused the jury to reject

the mountain of incriminating evidence offered by the prosecution’s numerous

disinterested witnesses.

Trial counsel likewise did not act unreasonably in declining to call

MacCubbin as a defense witness. As Respondent points out, Dkt. 20-1, at 45,

MacCubbin did not state that Jones entered the bank at exactly 2:14 p.m.; rather, it

was “about” 2:14 p.m. In any event, the bulk of MacCubbin’s deposition was not

helpful to the defense. MacCubbin recognized Jones immediately from the bank

flyer and suspected her of trying to cash a fake check. MacCubbin’s description of

Jones's behavior corroborated Jones’s testimony about what had happened at that

bank. MacCubbin said that after she did not allow Jones to cash the check and

asked for additional identification, Jones took back her identification, left the bank,

and got into a gray SUV. MacCubbin’s observations showed that Jones followed

Williams’s instructions to his accomplices regarding how to act when confronted by

a skeptical bank teller. Calling MacCubbin as a witness thus entailed a substantial

risk, and there is no possibility her testimony would have resulted in a more

favorable verdict. Williams has not shown that trial counsel’s strategic decision

prejudiced the defense.

Because the state court correctly applied Stricklana’s principles in rejecting

the ineffective assistance claim asserted in Ground Three, Williams cannot satisfy

28 U.S.C. § 2254(d)(1). He is not entitled to habeas relief on Ground One.

d. Failure to Investigate Alibi Witnesses (Ground Ten)

In support of his fifth CPL § 440.10 motion, Williams asserted a claim that

trial counsel was ineffective for failing to investigate his alibi witnesses. See, e.g.,

Dkt. 58-2, 130-43. The state court apparently included this claim among those

“other claims [that] [were] denied” because Williams “was in a position to raise

those issues in his previous motions, and failed to do so, or raised them and they

were previously denied.” Jd., at 336.

This Court need not determine whether the state court “adjudicated on the

merits’ the ineffective assistance claim in Ground Ten because, even without

subjecting the claim to the AEDPA’s deferential standard, it is meritless.

When assessing attorney performance, “every effort [must] be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective

at the time.” Strickland, 466 U.S. at 689. Other than his self-serving and

unsubstantiated criticisms about trial counsel, there is no evidence in the record

suggesting that Williams ever informed trial counsel about Miller’s existence.

Under the Sixth Amendment, “an attorney has an obligation to provide competent

representation—not to be clairvoyant.” Adams v. United States, No. 06 CR. 218

JSR, 2013 WL 781698, at *10 (S.D.N.Y. Mar. 4, 2018), report and recommendation

adopted, No. 09 CIV. 9275 JSR, 2013 WL 12485838 (S.D.N.Y. Mar. 27, 2018); see also

Paulino v. United States, No. 95 CR. 116 (PKL), 1998 WL 214877, at *5 (S.D.N.Y.

Apr. 28, 1998) (“A defendant is entitled to a competent lawyer, not an omniscient

one.”). Trial counsel was not professionally unreasonable for failing to investigate

an alibi based on a witness he knew nothing about.

As for Shanda, trial counsel could not have possibly known that Williams

thought she could support Miller’s alibi testimony, especially given that trial

counsel knew nothing about Miller at the time of trial. Moreover, Williams himself

stated on the record that he did not want to call Shanda?° as a defense witness.

Dkt. 20-8, at 526.

Finally, Williams cannot show that he was prejudiced by trial counsel’s

failure to investigate a purported alibi defense. As discussed above, Miller and

Shanda’s affidavits are unreliable and unconvincing, and there is no possibility of a

more favorable verdict had trial counsel called Shanda and Miller to testify at trial.

The ineffective assistance claim in Ground Ten is meritless and does not provide a

basis for habeas relief.

Il. MISCELLANEOUS MOTIONS

A. Motion for an Evidentiary Hearing (Dkt. 45)

Williams requests an evidentiary hearing on the following claims that he

raised in connection with his fifth CPL § 440.10 motion and included in his

Amended Petition: (1) he is actually innocent based on newly discovered alibi

evidence; (2) the prosecutor unlawfully obtained his cell phone records and

compelled him to become a witness against himself in violation of the Fifth

Amendment; and (8) trial counsel was ineffective for failing to investigate alibi

witnesses and failing to object and develop the record regarding the Fifth

Amendment violation in connection with the subpoena for his cell phone records.

See Dkt. 45 at 1, 4-5.

20 Her name is spelled “Shonda” in the trial transcript. Dkt. 20-3, at 526-27.

“Section 2254(e)(2) provides that, if a prisoner ‘has failed to develop the

factual basis of a claim in State court proceedings,’ a federal court may hold ‘an

evidentiary hearing on the claim’ in only two limited scenarios.” Shinn v. Ramirez,

596 U.S. 366, 381 (2022). “Either the claim must rely on (1) a ‘new’ and ‘previously

unavailable’ ‘rule of constitutional law’ made retroactively applicable by th[e]

[Supreme] Court, or (2) ‘a factual predicate that could not have been previously

discovered through the exercise of due diligence.” Id. (quoting 28 U.S.C. §§

2254(e)(2)(A)Q), @1)). Satisfying either these exceptions is necessary but not

sufficient; the petitioner “also must show that further factfinding would

demonstrate, ‘by clear and convincing evidence,’ that ‘no reasonable factfinder’

would have convicted him of the crime charged.” Jd. (quoting 28 U.S.C. §

2254(e)(2)(B)).

In all but the “extraordinary cases” where the petitioner satisfies the

foregoing requirements, the AEDPA “bars evidentiary hearings in [§ 2254]...

proceedings.” Shinn, 596 U.S. at 371 (quoting MeQuiggin, 569 U.S. at 395). And

even if the petitioner satisfies this “stringent” standard for “expand{ing] the state-

court record,” id., “a federal habeas court still is not required to hold a hearing or

take any evidence.” Jd. at 381.

The claims as to which Williams seeks an evidentiary hearing do not rely on

a new and previously unavailable constitutional rule made retroactively applicable

by the Supreme Court. Even assuming, for the sake of argument, that the claims

rely on factual predicates that could not have been previously discovered through

the exercise of due diligence, Williams has not shown that an evidentiary hearing

would lead to the requisite further factfinding. According to his papers, he already

has mustered all of the “new evidence” supporting his claims and presented it to the

state courts in support of his fifth CPL § 440.10 motion.

The state courts were not persuaded by any of his arguments or his “new

evidence,” as reflected in the denial of the fifth CPL § 440.10 motion and the denial

of leave to appeal. This Court concurs with those conclusions, as discussed above.

In particular, Williams’s new claim of actual innocence does not come close to

satisfying the Schlup standard for gateway claims of actual innocence, much less

the more stringent standard required by a freestanding claim—-assuming such a

claim could provide a basis for release from custody in a habeas proceeding. The

“new evidence” on which Williams relies would not have changed the outcome of the

trial.

Furthermore, as discussed above, all of the claims in the amended petition

are not cognizable, meritless, or both. This is not an “extraordinary” case, and

Willams has not satisfied the Supreme Court’s strict perquisites for expanding the

record, see Shinn, 596 U.S. at 381-82. Therefore, Williams’s motion for an

evidentiary hearing is denied.

B. Motion to Appoint Counsel (Dkt. 47)

Williams recognizes that there is no constitutional right to appointed counsel

in habeas corpus proceedings, see, e.g., Green v. Abrams, 984 F.2d 41, 47 (2d Cir.

1998), but argues that an evidentiary hearing is warranted and, as a result, counsel

must be appointed to represent him. See Dkt. 47, at 4—6.

Rule 8(c) of the Rules Governing Section 2254 Cases in the United States

District Courts (“Rule 8(c)”) provides that, “[i]f an evidentiary hearing is required

{in a § 2254 case], the judge shall appoint counsel for a[n indigent] petitioner.”

Graham v. Portuondo, 506 F.3d 105, 107 (2d Cir. 2007) (per curiam) (alterations in

original) (emphasis supplied). As discussed above, Williams has not fulfilled the

stringent standard for obtaining an evidentiary hearing. Rule 8(c) therefore does

not require the Court to appoint counsel for him.

Apart from Rule 8(c), the Criminal Justice Act (“CJA”) authorizes federal

courts to appoint counsel to any person “seeking relief’ under 28 U.S.C. § 2254 who

is “financially unable to obtain adequate representation... [w]henever... the

interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). The “same standards”

set forth in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), for appointing

counsel under 28 U.S.C. § 1915(d) “apply in determining whether, in the interest of

justice, to appoint counsel for a petitioner in a habeas proceeding.” Cruz v. Smith,

No. 05 CIV.10703 LTS DF, 2007 WL 80865, at *2 (S.D.N.Y. Jan. 10, 2007)

(collecting cases).

Hodge instructs that, “[a]s a threshold matter... the district court must

consider the merits of the indigent’s claim.” 802 F.2d at 60. Even nonfrivolous

claims do not necessarily warrant appointment of counsel. See id. (“If mere bald

assertions by an indigent, which technically put a fact in issue and suffice to avert

summary judgment, required appointment of an attorney under [28 U.S.C.] §

1915(d), the demand for such representation could be overwhelming.”).

The Court has considered all of Williams’s claims and concludes that none of

them warrants habeas relief. Accordingly, the Court denies the motion to appoint

counsel.

C. Motion for Leave to File Excess Pages (Dkt. 54)

Williams filed a motion seeking leave to file an oversized reply brief in

connection with his motion for an evidentiary hearing. Dkt. 54, at 1. Williams

asserts he needs to file a seventy-three-page brief “[d]ue to the volume of the

amended state court record.” Id.

Because Williams is unrepresented, his submissions are accorded “great

flexibility.” Montes v. Scully, No. 90 Civ. 1078, 1993 WL 372266, at *38 (E.D.N.Y.

Sept. 1, 1993) (citing Haines v. Kerner, 404 U.S. 519, 520 (1971) (stating that courts

“hold [pro se pleadings] to less stringent standards than formal pleadings drafted by

lawyers pleading”)). The state court record in support of the fifth CPL § 440.10

motion is quite lengthy, as Williams indicates. Notably, Respondent has not

opposed the request for permission to file an oversized reply brief. Finally, rejecting

Williams’s oversized brief and requiring him to submit a more concise one would

only serve to delay the resolution of his underlying motion, while providing little or

no additional benefit.” Swerbilov v. United States, No. 04-CV-3320 DRH MLO, 2005

WL 1177988, at *1 (E.D.N.Y. May 18, 2005). For all of these reasons, Williams’s

motion for leave to file excess pages, Dkt. 54, is granted, and the Court accepts the

supplemental reply memorandum of law, Dkt. 55.

D. Motion to Strike Respondent’s Memorandum of Law (Dkt. 61)

Williams has moved to strike Respondent’s memorandum of law in opposition

to the amended petition, Dkt. 58, on the basis that Respondent did not comply with

the Court’s briefing schedule. Dkt. 61. The assigned Assistant Attorney General

(“AAG”) explained that, although she served the responsive papers to the amended

petition “on time, [she] forgot to electronically file [them] on the service date.” Dkt.

63, at 1. When she realized her oversight several weeks later, she electronically

filed the documents she previously had served by mail on Williams, along with a

declaration of service. Id. (referring to Dkt. 58 through Dkt. 58-38)).

As the AAG notes, Dkt. 63, at 1-2), Williams responded to Respondent’s

arguments in opposition to the amended petition by filing his supplemental reply

memorandum of law on February 9, 20238. Dkt. 55, at 74. This corroborates the

AAG’s declaration of service, Dkt. 58-3, stating that she served the memorandum of

law and supplemental state court records on Williams by mail on February 1, 2028,

id. at 1. In addition, a few days after he filed his supplemental reply, Williams filed

a pleading complaining about alleged “gaps” in the contents of the supplemental

state court records filed by Respondent. See Dkt. 56, at 1-2. This also belies his

claim that he did not receive Respondent’s answering papers in a timely fashion or

that Respondent failed to comply with the Court’s deadlines.

As Wilhams is not an electronic filer, he has not shown that he suffered any

prejudice as a result of Respondent's belated electronic filing of the answering

papers. There is no basis for the sanction he has requested, and the motion to

strike is denied.

E. Motion to Disqualify the Attorney General’s Office (Dkt. 64)

Williams also has moved, pursuant to Western District of New York Local

Rule of Civil Procedure (“L.R. Civ. P.”) 7(a)(1), to disqualify the New York Attorney

General’s Office (““AG’s Office”) and the assigned AAG from continuing to represent

Respondent in this proceeding. Dkt. 64. He broadly claims that the AG’s Office and

the AAG have unspecified conflicts of interest and have violated his city, state,

federal, and constitutional rights. Id., at 1.

The objective of “the disqualification rule is to ‘preserve the integrity of the

adversary process.” Evans v. Artek, 715 F.2d 788, 791 (2d Cir. 1983) (quoting Bd. of

Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). “Motions to disqualify

opposing counsel are viewed with disfavor in this Circuit because they are ‘often

interposed for tactical reasons’ and result in unnecessary delay.” Bennett

Silvershein Assocs. v. Furman, 776 F. Supp. 800, 802 (S.D.N.Y. 1991) (quoting

United States Football League v. National Football League, 605 F. Supp. 1448, 1452

(S.D.N.Y. 1985)). Due to the potential for abuse, the moving party “bear|[s] the

heavy burden of proving facts required for disqualification.” Hvans v. Artek Sys.

Corp., 715 F.2d 788, 794 (2d Cir. 1983) (emphasis supplied).

Wilhams’s disqualification motion is entirely devoid of facts suggesting that

the AG’s Office or the AAG have committed any acts or omissions that have

negatively affected “the integrity of the adversary process.” Hvans, 715 F.2d at 791.

Williams has not come close to carrying the “heavy burden” imposed on parties

seeking disqualification of opposing counsel. The disqualification motion lacks an

arguable basis in law or fact and is denied.

CONCLUSION

For the reasons above, the relief requested in the amended petition for a writ

of habeas corpus (Dkt. 39) is DENIED, and the amended petition is DISMISSED;

the motion for an evidentiary hearing (Dkt. 45) is DENIED; the motion for

appointment of counsel (Dkt. 47) is DENIED; the motion for leave to file excess

pages (Dkt. 54) is GRANTED; the motion to strike Respondent's memorandum of

law in opposition to the amended petition (Dkt. 61) is DENIED; and the motion to

disqualify and remove the New York Attorney General's Office as counsel for

Respondent (Dkt. 64) is DENIED. Pursuant to 28 U.S.C. § 2253(c)(1), the Court

DENIES a certificate of appealability because Williams has failed to make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(¢)(2).

The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: October 31, 2023 | f hr

Buffalo, New York / } . □

AGUN L. SINATRA, JR. ——

UNITED STATES DISTRICT JUBGE