Lopez v. McAuliffe

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

MICHAEL A. LOPEZ,

Petitioner,

v. 9:22-CV-0622

(GTS)

BRIAN McAULIFFE,

Respondent.

APPEARANCES: OF COUNSEL:

MICHAEL A. LOPEZ

Petitioner, pro se

19-B-1894

Hudson Correctional Facility

Box 576

Hudson, NY 12534

HON. LETITIA JAMES ROBERT C. McIVER, ESQ.

Attorney for Respondents Ass't Attorney General

Attorney General of New York

28 Liberty Street

New York, NY 10005

GLENN T. SUDDABY

UNITED STATES DISTRICT JUDGE

DECISION and ORDER

I. INTRODUCTION

Petitioner pro se Michael Lopez seeks federal habeas corpus relief pursuant to 28

U.S.C. § 2254. Dkt. No. 1, Petition (“Pet.”); Dkt. No. 1-1, Supporting Exhibits.

Respondent opposed the Petition. Dkt. No. 17, Answer; Dkt. No 17-1, Response

Memorandum (“Resp.”); Dkt. No. 17-2–17-5, Supporting Exhibits. Petitioner replied.

Dkt. No. 19, Traverse (“Trav.”).1 For the reasons below, the Petition is dismissed and

denied in its entirety.

II. RELEVANT BACKGROUND

A. Investigation and Arrest

Throughout the summer of 2018, the Jefferson County Drug Task Force (“Task

Force”) began to investigate petitioner for allegedly selling drugs. Dkt. No. 17-2 at 99.

In June 2018, through a series of two undercover buys, the Task Force observed

petitioner selling narcotics to a confidential informant. Id. at 13-14, 99, 110. The

confidential informant involved then identified petitioner in a photo array. Id. at 99.

Based on the Task Force’s evidence, a Jefferson County grand jury returned a four-

count indictment in September 2018, charging petitioner with two counts of Criminal

Sale of a Controlled Substance in the Third Degree and two counts of Criminal

Possession of a Controlled Substance in the Third Degree. Id. at 13-14. Police then

sought and received an arrest warrant for petitioner. Id. at 99.

Acting on the arrest warrant, the Task Force began conducting surveillance on

petitioner. Dkt. No. 17-2 at 99. On October 9, 2018, the Task Force observed a person

matching petitioner’s description leave petitioner’s known residence and board the

backseat of a vehicle idling in the driveway. Id. As the vehicle pulled away from the

residence, surveilling Task Force member, Detective Ronald Gatch, asked the

Watertown Police Department (“Watertown Police”) to follow and conduct a vehicle stop.

Id. at 113-14. Detective Gatch instructed Watertown Police to obtain independent

probable cause for the stop because he was not entirely certain the backseat passenger

1 For the sake of clarity, citations to parties’ submissions refer to the pagination generated by CM/ECF,

the Court’s electronic filing system.

was petitioner. Id. at 114. As requested, Watertown Police Officer Kenneth Noone

began to follow the vehicle. Id. at 111. Soon after, Officer Noone observed a cigarette

butt exit the driver’s side window in violation of New York State littering laws and

initiated a vehicle stop. Id.

As Officer Noone and his partner, Officer Adam Beshures, approached the

stopped vehicle, both observed petitioner “making furtive movements with his left hand

attempting to conceal something underneath an object in the back seat.” Dkt. No. 17-2

at 99. Officer Noone executed the warrant, arrested petitioner, and placed him in the

back of the patrol car. Dkt. No. 17-4 at 17. Following petitioner’s removal from the

vehicle, Officer Beshures “advised the driver, who was the owner of the vehicle, that

there was an item being concealed in the back seat[]” and asked the driver for consent

to take the item. Id. at 27. The driver granted consent and Officer Beshures removed a

plastic baggie containing crack cocaine. Id. at 25, 27; Dkt. No. 17-2 at 99. While Officer

Noone filled out paperwork evidencing the owner’s consent to search the car, petitioner

made an inculpatory statement. Dkt. No. 17-2 at 125.

Following petitioner’s arrest, a Jefferson County grand jury returned a second

indictment, charging petitioner with one count of Criminal Possession of a Controlled

Substance in the Third Degree, one count of Criminal Possession of a Controlled

Substance in the Fourth Degree, and one count of Criminally Using Drug Paraphernalia

in the Second Degree. Dkt. No. 17-2 at 16-17.

The prosecution moved for consolidation of the two indictments, and, in May

2019, the Jefferson County Court granted the consolidation motion. Dkt. No. 17-2 at

106-08.

B. Suppression Hearing

In December 2018, petitioner’s assigned counsel Eric Swartz filed an omnibus

motion in trial court requesting inter alia the suppression of: (1) all physical evidence

recovered from the vehicle and petitioner’s person following the police’s allegedly

unlawful stop of the vehicle; and (2) the confidential informant’s out-of-court

identification of petitioner in the photo array. Dkt. No. 17-2 at 40-48.

The next month, after the discovery of a conflict of interest, Eric Swartz

requested to be relived as assigned counsel. Dkt. No. 17-2 at 203. The trial court

granted Eric Swartz’s request and assigned John Hallett2 to represent petitioner moving

forward.3 Id. at 204-05. After his assignment, Hallett filed a demand for discovery,

requested Sandoval and Ventimiglia hearings, and continued to prepare for the

suppression hearing. See id. at 206-11.

Following the suppression hearing, the trial court rendered a written decision

denying petitioner’s motion. Dkt. No. 17-2 at 109-126. The trial court first ruled the

“stop of the vehicle was lawful based upon the warrant for the [petitioner] and the

observation of the driver littering.” Dkt. No. 17-2 at 116. The trial court then found the

subsequent search of the vehicle lawful as the arresting officers observed petitioner

attempting to hide a plastic bag in the vehicle, giving the officers the reasonable

suspicion needed to legally search the car. Id. at 118. The court notes that, even if the

officers did not have a reasonable suspicion, the officers received permission to search

2 Hereinafter, all references to “trial counsel” refer to John Hallett.

3 From 2003 to 2018, Hallett served as a judge for LeRay Town Court in Jefferson County. Throughout

2017, Hallett uttered several homophobic comments to a Jefferson County attorney while presiding over a

case. The following year, the New York State Commission on Judicial Conduct filed a formal complaint

against Hallett, and, in November 2018, Hallett agreed to resign as a judge and never seek or accept

another judicial commission. Hallett received no further discipline and returned to private practice in

January 2019. Dkt. No. 17-2 at 204.

the vehicle from the owner. Id. Thus, the trial court concluded that “any physical

property obtained [from the car] is admissible in a trial on the matter.” Id.

The trial court also found “nothing unduly suggestive about the photographic

array[]” shown to the confidential informant nor anything “suggestive about the

instructions[]” the police gave to the confidential informant concerning the photo array.

Dkt. No. 17-2 at 115. As such, the trial court held the out-of-court identification

admissible at trial. Id.

C. Plea Agreement

At a pre-trial conference in June 2019, the parties discussed a potential plea

agreement. Dkt. No. 17-4 at 45-54. The prosecution proposed a plea agreement under

which petitioner would plead guilty to one count of Criminal Sale of a Controlled

Substance in the Third Degree in satisfaction of the combined indictments. Id. The trial

court indicated that, if petitioner accepted the plea agreement, it would impose a 7-year

sentence with 3 years of post-release supervision. Id. at 45, 48-49. The trial court

informed petitioner that if he did not accept the proposed agreement “during the pre-trial

conference[,]” the court would not necessarily “consent” to a similarly favorable

“disposition” at a later date. Id. at 46-47. The trial court explained its philosophy by

stating that defendants who “step[] forward and admit[]” responsibility for their actions

prior to trial deserve more favorable sentences than defendants who “refuse to admit

their responsibility” and are found guilty. Id. The trial court then informed petitioner that,

if convicted on all charges, petitioner could face up to 30 years in prison. Id. at 46. At

this point, the trial court agreed to briefly adjourn the conference so that petitioner could

discuss the plea offer with counsel. Id. at 47.

After the recess, petitioner indicated his willingness to accept the plea

agreement. Dkt. No. 17-4 at 50. The trial court then proceeded to inform petitioner of

the rights forfeited by a guilty plea. Id. at 51-53. Petitioner stated he understood that,

by accepting the plea agreement, he forfeited his rights to remain silent, to a jury trial, to

a presumption of innocence, and to call and confront witnesses. Id. at 51. Petitioner

also confirmed that he had sufficient time to discuss the plea with his lawyer and swore

he had not consumed any drugs or alcohol in the last 24 hours that could affect his

understanding of the plea offer. Id. at 51-53. Petitioner then pled guilty, and based on

petitioner’s affirmations, the trial court accepted the guilty plea. Id. at 53.

Soon after pleading guilty, petitioner submitted a pro se motion alleging, among

other things, ineffective assistance of counsel, coercive behavior from trial counsel,

prosecutorial misconduct, and improper findings in the suppression hearing. Dkt. No.

17-4 at 57. Petitioner repeated the accusations under oath at his sentencing hearing

and the trial court interpreted the motion and petitioner’s in-court accusations as a

motion to withdraw his guilty plea. Id. at 64. After allowing the prosecution to respond

to petitioner’s accusations, the trial court denied petitioner’s motion to withdraw, finding

the plea voluntary, and, in accordance with the plea agreement, sentenced petitioner to

a 7-year term of imprisonment with 3 years of post-release supervision. Id. at 62-65.

D. Direct and Collateral Appeals

Petitioner timely appealed his conviction to the New York Appellate Division,

Fourth Department (“Fourth Department”). Dkt. No. 17-2 at 224-249. Petitioner argued

that: (1) his guilty plea was not entered knowingly, voluntarily, and intelligently due to

“undue coercion” by the trial court; (2) his guilty plea was the result of ineffective

assistance of counsel; and (3) the search and seizure of evidence from the vehicle stop

violated the Fourth Amendment. Id. at 225.

On December 23, 2020, the Fourth Department denied petitioner’s direct appeal.

Dkt. No. 17-2 at 329-30. Addressing petitioner’s first contention, the Fourth Department

held that petitioner did not raise the issue of trial court coercion in the trial court, and,

therefore, “failed to move to withdraw [his] plea . . . on that ground.”4 Id. at 329. Thus,

petitioner “failed to preserve [his trial court coercion claim] for our review[,]” and the

Fourth Department refused to review the issue “as a matter of discretion in the interest

of justice.” Id. The Fourth Department then denied petitioner’s ineffective assistance of

counsel claim on the grounds that petitioner’s allegations either did not survive

petitioner’s guilty plea or concerned “matters outside the record[.]” Id. The Fourth

Department also rejected petitioner’s final claim, stating that Watertown Police lawfully

stopped the vehicle after witnessing “the driver throw a cigarette butt out of the window

in violation of [New York] Vehicle and Traffic Law[s].” Id. at 330. Further, the Fourth

Department found that police received consent prior to searching the vehicle, and, thus,

the search did not amount to a constitutional violation. Id.

In May 2021, petitioner moved for reconsideration of his direct appeal, arguing

that inter alia he did in fact preserve the trial court coercion claim for Fourth Department

review by withdrawing his plea at sentencing. Dkt. No. 17-2 at 287-90. On October 1,

2021, the Fourth Department denied petitioner’s motion for reconsideration. Id. at 347.

4 In trial court, petitioner sought to withdraw his plea on numerous grounds, including that his trial counsel

coerced him into pleading guilty, but petitioner never asserted that the trial court coerced his plea. Dkt.

No. 17-4 at 59-62; supra Section II.C.

Petitioner then sought leave to appeal to the New York State Court of Appeals.

Dkt. No. 1-1 at 215-27. The Court of Appeals denied leave on March 21, 2022. Dkt.

No. 17-3 at 15.

While litigating his direct appeal, petitioner also filed a C.P.L. § 440.10 motion

and a Writ of Error Coram Nobis.

In his § 440.10 motion, petitioner asked the trial court to vacate his judgment on

Sixth Amendment grounds. Dkt. No. 17-3 at 97-120. In July 2020, the trial court denied

petitioner’s motion, stating that the issues were “sufficiently contained in the record . . .

such that appellate review by the Fourth Department might be possible[,] . . . and

therefore, the [collateral § 440.10] motion should be denied pursuant to C.P.L. §

440.10(2)(b).” Dkt. No. 17-3 at 154. The trial court alternatively denied the motion on

the merits, stating that, even if § 440.10(2)(b) did not foreclose the trial court’s review,

petitioner’s counsel did not “fall below the standard of objective reasonableness in these

matters.” Id.

In September 2020, petitioner sought leave from the Fourth Department to: (1)

appeal the trial court’s § 440.10 decision; and (2) consolidate the § 440.10 appeal with

petitioner’s direct appeal. Dkt. No. 1-1 at 72. In March 2021, the Fourth Department

denied petitioner’s dual requests for leave to appeal and to consolidate the direct and

collateral appeal. Dkt. No. 17-2 at 331.

In June 2021, petitioner filed his Writ of Error Coram Nobis in the Fourth

Department, arguing that his appellate counsel was constitutionally ineffective. Dkt. No.

17-3 at 167-187. The Fourth Department denied petitioner’s motion. Id. at 266.

Petitioner then sought leave to appeal to the Court of Appeals. Id. at 268-72. The Court

of Appeals denied leave on October 20, 2021. Id. at 274.

After exhausting his state remedies, petitioner filed the instant Petition on June

10, 2022. Pet. at 1.

III. PETITION

Petitioner challenges his 2019 judgment of conviction entered by guilty plea in

Jefferson County Court. Pet. at 1-16. Petitioner argues he is entitled to federal habeas

corpus relief because: (1) his guilty plea was not made voluntarily, knowingly, and

intelligently,5 id. at 5-7; (2) his trial counsel, John Hallett, was constitutionally ineffective,

id. at 7-8; and (3) his appellate counsel was constitutionally ineffective, id. at 8-10.

Petitioner seeks a reversal of his judgment of conviction. Id. at 15.

IV. DISCUSSION

A. Claim 1: Involuntary Guilty Plea

1. Trial Court Coercion

a. Procedural Default

A procedural default in federal habeas cases occurs “if the state court’s rejection

of a federal claim rests on a state law ground – such as the operation of a state

procedural rule – that is both independent of the federal question and adequate to

5 Petitioner does not specifically request this Court to review whether his guilty plea was intelligent and

voluntary. Instead, petitioner asks this Court to review the state court’s decisions de novo. Pet. at 5;

Trav. at 14-15. Under 28 U.S.C. § 2254(a), this Court may only “entertain an application for a writ of

habeas corpus . . . on the ground that [a petitioner] is in custody in violation of the Constitution or laws or

treaties of the United States.” § 2254(a); see also Thomas v. Larkin, No. 1:12–CV–2899, 2013 WL

5963133, at *13 (E.D.N.Y. Nov. 7, 2013) (“[F]ederal courts may not issue the writ of habeas corpus on the

basis of a perceived error of state law[.]”) (cleaned up). Accordingly, this Court cannot review the state

court’s decision de novo. Reading the pro se Petition liberally, this Court will instead address petitioner’s

constitutional claims that the state courts rejected.

support the judgment.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (internal

quotation marks omitted); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (holding

that “when a state court declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement[,]” federal habeas review is

barred by the independent and adequate state ground doctrine). Procedural default

precluding federal habeas review applies only “if the last state court rendering a

judgment in the case rests its judgment on the procedural default.” Harris v. Reed, 489

U.S. 255, 262 (1989); see also Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005).

“New York courts consistently hold that a claim not raised in a motion to

withdraw or motion to vacate the judgment made before the trial court is unpreserved

for appellate review.” Anaya v. Brown, No. 1:05-CV-8974, 2006 WL 2524079, at *7

(S.D.N.Y. Sept. 1, 2006) (citing People v. Oldham, 24 A.D.3d 1289, 1289 (4th Dep’t

2005) (“Defendant moved to withdraw his plea on a ground different from that raised on

appeal, and thus defendant’s present contention . . . is not preserved for our review.”);

People v. Dowell, 236 A.D.2d 242, 242 (1st Dep’t 1997) (holding that defendant’s claim

that his plea was entered involuntarily is unpreserved for appellate review because

defendant’s motion to withdraw the plea did not raise any of the issues raised on

appeal); People v. Covell, 276 A.D.2d 824, 825 (3d Dep’t 2000) (“[D]efendant did not

premise his motion [to withdraw] on the [issues raised on appeal,]” and, therefore, the

issues raised on appeal are unpreserved.)). When New York courts reject claims as

unpreserved, it qualifies as “an adequate and independent state law ground, which

generally precludes habeas review.” Rutigliano v. Lamanna, No. 9:19-CV-0745

(GLS/ML), 2022 WL 4348580, at *7 (N.D.N.Y. July 20, 2022).

Here, petitioner argues his guilty plea was not knowing and voluntary because

the trial court “coerced” the plea. Trav. at 10. The Fourth Department dismissed

petitioner’s contention, holding the trial court coercion claim unpreserved for appellate

review as petitioner “failed to raise that contention in County Court and he therefore

failed to move to withdraw the plea . . . on that ground. Thus, [petitioner] failed to

preserve that contention for [the Fourth Department’s] review[.]”6 Dkt. No. 17-2 at 329.

Such a holding constitutes an adequate and independent state law ground for dismissal,

and, thus, precludes this Court from habeas review. See Rutigliano, 2022 WL 4348580,

at *7 (“The Third Department's holding that Petitioner's argument was unpreserved,

constitutes an adequate and independent state law ground, which generally precludes

habeas review.”); Rojas v. Heath, No. 7:11-CV-4322, 2012 WL 5878679, at *7 (S.D.N.Y.

Oct. 18, 2012) (denying a petitioner's habeas petition where the state appellate court

“relied upon New York State's requirement that a challenge to the validity of a guilty plea

be preserved for appellate review by first seeking in the trial court to withdraw the plea[]

or by moving to vacate the judgment of conviction.”); Moore v. Lape, No. 1:08-CV-0474,

2010 WL 3522227, at *3 (W.D.N.Y. Sept. 8, 2010) (“Habeas courts in this Circuit have

held that the failure to move to withdraw a guilty plea before sentencing constitutes an

adequate and independent state ground barring habeas review.”).

Therefore, this Court finds petitioner’s trial court coercion claim is procedurally

barred and may only review the claim if petitioner can establish either cause for

noncompliance and resulting prejudice or actual innocence. Rutigliano, 2022 WL

4348580, at *7 (finding a “narrow exception to the preservation rule” where a petitioner

6 Petitioner also failed to raise the issue in his § 440.10 motion to vacate the judgment. See Dkt. No. 17-

3 at 133-55.

can “demonstrate[] cause for [] procedural default and actual prejudice”); Dunham v.

Travis, 313 F.3d 724, 730 (2d Cir. 2002) (finding an exception to the preservation rule

where a petitioner can demonstrate “a fundamental miscarriage of justice, i.e., that he is

actually innocent of the crime for which he has been convicted”).

Here, petitioner does not contend, nor does the record reflect, petitioner’s actual

innocence or any cause for petitioner’s noncompliance. Thus, this Court see no reason

to lift the procedural bar to the trial court coercion claim. As such, the Court dismisses

petitioner’s court coercion claim as procedurally barred under the independent and

adequate state ground doctrine.

b. Intelligent and Voluntary Plea

Even if not procedurally barred, the Court finds petitioner’s trial court coercion

claim meritless as the record indicates petitioner entered his plea intelligently and

voluntarily. A plea is intelligent if the “accused had the advice of counsel and

understood the consequences of his plea, even if only in a fairly rudimentary way[.]”

Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988). A plea is voluntary “if it is not the

product of actual or threatened physical harm, mental coercion overbearing the

defendant’s will, or the defendant’s sheer inability to weigh his options rationally.” Id.

Here, petitioner had the “advice of counsel” as evidenced by petitioner’s statements

during his plea allocution indicating petitioner spoke with trial counsel about the plea

and did not need more time with his attorney before pleading guilty. Dkt. No. 17-4 at 51.

Petitioner also swore that he understood the constitutional rights he was waiving by

pleading guilty, and in fact, asked intelligent questions about whether his right to appeal

was also waived, demonstrating a solid understanding of the consequences of his plea.

Id. at 51-52. Petitioner then admitted in open court that he did in fact sell cocaine in

Jefferson County in June 2018. Id. at 53. As such, the Court finds petitioner’s plea to

be intelligent.

Petitioner disputes that his plea was voluntary. Pet. at 5; Trav. at 10. Petitioner

claims that the trial court mentally coerced him into “taking a plea[.]” Dkt. No. 17-2 at

235-37. As evidence, petitioner points to the trial court’s colloquy, reproduced below,

explaining its sentencing philosophy and petitioner’s sentencing exposure:

Court: So[,] I want to tell you what my philosophy is as far as

sentencing is concerned. For those defendants who have

messed up and committed a crime and have stepped

forward and admitted that to the Court, my sentence is

accordingly [a shorter term]. If those defendants say they

have done nothing wrong and we go to trial – and admittedly,

if you have done nothing wrong, Mr. Lopez, you should not

plead guilty to anything.

But for those defendants who have done something wrong

and refuse to admit their responsibility, go through a trial, not

me, but 12 people tell me that that individual is guilty, that

individual does not deserve or get the same sentence as the

individual who took responsibility, stood up and admitted his

or her fault. Do you understand that?

Mr. Lopez: Yeah.

Court: All right. Now, do you understand you could face anywhere

from 6 to 15 [years] on one Indictment, and an additional 6 to

15 on the second Indictment?

Mr. Lopez: Yeah.

Dkt. No. 17-4 at 46-47. Petitioner argues the trial court, by threatening him with

the possibility of the “maximum possible sentence[,]” coerced petitioner’s guilty plea.

Dkt. No. 17-2 at 236-37.

The Court disagrees. First, petitioner is factually incorrect. Nowhere in the

transcript of the plea allocution does the trial court threaten to impose a maximum

sentence on petitioner if the plea agreement is not accepted. See Dkt. No. 17-4 at 40-

55. Instead, the trial court simply acknowledges that petitioner could receive the

maximum sentence if found guilty. Id. at 46-47.

Second, the trial court’s explanation that petitioner would likely receive a longer

sentence if convicted at trial cannot be considered coercive. The Second Circuit has

long allowed trial courts to explain that a plea deal would likely result in a shorter

sentence than a sentence following a jury conviction. See U.S. ex rel. McGrath v.

LaVallee, 348 F.2d 373, 375 (2d Cir. 1965) (trial court's statement that if 25–year–old

defendant were tried and convicted he might be imprisoned “for the rest of [his] life” and

that a plea of guilty might afford him “some opportunity of receiving a shorter sentence”

held not improperly coercive); Mauro v. Walker, 99 F.3d 402, 402 (2d Cir. 1995) (trial

court’s statement that the trial court “had previously imposed longer sentences on other

defendants” who had not pled guilty held not improperly coercive). Such a “mere

explanation of the alternatives” petitioner would face if he proceeded to trial “does not

support . . . petitioner’s allegations that . . . [the trial court coerced him] into pleading

guilty[.]” McGrath, 348 F.2d at 377.

Third, the mere fact the trial court offered petitioner a favorable sentence as an

inducement to plead guilty does not rise to the level of coercion. See U.S. v. Cruz, 156

F.3d 366, 374 (2d Cir. 1998) (“[T]he Supreme Court has rejected the claim that the . . .

offer of a lower sentence in exchange for a guilty plea impermissibly compels a

[petitioner] to incriminate himself or herself.”). As such, the Court does not find any

support for the contention that petitioner’s plea was coerced and, therefore, involuntary.

The Court concludes that petitioner’s trial court coercion claim is both

procedurally barred and meritless and is denied.

2. Trial Counsel Coercion

Petitioner revives the argument in his habeas petition. Trav. at 10; Dkt. No. 17-3

at 118. However, the claim is unexhausted. To exhaust a claim for federal habeas

purposes, a petitioner must present the issue “to the highest court of the pertinent

state[,]” thereby giving the state the “initial opportunity to review and correct

constitutional violations.” Copeland v. Walker, 258 F.Supp.2d 105, 141 (E.D.N.Y. 2003)

(internal quotation marks omitted); see also 28 U.S.C. § 2254(b-c). At his sentencing

hearing, petitioner argued that trial counsel coerced an involuntary guilty plea. Dkt. No.

17-4 at 62. After raising the trial counsel coercion issue at his sentencing, petitioner did

not raise the claim in his direct appeal, §440.10 motion, or his Coram Nobis petition. As

petitioner did not give the state courts an opportunity to remedy the alleged

constitutional violation, the claim is unexhausted for this Court’s review. Nevertheless,

as the claim is plainly meritless, the Court exercises its power under 28 U.S.C. §

2254(b)(2) to deny the claim on the merits.

Petitioner alleges trial counsel repeatedly pressured petitioner to plead guilty,

scolding him to “stop being a pussy and take the plea. It’s the best [I can] get for you.”

Dkt. No. 17-3 at 24. Petitioner contends such language amounted to “mental coercion

overbearing [petitioner]’s will[]” and bullied him into an involuntary guilty plea. Id. at 118;

Miller, 848 F.2d at 1320. The Court disagrees. The Court does not condone trial

counsel’s language but recognizes that behind the harsh words was a “blunt rendering

of an honest but negative assessment of [petitioner]’s chances at trial[.]” U.S. v. Juncal,

245 F.3d 166, 172 (2d Cir. 2001). Such candid instruction, especially when “combined

with advice to enter [a guilty] plea,” does not “constitute improper behavior or coercion

that would suffice to invalidate a plea.” Id.

Accordingly, the Court finds petitioner’s counsel coercion claim meritless, and

petitioner’s Claim 1 is dismissed.

B. Claim 2: Ineffective Assistance of Trial Counsel

Petitioner argues that trial counsel was ineffective because: (1) counsel failed to

adequately defend petitioner at the suppression hearing; (2) counsel had an actual

conflict with the Jefferson County Court regarding of trial counsel’s recent resignation

from the LeRay Town Court; and (3) counsel had an actual conflict with petitioner

regarding petitioner’s motion to withdraw his guilty plea. Trav. at 7-12. The Court

denies all three claims for the reasons below.

1. Standard of Review

Prior to reviewing petitioner’s ineffective assistance claims, the Court must note

the heightened standard of review under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). AEDPA requires a federal court sitting in habeas review to defer

to a state court’s adjudication of federal law claims made on the merits unless the

“decision [] was contrary to, or involved an unreasonable application of, clearly

established federal law[] . . . or . . . was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d). Thus, a federal court may not grant relief “simply because that court

concludes in its independent judgment that the relevant state-court decision applied . . .

federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362, 411 (2000).

Rather, a federal court may only grant relief if it finds the state court's application of

federal law or fact “objectively unreasonable.” Id. at 409.

Here, unless otherwise noted, petitioner’s claims were decided on the merits by

state courts. See Dkt. No. 17-3 at 143-155. Therefore, for this Court to find for

petitioner on Claim 2, the Court must hold the state court’s application of fact or federal

law was objectively unreasonable. Williams, 529 U.S. at 409.

2. Suppression Hearing

a. Procedural Bar

Under Tollett v. Henderson, a petitioner who has pled guilty may not pursue

federal habeas relief for ineffective assistance of counsel claims. 411 U.S. 258, 267

(1973) (“[A] guilty plea represents a break in the chain of events . . . . When a criminal

defendant has [pled guilty] . . . he may not thereafter raise independent claims relating

to the deprivation of constitutional rights that occurred prior to the entry of the guilty

plea.”).

Only ineffective assistance claims that bear on the voluntariness of a guilty plea

can bypass the Tollett bar. Gomez v. Miller, No. 9:19-CV-1571 (TJM), 2021 WL

5446979, at *12 (N.D.N.Y. Nov. 22, 2021). Such a voluntariness argument “is limited to

[solely] attacking the voluntary and intelligent character of the guilty plea by showing

that the advice [petitioner] received from counsel was not within acceptable standards.”

Id. (cleaned up). “Consequently, an unconditional guilty plea waives all claims of

ineffective assistance of counsel relating to events prior to the guilty plea that did not

affect the voluntariness of the plea.” Canal v. Donelli, No. 9:06-CV-1490 (TJM/DRH),

2008 WL 4287385, at *3 (N.D.N.Y. Sept. 17, 2008); Beckary v. Chappius, No. 1:11-CV-

0850, 2012 WL 3045691, at *10 (W.D.N.Y. July 25, 2012) (“[C]laims[ that] involve

counsel’s pre-plea actions and do not affect the voluntariness of the plea itself[ are]

waived by [p]etitioner’s voluntary, knowing[,] and intelligent guilty plea[.]”).

Here, petitioner claims that trial counsel was ineffective at the suppression

hearing. Trav. at 8-9. The argument does not touch on the voluntariness of petitioner’s

plea. See Spencer v. Rockwood, No. 9:22-CV-0239 (GTS), 2024 WL 3398390, at *12

(N.D.N.Y. July 12, 2024) (holding that “trial attorney’s alleged failure to pursue Brady

material and investigate potential defenses has nothing to do with the voluntariness of

[p]etitioner’s plea.”). Therefore, Tollett bars petitioner’s ineffectiveness claim.

b. Constitutionally Sufficient Representation

Even if Tollett did not bar petitioner’s ineffectiveness claim, the Court finds the

claim meritless as the record indicates trial counsel provided constitutionally sufficient

counsel at the suppression hearing. To succeed on a claim of ineffective assistance of

counsel, a petitioner must show that: “(1) counsel’s performance was objectively

deficient, and (2) petitioner was actually prejudiced as a result.” Harrington v. U.S., 689

F.3d 124, 129 (2d Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688, 694

(1984)).

To satisfy the first Strickland prong, a petitioner must establish that “counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [to]

the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Such errors

include omissions that cannot be explained convincingly as resulting from a sound trial

strategy, but instead arose from oversight, carelessness, ineptitude, or laziness.”

Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (cleaned up). When reviewing an

ineffective assistance claim, courts must be “highly deferential” and approach the

analysis with a “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance[.]” Strickland, 466 U.S. at 689.

The second Strickland prong requires a petitioner to “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. Courts must look

to the “cumulative weight of error” to determine whether any potential prejudice

“reache[s] the constitutional threshold.” Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir.

2001). Petitioner must meet both “the performance prong [and] the prejudice prong[]” to

demonstrate a Sixth Amendment violation. Bennett v. U.S., 663 F.3d 71, 85 (2d Cir.

2011).

Here, to satisfy Strickland’s first prong, petitioner claims that trial counsel did not

adequately question Watertown Police at the suppression hearing about: (1) the photo

array; and (2) the justification to search the motor vehicle.7 Trav. at 8-9.

Petitioner correctly notes that the confidential informant identified two persons in

the photo array. See Dkt. No. 17-4 at 10. Petitioner expounds, arguing that, by

identifying two persons, the confidential informant did not clearly identify petitioner as

the person who sold the informant drugs. Trav. at 8-9. Petitioner alleges that trial

counsel did not adequately assert this point at the suppression hearing. Trav. at 8-9.

The Jefferson County Court rejected this exact argument when deciding petitioner’s

7 Petitioner also accuses trial counsel of not filing a second Motion to Compel Discovery in May 2019

when petitioner explicitly asked trial counsel to do so. Trav. at 10. However, petitioner provides no

context to support why trial counsel’s decision to not file such a motion amounted to ineffective assistance

of counsel. Without more, the Court concludes petitioner simply disagreed with trial counsel’s defense

strategy to not file a second discovery motion, and a mere disagreement in strategy does not constitute

ineffective assistance of counsel. See Wilson v. Mazzuca, 570 F.3d at 502.

collateral appeal, finding that Watertown Police Officer Shane Ryan’s testimony, “taken

together with the [photo array] . . ., makes clear that the confidential informant identified

[petitioner] as the person who sold the drugs to the informant.” Dkt. No. 17-3 at 152.

The Court does not find the state court’s ruling objectively unreasonable. Trial counsel

extracted testimony from Officer Ryan establishing that the confidential informant

identified two persons in the photo array. Dkt. No. 17-4 at 10-11. Officer Ryan then

explained the discrepancy, stating that the confidential informant recognized two people

in the array but only identified petitioner as the person who sold them drugs. Id. at 11.

Therefore, given the dubious value of continuing this line of questioning, trial counsel’s

decision to abandon the issue qualifies as a sound strategic choice and cannot be found

to violate the Sixth Amendment.

Petitioner also argues Officer Shane Ryan unduly influenced the confidential

informant while presenting the photo array and trial counsel failed to adequately argue

this point at the suppression hearing. Trav. at 8. However, any argument that the photo

array was unduly suggestive would have been in vain. Officer Ryan testified at the

suppression hearing that he read “verbatim” the form instructions and questions

included with the photo array and provided no other guidance to the confidential

informant. Dkt. No. 17-4 at 8. The form included generic instructions to “[p]ay no

attention to any markings that may appear on the photos, or any other difference in the

type or style of the photographs[,]” and to ignore features, like facial hair, that can be

changed easily. Dkt. No. 1-1 at 136. New York courts have consistently found similar

language to not be unduly suggestive. See People v. Wells, 141 A.D.3d 1013, 1017 (3d

Dep’t 2016); People v. Jackson, 176 A.D.3d 1312, 1313 (3d Dep’t 2019); People v.

Hawkins, 167 A.D.3d 1071, 1072-73 (3d Dep’t 2018). Therefore, trial counsel’s decision

to not raise the suggestiveness issue at the suppression hearing was likely a strategic

choice to focus on issues with a higher probability of success. Such a decision can be

explained convincingly as a result of sound trial strategy and, therefore, “falls within the

wide range of reasonable professional assistance” found to be sufficient under

Strickland. Strickland, 466 U.S. at 689.

Petitioner next contends that trial counsel failed to adequately cross-examine the

officers who arrested petitioner regarding their justification to search the vehicle. Trav.

at 9-10. The Jefferson County Court rejected a similar argument when deciding

petitioner’s collateral appeal. See Dkt. No. 17-3 at 152. The Court does not find the

Jefferson County Court acted unreasonably. The record indicates that trial counsel

extensively questioned Officer Noone about the justification and consent form used for

the vehicle search. See Dkt. No. 17-4 at 18-21. Any further questions about the

justification for searching the vehicle would have had limited utility as police received

verbal consent from the vehicle owner prior to initiating the search. Id. at 27.

Accordingly, any concerns about justification became moot once police received

consent to search the back seat. Thus, trial counsel’s decision to limit his questions

regarding the search was a sound strategic decision. As such, and considering the

heightened AEDPA standard, the Court cannot find trial counsel perform deficiently at

the suppression hearing.

3. Conflict of Interest

Petitioner next argues that trial counsel’s resignation from the LeRay Town Court

created an actual conflict of interest between trial counsel and Jefferson County Court in

violation of the Sixth Amendment’s guarantee of conflict-free counsel.8 Trav. at 7-8.

An attorney “has an actual . . . conflict of interest when, during the course of the

representation, the attorney’s and defendant’s interests diverge with respect to a

material factual or legal issue or to a course of action.” Winkler v. Keane, 7 F.3d 304,

307 (2d Cir. 1993) (internal quotation marks omitted). To succeed on an actual conflict

claim, a defendant must also show that the conflict “adversely affected [the] counsel’s

performance.” U.S. v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002).

Petitioner contends that trial counsel’s resignation as a justice of the LeRay Town

Court created an “[actual] conflict of interest with the [trial] court[ ].” Pet. at 7; Trav. at 8.

Specifically, petitioner alleges, because of his resignation, trial counsel feared upsetting

the judge and attracting further disgrace and, therefore, did not pursue certain

arguments aggressively in trial court. Pet. at 7; Trav. at 8. After reviewing similar claims

in petitioner’s state § 440.10 motion, the Jefferson County Court found petitioner’s

claims to be meritless. See Dkt. No. 17-3 at 153 (rejecting petitioner’s argument that

trial counsel’s prior resignation from LeRay Town Court created a Sixth Amendment

violation because “Attorney Hallett did not even begin representing [petitioner] until

several weeks after his resignation. At the time of [petitioner’s] guilty plea, it had been

nearly six months since the resignation was effective.”). As such, this Court cannot find

an actual conflict between petitioner and trial counsel unless this Court believes the

8 As discussed in Section II.B, trial counsel resigned from LeRay Town Court for making homophobic

remarks to an attorney.

state court’s decision was objectively unreasonable. Williams, 529 U.S. at 409. The

Court refuses to do so.

Here, petitioner fails to adequately explain how trial counsel’s 2018 controversy with

an unrelated third party in LeRay Town Court, where counsel acted in a judicial capacity,

later caused trial counsel’s allegedly timid behavior in 2019 when arguing as an

advocate in Jefferson County Court. In fact, the Second Circuit has rejected the

presumption that the mere existence of disciplinary proceedings against an attorney

might dampen an attorney’s zealousness in their representation of a defendant. See

Lopez v. U.S., 792 F. App’x 32, 37 (2d Cir. 2019) (finding that disciplinary proceedings

running parallel to the defense attorney’s representation of the defendant “did not

hamper [defense counsel’s] representation of [the defendant]”); Waterhouse v.

Rodriguez, 848 F.2d 375, 383 (2d Cir. 1988) (finding that disciplinary proceedings

running parallel to the defense attorney’s representation of the defendant did not create

a conflict, and, in fact, “provided an incentive for the vigorous efforts [defense counsel]

appears to have expended.”); see also Gilliam v. Artus, 653 F. Supp. 2d 315, 330

(W.D.N.Y. 2009) (unrelated civil wrongdoing did not impact the defendant’s case);

Hernandez v. Phillips, No. 1:02-CV-9098, 2007 WL 2107472, at *24 (S.D.N.Y. July 20,

2007) (rejecting claim that ongoing disciplinary proceeding “preoccupied” counsel and

made counsel afraid of “ruffling the court’s feathers.”).

Therefore, without evidence directly tying trial counsel’s allegedly timid behavior

to trial counsel’s prior judicial resignation, the Court refuses to find the Jefferson County

Court acted objectively unreasonable or find an actual conflict.

4. Guilty Plea9

Petitioner filed a motion to withdraw his guilty plea based on inter alia trial counsel’s

ineffective assistance of counsel during the suppression hearing and plea allocution.

Dkt. No. 17-4 at 59-62. Petitioner argues that, because of the accusations of

wrongdoing against trial counsel in the motion to withdraw, trial counsel could not have

provided petitioner with sufficient representation regarding the motion to withdraw. Trav.

at 10.

In Hines v. Miller, the Second Circuit noted that a court may approach such claims

in two ways: either (1) “as a claim that petitioner was denied his right to counsel

because he was effectively unrepresented on his motion to withdraw his plea,” or (2) “as

a claim that petitioner was denied the effective assistance of counsel because an actual

conflict of interest adversely affected counsel’s performance.” 318 F.3d 157, 163 (2d

Cir. 2003). The Hines court found that the Second Circuit generally applied the conflict

of interest analysis test, see, e.g., U.S. v. Davis, 239 F.3d 283, 285–88 (2d Cir. 2001);

Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995); Fluitt v. Superintendent, Green Haven

Corr. Facility, 480 F. Supp. 81, 86 (S.D.N.Y. 1979), and has “decided [such] case[s] on

the basis of whether the underlying [withdrawal] motion ha[s] sufficient merit to create

an actual conflict of interest[.]” Hines, 318 F.3d at 163. The Court will use the Second

Circuit’s preferred conflict analysis test, and, as such, will weigh whether petitioner’s

motion to withdraw possessed sufficient merit to create a conflict.

9 Petitioner raised a similar claim in his direct appeal, but the Fourth Department ruled against petitioner

on procedural grounds. See Dkt. No. 17-2 at 329. Therefore, AEDPA deference does not apply to this

claim.

Here, petitioner’s motion to withdraw included allegations of ineffective assistance of

counsel, coercion, withholding Brady and Rosario materials, prosecutorial misconduct,

tampering with evidence, and allowing perjured testimony at grand jury. Trav. at 10; Dkt.

No. 17-4 at 59-62. Petitioner’s claims are either meritless,10 factually contradicted by

the record,11 or conclusory allegations with no support.12 Accordingly, the Court finds

that the motion to withdraw lacks “sufficient merit to create an actual conflict of

interest[,]” Hines, 318 F.3d at 163, and, thus, the Court concludes no actual conflict

existed between petitioner and trial counsel.

Petitioner has failed to demonstrate that trial counsel acted deficiently, and,

therefore, petitioner’s Claim 2 is denied.

C. Claim 3: Ineffective Assistance of Appellate Counsel

In his third claim, petitioner argues that appellate counsel proved ineffective

because appellate counsel failed to: (1) adequately argue that his judicial coercion claim

was preserved, Pet. at 8; Dkt. No. 17-3 at 174; (2) consolidate petitioner’s direct appeal

with his §440.10 appeal, Pet. at 8; Dkt. No. 17-3 at 175-76; (3) adequately challenge the

trial court’s findings at the suppression hearing, Pet. at 8; Dkt. No. 17-3 at 176, 183-85;

and (4) adequately communicate with petitioner both before and after filing petitioner’s

appeal, Pet. at 8; Dkt. No. 17-3 at 177.

10 First, as discussed in Section IV.A.2, the Court found petitioner’s claim that trial counsel coerced him

into pleading guilty meritless. Second, as discussed in Section IV.B.2.b, the Court found petitioner’s

ineffective assistance of trial counsel claims meritless.

11 Petitioner’s claim that the prosecution withheld Brady and Rosario materials is contradicted by the

record. See Dkt. No. 17-4 at 62-63 prosecution stating, and trial counsel silently acquiescing, that it

turned over all Brady and Rosario materials prior to the guilty plea.

12 Petitioner final claims – prosecutorial misconduct, evidence tampering, and perjured testimony – are all

conclusory allegations offered without any evidence of wrongdoing. See Dkt. No. 17-4 at 60.

The Sixth Amendment guarantees the right to effective representation on direct

appeal. Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015). In assessing an ineffective

assistance of appellate counsel claim, “Strickland’s two-prong test applies[.]” Aparicio v.

Artuz, 269 F.3d 78, 95 (2d Cir. 2001). To satisfy Strickland on appeal, a petitioner must

first show “that his attorney’s performance fell below an objective standard of

reasonableness, and, second, that there was prejudice[.]” Lynch, 789 F.3d at 311

(internal quotation marks and citations omitted); see also Mayo v. Henderson, 13 F.3d

528, 533 (2d Cir. 1994) (to satisfy Strickland’s first prong, “a petitioner . . . [must] show[]

that [appellate] counsel omitted significant and obvious issues while pursuing issues

that were clearly and significantly weaker.”); Claudio v. Scully, 982 F.2d 798, 805 (2d Cir.

1992) (finding that there must be a “reasonable probability that, but for [appellate]

counsel’s inadequate representation, the result of the proceeding would have been

different.”) (internal quotation marks omitted).

Before turning to petitioner’s arguments, the Court notes that the Fourth Department

already denied identical claims on the merits. See Dkt. No. 17-3 at 266. Therefore, for

this Court to rule for petitioner on Claim 3, the Court must find the state court’s

application of fact or federal law was objectively unreasonable. Williams, 529 U.S. at

409. For the reasons below, the Court refuses to do so.

1. Preservation of Judicial Coercion Claim

To establish Strickland’s first prong, petitioner alleges that appellate counsel failed

to adequately argue petitioner’s judicial coercion claim was preserved. Dkt. No. 17-3 at

174. However, petitioner did not advance the judicial coercion claim in his motion to

withdraw his plea in trial court, clearly making the issue unpreserved for appellate

review. See Carpenter v. Unger, No. 9:12-CV-0957 (GTS/TWD), 2014 WL 4105398, at

*38 (N.D.N.Y. Aug. 20, 2014); supra Section IV.A.1. Considering the futility of arguing

otherwise, this Court concludes that appellate counsel did not “omit[ a] significant and

obvious issue[]” when appellate counsel declined to vigorously pursue the preservation

issue. See Mayo, 13 F.3d at 533. As such, petitioner fails to demonstrate a Sixth

Amendment violation.

2. Consolidation of Appeals

Petitioner next argues that appellate counsel’s failure to move the Fourth

Department to consolidate petitioner’s direct appeal and his collateral § 440.10 appeal

was objectively unreasonable and satisfies Strickland’s first prong. Dkt. No. 17-3 at

175-76. Contrary to petitioner’s contention, appellate counsel did in fact move to

consolidate petitioner’s direct and collateral appeal. See Dkt. No. 17-3 at 90. As

appellate counsel did move the Fourth Department to consolidate petitioner’s appeals,

the Court refuses to find appellate counsel deficient based on petitioner’s inaccurate

claims.

To the extent petitioner argues that the denial of the motion to consolidate

demonstrates appellate counsel’s ineffectiveness, this argument also fails. Dkt. No. 17-

3 at 175-76. An adverse ruling is not enough to prove ineffective assistance of counsel;

instead, petitioner must demonstrate counsel’s “performance fell below an objective

standard of reasonableness.” Lynch, 789 F.3d at 311 (internal quotation marks omitted).

Here, petitioner provides no evidence, nor does anything in the record reflect, that the

quality of the motion to consolidate submitted by appellate counsel fell below an

objective standard of reasonableness. Therefore, the Court refuses to find appellate

counsel’s performance deficient.

3. Suppression Hearing

Petitioner also contends that appellate counsel omitted significant and obvious

issues during the suppression hearing in favor of weaker arguments. Dkt. No. 17-3 at

176, 183-85. Specifically, petitioner claims that challenging the photo array

identification and credibility of the police officers at the suppression hearing were

obviously stronger issues then the issues appellate counsel raised on appeal.

Petitioner previously accused trial counsel of ignoring the photo array

identification argument in favor of allegedly weaker arguments. Supra IV.B.1. In that

context, this Court found that trial counsel was not ineffective for only briefly addressing

the photo array identification issue as the argument had little chance to succeed. Id.

We have no reason to find differently here. The photo array identification issue had little

chance at success on appeal, and appellate counsel, therefore, appropriately chose to

focus on other issues. See Mayo, 13 F.3d 528, 533 (“[C]ounsel does not have a duty to

advance every nonfrivolous argument that could be made.”)

Petitioner next argues that appellate counsel failed to adequately attack the

credibility of the police officers testifying at the suppression hearing. Dkt. No. 17-3 at

176. Petitioner, however, provides no evidence implicating the credibility of the officers

or the officers’ testimony. Without providing more detail on the credibility issue,

petitioner’s allegation is “simply too conclusory to state a cognizable claim under

Strickland.” Fernandes v. U.S., 583 F. Supp. 3d 403, 411 (W.D.N.Y. 2022); see also

U.S. v. Holmes, 942 F. Supp. 2d 412, 418-19 (S.D.N.Y. 2013) (“[A] claim of ineffective

assistance of counsel cannot be supported by conclusory allegations[ ]alone.”) As such,

the Court finds appellate counsel did not violate the Sixth Amendment by declining to

vigorously pursue the photo array or credibility issues.

4. Failure to Communicate

Petitioner correctly notes that appellate counsel failed to promptly notify petitioner

when the Fourth Department denied his direct appeal. Pet. 8; Dkt. No. 17-3 at 177.

Petitioner contends that the near 3-month delay caused petitioner to “forfeit[ his]

opportunity to be heard [on the merits] in the [Court of Appeals]” and amounts to

ineffective counsel. Dkt. No. 17-3 at 177. Assuming arguendo that appellate counsel’s

tardiness satisfies Strickland’s first prong, petitioner suffered no prejudice from appellate

counsel’s mistake. After realizing his mistake, appellate counsel notified petitioner and

filed a Motion for Extension of Time in Which to Seek Leave to Appeal which the Court

of Appeals accepted. Id. at 2, 231-236. The Court of Appeal then heard and denied

petitioner’s appeal on the merits. Id. at 15. As such, petitioner cannot demonstrate

prejudice from appellate counsel’s mistake, and, thus, fails to show a Sixth Amendment

violation.

Petitioner next attempts to satisfy Strickland by arguing that, prior to the

submission of the appellate brief to the Fourth Department, appellate counsel failed to

communicate with him. Dkt. No. 17-3 at 177. However, an “appellate attorney’s failure

to communicate with his or her client, by itself, does not constitute per se ineffective

assistance of counsel.” Campbell v. Greene, 440 F. Supp. 2d 125, 152 (N.D.N.Y. 2006)

(internal quotation marks omitted); McIntyre v. Duncan, No. 2:03–CV–0523, 2005 WL

3018698, at *3 (E.D.N.Y. Nov. 8, 2005) (“Although it may be desirable and productive,

the Constitutional right to effective assistance of counsel does not encompass the

requirement that an attorney consult with his client to discuss the alleged trial errors that

his client wishes to pursue.”). Without more, appellate counsel's alleged failure to

communicate with petitioner prior to filing the appellate brief does not establish

ineffective assistance of counsel.

Petitioner has failed to demonstrate that appellate counsel acted deficiently, and,

therefore, petitioner’s Claim 3 is denied.

V. CONCLUSION

WHEREFORE, it is

ORDERED that the Petition, Dkt. No. 1, is DENIED AND DISMISSED in its entirety;

ORDERED that the Court declines to issue a Certificate of Appealability. 28 U.S.C.

§ 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate of

appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.””)

(quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003))). Any further request for a

Certificate of Appealability must be addressed to the Court of Appeals. See FED. R. APP.

P. 22(d); 2d Cir. R. 22.1.

ORDERED that the Clerk serve a copy of this Decision and Order on the parties in

accordance with the Local Rules.

IT IS SO ORDERED.

Dated: December 30, 2024 g y Z is

Glenn T. Suddaby

U.S. District Judge

30