# Brevard v. McCarthy

> District Court, E.D. New York · March 18, 2025

URL: https://www.frixlaw.com/law-library/cases/10826105

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10826105

## How later opinions describe it (automated extraction)

- finding that N.Y. Crim. Proc. Law § 440.10(3}(c) "constitutes an adequate state procedural bar to federal habeas review"
- finding eyewitness testimony may be sufficient to support a jury's conclusion that the defendant possessed a firearm

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ewww eee ew ewe HX
BRENT BREVARD,
Petitioner, MEMORANDUM DECISION

-V- 21-cv-4549 (DC) (LB)
SUPERINTENDENT MCCARTHY,
Respondent.
ee ee ee ee eee ee ee ee ee eee ee ee eee HK
APPEARANCES: BRENT BREVARD
Petitioner Pro Se □
DIN 16-A-3795
Cayuga Correctional Facility
P.O. Box 1186
Moravia, NY 13118
LETITIA JAMES, Esq.
Attorney General, State of New York
By: Margaret A. Cieprisz, Esq.
Assistant Attorney General
28 Liberty Street
New York, NY 10005
Attorney for Respondent
CHIN, Circuit Judge: — □

On July 14, 2016, following a jury trial, petitioner Brent Brevard was
convicted in the Supreme Court of New York, Queens County (Griffin, J.), of two counts
of first-degree robbery pursuant to N.Y. Penal Law § 160.15[4]. Dkt. 25-22 at 228-30. On

July 28, 2016, the court sentenced Brevard to a total of fifteen years' imprisonment,
followed by five years’ post-release supervision. Dkt. 25-23 at 16-17. The court also
sentenced Brevard to a concurrent sentence of an indeterminate period of incarceration
with a minimum of seven-and-a-half years and a maximum of fifteen years for a guilty □
plea regarding an unrelated forgery charge. Id. at 17. Brevard waived his right to
appeal the forgery convictions but appealed the robbery conviction. Dkt. 25-23 at 6-8;
Dkt. 25-4; Dkt. 25-5. □
The Appellate Division, Second Department, unanimously affirmed
Brevard's robbery convictions, Dkt. 25-8; People v. Brevard, 106 N.Y.5.3d 623 (2d Dep't
2019) ("Brevard I"), and the New York Court of Appeals denied his application forleave

to appeal, Dkt. 25-10; People v. Brevard, 34 N.Y.3d 1015 (2019) ("Brevard I"). Brevard
filed three motions to vacate his robbery convictions pursuant to N.Y. Crim. Proc. Law

§ 440.10, all of which were denied. See Dkt. 25-13; Dkt. 25-16; Dkt. 25-19.
On September 10, 2021, Brevard filed, pro se, a petition for a writ of habeas

corpus in this Court pursuant to 28 U.S.C. § 2254. Dkt. 1. On September 26, 2022,
Brevard filed an amended petition for a writ of habeas corpus (hereinafter the
"Petition"). Dkt. 21. Respondent Letitia James filed her opposition to the Petition on

January 5, 2023. Dkt. 24. On September 13, 2024, the case was reassigned to the
undersigned.
For the reasons that follow, the Petition is DENIED.

STATEMENT OF THE CASE
I. The Facts?
The evidence at trial established the following:
On August 31, 2015, at around 11:00 p.m., Anmed Mohammed responded |
to an ad on the advertising website, "Backpage." Dkt. 25-6 at 5. The ad displayed a
photo of a woman named "Jessica" who claimed to be interested in engaging in sexual □
intercourse. Mohammed called the number from his cell phone and received no .

response. Shortly after, he received a text message instructing him to communicate via

text instead of telephone. Mohammed believed that he was communicating with Jessica
and understood that he had arranged to have sexual intercourse with her for $100.
Mohammed was instructed to go to Apartment 7B at 65-20 Parsons Boulevard in
Queens County to meet Jessica.
Approximately thirty minutes later, Mohammed arrived at the building.
When Mohammed exited the elevator, Brevard attacked him from the back and pointed □

a black, double-barrel shotgun at him. Id. at 6. Brevard then told Mohammed to "[s]hut
the fuck up,” forced him into the stairwell, and ordered him to empty his pockets. Id.

1 The facts are primarily drawn from the Respondent's brief and supplemental brief and
accompanying materials submitted in opposition to Brevard's direct appeal in the Appellate Division in
2016, See Dkt. 25-6; Dkt. 25-7. The recitation of facts set forth in the state appellate briefs are supported
by detailed citations to the record, including the transcript of the trial and subsequent sentencing. See,
Dit. 25-6 at 5.

Mohammed turned over his cell phone and $150. Brevard then told Mohammed to "get
the fuck out of [there}," and Mohammed fled down the stairs. Id.
Two days later, on September 2, 2015, Jeffery Avila responded to the same
ad on Backpage and called the same number. See id. at 7. Avila communicated with
Brevard via text messages and was instructed to meet "Jessica" in Apartment 7A at 65- □ □
20 Parsons Boulevard. When Avila exited the elevator, Brevard confronted Avila,
pointing a brown-handled, double-barrel shotgun toward Avila and directed him into
the stairwell. Brevard told Avila to "[glet the fuck on the ground, empty out your
pockets.” Id. at 8, Avila took out his cell phone, wallet, and cash, and gave them to □
Brevard.
Later that day, the police apprehended Brevard inside 65-20 Parsons
Boulevard, Apartment 5B. On September 10, 2015, both Mohammed and Avila
separately identified Brevard from a lineup at the 107th precinct? After the lineups
were conducted, police arrested Brevard and read him his Miranda rights. See Dkt. 21 at
28-29; Dkt. 24-1 at 60-61.
On June 29, 2016, after the case was sent out for trial, a man called
Mohammed's cell phone from jail and left the following voicemail message:

a On direct examination, Avila first testified that he had identified number four in the lineup. Dkt.
25-22 at 84. Brevard was number two. Dkt. 25-6 at 8n.3. After the prosecution then showed Avila the
lineup photo, Avila testified that he had identified number two, Dkt. 25-22 at 84-85. When asked why his
testimony changed, Avila explained he was confused by "similarities in the hats." Id. at 85.

This message is for Mohammed Mohammed. Yo listen, I'm
a blow your fucking head off. I'm telling you. You keep
playing. I'm a come to LaGuardia College, I'm a blow your
fucking head off. Don't worry about who this. You don't
know me. I watch your house every day. I watch your
father, Mohammed Mohammed. Your friend Frank. I know
all of y'all. I'm a fucking kill you (Inaudible). Keep playing □
with me. I'm fucking kill you. I watch your house every day
,..and I know where you work. You do, you do pizza
deliveries.
Dkt. 25-6 at 9 (alteration in original). The caller did not identify himself, but Detective

Daniel Sjoberj identified the voice as Brevard's. The phone number listed on the

Backpage ad belonged to "Vita Maurello" of 65-20 Parsons Boulevard, the apartment
building where the robberies occurred. The phone line was a “pay as you go service

plan," which did not require the subscriber's identification to open an account. Id. at 9-

10. The phone records confirmed the calls and text messages between the Backpage
phone number and both Mohammed's and Avila's phones on the days of the robberies.

Id. at 10. Brevard's Rikers Island inmate call log showed that between September 14 and □

September 22, 2015, Brevard had called the same four phone numbers that the phonein
the Backpage ad had called.
Il. Procedural History
A. State Court Proceedings
1. The Indictment and Pre-Trial Proceedings
On September 24, 2015, a grand jury charged Brevard with two counts of

robbery in the first degree. Dkt. 25-15 {| 7; Dkt. 25-5 at 4.

On October 9, 2015, Brevard filed an omnibus motion to suppress the
identification evidence, claiming that the photo arrays and lineup procedures were
unduly suggestive. See Dkt. 25-1 at 9-12. Brevard argued, alternatively, that the police □
lacked probable cause to arrest him, and that his subsequent placement in the lineup □

was improper. See id. at 11. Brevard also moved to suppress any statements made in
violation of his Miranda rights, id. at 6-8, and any prior convictions or bad acts, id. at 12.
On March 24, 2016, the court denied Brevard's motion to suppress the identification
evidence, finding that neither the photo arrays nor the lineups were unduly suggestive □
and did not address Brevard's other arguments. See Dkt. 25-3 at 8-10.
2. The Trial
Trial began on July 12, 2016. Dkt. 25-22 at 1. The jury heard testimony
from the prosecution's witnesses: Mohammed, id. at 24; Avila, id. at 72; Police Officer
Jason Zummo, id. at 108; Detective Sjoberj, id. at 111; Detective Shawn Johnston, id. at
118; Ricardo Leal, a representative from Sprint, id. at 143; Kaliope Cothalis, an
operations manager at the New York City Criminal Justice Agency, id. at 161; and
Tarsha Brown, an investigator for the New York City Department of Corrections, id. at
165. After the prosecution rested, the defense moved to dismiss all counts, and the trial
court denied the motion. Id. at 170-71.

‘ □

The defense called no witnesses but, for the sole purpose of demonstrative

evidence, requested permission for Brevard to walk back and forth in front of the jury
with his sleeves rolled up to show his arms. Id. at 171-73.
On July 13, 2016, the trial court reported that it had held an "informal"

charge conference during which the defense asked for an identification charge and a
consciousness-of-guilt charge. Id. at 134. Defense counsel also stated that Brevard was
"debating whether" to allow counsel to ask for an instruction on the lesser offense of
third-degree robbery. The next day, Defense counsel notified the court that he was not

requesting a third-degree charge at the direction of his client. Id. at 138-39. Defense
counsel stated he had discussed this at length with Brevard, who was "very, very
adamant" that he did not want to seek a third-degree robbery charge. Id. at 139. The

court asked Brevard directly to confirm he did not want to seek the lesser charge
contrary to counsel's advice, and Brevard confirmed that was correct. Id, at 139-40.

The defense renewed its motion to dismiss, which the trial court again

denied. Id. at 171-72. The prosecution did not present a rebuttal case, and summations

were given on July 14, 2016. See id. at 171-206. That same day, the jury found Brevard
guilty of two counts of first-degree robbery. Id. at 228-30.

3. Sentencing
On July 28, 2016, the trial court sentenced Brevard. Dkt. 25-23. The jury
had already determined Brevard's guilt in the robbery charges, but for sentencing

purposes, Brevard also pled guilty to an unrelated forgery charge for counterfeit $100
bills on the condition that his sentence for the forgery charge run concurrently with any
sentence for the robbery convictions. [d. at 5-10. Under the terms of the plea deal,
Brevard waived his right to appeal the forgery charge. Id. at 6-8. For the robbery
convictions, the prosecution requested that Brevard be sentenced to twenty years

imprisonment plus five years post-release supervision to be run consecutively on each

count of robbery in the first degree, id. at 14, and Brevard requested leniency, id. at 14-
15. Brevard stated at his sentencing: "I have been incarcerated trying to make my life
better for my family, for my son, and I am just going to do this time and go home to my
family and my son and do what I am supposed to do, That's it.” Id. at 16.
The court sentenced Brevard to (1) fifteen years of incarceration with five

years of post-release supervision for the robbery charges and (2) an indeterminate
period of incarceration between seven-and-a-half and fifteen years for the forgery
charge. Id. at 16-17. The court ordered all sentences to run concurrently. The court also
serttenced Brevard to five years’ post release supervision. Id.
4, Direct Appeal
Brevard, represented by counsel, appealed his robbery convictions to the
Appellate Division, Second Department. Dkt. 25-4. On July 9, 2018, the court granted □

Brevard's application to file a pro se supplemental brief, which Brevard subsequently
filed. Dkt. 25-5; Dkt. 25-7, Brevard asserted the following claims in both the counseled

and pro se briefs: (1) he received ineffective assistance of counsel; (2) police conducted

an improper search and seizure; (3) police conducted the lineup without counsel

present; (4) the lineup was unduly suggestive; and (5) the court's conduct and rulings
deprived him of a fair trial. See Dkt. 25-4; Dkt. 25-5.
On September 18, 2019, the Appellate Division affirmed Brevard's robbery
convictions. Brevard I, 106 N.Y.5.3d at 624. The court concluded that (1) the Supreme
Court, Queens County, did not err in declining to suppress identification evidence on
the basis that the photo arrays and lineup procedures were unduly suggestive; (2)
Brevard had not established that he was deprived of his right to counsel at the lineups;
(3) Defense counsel was not ineffective for failing to request a jury instruction
explaining that third-degree robbery is a lesser-included offense of first-degree robbery; _

(4) Brevard received meaningful representation despite Defense counsel's failure to
object to the admission of certain evidence or request a limiting instruction regarding
that evidence; and (5) the remaining contentions raised in his pro se supplemental brief

were without merit. Id. at 624-25.
On November 29, 2019, the New York Court of Appeals denied Brevard's
application for leave to appeal. Brevard H, 34 N.Y¥.3d at 1015.

5. Post-Trial Proceedings
Brevard filed numerous motions for post-trial and collateral relief, all of
which were denied. I summarize Brevard's collateral motions here.

On July 12, 2017, Brevard moved pro se to vacate the judgment in the
robbery case under N.Y. Crim. Proc. Law § 440.10. Dkt. 25-11. Brevard argued that the

court improperly allowed Avila and Mohammed to make in-court identifications. Id. at
1. Brevard also raised an ineffective counsel claim because his attorney failed to object
to those in-court identifications. Id. at 1-2. The Supreme Court, Queens County, denied
the motion, finding that Brevard should have brought his claims on direct appeal
pursuant to N.Y. Crim. Proc. Law § 440.10(2)(b). Dkt. 25-13. The court also held that an
independent source hearing was unnecessary because the hearing court found that the

pre-trial identification procedures were not suggestive. □ □

On or around February 10, 2020, Brevard filed his second N.Y. Crim. Proc.
Law § 440.10 motion, alleging that (1) he was denied his Fourth Amendment rights
because police arrested him without a warrant and lacked probable cause to conducta □
lineup; (2) he was denied his Sixth Amendment right to counsel at the lineup; (3) the

court should have suppressed identification evidence obtained without probable cause
and before police read him his Mtranda rights; (4) Defense counsel was ineffective; and
(5) the evidence at trial was insufficient to establish his guilt, prove he possessed a
firearm, or prove that the firearm was loaded and capable of causing death or serious
bodily injury. See Dkt. 25-143 The court denied the motion, concluding that it was □

3 The record is unclear as to the date on which Brevard filed his second N.Y. Crim. Proc. Law
§ 440.10 motion. The motion itself is dated February 10, 2020. Dkt. 25-14 at 2. The prosecution's answer

10

procedurally barred because some of his ineffective counsel claims were decided on the

merits in Brevard I, and his other claims should have been raised on direct appeal. Dkt.

25-16 at 2-3.
On March 24, 2021, Brevard filed his third and final N.Y. Crim. Proc. Law

§ 440.10 motion on the grounds that (1) the trial prosecutor withheld material
exculpatory evidence and (2) Defense counsel was ineffective for failing to investigate
and interview relevant witnesses. See Dkt. 25-17.4 Brevard also requested the
appointment of counsel. Id. at 3.
On August 24, 2021, the trial court denied the motion because the
ineffective counsel claims were decided on the merits in Brevard I and Brevard's other
claims should have been raised on direct appeal. Dkt. 25-19 at 2-3. The court also
determined that Brevard's claim regarding withheld evidence was "conclusively refuted

by unquestionable documentary proof,” showing that the prosecution had turned over

the material to Defense counsel. Id. at 3-4. The court also denied Brevard's request for

the appointment of counsel. Id. at 4. □

states the motion was filed on February 7, 2020, Dkt. 24-1 at 14, which is the date it was notarized, Dt.
25-14 at 16, 61. The court's decision denying the motion indicates it was dated April 7, 2020, likely in
reference to a date written on the corner of the motion’s first page without context. Dkt. 25-16 at 1; see
Dkt. 25-14 at 1.
4 The record is also unclear as to the date on which Brevard filed his third N.Y. Crim. Proc. Law §
440.10 motion. The motion itself is dated and notarized on March 24, 2021. Dkt. 25-17 at 31. The
prosecution's answer states the motion was filed on March 24, 2021. Dkt. 25-18 at1. The court's decision
denying the motion indicates it was dated April 12, 2020. Dkt. 25-19 at 1.
11

B. Proceedings in This Court
On September 10, 2021, proceeding pro se, Brevard filed his initial habeas

corpus petition, asserting that (1) he was subject to an illegal search and seizure; (2) the
police lacked probable cause to place Brevard's photo in a photo array; (3) Defense
counsel was ineffective for failing to object to the admission of Brevard's Rikers Island
call log or seek a limiting instruction regarding that evidence; (4) Defense counsel was
ineffective for allowing Brevard to decide whether to request a jury instruction on the
lesser-included offense; and (5) he was denied his right to counsel during his lineup and
stationhouse interrogation. See Dkt. 1.
On October 18, 2021, Brevard moved to amend his habeas petition to add
four grounds that were argued in his previous section 440,10 motions, Dkt. 7, On
November 22, 2021, Brevard moved to amend again to add additional arguments as to

two grounds. Dkt. 11. Respondent did not object to either request. Dkt. 12.
On November 29, 2021, Brevard filed a motion for discovery for his Fourth □

Amendment claims. Dkt. 14. On September 26, 2022, Brevard filed the Petition
asserting the same previous claims, along with the following: (6) the evidence was
insufficient to prove that the shotgun was a loaded weapon "readily capable of
producing death or other serious injury" or that Brevard possessed a weapon; (7) it was
reversible error to bolster complainants' testimony of previous identification with a

detective's testimony that he saw and heard complainants identify Brevard; (8) the

12

lineup was unnecessarily suggestive because one complainant had an opportunity to

see Brevard in the holding cell before viewing the lineup; (9) the prosecution failed to

establish Brevard was read and waived his Miranda rights before he was held in

custody; and (10) Defense counsel was ineffective for failing to investigate and cross-
examine the arresting police officer. See Dkt. 21.
On January 5, 2023, the New York State Attorney General's Office filed its

opposition to the Petition. Dkt. 24. On January 31, 2023, Brevard filed a reply, Dkt. 27.

On April 9, 2024, Brevard filed a motion for reconsideration of bail

pending the court's decision on the Petition. Dkt. 32; Dkt. 33. The court (Komitee, J.)
denied the motion for bail on April 17, 2024, finding that the Petition did not raise the

substantial claims and extraordinary circumstances necessary to meet the "exacting
standard" required for a court to grant bail pending habeas litigation. See Min. Order,
Apr. 17, 2024 (denying bail motion).
On September 13, 2024, the case was reassigned to the undersigned.

DISCUSSION
I. Federal Review of State Convictions
A federal court may not grant a habeas petition on a claim that was
adjudicated on the merits in state court unless that adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

13

(2) resuited in a decision that 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); see Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857
F.3d 466, 477 (2d Cir. 2017), Hence, when a claim is adjudicated on the merits, the state
court's decision must be accorded "substantial deference." Fischer v. Smith, 780 F.3d 556,
560 (2d Cir, 2015). "A federal court may reverse a state court ruling only where it was
'so lacking in justification that there was .. . [no] possibility for fairminded
disagreement.” Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (per curiam) (alterations
in original) (quoting Harrington, 562 U.S. at 103); see also Wetzel v. Lambert, 565 U.S.520, □

524 (2012) (per curiam).
If, Analysis
In the Petition, Brevard seeks habeas relief on ten grounds, alleging
various Fourth Amendment claims; ineffective assistance of counsel; violation of his
right to counsel; legal insufficiency of evidence; state law evidentiary errors; unduly

suggestive lineup; and Miranda violations, Dkt. 21 at 2-3. I address each claim in turn.

A. □□□ Fourth Amendment Claims
"[Wyhere the State has provided an opportunity for full and fair litigation □

of a Fourth Amendment claim, the Constitution does not require that a state prisoner be □
granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S.

14

465, 482 (1976). Accordingly, "a habeas petitioner's Fourth Amendment claims

previously litigated in state court are usually barred from federal review." Hemphill □□

Senkowski, No. 02 CIV. 7093(DC), 2004 WL 943567, at *7 (S.D.N.Y. May 3, 2004).
A petitioner may obtain habeas relief arising from Fourth Amendment

claims only if he establishes either that "the state has provided no corrective procedures
at all to redress the alleged [FJourth [A]Jmendment violations,’ or, ‘if the state has □
provided a corrective mechanism,’ that the petitioner 'was precluded from using that
mechanism. because of an unconscionable breakdown in the underlying process.”
Ethridge v. Bell, 49 F.4th 674, 684 (2d Cir. 2022) (quoting Capellan v. Riley, 975 F.2d 67,70

(2d Cir. 1992)). To establish such a breakdown, the petitioner would have to prove that

"the state system ‘failed to conduct a reasoned method of inquiry into relevant questions
of fact and law." Hicks v. Bellnier, 43 F. Supp. 3d 214, 231 (E.D.N.Y. 2014) (quoting
Capellan, 975 F.2d at 71).
Here, Brevard claims his Fourth Amendment right to be free from

unreasonable searches and seizures was violated on two grounds. First, Brevard claims □

that law enforcement searched his brother's apartment without a search warrant, seized _

Brevard without an arrest warrant, and "handcuffed and transported [him] to the 107th -

precinct against his will" before he was arrested. Dkt. 21 at 9. Second, Brevard argues
that law enforcement lacked probable cause to place his photograph the photo array.

15

See id. at 12-13. The prosecution argues that probable cause is not required to place a
suspect's photograph in an array. Dkt. 24-1 at 21.
Federal review of Brevard's Fourth Amendment claims is not available.
"[Flederal courts have approved New York's procedure for litigating Fourth
Amendment claims,’ embodied in sections 710.20 to 710.70 of New York's Criminal
Procedural Law” as being facially adequate. Id. at 18 (quoting Capellan,975 F.2d at70
n.1). Brevard has not proven that "the state has provided no corrective procedures at all
to redress the alleged fourth amendment violations." See Capellan, 975 F.2d at 70.
Therefore, because New York has provided a "corrective mechanism," Brevard may
only obtain habeas relief if he can establish that he was “precluded from using that
mechanism because of an unconscionable breakdown in the underlying process."
Ethridge, 49 F.4th at 684 (citing Capellan, 975 F.2d at 70).

Brevard's first Fourth Amendment claim regarding improper search and
seizure is not subject to habeas review. Brevard cannot establish an unconscionable
breakdown because the trial court and the Appellate Division did not “fail[] to conduct

a reasoned method of inquiry into relevant questions of fact and law." Hicks, 43 F.
Supp. 3d at 231 (quoting Capellan, 975 F.2d at 71). Brevard also "had the opportunity to
extensively litigate his Fourth Amendment claims" and "merely disagrees with the □
outcome of a state court ruling, which is not the equivalent of an unconscionable
breakdown in the state's corrective process." Fuertes v. Gerbing, No. 19-CV-03401 (DC),

16

2023 WL 4420118, at *8 (E.D.N.Y. 2023) (alterations adopted) (quoting Capellan, 975 F.2d

at 72). Brevard raised this illegal search and seizure claim in his motion to suppress, see

Dkt. 25-1 at 7-8, and again on direct appeal, see Dkt. 25-5 at 33, 48-49. The Appellate
Division considered and rejected these claims (albeit without discussion) when it held

that the claims in Brevard's supplemental brief were meritless. See Brevard I, 106

N.Y.5.3d at 625.
Similarly, Brevard had a "full and fair" opportunity to litigate his second

Fourth Amendment claim that law enforcement lacked probable cause to obtain

identification evidence. See Capellan, 975 F.2d at 70. He argued this claim in his motion

to suppress, see Dkt. 25-1 at 9-12, and again on direct appeal, see Dkt. 25-5 at 48-54. The

trial court rejected Brevard's claim and denied his motion to suppress. See Dkt. 25-3 at

8-10. The Appellate Division again considered and rejected the claim when it found □
that Brevard's claims in his supplemental brief were meritless, and the lineup was
permissible. See Brevard I, 106 N.Y.5.3d at 624. Because the Appeilate Division rejected
this claim on the merits, the state court's decision is entitled to deference. □

[Once it is established that a petitioner has had an
opportunity to litigate his or her Fourth Amendment claim
(whether or not he or she took advantage of the state's
procedure), the court's denial of the claim is a conclusive
- determination that the claim will never present a valid basis
for federal habeas relief.
Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).

17

Because there was no failure here "to conduct a reasoned method of
inquiry into relevant questions of fact and law," Hicks, 43 F. Supp. 3d at 231 (quoting
Capellan, 975 F.2d at 71), Brevard's "mere disagreement with the outcome of [the] state
court ruling is not the equivalent of an unconscionable breakdown," Capellan, 975 F.2d

at 72, And even if the claim were not procedurally barred, it also fails on its merits.
"[T]here is no requirement that probable cause, or any other legal threshold, be met to
place a suspect's photograph in an array.” Crews v. Cnty. of Nassau, 996 F. Supp. 2d 186,
204 n.11 (E.D.N.Y. 2014).
Brevard is therefore not entitled to relief on these claims.
B. The Ineffective Assistance of Counsel Claims
Brevard brings four sets of claims for ineffective assistance of counsel.
First, Brevard argues that his trial lawyer rendered ineffective assistance by failing to
object to or seek a limiting instruction regarding the admission of Brevard's Rikers
Island call log, which Brevard contends was highly prejudicial evidence in that it □□

revealed his pre-trial incarceration. See Dkt. 21 at 14-16. Second, Brevard contends that
his trial lawyer improperly allowed Brevard to decide whether to request a lesser-
included charge of third-degree robbery, thereby abdicating a counsel's duty to make a
strategic legal decision. See id. at 17-19. Third, Brevard argues that his right to effective
assistance of counsel was violated because his trial lawyer failed to investigate certain

18

possible detenses.> Lastly, Brevard argues that this trial lawyer was ineffective for
failing to cross-examine Brevard's arresting officer and object to the admission of

identification evidence at the suppression hearing. See id. at 30-31. These challenges are

meritless, and habeas relief is unavailable, for the reasons stated below.

In general, to prevail on a claim of ineffective assistance of counsel, a

petitioner must (1) show that counsel's performance was so deficient as to failbelow □□□

"objective standard of reasonableness,” and (2) establish prejudice by demonstrating "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). It is not enough for petitioner "to show that the errors had some conceivable

effect on the outcome of the proceeding.” Harrington, 562 U.S, at 104 (quoting Strickland,
466 U.S. at 693). Rather, he must establish that counsel's errors were "so serious as to □
deprive the [petitioner] of a fair trial, a trial whose result is reliable." Id. (quoting
Strickland, 466 U.S. at 687).

In the context of a habeas petition under § 2254(d), "[e]stablishing that a

state court's application of Strickland was unreasonable .. . is all the more difficult. The

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the

two apply in tandem, review is ‘doubly’ so." Harrington, 562 U.S. at 105 (citations

5 Specifically, Brevard contends that his appellate lawyer should have returned to the crime scene
to investigate the robbery and identify potential witnesses who might offer a different perspective on the
prosecution’s account of events. [d. at 30.
19

omitted) (first quoting Strickland, 466 U.S, at 689; then citing Lindh v. Murphy, 521 U.S.
320, 333 n.7 (1997); and then quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Therefore, "[t]he operative question" when a federal court reviews a state court's
ineffective assistance of counsel ruling is "not whether [the] federal court believes the

state court's determination was incorrect, but rather whether that determination was
objectively unreasonable." Waiters, 857 F.3d at 478 (alterations adopted) (quoting Schriro

v. Landrigan, 550 U.S. 465, 473 (2007)).
The standard for establishing an ineffective assistance of counsel claim
under New York law is lower than under federal law. See People v, Honghirun, 29
N.Y.3d 284, 289 (2017). In New York, a defendant must show only "that counsel failed

to provide meaningful representation.” People v. Alvarez, 33 N.¥.3d 286, 289 (2019) □

(citing People v. Stuliz, 2 N.Y.3d 277, 284 (2004); and People v. Baldi, 54 N.Y.2d 137, 147
(1981)). Unlike the federal standard in Strickland, under the state standard, the
defendant is not required to demonstrate that he was prejudiced by the ineffective
assistance. See Alvarez, 33 N.Y.3d at 293.
1. Failure to Object to the Rikers Island Call Log
Brevard fails to meet his burden of proving that trial counsel was
ineffective for failing to object to the admission of Brevard's Rikers [sland call log.
Brevard contends, as he did in his counseled appellate brief, that the call log washighly
prejudicial, minimally probative, and largely cumulative. See Dkt. 25-4 at 13-14. But the

20

Appellate Division properly rejected the claim on its merits, concluding that "the
defendant received meaningful representation despite counsel's failure to object to the

admission of the defendant's inmate call log into evidence or to request a limiting
instruction.” Brevard [, 106 N.Y.5.3d at 624. This determination is entitled to

"substantial deference," Fischer, 780 F.3d at 560, and will not be overturned by a federal

court conducting habeas review unless the petitioner can establish that the state court's

conclusion was "unreasonable," 28 U.S.C. § 2254(d). Brevard has not done so here.

The entirety of the defense theory was that the prosecution misidentified

the perpetrator of these crimes. The Rikers Island call log was highly probative because

it made it more likely that Brevard was the perpetrator of the crimes. And the

prejudicial value of this evidence -- the fact that Brevard was incarcerated in the past --

was unlikely by itself to lead the jury to conclude that Brevard was guilty. In other
words, Brevard has shown no likelihood that the jury convicted him because it learned _

that he had been incarcerated at some point after his arrest. Moreover, although
Brevard's counsel failed to request a limiting instruction, Brevard fails to demonstrate

that, but for those errors, the result of his trial would have been different. See

Strickland, 466 U.S. at 694; Brevard I, 106 N.Y.S.3d at 624. Even without the call log, the

prosecution established Brevard's identity through various other means, including
identification by both victims, Brevard's cell phone records, and the voicemail that

Brevard left one of the victims threatening to hurt him. Brevard’s claims are based on

21

trial counsel's strategic choices that are "virtually unchallengeable" before this Court.
Strickland, 466 U.S. at 690.
2. Allowing Brevard to Decide Whether to Request Lesser Charge
Brevard argues that he received ineffective counsel because his attorney □
improperly allowed Brevard to decide whether to request a lesser-included charge of

third-degree robbery, thereby abdicating a counsel's duty to make a strategic legal
decision. Dkt. 21 at 17-19. Brevard raised this claim in his counseled brief on direct
appeal. Dkt. 25-4 at 18-23. The Appellate Division rejected this claim on its merits,
finding "no reasonable view of the evidence under which the jury could have found that.
the defendant committed the lesser offense but not the greater.” Brevard I, 106 N.Y.S.3d
at 624 (first citing N.Y. Crim. Proc. Law § 300.50[1]; and then People v. Mitchell, 874
N.Y.S.2d 226, 228 (2d Dep't 2009)).
Brevard's lawyer did not render ineffective assistance of counselby
(1) deferring to Brevard's decision not to request the lesser charge of third-degree
robbery or (2) failing to object to the court's deference to Brevard's wishes. Third-
degree robbery entails an unarmed robbery, whereas first-degree robbery occurs when □

the perpetrator "displays what appears to bea... firearm.” N.Y. Penal. Law §§ 160.05, □
160.15(4). Under N.Y. Crim. Proc. Law § 300.50(1), the trial court "may ... submit in the □

alternative any lesser included offense if there is a reasonable view of the evidence

which would support a finding that the defendant committed such lesser offense but □

22

did not commit the greater.” N.Y. Crim. Proc. Law § 300.50(1). To have been entitled to
the lesser included charge of third-degree robbery, Brevard would have to have
demonstrated that there was a reasonable view of the evidence under which he forcibly
stole property without displaying what appeared to be a firearm.
Here, a jury could not reasonably have concluded that Brevard committed

third-degree robbery because the evidence indicated the robber displayed a firearm.

Both victims testified that the robber displayed a double-barreled shotgun, about three-

and-a-half feet long. See Dkt. 25-22 at 29-32, 79, 94. Notably, "eyewitness testimony
may be sufficient for the government to meet its burden of proof [that a defendant had a
firearm] so long as it provides a rational basis for the [fact-finder] to find that the object
observed by eyewitnesses was, in fact, a firearm.” United States v. Johnson, 378 F.3d 230,
242 (2d Cir. 2004) (alterations in original) (quoting United States v. Jones, 16 F.3d 487, 490
(2d Cir, 1994)). Because no reasonable view of the evidence supported the lesser charge,
Brevard's claim of ineffective assistance provides no basis for habeas review.°

Moreover, the availability of the lesser charge as an option would have arguably
increased the chances of a conviction, as third-degree burglary would have been easier

for the jury to find. This strategic decision is not a proper basis for an ineffective
assistance claim.

6 Brevard's argument that he was entitled to a jury instruction on the lesser-included offense of
third-degree robbery should also be rejected for these reasons. See Dkt. 21-23.
23

3. Failure to Investigate Aspects of the Defense
Brevard argues his right to effective assistance of counsel was violated
because Defense counsel failed to properly investigate aspects of the defense. See Dict.
21 at 30-31. Brevard raised these claims in his pro se supplemental brief on direct
appeal. See Dkt. 25-5 at 42, The Appellate Division considered and rejected these
claims, holding that Brevard "was not deprived of the effective assistance of counsel
during the [suppression] hearing and trial." Brevard I, 106 N.Y.S.3d at 624. These claims
have not been properly exhausted and warrant no basis for habeas review.
Brevard has not "exhausted the remedies available in the courts of the
State," as is necessary to obtain habeas review in federal court. 28 U.S.C. §
2254(b)(1)(A); see O'Sullivan v. Boerckel, 526 U.S, 838, 842 (1999). To exhaust available
state remedies, a petitioner "must 'fairly present’ his claim in each appropriate state
court (including a state supreme court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S, 27, 29
(2004) (first citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995), and then O’Sullivan, 526
U.S. at 845). To satisfy the exhaustion requirement, a petitioner must inform the state's
highest court that may hear the claim of the alleged constitutional violation and the
factual and legal support for the claim. See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991).
Brevard raised his ineffective assistance of counsel claim for failure to investigate and
locate potential witnesses in his second and third N.Y. Crim. Proc. Law § 440.10

24

motions, but he did not seek leave to appeal the denial of those motions. See Dkt. 25-14

at 33; Dkt. 25-17 at 3. Accordingly, these claims provide no basis for habeas review

because they remain unexhausted in state court.’
And even if some of Brevard's claims were exhausted, all of his ineffective

assistance of counsel claims fail on the merits. "An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b){2).
Brevard argues in claims one, two, and four that trial counsel failed to properly
investigate aspects of the defense. But, "[w]here the claimed deficiency of counsel stems

from the failure to investigate, the lenient standard in Strickland of according counsel

‘wide latitude . . . in making tactical decisions’ also applies." McDay v. Napoli, No. 09-

CV-0454 (KAM)(MDG), 2013 WL 6231151, at *20 (E.D.N.Y. Dee. 2, 2013) (alteration in

original) (quoting Cullen v. Pinholster, 563 U.S. 170, 195 (2011)).
Brevard alleges generally that Defense counsel "could have located

potential witnesses who could have shed a different light on the people's version of

events," Dkt. 21 at 30, but Brevard provides no evidence that other witnesses were

7 Brevard appeals his ineffective assistance of counsel claim for failure to conduct any investigation
regarding his allegedly illegal arrest, which was raised in his second N.Y. Crim. Proc. Law § 440.10
motion. See Dkt, 21 at 31; Dkt. 25-14 at 33. However, the state court held that the claim was barred from
review under N.Y. Crim. Proc. Law § 440.10(3)(c), which allows a court to deny a N.Y. Crim Proc. Law
§ 440.10 claim when the defendant previously filed a N.Y. Crim Proc. Law § 440.10 motion but failed to
raise a specific ground, despite being in a position to do so. See Dkt. 25-16 at 3; Murden v. Artuz, 497 F.3d
178, 192 (2d Cir. 2007) (finding that N.Y. Crim. Proc. Law § 440.10(3}(c) "constitutes an adequate state
procedural bar to federal habeas review").
25

present during the robberies, let alone that such witnesses could have provided
favorable testimony for him. And "an attorney is permitted under Strickland 'to make a
reasonable decision’ whether a particular investigation is necessary and 'need not

pursue an investigation that would be fruitless, much less one that might be harmfulto _

the defense." McDay, 2013 WL 6231151, at *20 (quoting Harrington, 562 U.S. at 108).
Accordingly, the Appellate Division reasonably rejected Brevard's ineffective assistance
of counsel claim for failure to investigate aspects of the defense because "[fJailure to
make a meritless argument does not amount to ineffective assistance.” Linited States v.
Regalado, 518 F.3d 143, 149 n.3 (2d Cir. 2008) (per curiam) (alteration in original)
(quoting United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999))}.
4, Failure to Cross-Examine Arresting Officer and Object to Admission
of Identification Evidence

The Appellate Division also reasonably rejected Brevard's ineffective
assistance of counsel claim for failure to object to the admission of identification
evidence at the suppression hearing and cross-examine the arresting officer because the
identification evidence was not the product of unlawful police activity. The police may
not "mak[fe] a warrantless and nonconsensual entry into a suspect's home in order to
make a routine felony arrest," Payton v. New York, 445 U.S. 573, 576 (1980), without
“exigent circumstances,” Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam). But the
New York Court of Appeals has held that lineup identification evidence "procured after

26

the police le[ft] the arrestee's residence is not. . . ‘the product of' a Payton violation" but

is instead the product of law enforcement's probable cause based on photo array
identifications. People v. Jones, 2 N.Y.3d 235, 240, 243-44 (2004) ("Due to the lack of a

causal relationship between the Payton violation and the lineup identifications in this

case, the lineups were not the 'fruit of the poisonous tree."). Likewise, here, the lmeup
identifications occurred after the police left Brevard's brother's apartment and were the

product of probable cause based on photo array identifications. See Dkt. 25-3 at 2-5.

Defense counsel was also not ineffective for failing to cross-examine the

arresting officer because "[flailure to make a meritless argument does not amount to

ineffective assistance." Regalado, 518 F.3d at 149 n.3 (quoting Arena, 180 F.3d at 396).

The legality of Brevard's arrest was irrelevant to any issues at trial and would have

likely garnered an objection that would have been sustained. Counsel was not □

ineffective for not pursuing an irrelevant line of questioning.
Overall, Brevard failed to show that his trial counsel's performance fell

below an objective standard of reasonableness, and he has failed to show that the state

court's determination to that effect was objectively unreasonable. To the extent Brevard

must show prejudice under federal law, he has failed to do so. Therefore, none of

Brevard's claims of ineffective assistance provide a basis for habeas review.

27

C. The Right to Counsel Claim
Brevard argues he was denied his Sixth Amendment right to counsel
because he was subject to a pre-trial identification lineup without counsel present,
despite his request for counsel. See Dkt. 21 at 20-21. Brevard raised this claim in his pro
se supplemental brief on direct appeal. See Dkt. 25-5 at 36, 54. The Appellate Division
rejected Brevard's right to counsel claim, holding that "the defendant has not
established that he was deprived of the right to counsel at the lineups.” Brevard [, 106 .
N.Y.5.3d at 624 (first citing People v. Hawkins, 55 N.Y.2d 474 (1982); and then People v.
Reyes, 875 N.Y.S.2d 229, 231-32 (2d Dep’t 2009)). Brevard has failed to demonstrate that
the Appellate Division's denial of his right to counsel claim was unreasonable.
The Sixth Amendment right to counsel attaches only after the initiation of
adversary judicial proceedings, "whether by way of formal charge, preliminary hearing, .
indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972); see
also Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000). Federal courts look to state criminal
procedural law to determine when a state criminal action is commenced. See Meadows

v. Kuhlmann, 812 F.2d 72, 77 (2d Cir, 1987). In New York, criminal proceedings are
commenced with the filing of "an accusatory instrument,” such as a felony complaint.
See N.Y. Crim. Proc. Law § 100.05. New York courts have also held that the right to
counsel attaches upon arraignment or the issuance of an arrest warrant. See Gonzalezv.

28

Sullivan, No. CV-88-1459, 1990 WL 126189, at *2 (E.D.N.Y. Aug. 30, 1990) (citing cases),
aff'd, 934 F.2d 419 (2d Cir. 1991).
At the time of the lineup, Brevard's Sixth Amendment right to counsel had

not yet attached because charges had not been brought against him. See Kirby, 406 U.S.

at 688-89; see also Rothgery v. Gillespie Cnty., 554 U.S. 191, 202 (2008) (explaining that

adversarial proceedings begin when the “defendant is brought before a judicial officer,

is informed of a formally lodged accusation, and has restrictions imposed on his liberty
in aid of the prosecution"). Because Brevard's lineup identifications occurred before he

was charged with two counts of first-degree robbery, the Appellate Division reasonably
concluded he was not deprived of his right to counsel at that time. See Brevard I, 106

N.Y.5.3d at 624.
To the extent Brevard's claim relies on a state-law right to counsel, such

claims do not provide a basis for federal habeas review. Federal courts have

jurisdiction to review habeas claims “only on the ground that [the petitioner] is in

custody in violation of the Constitution or laws or treaties of the United States." 28

U.S.C. § 2254(a). Brevard cites numerous state court cases in the Petition, seemingly
contending that he was deprived of his right to counsel under New York state law. See

Dkt. 21 at 20-21.
State-law claims, independent of federal law claims, do not provide
grounds for habeas review, making Brevard's state-law claims meritless. See Estelle v.

29

McGuire, 502 U.S. 62, 67-68 (1991). And even on the merits, New York state law
establishes that there is "no automatic entitlement to counsel at pre-accusatory,
investigatory lineups," and "law enforcement authorities ordinarily are not required to
notify counsel of an impending investigatory lineup absent a specific request to do so."
People v. Mitchell, 2 N.Y.3d 272, 274 (2004) (footnotes omitted).
D. The Sufficiency of Evidence Claim
Brevard argues the prosecution failed to present legally sufficient
evidence to prove that "the shotgun was a loaded weapon from which a shot, readily
capable of producing death or serious physical injury could be discharged, or that □
[Brevard] actually possessed any weapon.” Dkt. 21 at 23. This claim fails both
procedurally and on its merits.
Brevard's sufficiency of evidence claim is barred from habeas review

because it is procedurally defaulted.’ Brevard asserted this claim in his second N.Y.

Crim. Proc. Law § 440.10 motion, see Dkt. 25-14 at 38, 42, which the state court denied,
see Dkt. 25-16 at 3. Brevard did not seek leave to appeal that denial, see Dkt. 1 at 4, and

8 Brevard argues that his right to counsel had attached on a pending charge in the same county.
Dkt. 20 at 21. "[A] request for counsel at [a pre-accusatory, investigatory] lineup will cause the right to
attach only when the police are or become aware that the suspect is actually represented by counsel in a
pending case," Mitchell, 2 N.Y.3d at 275. Nothing in the record, other than Brevard's own statement,
establishes that the police were awate of Brevard's pending charge at the time of the lineup.
9 Brevard did not raise this claim on direct appeal but instead raised it in his second N.Y. Crim.
Proc, Law § 440.10 motion. See Dit. 25-14 at 38, 42. Brevard never sought leave to appeal the denial of
this his motion; therefore, this claim is also unexhausted, as Brevard acknowledges in his original
petition. See Dkt. 1 at 4.
30

the statutory one-year period to appeal has since expired, see N.Y. Crim. Proc. Law
§ 460.30.
Moreover, where a petitioner has defaulted his federal claims in state

court, "federal habeas review of the claims is barred unless the [petitioner] can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in

a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Although Brevard acknowledges that this claim is unexhausted, he has not
demonstrated cause for the default or provided any evidence that failure to consider his

claim will result in actual prejudice or a miscarriage of justice. .

And even if Brevard's clairns were not procedurally defaulted, his claims
also substantively lack merit. Defendants in a criminal trial may be convicted only □

upon proof establishing their guilt beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 309 (1979). When considering the merits of a sufficiency argument on
habeas review, "[a] federal court must look to state law to determine the elements of the
crime." Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000) (alteration in

original) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999), cert. denied, 528

US. 1170 (2000)). A federal court "must consider whether, as a matter of federal law, □

there was sufficient evidence for a jury to find that the prosecution proved the

substantive elements of the crime as defined by state law." Einaugler v. Sup. Ct. of N.Y.,

31

109 F.3d 836, 839 (2d Cir. 1997). The reviewing court "must consider the evidence in the
light most favorable to the prosecution and make all inferences in its favor." Fama, 235
F.3d at 811. And where a state court has considered the merits of a sufficiency claim on
direct appeal, "a federal habeas court simply reviews the specific reasons given by the

state court and defers to those reasons if they are reasonable." Wilson v. Sellers, 584 U.S.
122, 125 (2018) (stating that the Supreme Court has “affirmed this approach time and.
time again"), Accordingly, a "[p]etitioner bears a ‘very heavy burden’ in convincing a
federal habeas court to grant a petition on the grounds of insufficient evidence." □

Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quoting Quirama v. Michele, 983
F.2d 12, 14 (2d Cir. 1993)).
Considering the state-law elements of the crime, Brevard's insufficiency □□
the evidence claim is without merit. Under New York law, a person is guilty of first-
degree robbery when he forcibly steals property and, in the course of committing the
crime, he "displays what appears to bea... firearm." N.Y. Penal Law § 160.15[4]. "[I]t
is an affirmative defense that such... firearm was not a loaded weapon from which a
shot, readily capable of producing death or other serious physical injury, could be
discharged." Id.
First, Brevard argues that the evidence was insufficient to establish that he
possessed a firearm during the robbery. See Dkt. 21 at 22-23. Both victims testified at □

trial, however, that the robber displayed a double-barreled shotgun, about three-and-a- .
32

half feet long. See Dkt. 25-22 at 29-32, 79, 94. From this evidence, a jury could have

reasonably concluded that the robber possessed a firearm during the robbery. See

Johnson, 378 F.3d at 242 (finding eyewitness testimony may be sufficient to support a

jury's conclusion that the defendant possessed a firearm).
At trial, Mr. Avila admitted he had previously testified in another
proceeding that the shotgun was one-and-a-half to two feet long. Dkt. 25-22 at 95-96.
That contradiction does not change the reasonableness of the jury's conclusion, and this

court cannot reassess the jury's determinations of witness credibility. See Coleman, 566 .
USS. at 651 ("[I]t is the responsibility of the jury -- not the court -- to decide what
conclusions should be drawn from evidence admitted at trial." (internal citations

omitted)); Marshall v. Lonberger, 459 U.S, 422, 434 (1983) (noting that federal habeas

courts have “no license" to reassess witness credibility). Despite Avila's somewhat □
contradictory testimony, sufficient evidence existed for a jury to find that Brevard

possessed a firearm during the robberies. See Einaugler, 109 F.3d at 839.

Second, Brevard argues that the evidence was insufficient to establish that

the firearm was a loaded weapon capable of producing death or serious injury. See Dkt.

21 at 22-23. His claim fails because the prosecution did not bear the burden of proof to
establish that fact. Rather, it was Brevard's burden to assert and prove the affirmative
defense that the firearm was noi, in fact, loaded and capable of producing death or

serious injury. See N.Y. Penal Law § 160.15(4). Here, no firearm was recovered, see Dkt.

33

21 at 22, and there was no evidence in the record from which a jury could conclude that
the firearm was "unloaded or inoperable." See, e.g., Brown v. Walker, 275 F. Supp. 2d 343,
352 (E.D.N.Y. 2003) ("The gun that witnesses testified to observing petitioner brandish

was never recovered. Petitioner's attorney had no ground to argue that the firearm was
unloaded or inoperable."). For each of these reasons, Brevard's insufficient evidence
claim fails procedurally and on its merits.
E. State Evidence/Bolstering Claim □
Brevard argues the trial court erred by admitting Detective Johnston's □

testimony as to the photo-array arid lineup identifications of Brevard in violation of

state evidentiary law. See Dkt. 21 at 24-25." This claim is not cognizable on habeas
review because it does not allege a violation of federal constitutional rights but rather a
violation of a state evidentiary rule. As stated above, state-law claims, independent of
federal claims, do not provide grounds for federal habeas review. See Estelle, 502 U.S. at
67-68. This Court need not address the merits of Brevard's state-law bolstering claim □

because it is plainly outside our scope of review.

0 Brevard erroneously cited to a defunct state evidentiary rule, section 393-b of New York's Code □□ □
Criminal Procedure law, which was repealed in 1971 with the adoption of New York Criminal Procedure
Law. Dkt. 21 at 24-25; Dkt. 24-1 at 55. Regardless, state-law claims provide no basis for federal habeas
review.
34

F, Suggestive Lineup Claim
Brevard argues that the lineup was “unnecessarily suggestive” in violation
of the Fifth Amendment because Mohammed “had an opportunity to see [Brevard] in

the holding cell before viewing the lineup.” Dkt. 21 at 26.
This Court need not reach the merits of Brevard's suggestive lineup claim
because it is procedurally barred. Brevard raised this claim in his second N.Y. Crim.

Proc. Law § 440.10 motion, see Dkt. 25-14 at 53-54, but not on direct appeal, see Dkt. 25-4;
Dkt. 25-5. The state court denied this claim, pursuant to N.Y. Crim. Proc. Law

§§ 440,10(2)(c) and 440.10(3)(c), concluding that it should have been raised on direct
appeal. See Dkt. 25-16 at 3. N.Y. Crim. Proc. Law § 440.10(2)(c) requires a court to deny □
a motion to vacate when a defendant unjustifiably failed to raise a record-based claim :

on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c).
Although Brevard's suggestive lineup claim is grounded in federal law, it
is barred from habeas review because the trial court denied it based on adequate and
independent state-law grounds. Federal courts "will not review a question of federal
law decided by a state court if the decision of that court rests on a state law ground that
is independent of the federal question and adequate to support the judgment."
Coleman, 501 U.S. at 729. The Supreme Court has applied this doctrine "in deciding
whether federal district courts should address the claims of state prisoners in habeas

35

corpus actions.” Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman, 501 U.S. at 729);
see also Cone v. Bell, 556 U.S. 449, 465 (2009).
Courts in the Second Circuit have consistently recognized N.Y. Crim.
Proc. Law § 440.10(2}(c) as providing adequate and independent state-law grounds that

may bar habeas review. See, ¢.¢., Levine v. Comm'r of Corr. Servs., 44F.3d 121,126
Cir. 1995); Smith v. West, 640 F. Supp. 2d 222, 231, 237-38 (W.D.N.Y. 2009), Here, the

state court denied Brevard's second section 440.10 motion, reasonably holding that □
Brevard's suggestive lineup claim was record-based and therefore should have been
raised on direct appeal. Dkt. 25-16 at 3.
G. Miranda Violation Claim
Brevard also argues that the lineup identification should have been
suppressed because he was not read his Miranda rights until after the lineup was
conducted. See Dkt. 21 at 28-29." Brevard raised this claim on direct appeal in his pro se.
supplemental brief. See Dkt. 25-5 at 45. The Appellate Division rejected Brevard's

Miranda claim on its merits, without discussion, along with the other claims inhis prose =

supplemental brief. See Brevard I, 106 N.Y.S.3d at 625.

u Brevard raised this Miranda violation claim in his second N.Y. Crim. Proc, Law § 440.10 motion.
See Dkt, 25-14 at 53-54, The state court denied this claim on the procedural ground that it should have
been raised on direct appeal, pursuant to N.Y. Crim. Proc. Law §§ 440.10(2)(c) and 440.10(3)(c). See Dkt.
25-16 at 3. However, the state court was mistaken because Brevard did in fact raise this issue, albeit
briefly, in his pro se supplemental brief on direct appeal. Dkt, 25-5 at 45 (citing Miranda v. Arizona, 384
US. 436 (1966), and arguing on appeal that "the People failed to show that the Appellant had been
warned of or waived his constitutional rights to counsel"). Hence, I address this claim on its merits.
36

The Appellate Division's conclusion was reasonable because Miranda
violations apply to statements made by the defendant, not identification evidence such

as lineups. "While a defendant has a constitutional right not to have a coerced

statement used against him, a defendant does not have a constitutional right to

receive Miranda warnings." Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir.

1998). "The remedy for a Miranda violation is the exclusion from evidence of any
ensuing self-incriminating statements." Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir.
1995) (per curiam), cert. denied, 516 U.S. 1174 (1996)). The Supreme Court has held that

pre-trial lineup identifications need not be suppressed due to a Miranda violation
because the "compulsion of the accused to exhibit his physical characteristics" involves

no compulsion of self-incriminating testimony. United States v. Wade, 388 U.S. 218, 222-

23 (1967); cf. United States v. Patane, 542 U.S. 630, 634, 643 (2004) (holding that
nontestimonial physical evidence need not be suppressed under Miranda because it
"does not implicate the Self-Incrimination Clause").

Brevard alleges, and the state does not dispute, that the lineup
identification evidence was obtained before he was read his Miranda rights. See Dkt. 21

at 28-29; Dit. 24-1 at 60. Nevertheless, a Miranda violation would not require the
suppression of pre-trial lineup identification evidence. See Wade, 388 U.S. at 222-23.
Therefore, the Appellate Division reasonably rejected Brevard's Miranda violation claim

as meritless, and this Court holds the same in denying Brevard's habeas petition.

37

CONCLUSION
Brevard has failed to show any basis for relief under 28 U.S.C. § 2254.
Accordingly, the Petition is denied. Additionally, I decline to issue a certificate of □
appealability because Brevard has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a)(3), I certify
that any appeal taken from this decision and order would not be taken in good faith.
The Clerk of the Court shall enter judgment accordingly and close this

case. The Clerk shall also mail copies of this memorandum decision and the judgment
to Brevard at his last known address.
SO ORDERED. . □

Dated: New York, New York □□
March 17, 2025 —_y

DENNY CHIN
United States Circuit Judge
Sitting by Designation

38

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10826105. Public record. Not legal advice.