Correa v. Collins

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Raul Correa,

Petitioner, MEMORANDUM & ORDER

22-CV-02366 (NRM)

-against-

Christopher Collins, Superintendent,

Great Meadow Correctional Facility

Respondent.

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NINA R. MORRISON, United States District Judge:

Pending before this Court is Petitioner Raul Correa’s petition for writ of habeas

corpus, in which he challenges his 2015 convictions for second-degree murder and

criminal possession of a weapon. Proceeding pro se, Petitioner argues that a detective

witness’s narration testimony deprived him of a fair trial and that his aggregate

sentence of forty years to life in prison is excessive. See generally ECF Nos. 1, 6, 9;

see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (“[T]he

submissions of a pro se litigant must be construed liberally and interpreted to raise

the strongest arguments that they suggest.” (quotations omitted)). After careful

consideration of the underlying record, Respondent’s motion to dismiss, and

Petitioner’s responsive pleading, for the reasons set forth below, the Petition is

DENIED.

BACKGROUND

I. Shootings

The following factual summary is drawn from the evidence presented by the

prosecution at Petitioner’s jury trial, including but not limited to video surveillance

footage. As further discussed infra, Petitioner’s convictions arise from a shooting of

two men near a Brooklyn deli in October 2013. Petitioner does not deny having shot

the decedents, Tevin Beckles and Randolph Williams, but at trial argued that he

acted in self-defense and was otherwise legally justified.

On the evening of October 18, 2013, Petitioner was at a deli in Brooklyn, New

York, drinking beers with the decedent, an acquaintance named Tevin Beckles. Just

after 8:00 p.m., another acquaintance of the two men – a man known as June –

entered the deli to confront Petitioner. June told Beckles to leave the deli, which he

did.

June proceeded to slap Petitioner across the face, hitting him so hard that it

knocked Petitioner to the ground. While on the floor, June patted down Petitioner,

as if looking for a weapon, but quickly left the bodega emptyhanded. From outside,

June yelled at Petitioner, “I told you I didn’t want to see you doing anything around

this corner,” before leaving the vicinity. The deli’s manager, Luis Paulino, and his

father helped Petitioner up from the floor. The incident angered Petitioner, but

Paulino and Orlando Martinez, another deli employee, encouraged Petitioner to take

it easy and go home.

Petitioner returned to the deli multiple times over the next ten minutes. At

one point, he argued with and pointed the gun at Beckles after he had returned to

the deli. Beckles once again left the deli; Petitioner followed him and pointed the gun

at him again. Petitioner, who lived on the same block where the deli was located,

walked up and down the street looking for June. A few minutes later, just before 8:30

p.m., Petitioner came across Beckles and another man, Randolph Williams, on the

corner outside the deli. The three men were seen yelling at and pushing each other,

and during this exchange, Petitioner twice pointed his gun at the other two men.

After having the gun pointed at him a second time, Beckles took out his own gun but

kept it lowered at his side. Seeing this, Petitioner stepped backwards and took partial

cover behind a fence, all the while keeping his gun aimed at Beckles.

Beckles started to raise but then lowered his gun. Petitioner proceeded to

shoot Beckles once in the chest. After Beckles fell, Williams reached for the gun on

the ground. Petitioner shot Williams once in the stomach. As the men lay on the

ground, Petitioner walked up and gestured at them with his gun before returning the

gun to his waistband and walking away. The entire incident was captured on

surveillance video obtained from a nearby New York Police Department Argus

camera.

II. Police Investigation

Police responded to the shootings at approximately 8:40 p.m. Beckles was

pronounced dead at the scene while Williams died later at the hospital. Ballistic

evidence recovered from the crime scene included two discharged shell casings, two

fired bullets, and an unfired cartridge all from a .40 caliber handgun. Also recovered

at the scene was an operable .22 caliber firearm, later confirmed to belong to Beckles.

During the course of the investigation, police spoke with multiple eyewitnesses

including the deli manager, Luis Paulino; Lenger Bellefleur, a taxi driver who was

stopped at a red light when he saw the fight and ensuing shooting before Petitioner

fled, walking past Bellefleur’s cab; Bernadine Cox, the fare in Bellefleur’s cab at the

time who heard gunshots, saw people running and saw one man slowly walking and

placing an object in his waistband; and Lamia Barney, a friend of Beckles’s who was

in her apartment near the deli, from where she could hear the fight and gunshots,

then ran outside and remained with Beckles as he died.

Later that same night, Paulino and Bellefleur each identified Petitioner via

photo array. Paulino knew Petitioner as a regular patron of the deli, and had also

watched the shooting via the store’s video surveillance system. Bellefleur, on the

other hand, had never seen Petitioner before, but “got a good look” at him after the

shooting as Petitioner walked toward and behind the cab as he fled the scene. Based

on these two positive identifications, an I-card was issued for Petitioner’s arrest.

On October 21, 2013, Petitioner purchased a one-way ticket for a flight to

Puerto Rico leaving the next day. Police arrested Petitioner on October 22, 2013,

while he was en route to the airport. Upon his arrest, Petitioner was placed in a line

up, from which Paulino and Bellefleur positively identified him as the shooter.

Petitioner was subsequently charged under Kings County Indictment number

9224/2013 with two counts of murder in the second degree, N.Y. Penal Law

§ 125.25(1), and two counts of criminal possession of a weapon in the second degree,

N.Y. Penal Law §§ 265.03(1)(b), (3).

III. State Court Procedural History

A. Motion to Suppress

On October 14, 2015, a justice of the New York Supreme Court, Kings County

(“trial court”), held a Wade hearing to determine whether the out-of-court

identification procedures were unduly and impermissibly suggestive. See United

States v. Wade, 388 U.S. 218, 242 (1967). Petitioner argued that the photo arrays

were improper because the filler photos were not sufficiently similar in appearance,

particularly because Petitioner was of a different race than the individuals in the

other photographs, with different features and a lighter complexion. Petitioner

identifies as non-Black Hispanic, whereas the filler photos were of Black men. ECF

No. 7-3 at 53–54.1 According to Petitioner, he impermissibly “[stood] out” during the

photo array, which in turn made it too easy for the same witnesses to pick him out of

a line-up two days later. ECF No. 7-3 at 54–56. Respondent, having introduced into

evidence a color copy of the original photo array, argued that a photo array

identification procedure is not “necessarily about matching [Petitioner] with people

of identical race,” but rather must account for all of his features, “including if he looks

darker [skinned] in the picture than he might in person.” ECF No. 7-3 at 56.

1 Cites to the record refer to page numbers automatically generated by

CM/ECF (and which are visible at the top of each page in the filed document), and

not the documents’ internal pagination.

The trial court denied Petitioner’s motion to suppress, finding that the fillers

in the photo array “were sufficiently similar in appearance” to Petitioner and the

subsequent lineup constituted “a fairly representative panel upon which a witness

could make a reliable identification.” ECF No. 7-3 at 61.

B. Jury Trial

Petitioner’s jury trial commenced on November 2, 2015. See ECF No. 7-4, at 1

(start of trial); id. at 19–20 (stating date). While the defense called no witnesses, nor

did Petitioner testify, the defense asserted that Petitioner’s actions had been justified.

Defense counsel argued in summation that Petitioner was not only justified in firing

his gun at Beckles and Williams after he saw Beckles draw a weapon, but also

encouraged the jury to “look at that videotape” which, according to the defense,

showed Petitioner retreating and hiding before shooting. ECF No. 7-7 at 12–14.

The crux of Petitioner’s claim for habeas relief stems from testimony relating

to the Argus surveillance video. The Argus video was first introduced and played for

the jury during the testimony of Luis Paulino.2 ECF No. 7-4 at 60. Not only was

Paulino present in the deli at the time June first hit Petitioner and for the timeframe

during which Petitioner repeatedly left and reentered the deli, but Paulino also

watched the events of the shooting via his store’s surveillance video feed.3 Paulino’s

initial description of the shooting lined up with the events as they played out on the

2 Paulino’s testimony can be found at ECF No. 7-4 at 28–129.

3 The deli’s surveillance video provided a live feed but was not recorded.

Argus video. As such, Paulino identified Petitioner, Beckles, and Williams — all of

whom were regulars at his deli — on the video. He explained that he could see

Petitioner with a gun and saw muzzle flashes as the gun was fired.

The Argus video was played a second time during the testimony of Homicide

Detective Richard Amato.4 ECF No. 7-5 at 116. Det. Amato was not present during

the shooting, but testified that the footage was recovered as part of the murder

investigation and that he viewed the footage multiple times prior to trial. As the

video played, Det. Amato described to the jury what he saw on the video screen: he

identified Petitioner, pointed out the gun in his left hand, noted the times Petitioner

raised and lowered his weapon, and highlighted how Petitioner appeared to be

“taking cover” after Beckles drew his own weapon. ECF No. 7-5 at 129. Defense

counsel did not object to any of this testimony until the prosecutor’s questions began

to elicit answers that led the detective to describe his own inferences about what had

transpired, rather than strictly explaining what was shown on the video.5 ECF No.

7-5 at 130–45. These objections to the narration were all sustained.

4 Amato’s testimony can be found at ECF No. 7-5 at 109–65.

5 Specifically, the court sustained defense counsel objections to (1): the

prosecutor asking, “Does that indicate anything to you?”; Detective Amato stating, “It

looks like his gun may have jammed”; (2) the prosecutor asking, “What does it appear

is going on to you and what is that based on?”; Detective Amato beginning to say, “it

appeared –”; (3) Detective Amato stating, “It appears that the gun is back down”; and

(4), Detective Amato stating, “It appears that –,” which counsel explained was an

“ongoing objection to the use of ‘appears’ and ‘seems’ with regard to the descriptions.”

ECF No. 7-5 at 130–45.

The jury deliberated for two days, during which time they requested to rewatch

the surveillance video. Though the jury initially requested a readback of Det. Amato’s

testimony, they later withdrew that request. ECF No. 7-7 at 125–27. On November

12, 2015, the jury found Petitioner guilty of two counts of second-degree murder and

one count of criminal possession of a weapon. ECF No. 7-7 at 132–36.

On December 2, 2015, the trial court sentenced Petitioner to consecutive

sentences of forty years to life in prison for each count of second-degree murder, and

a concurrent term of fifteen years determinate plus five years of post-release

supervision for weapons possession. See ECF No. 1 at 1; ECF No. 7 at 3.6

C. Post-Conviction Proceedings

1. Motion to Set Aside Verdict and First Motion to Vacate

Judgment

In a pro se motion dated November 24, 2015, Petitioner moved to set aside the

verdict pursuant to N.Y. Crim. Proc. Law § 330.30, alleging generally that he was

innocent. ECF No. 7-8 at 3–6. Petitioner also moved to vacate the judgment of

conviction pursuant to N.Y. Crim. Proc. Law § 440.10 in a pro se pleading dated

December 23, 2015. ECF No. 7-8 at 9–16. He argued that (1) the surveillance video

had been altered; (2) witness testimony was coerced, perjured, and contained

discrepancies; and (3) the evidence in general was unreliable and insufficient to

sustain his conviction. ECF No. 7-8 at 15.

6 A transcript of Petitioner’s sentencing hearing was not included as part of the

state court record.

By decision and order dated February 19, 2016, the trial court denied both of

Petitioner’s motions. ECF No. 7-8 at 25–27. With regard to the § 330.30 motion, the

court denied the motion as moot because it was “untimely.” ECF No. 7-8 at 25 (citing

N.Y. Crim. Proc. Law § 330.30).7 As for the § 440.10 motion, the trial court denied

Petitioner’s first two claims on their merits, finding that the allegations were

unsupported and, “based on the facts and circumstances known to the court, there is

no reasonable possibility that the allegations are true.” ECF No. 7-8 at 25–26 (citing

N.Y. Crim. Proc. Law § 440.30(4)).8 On the other hand, Petitioner’s sufficiency claim

was denied on the procedural ground that record-based claims may only be raised on

direct appeal. ECF No. 7-8 at 26 (citing N.Y. Crim. Proc. Law § 440.10(2)(b)).9

Petitioner did not seek leave to appeal the trial court’s decision.

7 N.Y. Crim. Proc. Law § 330.30 requires that a 330.30 motion be made “[a]t

any time after rendition of a verdict of guilty and before sentence.” Though

Petitioner’s motion is dated before his sentencing, the motion was not received by the

District Attorney Clerk’s Office until December 3, 2025, after his sentencing. See

ECF No. 7-8 at 2.

8 Upon considering the merits of a motion to vacate judgment, N.Y. Crim. Proc.

Law § 440.30(4)(d) allows the court to “deny it without conducting a hearing if . . .

[a]n allegation of fact essential to support the motion . . . is made solely by the

defendant and is unsupported by any other affidavit or evidence, and [ ] under these

and all the other circumstances attending the case, there is no reasonable possibility

that such allegation is true.”

9 N.Y. Crim. Proc. Law § 440.10(2)(b) provides that “the court must deny a

motion to vacate a judgment when . . . [t]he judgment is, at the time of the motion,

appealable or pending on appeal, and sufficient facts appear on the record with

respect to the ground or issue raised upon the motion to permit adequate review

thereof upon such an appeal.”

2. Second Motion to Vacate Judgment

In a subsequent pro se § 440.10 motion, dated July 23, 2019, Petitioner argued

that his defense counsel was ineffective for failing to (a) file a motion to dismiss after

Petitioner did not appear at the grand jury, (b) independently investigate the forensic

evidence, (c) call a forensic expert witness, (d) present evidence that the victims were

drug dealers, and (e) obtain materials from the prosecution that was withheld in

violation of Brady v. Maryland, 373 U.S. 83 (1963). ECF No. 7-8 at 29–64.

Respondent argued that all of Petitioner’s claims were procedurally barred because

there were sufficient facts in the record to permit adequate review on direct appeal,

see N.Y. Crim. Proc. Law § 440.10(2)(b), and moreover, the court had discretion to

deny Petitioner’s motion because Petitioner had been in a position to raise the claims

in his first § 440.10 motion but failed to do so, see N.Y. Crim. Proc. Law §

440.10(3)(c).10 ECF No. 7-8 at 68–94.

The trial court denied Petitioner’s second § 440.10 motion on June 25, 2020,

finding that all of the claims must be dismissed pursuant to N.Y. Crim. Proc. Law

§ 440.10(2)(b), but in any event, they were all meritless. ECF No. 7-8 at 96–103. Once

again, Petitioner did not seek leave to appeal this decision.

10 Under N.Y. Crim. Proc. Law § 440.10(3)(c), “the court may deny a motion to

vacate a judgment when . . . [u]pon a previous motion made pursuant to this section,

the defendant was in a position adequately to raise the ground or issue underlying

the present motion but did not do so.”

3. Direct Appeal

While his second motion to vacate judgment was pending, Petitioner appealed

his conviction to the New York Supreme Court, Appellate Division, Second

Department (“Appellate Division”), arguing, through counsel, that (1) Detective

Amato’s narration of the surveillance video constituted improper lay opinion

testimony which denied Petitioner a fair trial and (2) his excessive sentence should

be reduced in the interest of justice. ECF No. 7-8 at 105–39. Specifically, Petitioner

contended that Detective Amato, who was neither an eyewitness nor an expert, gave

testimony in which he “editorialized at length” about the actions depicted in the video

and stated with “authority” what was happening throughout, leaving no room for the

jury’s own interpretation. See ECF No. 7-8 at 110, 128–36. According to Petitioner,

allowing this testimony could not be considered harmless error because without it,

the jury “may have entertained greater doubts about whether [Petitioner] was the

initial aggressor.” ECF No. 7-8 at 134.

Respondent argued as an initial matter that Petitioner’s narrative testimony

claim was unpreserved for appellate review when he failed to raise a specific objection

before the trial court. ECF No. 7-8 at 158–60. Nevertheless, Respondent maintained

that the claim was meritless because all of the defense’s narration objections were

sustained, and the portions of Detective Amato’s testimony to which the defense made

no objections were properly admitted to aid the jury, and alternatively, the remaining

evidence of Petitioner’s guilt rendered any error harmless. ECF No. 7-8 at 161–72.

As for Petitioner’s sentencing claim, Respondent argued that the sentence need not

be reduced in the interest of justice where it fell within the permissible statutory

range, see N.Y. Penal Law §§ 70.00(1), (2)(a), (3)(a)(i), and the trial court did not abuse

its discretion by running the murder sentences consecutively. ECF No. 7-8 at 173–

75.

On October 21, 2020, the Appellate Division affirmed Petitioner’s judgment of

conviction. People v. Correa, 131 N.Y.S.3d 258 (N.Y. App. Div. 2020). The Appellate

Division found unpreserved the contention that the trial court should not have

allowed any narration testimony because “defense counsel did not object to the

narration [as a whole], only to certain discrete portions of the narration[.]” Id. at

1039 (citing N.Y. Crim. Proc. Law § 470.05(2)).11 In any event, the Appellate Division

considered the merits of Petitioner’s claim, concluding that “any error in the

admission of this testimony was harmless” because “[i]t is undisputed that

[Petitioner] was the shooter,” the overwhelming evidence that he “was the initial

aggressor who employed deadly physical force” completely negated the justification

11 New York’s preservation statute, known as the “contemporaneous objection

rule,” specifies that:

[f]or purposes of appeal, a question of law with respect to a ruling

or instruction of a criminal court during a trial or proceeding is

presented when a protest thereto was registered, by the party

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

subsequent time when the court had an opportunity of effectively

changing the same. Such protest need not be in the form of an

“exception” but is sufficient if the party made his position with

respect to the ruling or instruction known to the court, or if in

response to a protest by a party, the court expressly decided the

question raised on appeal.

N.Y. Crim. Proc. Law § 470.05(2).

defense, and “there is no significant probability that the jury would have acquitted

[Petitioner] had it not been for the admission of the narration testimony.” Id.

(citations omitted). Moreover, the Appellate Division held that Petitioner’s sentence

was not excessive. Id.

Petitioner sought leave to appeal to the New York Court of Appeals, which was

denied on January 28, 2021. People v. Correa, 36 N.Y.3d 1050 (2021) (Garcia, J.). He

did not seek a writ of certiorari with the United States Supreme Court. See, e.g.,

Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (“‘[D]irect review,’ as used in [28

U.S.C. §] 2244(d)(1)(A), includes direct review by the United States Supreme Court

via writ of certiorari . . . .”).

IV. Habeas Corpus Petition

The instant Petition was timely filed on April 20, 2022. See ECF No. 1;12 see

also Saunders v. Senkowski, 587 F.3d 543, 547 (2d Cir. 2009) (explaining that one-

year limitations period to file habeas petition begins “running upon the expiration of

12 The initial Petition references all of the claims raised in state court,

including those from the two unsuccessful 440.10 motions. ECF No. 1 at 2–4.

Petitioner concedes that, due to his inability to acquire legal assistance and lack of

legal resources, he failed to seek leave to appeal either of the trial court’s 440.10

decisions within the necessary time frame, and none of the claims raised therein were

fully exhausted in state court. ECF No. 1 at 4; see 28 U.S.C. § 2254(b)(1); Thomas v.

Greiner, 111 F. Supp. 2d 271, 277–78 (S.D.N.Y. 2000) (finding claims procedurally

barred by petitioner’s failure to seek leave to appeal denial of his 440.10 motion);

Safran v. New York, No. 22-cv-3177, 2023 WL 3306932, at *2-3 (E.D.N.Y. May 6,

2023) (distinguishing between New York State’s appellate procedures and post-

conviction review); cf. Garner v. Superintendent, 10-cv-1406, 2012 WL 3929944, at *6

n.6 (N.D.N.Y. Sept. 10, 2012). Accordingly, Petitioner does not dispute that only those

claims raised on direct appeal are eligible for federal habeas review. See ECF No. 1

at 4.

the 90-day period during which [petitioner] could have filed for direct review of his

conviction”). Petitioner also filed a “First Amended Petition” via letter dated July 12,

2022, reasserting his narrative testimony and excessive sentence claims. See ECF

No. 6. Respondent filed its opposition and supporting memorandum of law on

September 14, 2022, arguing that the narration testimony claim was procedurally

barred from review and, regardless, both it and the sentencing claim are without

merit. See ECF No. 7. Petitioner sought an extension of time to file a reply to the

opposition, see ECF No. 8, which the Court subsequently granted. See Order dated

October 14, 2022. Soon after, on October 26, 2022, this matter was reassigned to the

undersigned. Petitioner filed a responsive pleading on December 12, 2022, wherein

he challenged Respondent’s procedural bar argument and reiterated that the

narration testimony denied him a fair trial. See generally ECF No. 9.

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

a person in custody pursuant to a state-court judgment may seek a writ of habeas

corpus on the grounds that he is being held “in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a). A federal court may not review

a habeas petition until after the petitioner “has exhausted the remedies available” in

state courts, 28 U.S.C. § 2254(b)(1)(A), and even then, habeas relief may only be

obtained for a violation of federal law. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)

(“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”). Accordingly, “[s]tate remedies are deemed

exhausted when a petitioner has: (i) presented the federal constitutional claim

asserted in the petition to the highest state court . . . and (ii) informed that court (and

lower courts) about both the factual and legal bases for the federal claim.” Ramirez

v. Att’y Gen. of State of New York, 380 F.3d 87, 94 (2d Cir. 2001) (citing Picard v.

Connor, 404 U.S. 270, 276–77 (1971)).

Federal review of state convictions is further constrained by the procedural

default doctrine. Generally, 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 v. Thompson, 501 U.S. 722, 729 (1991). Reliance on state law grounds,

whether a substantive or procedural rule, must be “clear from the face” of the state

court’s opinion to satisfy the independent requirement. Fama v. Comm’r of Corr.

Servs., 235 F.3d 804, 809 (2d Cir. 2000) (citing Coleman, 501 U.S. at 735); see

Bierenbaum v. Graham, 607 F.3d 36, 47 (2d Cir. 2010). To establish adequacy for a

state procedural rule, the state procedural rule relied upon must be “firmly

established and regularly followed” by courts of that state. Garcia v. Lewis, 188 F.3d

71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423–24 (1991)). As is

relevant here, the Second Circuit has repeatedly held that New York’s preservation

requirements, including the contemporaneous objection rule laid out in N.Y. Crim.

Proc. Law § 470.05(2), are acceptable “firmly established and regularly followed”

state procedural rules. Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011); accord Garvey

v. Duncan, 485 F.3d 709, 718 (2d Cir. 2007); Garcia, 188 F.3d at 78–79.

Even when a state court rests its decision on procedural grounds that would

otherwise be deemed independent and adequate, the Second Circuit has found certain

situations where an alternative holding accompanying that determination may be

considered an “[adjudication] on the merits” sufficient to open the claim to federal

habeas review. Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (per curiam) (citing

Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002)) (concluding that state court

adjudicated claim on merits where it found “petitioner’s claim to be unpreserved, and,

in any event, without merit” (emphasis added));13 see also Sellan v. Kuhlman, 261

F.3d 303, 312 (2d Cir. 2001) (“[A] state court ‘adjudicate[s]’ a state prisoner’s federal

claim on the merits when it (1) disposes of the claim ‘on the merits,’ and (2) reduces

its disposition to judgment.” (quoting 28 U.S.C. § 2254(d)(1))).

When a state court has adjudicated a federal claim on the merits, a federal

court may not grant a habeas petition on that claim unless the 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

(2) resulted in a decision that was based on an unreasonable

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

court proceeding.

13 On the contrary, it is not considered an adjudication on the merits if a state

court rejects a claim on procedural grounds, then proceeds to state that, “if the merits

were reached, the result would be the same.” Bell v. Miller, 500 F.3d 149, 154-55 (2d

Cir. 2007) (finding that such statement is not alternative holding, but merely a

“contrary-to-fact construction”) (citing Zarvela, 364 F.3d at 417); accord Clark v.

Perez, 510 F.3d 382, 394 (2d Cir. 2008) (finding no adjudication on merits where

holding is framed as “were the court to consider defendant’s claim . . . it would find

the claim completely meritless,” because, by its own terms, holding is based on

procedural bar and merits were not considered).

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).

“Where a State court decision adjudicates a petitioner’s claim on the merits,

[the decision must be] accorded substantial deference.” Fischer v. Smith, 780 F.3d

556, 560 (2d Cir. 2015); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (AEDPA

deference “demands that state-court decisions be given the benefit of the doubt”

(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Such deference

applies “even if the state court does not explicitly refer to either the federal claim or

to relevant federal case law” in its decision. Kuhlman, 261 F.3d at 312.

For the purposes of federal habeas review, a state court decision is “contrary

to” clearly established federal law only in circumstances when the state court either

applies a rule different from the governing law set forth by the Supreme Court, or if

it arrives at a conclusion different than that reached by the Supreme Court on

“materially indistinguishable” facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

Similarly, an “unreasonable application” of clearly established federal law occurs

when a state court identifies the correct governing legal principle, but unreasonably

applies it to the facts of the petitioner’s case. Id. at 413. This inquiry prevents habeas

courts from granting relief where the state court’s application of Supreme Court

precedent was merely incorrect or erroneous, and permits habeas relief only in those

rare circumstances where the state court’s decision was objectively unreasonable. Id.

at 409–10. Only when there is “no possibility fair-minded jurists could disagree that

the state court’s decision conflicts with [Supreme Court] precedents” may habeas

relief be granted. Harrington, 562 U.S. at 102–03; accord Vega v. Walsh, 669 F.3d

123, 126 (2d Cir. 2012) (per curiam).

Additionally, AEDPA forecloses “using federal habeas corpus review as a

vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews,

567 U.S. 37, 38 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court’s

factual findings are not unreasonable under 28 U.S.C. § 2254(d)(2) simply because

the reviewing court would have reached a different conclusion. Wood v. Allen, 558

U.S. 290, 301 (2010); see also 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual

issue made by a State court shall be presumed to be correct. The applicant shall have

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

evidence.”). Once again, the question is “not whether a federal court believes the

state court’s determination was incorrect but whether that determination was

unreasonable – a substantially higher threshold.” Schiro v. Landrigan, 550 U.S. 465,

473 (2007).

DISCUSSION

The instant Petition sets forth two grounds for habeas relief: (1) Petitioner’s

due process right to a fair trial was violated by the erroneous introduction of

narration testimony, and (2) his indeterminate sentence of forty years to life in prison

is excessive. ECF No. 1 at 2; ECF No. 6. Petitioner has exhausted the available state

remedies as to both claims, having raised them on direct appeal to the Appellate

Division, People v. Correa, 131 N.Y.S.3d 258 (N.Y. App. Div. 2020), and subsequently

seeking leave to appeal to the New York Court of Appeals, People v. Correa, 36 N.Y.3d

1050 (2021). See 28 U.S.C. § 2254(b)(1). Because the Court of Appeals summarily

denied Petitioner leave to appeal, this Court “[looks] through” to the Appellate

Division’s opinion as the last reasoned decision to evaluate the claims in state court.

Wilson v. Sellers, 584 U.S. 122, 125 (2018) (presuming “that the unexplained decision

adopted the same reasoning”); McCray v. Capra, 45 F.4th 634, 640 (2d Cir. 2022).

I. Narration Testimony

Petitioner first claims that the trial court violated his due process rights and

denied him a fair trial by allowing Detective Amato to narrate the surveillance video

as it was played for the jury. ECF No. 1 at 2; ECF No. 9 at 12–16. Specifically,

Petitioner contends that admission of this “lay opinion testimony” was an evidentiary

error and, because it hindered the jury’s ability to “draw the appropriate inferences”

from the video, such error was not harmless. ECF No. 9 at 12–16.

The Appellate Division rejected this claim, initially denying it on the ground

that the “contention that the [trial] court should not have allowed any narration” was

unpreserved for appellate review. Correa, 131 N.Y.S.3d at 258 (citing N.Y. Crim.

Proc. Law § 470.05(2)).14 While it would not have been improper for the state court

14 As discussed above, the Appellate Division found Petitioner’s narration claim

unpreserved for appellate review because “defense counsel did not object to the

narration [as a whole], only to certain discrete portions of the narration, which

objections were, for the most part, sustained.” Correa, 131 N.Y.S.3d at 258; see also

n.5, supra. Despite Petitioner’s argument to the contrary, ECF No. 9 at 7–11, the

state court’s reliance on its own preservation rule is well-accepted as an independent

and adequate procedural bar to federal habeas review. See e.g., Downs v. Lape, 657

F.3d 97, 104 (2d Cir. 2011) (“[W]e have held repeatedly that the contemporaneous

objection rule is a firmly established and regularly followed New York procedural

rule.”); Garcia, 188 F.3d at 82 (finding failure to “bring to the trial court’s attention

the claim that Garcia later attempted to advance on appeal . . . ran afoul of New

to end the analysis there and rest its decision on a procedural default, e.g., Coleman,

501 U.S. at 729–30 (1991), the Appellate Division proceeded with the alternative

holding that, “[i]n any event, any error in the admission of [Detective Amato’s]

testimony was harmless,” Correa, 131 N.Y.S.3d at 258.

Because the Appellate Division’s ultimate conclusion amounts to an

alternative holding, Zarvela, 364 F.3d at 417, as opposed to a “contrary-to-fact”

statement, Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007), the finding of harmless

error is considered an adjudication on the merits. Cf. Brown v. Davenport, 596 U.S.

118, 127 (2022) (“No one questions that a state court’s harmless-error determination

qualifies as an adjudication on the merits under AEDPA.”). Accordingly, the question

before this Court is not whether the trial court erred in allowing the testimony, but

rather whether the Appellate Division’s harmless error determination is in conflict

with Supreme Court precedent.

In light of the Supreme Court’s decision in Brown v. Davenport, habeas review

of a state court’s merits determination of harmless error must occur in two parts.

Krivoi v. Chappius, No. 21-2934-PR, 2022 WL 17481816, at *3 (2d Cir. Dec. 7, 2022).

The first of these tests was laid out by the Supreme Court in Brecht v.

Abrahamson, 507 U.S. 619 (1993). Under Brecht, when a state court has

York’s legitimate requirement that objections be raised in a way that gives the trial

court the opportunity to remedy the problem and thereby avert reversible error.”

(internal quotation marks omitted)).

To the extent Petitioner argues that the Appellate Division was incorrect in

finding the claim unpreserved, see ECF No. 9 at 8, the Court need not address this

issue as the Appellate Division’s alternative holding of “harmless error” is otherwise

entitled to merits review. See Zarvela, 364 F.3d at 417.

found a constitutional violation to be harmless beyond a reasonable

doubt (by applying the harmless error standard from Chapman v.

California, 386 U.S. 18 (1967)), a habeas petitioner must show that an

error had a “substantial and injurious” effect or influence on the jury’s

verdict. Brecht, 507 U.S. at 622–23 (internal quotation marks omitted).

The Supreme Court recently held that, in addition to the Brecht

standard, federal courts must apply the AEDPA standard laid out in §

2254(d)(1). Brown v. Davenport, [596 U.S. 118, 127–28,] 142 S. Ct. 1510,

1520 (2022). In other words, [the petitioner] must prevail under the

Brecht “substantial and injurious” standard, and he must show that the

state court’s harmless error determination was an unreasonable

application of federal law as determined by the Supreme Court (i.e., that

the state court’s harmless error determination was an unreasonable

application of Chapman).

Krivoi, 2022 WL 17481816 at *3. While these standards need not be applied in any

particular order, the Court will first address whether the Appellate Division’s

determination was an unreasonable application of Chapman per AEDPA. Then, the

Court will address whether the Brecht standard has been met.

A. AEDPA/Chapman

Without opining one way or the other whether the trial court did err in allowing

Detective Amato’s narration testimony, the Appellate Division ruled that “any error

in the admission of this testimony was harmless” because “[i]t is undisputed that

[Petitioner] was the shooter[, t]he evidence was overwhelming that the defendant was

the initial aggressor . . . and there is no significant probability that the jury would

have acquitted [Petitioner] had it not been for the admission of the narration

testimony.” Correa, 131 N.Y.S.3d at 258. The question now is whether the Appellate

Division “act[ed] contrary to or unreasonably applie[d] [the Supreme] Court’s

preexisting and clearly established rules” such that “every fairminded jurist” would

reach a different conclusion than the state court did when applying the same legal

principle. Brown, 596 U.S. at 144–45.

When the harmlessness of an error is at issue on direct appeal, the applicable

legal principle is the standard set forth in Chapman v. California, which requires

that “before a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at

24 (requiring courts to determine “whether there is a reasonable possibility that the

evidence complained of might have contributed to the conviction”). Although the

Appellate Division did not cite Chapman directly, it did cite People v. Crimmins, a

New York state case that applied the Chapman standard. Correa, 131 N.Y.S.3d at

258 (citing Crimmins, 36 N.Y.2d 230, 242 (1975)); see Crimmins, 36 N.Y.2d at 237

(applying the Chapman standard); see also Gutierrez v. McGinnis, 389 F.3d 300, 308

(2d Cir. 2004) (“for AEDPA deference to attach . . . our Circuit does not require state

courts to cite federal precedent when disposing of that claim. Therefore, the question

is whether the Appellate Division reasonably applied Chapman or New York’s

equivalent interpretation.” (citation omitted)). Crimmins requires the Appellate

Division to determine whether “there is no reasonable possibility that the error might

have contributed to defendant’s conviction,” 36 N.Y.2d at 237 — the very test cited

with approval in Chapman, 386 U.S. at 24, and relied on by the Appellate Division

here, Correa, 131 N.Y.S.3d at 258 (finding “no significant probability that the jury

would have acquitted [Petitioner]”).

Respondent argues that the Appellate Division’s finding of harmless error was

not unreasonable because there was no dispute that Petitioner shot both victims, and

his justification defense was fully negated by the “weighty” evidence of his role as the

initial aggressor, separate and apart from Det. Amato’s narration testimony. ECF

No. 7 at 15 (citing N.Y. Penal Law § 35.15(1)(b)). Respondent cites the video evidence

and witness testimony at trial that Petitioner “took out a gun, angrily pointed the

gun twice at the first victim Tevin Beckles, stormed up and down the block for eight

minutes with the gun drawn[,] . . . got in Beckles’s face, and pointed the gun at

Beckles two more times before Beckles eventually took out a gun, and then

[Petitioner] fired the only shots.” ECF No. 7 at 15–16. Moreover, Respondent asserts

that any error was minimized by the trial court’s repeated instructions highlighting

how “the jury’s evaluation of the video controls and Detective Amato’s narration was

merely an aid,” as well as the jury’s multiple viewings of the surveillance video —

both before and after the concerning testimony. ECF No. 7 at 14–15. In light of this

overwhelming evidence, Respondent contends, the Appellate Division finding “no

significant probability” of a different outcome was not unreasonable. See ECF No. 7

at 16; Correa, 131 N.Y.S.3d at 258.

Petitioner does not expressly argue that the state court’s harmless error ruling

was an unreasonable application of clearly established federal law. However, the

Court construes the Petition liberally and finds it to raise the contention that the

Appellate Division’s finding of harmless error was unreasonable because, but for

Detective Amato’s narration testimony, the outcome of his trial would have been

different. ECF No. 9 at 15–16. Petitioner concedes that the evidence was legally

sufficient to prove that he murdered Beckles and Williams. But he nevertheless

argues that allowing Detective Amato’s narration testimony was not harmless

because there was “a [lack] of direct evidence linking [him] to the crime and [ ]

conflicting witness testimony regarding Petitioner’s justification defense.” ECF No.

9 at 15.

When a state court has applied Chapman, as it did here, 28 U.S.C. § 2254(d)(1)

“requires a habeas petitioner to prove that the state court’s decision was

unreasonable.” Brown, 596 U.S. at 135 (citing Cullen v. Pinholster, 563 U.S. 170, 181

(2011); Fry v. Pliler, 551 U.S. 112, 119 (2007)). “To accomplish that, a petitioner must

persuade a federal court that no ‘fair minded juris[t]’ could reach the state court’s

conclusion under [the Supreme] Court’s precedents.” Brown, 596 U.S. at 135 (citing

Davis v. Ayala, 576 U.S. 257, 269 (2015)). Petitioner has not done so.

When a criminal defendant asserts the defense of justification, New York State

law requires that the prosecution “prove beyond a reasonable doubt that the

defendant’s actions were not justified.” People v. Williams, 77 N.Y.S.3d 216, 216 (N.Y.

App. Div. 2018) (citing N.Y.P.L. § 25.00(1)). New York Penal Law further provides

that “a defendant is never justified in using deadly physical force if that defendant is

the ‘initial aggressor’: the first person in an altercation who uses or threatens the

imminent use of deadly physical force.” People v. Brown, 33 N.Y.3d 316, 320–21

(2019) (citing N.Y.P.L. § 35.15(1)). As for what constitutes such a threat, the New

York Court of Appeals articulated in Brown that:

[T]he imminent threat to use a gun constituted the threat of deadly

physical force even if the gun is never fired. People v. Dodt, 61 N.Y.2d

408 (1984). “[T]he threat presented by a gun does not depend to any

significant extent on the manner in which it is used. So long as a gun is

operable, it constitutes deadly physical force, and a threat to use a gun,

such as was made here, can only be understood as a threat that the

weapon is operable.” Id. at 414–15.

Thus, the imminent threat to use a gun against another is, necessarily,

a threat of deadly physical force. The first person to make such an

imminent threat is, therefore, the initial aggressor with respect to deadly

physical force.

33 N.Y.3d at 322 (emphasis added).

Here, while Petitioner mounted a vigorous justification defense, there was

indeed a substantial array of other evidence from which a reasonable jury could find

beyond a reasonable doubt that Petitioner was the initial aggressor. This included

evidence presented by the People that, although Beckles did eventually draw a

weapon, it was in response to Petitioner first brandishing his own gun and repeatedly

pointing it at both Beckles and Williams. ECF No. 7-4 at 68–71. It also included

evidence that while Petitioner saw Beckles produce the gun and “retreated” to seek

cover behind a fence, Petitioner never took his aim off of Beckles. ECF No. 7-5 at 75–

76; ECF No. 7-5 at 141–42; ECF No. 7-7 at 12–14. Moreover, the ballistics evidence

established that only one gun was fired — a .40 caliber handgun that was not the one

belonging to Beckles. ECF No. 7-4 at 180–85; ECF No. 7-6 at 11. Finally, and perhaps

most importantly, the Augers video itself was admitted and played for the jury

multiple times, twice without the testimony of Detective Amato. ECF No. 7-4 at 60;

ECF No. 7-7 at 125–27. The jury was repeatedly instructed to rely on its own

assessment of the events on the video and not to substitute Det. Amato’s inferences

for the jurors’ own independent judgment. ECF No. 7-5 at 143, 145, 152. This

evidence belies Petitioner’s claim that there was a “lack of direct evidence linking”

him to the crime and that those portions of Det. Amato’s testimony that constituted

narration, even if admitted in error, were not harmless; at the very least, the record

shows that the Appellate Division did not unreasonably find otherwise. ECF No. 9

at 15. In sum, the Court finds no error in the state court’s conclusion that the

narration testimony alone did not unfairly prejudice Petitioner’s justification defense

or otherwise contribute to the verdict. Accordingly, the Appellate Division did not

unreasonably apply Chapman’s standard in determining that any error arising from

Detective Amato’s testimony was harmless. Correa, 131 N.Y.S.3d at 258.

B. Brecht

Having assessed the Appellate Division’s decision under 28 U.S.C.

§ 2254(d)(1), the question turns to whether any possible constitutional error had a

“substantial and injurious” effect on the verdict as articulated in Brecht. Notably, a

“‘reasonable possibility’ that the [constitutional] error was harmful” does not satisfy

this standard. Davis, 576 U.S. at 268 (quoting Brecht, 507 U.S. at 637). Rather, an

error is harmless unless it results in “actual prejudice.” Id. at 267. Moreover, the

reviewing court must hold “grave doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal

v. McAninch, 513 U.S. 432, 436 (1995); Davis, 576 U.S. at 267–68. As the O’Neal

court explained,

[b]y “grave doubt” we mean that, in the judge’s mind, the matter is so

evenly balanced that he feels himself in virtual equipoise as to the

harmlessness of the error. We conclude that the uncertain judge should

treat the error, not as if it were harmless, but as if it affected the verdict

(i.e., as if it had a “substantial and injurious effect or influence in

determining the jury’s verdict”).

513 U.S. at 435. “That is to say, if a judge has ‘grave doubt’ about whether an error

affected a jury in this way, the judge must treat the error as if it did so.” Id. at 438;

cf. Brown, 596 U.S. at 136 (“[W]here AEDPA asks whether every fairminded jurist

would agree that an error was prejudicial, Brecht asks only whether a federal habeas

court itself harbors grave doubt about the petitioner’s verdict.”).

In assessing “whether the erroneous admission of evidence had a substantial

and injurious effect on the jury’s decision, [the Court considers] the importance of the

. . . wrongly admitted [evidence], and the overall strength of the prosecution’s case.”

Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000).

In assessing whether the erroneous admission of evidence had a

substantial and injurious effect on the jury’s decision, [this Court]

consider[s] the importance of the wrongly admitted evidence, and the

overall strength of the prosecution’s case. The importance of wrongly

admitted evidence is determined by the prosecutor’s conduct with

respect to the evidence, whether the evidence bore on an issue plainly

critical to the jury’s decision, and whether it was material to the

establishment of the critical fact, or whether it was instead corroborated

and cumulative.

Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011) (cleaned up).

Even if the Court were to find that Det. Amato’s testimony during the video

went beyond what was permissible, that testimony did not result in “actual

prejudice,” as it did not cause a “substantial and injurious” effect on the verdict.

Davis, 576 U.S. at 267. As discussed supra, the Augers video itself was admitted and

played for the jury multiple times. ECF No. 7-4 at 60; ECF No. 7-7 at 125–27. Twice,

it was played without Detective Amato’s testimony, and the trial court repeatedly

instructed the jury to rely on its own assessments of the video, not any inferences

made by Detective Amato. ECF No. 7-5 at 143, 145, 152. Moreover, the additional

evidence discussed supra shows that the “overall strength of the prosecution’s case”

was strong, including that Beckles’ eventual drawing of his gun was in response to

Petitioner first brandishing his own gun and repeatedly pointing it at Beckles and

Williams, ECF No. 7-4 at 68–71, that Petitioner never took his aim off Beckles, ECF

No. 7-5 at 75–76, 141–42; ECF No. 7-7 at 12–14, and that ballistics evidence

established that only one gun was fired, and that it was not the firearm belonging to

Beckles, ECF No. 7-4 at 180–85; ECF No. 7-6 at 11.

II. Excessive Sentence

Petitioner next contends that his aggregate sentence of forty years to life in

prison is excessive “given the aberrational nature” of the crime and the fact that he

was 62 years old at the time of his appeal. ECF No. 1 at 2. In state court, Petitioner

implored the Appellate Division to reduce his sentence in the interest of justice on

the grounds that the “imposition of consecutive prison sentences . . . all but ensure[s]

that [Petitioner] will die in prison.”15 ECF No. 7-8 at 137–39. The Appellate Division

rejected this claim outright, concluding without elaboration that the “sentence

imposed was not excessive.” Correa, 131 N.Y.S.3d at 258 (citing People v. Suitte, 455

N.Y.S.2d 675 (N.Y. App. Div. 1982)).

15 At the time of sentencing, Petitioner was 62 years old. See ECF No. 1 at 2;

ECF No. 7-8 at 126-27.

“Under New York law, the State appellate courts have the authority to reduce

a sentence in the interest of justice without finding an abuse of sentencing discretion

by the trial judge.” Thomas v. Greiner, 111 F. Supp. 2d 271, 279–80 (S.D.N.Y. 2000);

see Suitte, 455 N.Y.S.2d at 675 (explaining why and when New York appellate courts

may “substitute [their] own discretion”); see also N.Y. Crim. Proc. Law §§ 470.15(3),

(6)(b). A federal habeas court, however, “has no such authority,” see Greiner, 111 F.

Supp. at 279-80, and “a claim that a sentence should be reduced in the interest of

justice does not allege a violation of a federally protected right,” Baide-Ferrero v.

Ercole, No. 06-cv-6961, 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010). See also

Medina v. Greene, No. 03-cv-8646, 2004 WL 2809196, at *4 (S.D.N.Y. Dec. 7, 2004)

(concluding that, by appealing to Appellate Division’s power under N.Y. Crim. Proc.

Law § 470.15 to reduce excessive sentence in interest of justice, petitioner “did not

fairly present the excessive sentence claim in federal constitutional terms”).

Moreover, even liberally construing this claim to assert that Petitioner’s

sentence is so disproportionately long that it violates the Eighth Amendment’s

protection against cruel and unusual punishment, he is not entitled to habeas relief.

See Herrera v. Artuz, 171 F. Supp. 2d 146, 151 (S.D.N.Y 2001). A state sentence does

not violate the constitution where the imposed sentence falls within the range

prescribed by state law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing

Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff’d, 875 F.2d 857 (2d Cir.

1989)); Chisholm v. Henderson, 736 F. Supp. 444, 449 (E.D.N.Y. 1990). Here, the trial

court sentenced Petitioner to consecutive terms of twenty years to life in prison for

each count of second-degree murder and a concurrent term of fifteen years for

criminal possession of a weapon. An indeterminate sentence of twenty years to life

in prison for each count of second-degree murder is permitted under New York Law,

N.Y. Penal Law §§ 70.00(2)(a), (3)(a)(i), as is a determinate sentence of fifteen years

for second-degree criminal possession of a weapon, N.Y. Penal Law §§ 70.02(1)(b),

(3)(b). It is undisputed that Petitioner’s sentence falls within the applicable range,

and this Court has no authority to question its validity.

To the extent Petitioner challenges the trial court’s decision to run his second-

degree murder sentences consecutively, the issue remains a matter of state law and

is not cognizable under federal habeas review. See, e.g., Ashby v. Senkowski, 269 F.

Supp. 2d 109, 115 (E.D.N.Y. 2003) (“A challenge to the imposition of consecutive

sentences fails to present an issue of constitutional dimension[.]”); Davis v. Herbert,

No. 02-cv-04908, 2003 WL 23185747, at *15 (E.D.N.Y. Oct. 24, 2003) (“Whether the

sentence could be consecutive was a matter of state law and raises no Constitutional

issue.”); cf. United States v. Jaramillo-Montoya, 834 F.2d 276, 279 (2d Cir. 1988)

(explaining how imposition of consecutive sentences violates the Eighth Amendment

only under extraordinary circumstances). In any event, New York trial courts have

the discretion to impose consecutive sentences for acts proven to be separate and

distinct, including acts of murder, and the trial court’s decision here did not overstep

what is permissible under state law. See, e.g., People v. Brathwaite, 63 N.Y.2d 839,

843 (1984) (upholding consecutive sentences for convictions on two counts of felony

murder and reasoning that “although the two deaths may be said to have occurred in

the course of a single extended transaction – the robbery – it was separate ‘acts’ which

caused the deaths of the owner and the clerk”); N.Y. Penal Law § 70.25(2).

This is not to say that Petitioner has no remaining avenues to try and obtain

a reduction in his sentence. To the extent that he continues to assert that he acted

in self-defense and that, even if he is legally responsible for Beckles’ and Williams’

deaths, the overall circumstances under which he committed the shootings are far

more mitigating than the sentencing court recognized, he is certainly free to raise

those issues along with any other grounds for earlier release in a future application

for executive clemency, or for parole if and when he becomes eligible.16 The current

Kings County District Attorney has also created a unit within his office to review

convicted persons’ applications for clemency and/or parole, and its website indicates

that the Office may not oppose applications from persons who make compelling claims

that they should be granted clemency or parole, or are otherwise entitled to a sentence

reduction. See Kings County District Attorney, Post-Conviction Justice Bureau, The

Brooklyn District Attorney’s Office, http://www.brooklynda.org/post-conviction-

justice-bureau/ (last visited April 2025). But this Court’s authority to review the

length of Petitioner’s sentence on federal habeas is strictly constrained.

In sum, because Petitioner’s sentences fall within the applicable statutory

range and the trial court did not abuse its discretion in imposing sentence, the

16 At present, it appears that Petitioner will not be eligible for parole until

2053, at which time he will be approximately 99 years old. However, to the extent

the New York State legislature enacts a change in law and permits earlier

applications from persons like Petitioner, he may become eligible sooner.

sentence he received does not violate the Eighth Amendment’s prohibition on “cruel

and unusual punishment.”

CONCLUSION

Petitioner has not shown any basis for habeas relief under the demanding

standards required by 28 U.S.C. § 2254. Accordingly, the petition is denied.

Additionally, a certificate of appealability will not issue, because Petitioner 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), the Court certifies that any appeal taken

from this decision and order would not be taken in good faith and therefore in forma

pauperis status is denied for purposes of an appeal. Coppedge v. United States, 369

U.S. 438, 444–45 (1962).

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: April 28, 2025

Brooklyn, New York