McCoy v. New York State Department of Corrections and Community Supervision

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WILLIAM L. MCCOY,

Petitioner, MEMORANDUM AND ORDER

-v- 21-CV-2924 (JS)

NEW YORK STATE DEPARTMENT

OF CORRECTIONS AND COMMUNITY

SUPERVISION,

Respondent.

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APPEARANCES

For Petitioner: William L. McCoy, Pro Se

25 Melville Park Road, Suite 207A

Melville, New York 11747

For Respondent: Joyce A. Smith, Esq.

Acting District Attorney, Nassau County

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Following a jury trial in 2018,1 Petitioner William L.

McCoy (hereinafter, “McCoy” or “Petitioner”) was convicted of one

count of Grand Larceny in the Third Degree (New York Penal Law

{“Penal Law”} § 155.40) and one count of Scheme to Defraud in the

First Degree. (Trial Tr. at 1304.) He was sentenced to two

concurrent terms of imprisonment: three to nine years on the count

1 Petitioner’s state court jury trial took place from February 1

through 13, 2018. The consecutively paginated trial transcript is

available in the Case Docket and will be referenced herein as

“Trial Tr.” followed by a page number. (See ECF Nos. 9-1, 9-2.)

of Grand Larceny in the Second Degree and one-and-a-third to four

years on the count of Scheme to Defraud in the First Degree.

(Sent’g Tr., ECF No. 10-7, at 23.) The trial court also imposed

a fine of $5,000 and other applicable surcharges. (Id. at 24.)

Presently before the Court is McCoy’s petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254 (“§ 2254”)

(hereafter, the “Petitioner”), in which he raises three grounds

for habeas relief: (1) the indictment and grand jury proceedings

were deficient; (2) the conviction was not supported by legally

sufficient evidence; and (3) ineffective assistance of trial

counsel. (Pet., ECF No. 1, at 4-10.) While Petitioner is not

presently in custody, at the time he filed his Petition, he was

incarcerated on the conviction from which he seeks habeas relief.

For the reasons articulated herein, the Petition is DENIED in its

entirety, and the case is dismissed.

BACKGROUND

I. The Offense and Trial

Petitioner’s indictment by a grand jury and his

subsequent conviction resulted from misappropriation of funds

entrusted to him for a business transaction in which Petitioner

falsely represented himself as an attorney. More specifically, in

2014, misrepresenting himself as an attorney, McCoy was hired by

Ryan Cooke to represent Cooke in a business deal, to wit,

purchasing a party boat business from Frank and Elsie Rizzo,

Cooke’s former part-time employers (hereafter, the “Business

Transaction”). (Trial Tr. at 286-88, 291, 297, 376-85.) In further

pursuit of the Business Transaction, Petitioner also pretended to

be an attorney to Sema and Allen Blatter; Seam was Cooke’s former

colleague and Allen was her husband. The Blatters provided

Petitioner with $200,000, which was the down payment for the

purchase of a boat (hereafter, the “Down Payment”), which was part

of the Business Transaction; in exchange, the Blatters were to

receive a 25% share in business profits generated from the party

boat business. (Id. at 290, 301-04, 313, 318, 320, 354, 522, 565.)

Like Cooke, the Blatters believed the Down Payment would be placed

in Petitioner’s escrow account. (Id. at 525-27, 583, 607, 634-

35, 637.) Instead, Petitioner placed the funds in a regular

business checking account, which he nicknamed “escrow” (hereafter,

the “Nicknamed Account”) and from which he then withdrew and spent

funds without permission from Cooke or the Blatters and on items

other than for the Business Transaction. (Id. at 535, 536, 581,

598, 610, 650.)

On March 5, 2015, the original closing date for the

Business Transaction, and the day when the Business Transaction

could not be completed, Cooke and the Blatters learned Petitioner

had used money from the Down Payment since the Nicknamed Account

was missing $192,000 necessary for the closing. (Id. at 334-37,

356-60, 543-47, 614, 720-21, 800-03.) When it became clear money

was missing, Cooke contacted Petitioner, who explained the

Nicknamed Account was short $192,000 because of the “monies that

were being paid for the liquor license and to TD Bank.” (Id. at

337, 458, 547, 580, 616-20.) Thereafter, a new closing date was

scheduled; however, after a series of emails, McCoy indicated to

Cooke that there had “been no representation that” the $192,000

check would be available to him to pick up. (Id. at 341-48, 722,

805-11.) Nevertheless, the Business Transaction closed, with

Cooke assuming responsibility for a $192,000 note to be paid to

the Rizzos. (Id. at 352, 355-56.) Thereafter, Cooke also reached

out to the District’s Attorney office. (Id.)

Despite his repeated assurances, Petitioner failed to

produce the $192,000 to Cooke or the Blatters; therefore, in May

2015, they commenced a civil action against McCoy and, thereafter,

contacted the District Attorney’s office. (Id. at 350-56, 423,

549.) Notably, because Petitioner was not an attorney, Cooke and

the Blatters were unable to secure reimbursement for the missing

$192,000 from the New York State fund set up to reimburse clients

in cases of unreturned escrow money. (Id. at 814.)

In addition to the trial testimonies from Cooke, the

Blatters, and Rizzos’ attorney, at the 2018 trial of Petitioner,

the prosecution presented documentary evidence of Petitioner’s

small business checking account at Capital One Bank, i.e., the

Nicknamed Account. (Id. at 673-74, 681-82.) Despite its label,

the Nicknamed Account was not actually an escrow account. (Id. at

674-75, 671-82.) Yet, Petitioner did have a true escrow account

at Citibank, which he opened without providing any proof of being

an attorney, since Citibank had no such requirement. (Id. at 659-

60.)

The prosecution also presented testimony from an

investigative accountant who analyzed Petitioner’s various

accounts. (Id. at 860-61.) According to this testimony,

Petitioner deposited a $200,000 check from the Blatters, i.e., the

Down Payment, into his Nicknamed Account on July 9, 2014, which

brought the total in said Account to $197,709.70, since it had

been in arrears prior to the deposit of the Down Payment. (Id. at

860-61.) After that, Petitioner made a series of payments from

the Nicknamed Account unrelated to the Business Transaction, such

as for his past-due rent and utilities, and transferred money to

another account, including the one he used for payroll. (Id. at

861-90.)

The jury also heard testimony from an expert in

“professional ethics, including escrow agreements and escrow

agents.” (Id. at 891-98.) The expert testified extensively

regarding the fiduciary duties of an escrow agent with respect to

monies in an escrow account, i.e., that an escrow agent or attorney

is prohibited from using escrow account monies to pay his or her

agent fees; and, when the balance in an escrow account falls below

the sum deposited into that account, such an event constitutes an

impermissible conversion of funds. (Id. at 899-904.) Furthermore,

the expert testified that a law school graduate not licensed to

practice law, such as McCoy, is not permitted to refer to himself

as an attorney or to even use words like “lawyer”, “attorney at

law”, “counselor at law” or “trained lawyer” to refer to himself.

(Id. at 905.)

McCoy testified in his own defense, telling the jury he

worked for several years in accounting firms before attending law

school, and he was an “attorney by training and profession” but

failed the bar exam and was not “attorney at law who practices.”

(Id. at 987-90; 1071-74.) He described his business as a “one-stop

shop” for professional services. (Id. at 991-93.) McCoy denied

he represented himself to Cooke or the Blatters as an attorney

(id. at 990); yet, he insisted he could “call [himself] an

attorney”. (Id. at 1156-57.) Nevertheless, McCoy confirmed he

displayed his law school diploma in his office, and the website of

his consulting firm described him as a “tax attorney”. (Id. at

1077-79.)

As to the $200,000 Down Payment, McCoy confirmed he

received a check for the Blatters for that sum and placed it in

his “business account” as “escrow funds” (id. at 1092-93, 1099),

but insisted he withdrew monies only after Cooke gave him

permission to use a portion of those escrow funds to pay himself.

(Id. at 1046-63.) McCoy testified the Nicknamed Account was “not

a fake escrow account” while also not a “real escrow account”, but

a “business account with a legitimate legal nickname called

Escrow.” (Id. at 1102.) Furthermore, among other things, McCoy

insisted he: was to keep the monies in escrow until “they were

needed for something” despite the terms of the written escrow

agreement defining its use (id. at 1093); was “entitled to a

portion of those funds for [his] fees” (id. at 1094-98, 1111);

and, did not need written permission to deduct his fees from the

Nicknamed Account since Cooke gave him verbal permission to do so.

(Id. at 1111-1114.) Petitioner admitted he paid various personal

expenses with the monies in the Nicknamed Account, and he never

sent any written invoices to Cooke or the Blatters before the March

2015 closing date. (Id. at 1104-06, 1110-11, 1116-20, 1128.)

McCoy acknowledged: in February 2015, via email, he indicated the

proof of $192,000 needed for closing was the deposit of the money

in the Nicknamed Account; by March 2015, the Nicknamed Account was

in arrears, a fact he did not communicate to either Cooke or the

Blatters (id. at 1132, 1165-66, 1169); and, after the failed March

2015 closing, in an email, he indicated the parties were still

“good” concerning the needed $192,000 and could reschedule the

closing (id. at 1138-39).

At the close of the prosecution’s case, Petitioner moved

for a dismissal, arguing the prosecution did not make out its

“prima facie case”; he renewed his dismissal motion at the close

of his defense. (Id. at 914-15, 1179.) The trial court denied

both motions. (Id. at 915, 1179-80.) On the prosecution’s request

and over the defense’s objection, the trial court charged the jury

on larceny embezzlement and larceny by false pretenses. (Id. at

1168-69, 1154.) The court also sua sponte charged the jury on the

“claim of right” defense. (Id. at 1154-55, 1284-85.) The jury

found Petitioner guilty on both counts of the indictment. (Id. at

1299-1306.)

II. Post-Trial State Court Proceedings

After the trial, represented by new counsel, McCoy moved

to set aside the verdict, listing multiple instances of purported

ineffective assistance by his trial counsel, to wit: (1) failure

to object to leading questions; (2) asking confusing questions and

questions contrary to the defense theory; (3) failure to prepare

defense witnesses for their testimony; (4) failure to prepare for

the charging conference: and (5) failure to investigate. (Mot. to

Set Aside Verdict, ECF No. 9-3, at 8-15.) The trial court denied

the motion without a hearing, finding “counsel logically attempted

to disprove elements of the charged crimes through

cross-examination,” and the “claimed deficiencies in counsel’s

performance d[id] not undercut the conclusion that defendant

received meaningful representation.” (June 15, 2018 Sup. Ct.

Order, ECF No. 9-6, at 4-5.)

On June 29, 2018, the trial court sentenced McCoy to two

concurrent indeterminate terms of imprisonment of three to nine

years on the grand larceny count and one-and-one-third to four

years on the scheme to defraud count. (Sent’g Tr. at 23.)

Additionally, the trial court imposed a $5,000 fine and related

surcharges. (Id. at 23-24.)

III. State Habeas Petition

While his direct appeal was pending before the Appellate

Division, Second Department, appearing pro se, McCoy petitioned

the state court for a writ of habeas corpus. (See State Habeas

Pet., ECF No. 9-8.) In his state habeas petition, Petitioner

claimed: (1) his indictment was unlawfully procured; (2) the

indictment was deficient; (3) the grand jury proceedings were

“fatally impaired” and prejudicial; and (4) the verdict was not

supported by legally sufficient evidence. (Id. at 1-2.)

Altogether, McCoy claimed he suffered violations of his statutory

and constitutional rights, which “strip[ed] the trial court

entirely of jurisdiction to render judgment of conviction and

impose sentence upon [him].” (Id. at 2.) The state court denied

that habeas petition, finding “Petitioner has not presented any

such facts or circumstances to justify the relief he requests.”

(Apr. 5th, 2019 Sup. Ct. Order, ECF No. 9-10, at 3.)

McCoy appealed from the denial of his state habeas

petition to the Appellate Division, Fourth Department. (See ECF

No. 9-11.) Through appointed counsel, McCoy argued both that the

trial evidence did not establish his guilt and that he was denied

his constitutional right to effective assistance of counsel. (4th

Dept. Appellant’s Br., ECF No. 9-13, at 6-8, 14-72.) The Fourth

Department denied Petitioner’s appeal and affirmed his conviction.

See People ex rel. McCoy v. People, 189 A.D.3d 2154, 134 N.Y.S.3d

885 (N.Y. App. Div., 4th Dept. 2020). The Court of Appeals

subsequently denied leave to appeal. See People ex rel. McCoy v.

People, 36 N.Y.3d 911, 167 N.E.3d 1293 (2021).

IV. Direct Appeal

Petitioner sought direct appeal from his conviction

before the Appellate Division, Second Department, in which he

argued: (1) the evidence was not sufficient to disprove his claim

of right defense; (2) the evidence was not legally sufficient to

support conviction on either count of the indictment; (3) the

verdict was entered against the weight of the evidence; (4) the

trial court erred in denying his motion to set aside verdict

without a hearing; and (5) he received ineffective assistance of

counsel. (2d Dept. Appellant’s Br., ECF No. 9-15, at 36-52.) The

Second Department denied McCoy’s appeal and affirmed the judgment

of conviction. See People v. McCoy, 188 A.D.3d 1262, 1262-63, 132

N.Y.S.3d 839, 839-40 (N.Y. App. Div., 2d Dept. 2020). Even though

McCoy’s claims regarding the legal sufficiency of the evidence

supporting his convictions was not preserved for the appellate

review, the Second Department proceeded: “Upon reviewing the

record here, we are satisfied that the verdict of guilt was not

against the weight of the evidence.” Id. at 1262. However, as to

McCoy’s claim he was denied effective assistance of counsel, the

court determined said claim was a “mixed claim of ineffective

assistance” since part of the claim was based upon facts outside

of the record; therefore, the appropriate mechanism to pursue said

claims was Criminal Procedure Law (“C.P.L.”) § 440.10. See id. at

1262-63. Finally, the Second Department summarily found the trial

court properly denied McCoy’s motion to set aside verdict without

a hearing and that his sentence was not excessive. See id. at

1263. Thereafter, the Court of Appeals denied leave to appeal, in

which application McCoy raised the issues of ineffective

assistance only. See People v. McCoy, 36 N.Y.3d 1058, 165 N.E.3d

702 (2021).

V. Procedural History of the Instant Action

Petitioner timely filed the instant Petition. (Pet.,

ECF No. 1.) Here, McCoy argues: (1) the state indictment was

defective with regard to the grand larceny charge since it failed

to allege facts constituting each element of the crime, and the

prosecution failed to instruct the grand jury on the “claim of

right” defense claimed by McCoy, evidence of which he purports to

have put forth to the grand jury; (2) the verdict was not supported

by legally sufficient evidence; and (3) his counsel was

ineffective. (Id. at 4-10.) On November 16, 2021, Respondent

opposed the Petition. (Opp’n, ECF No. 9.2) Petitioner filed a

Reply on July 15, 2022, which Reply was deemed timely and in which

he disputes the Respondent’s Opposition. (Reply, ECF No. 10.)

DISCUSSION

I. The Applicable Law

A. Section 2254 Standard of Review

“It is well established that a federal habeas court does

not sit to correct a misapplication of state law, unless such

misapplication violates the Constitution, laws, or treaties of the

United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.

2002). Pursuant to 28 U.S.C. § 2254, as amended by the

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

a habeas court, when considering a claim that was decided on the

merits in a state court proceeding, may grant relief only if the

state court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or” (2)

“based on an unreasonable determination of the facts in light of

2 For clarity, Respondent’s Opposition is comprised of an

Affidavit in Opposition (hereafter, the “Opp’n Aff.”) (see ECF No.

9 at ECF pp.6-16), and a Memorandum of Law (see id. at ECF

pp.17-34). When referencing the Affidavit, the Court will cite to

the relevant paragraph(s), and when referencing the Memorandum,

the Court will cite to the relevant page(s).

the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

The AEDPA establishes a deferential standard of review:

“a federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000); see

also McBride v. Perez, No. 13-CV-4792, 2015 WL 5245072, at *8

(S.D.N.Y. June 25, 2015) (“‘[I]t is not the province of a federal

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

questions. In conducting habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws

or treaties of the United States.’”) (quoting Estelle v. McGuire,

502 U.S. 62, 67-68 (1991)). The requirements set forth by the

AEDPA are strictly construed and, by design, establish a barrier

to federal habeas relief founded upon the principle that “[s]tate

courts are adequate forums for the vindication of federal rights”

and are “presumptively competent[] to adjudicate claims arising

under the laws of the United States.” Burt v. Titlow, 571 U.S.

12, 19 (2013) (internal quotation marks and citation omitted).

Under § 2254(d)(1), a state court decision is considered

“contrary to” federal law if it either “applies a rule that

contradicts the governing law set forth in [Supreme Court] cases”

or “confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme Court] and nevertheless arrives at

a result different from [Supreme Court] precedent.” Williams, 529

U.S. at 405-06. “‘Clearly established Federal law’ means ‘the

holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.’”

Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting

Williams, 529 U.S. at 412 (alteration in original)). By contrast,

an “unreasonable application” of federal law occurs where the state

court “correctly identifies the governing legal rule but applies

it unreasonably to the facts of a particular prisoner’s case.”

Williams, 529 U.S. at 407-08. “The critical point is that relief

is available under § 2254(d)(1)’s unreasonable application clause

if, and only if, it is so obvious that a clearly established rule

applies to a given set of facts that there could be no fairminded

disagreement on the question.” White v. Woodall, 572 U.S. 415,

427 (2014) (internal quotation marks and citations omitted).

Furthermore, a state court’s determinations of factual

matters are “presumed to be correct,” and the petitioner has “the

burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Lynn v.

Bliden, 443 F.3d 238, 246 (2d Cir. 2006). A state court’s findings

of fact will be upheld “unless objectively unreasonable in light

of the evidence presented in the state court proceeding.” Lynn,

443 F.3d at 246–47 (quoting Miller-El v. Cockrell, 537 U.S. 322,

340 (2003)). Thus, a federal court may overrule the state court’s

judgment only if “after the closest examination of the state-court

judgment, a federal court is firmly convinced that a federal

constitutional right has been violated.” Williams, 529 U.S. at

389.

B. Procedural Bars to Federal Habeas Review

1. Failure to Exhaust

A habeas petition will not be reviewed by the district

court unless “the applicant has exhausted the remedies available

in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

Exhaustion of state remedies requires a petitioner to “fairly

presen[t] federal claims to the state courts in order to give the

State the opportunity to pass upon and correct alleged violations

of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365 (1995) (internal quotation marks and citation omitted;

alteration in original). The state courts must have had “the first

opportunity to hear the claim sought to be vindicated in a federal

habeas proceeding,” exhausting with this the state remedies.

Picard v. Connor, 404 U.S. 270, 276 (1971). To accomplish this,

a state prisoner must “present the state courts with the same claim

he urges upon the federal courts.” Id.

Because the exhaustion doctrine is designed to

give the state courts a full and fair

opportunity to resolve federal constitutional

claims before those claims are presented to

the federal courts . . . state prisoners must

give the state courts one full opportunity to

resolve any constitutional issues by invoking

one complete round of the State’s established

appellate review process.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, a

defendant must exhaust his claims by seeking leave to appeal in

the New York Court of Appeals. See Morgan v. Bennett, 204 F.3d

360, 369 (2d Cir. 2000).

2. State Procedural Requirements

A federal court “may not review federal claims that were

procedurally defaulted in state court — that is, claims that the

state court denied based on an adequate and independent state

procedural rule.” Davila v. Davis, 582 U.S. 521, 527 (2017); see

also Jimenez v. Walker, 458 F.3d 130, 136 (2d Cir. 2006)

(“[F]ederal courts may not review the judgment of a state court

that ‘rests on a state-law ground that is both ‘independent’ of

the merits of the federal claim and an ‘adequate’ basis for the

court’s decision.’” (quoting Harris v. Reed, 489 U.S. 255, 260

(1989))). This principle serves to “ensure that state-court

judgments are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our system of

federalism.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

A state procedural rule is adequate if it is “firmly

established and regularly followed by the state in question.”

Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (internal quotation

marks and citation omitted). To be independent, the “state court

must actually have relied on the procedural bar as an independent

basis for its disposition of the case” by “‘clearly and expressly’

stat[ing] that its judgment rests on a state procedural bar.”

Harris, 489 U.S. at 261-63, 265 n.12. Further, a state court’s

reliance on an independent and adequate procedural bar forecloses

habeas review even if the state court also rejected the claim on

the merits in the alternative. See, e.g., id., at 264 n.10

(explaining “a state court need not fear reaching the merits of a

federal claim in an alternative holding” where it “explicitly

invokes a state procedural bar rule as a separate basis for [its]

decision” (emphasis in original)); Fama v. Comm’r of Corr. Servs.,

235 F.3d 804, 810 n.4 (2d Cir. 2000) (“[W]here a state court says

that a claim is ‘not preserved for appellate review’ and then ruled

‘in any event’ on the merits, such a claim is not preserved.”);

Nowakowski v. New York, No. 13-CV-3709, 2018 WL 6421056, at *6

(E.D.N.Y. Dec. 6, 2018) (stating “[t]he bar applies even where the

state court has also ruled in the alternative on the merits of the

federal claim” (internal quotation marks and citation omitted)).

Notwithstanding the existence of a procedural bar to a

claim under state rules, “a federal court may still review the

claim on the merits [1] if the petitioner can demonstrate both

cause for the default and resulting prejudice, or [2] if he can

demonstrate that the failure to consider the claim will result in

a miscarriage of justice.” Petronio v. Walsh, 736 F. Supp. 2d

640, 654 (E.D.N.Y. 2010) (citing Coleman v. Thompson, 501 U.S.

722, 749–50 (1991)). As to the cause and resulting prejudice

avenue, a “[c]ause may be demonstrated with ‘a showing that the

factual or legal basis for a claim was not reasonably available to

counsel, . . . or that ‘some interference by state officials’ made

compliance impracticable, . . . [or that] the procedural default

is the result of ineffective assistance of counsel.’” Bossett v.

Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray v. Carrier,

477 U.S. 478, 488 (1986) (citations omitted)).3 As to prejudice,

the petitioner must demonstrate more than “a possibility of

prejudice,” but rather that the errors below “worked to his actual

and substantial disadvantage.” Murray, 477 U.S. at 494 (internal

quotation marks and citation omitted; emphasis in original).

***

Finally, “[t]he Court is mindful that, as with all pro

se pleadings, a habeas petition filed pro se is to be construed

3 Although ineffective assistance of counsel may, in some

circumstances, constitute cause for a default, the claim for

ineffective assistance “generally must ‘be presented to the state

courts as an independent claim before it may be used to establish

cause for a procedural default.’” Edwards v. Carpenter, 529 U.S.

446, 452 (2000) (quoting Murray, 477 U.S. at 489); see also Pitre

v. Griffin, No. 16-CV-6258, 2016 WL 7442653, at *11 (E.D.N.Y. Dec.

26, 2016) (“[T]he ineffective assistance claim must itself have

been exhausted in the state court.”).

liberally.” Crowder v. Ercole, No. 09-CV-3401, 2012 WL 5386042,

at *2 (E.D.N.Y. Nov. 2, 2012) (citation omitted); see also Alonge

v. Chappius, No. 12-CV-0542, 2019 WL 1642449, at *6 (E.D.N.Y. Apr.

16, 2019) (“[T]he court must interpret petitioner’s pleadings as

raising the strongest arguments they suggest”). Pro se status,

however, “does not exempt a party from compliance with relevant

rules of procedural and substantive law.” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation

marks and citation omitted).

C. Ineffective Assistance of Counsel Standard

Strickland v. Washington sets forth the relevant federal

law governing claims of ineffective assistance of counsel. 466

U.S. 668 (1984). To prevail, a petition must establish (1) the

“counsel’s performance was deficient” and (2) “that deficient

performance prejudiced the defense.” Id. at 687. To make out a

successful claim, both Strickland factors must be satisfied; a

reviewing court is not required to “even address both components

of the inquiry if the [petitioner] makes an insufficient showing

on one.” Id. at 697.

1. The Deficient Performance Factor

“To establish deficient performance, a person

challenging a conviction must show that ‘counsel’s representation

fell below an objective standard of reasonableness.’” Harrington

v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S.

at 688). In evaluating this prong, “the court must make ‘every

effort . . . to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time,’

and ‘must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.’”

Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting Strickland,

466 U.S. at 689). Furthermore, “‘[t]he failure of a lawyer to

invoke meritless objections cannot constitute constitutionally

deficient performance.’” Parks v. Sheahan, 104 F. Supp. 3d 271,

285 (E.D.N.Y. 2015) (quoting Hicks v. Ercole, No. 09-CV-2531, 2015

WL 1266800, at *23 (S.D.N.Y. Mar. 18, 2015)).

2. The Prejudice Factor

To make a sufficient showing of prejudice, a petitioner:

must show that there is a reasonable

probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different. A

reasonable probability is a probability

sufficient to undermine confidence in the

outcome. In making the determination whether

the specified errors resulted in the required

prejudice, a court should presume, absent

challenge to the judgment on grounds of

evidentiary insufficiency, that the judge or

jury acted according to law.

Strickland, 466 U.S. at 694.

[Remainder of page intentionally left blank.]

***

Furthermore, the “highly deferential Strickland standard

is made doubly so on habeas review, as AEDPA requires deference to

the state court’s ruling.” Bogan v. Brandt, No. 11-CV-1550, 2017

WL 2913465, at *9 (E.D.N.Y. July 6, 2017) (internal quotation marks

and citations omitted). “Bearing this deferential standard in

mind, it is unsurprising that ‘the great majority of habeas

petitions that allege constitutionally ineffective counsel’ fail.”

Miller v. LeClair, No. 20-CV-1546, 2024 WL 1797341, at *12

(E.D.N.Y. Apr. 25, 2024) (quoting Lindstadt v. Keane, 239 F.3d

191, 199 (2d Cir. 2001)).

II. Application

Petitioner challenges his state court conviction and

sentence on three grounds (Pet. at 4-10.) Specifically, he claims:

(1) the indictment for the crime of grand larceny of which he was

convicted was defective since it did not allege the facts which

constituted each element of the crime, and the prosecutor

improperly failed to instruct the grand jury on a “claim-of-right”

defense; (2) the verdict was not supported by legally sufficient

evidence; and (3) he received ineffective assistance of counsel.

(Id.; see also generally Reply.) Petitioner previously raised

these claims before various state courts. Respondent opposes the

Petition, arguing McCoy’s “claims are procedurally barred and, in

any event, meritless.” (Opp’n Aff. at ¶ 26.) The Court addresses

each claim in order.

A. Ground One: Claims as to the Indictment and the Grand

Jury Proceedings

Petitioner argues the indictment against him was

“invalid” because it failed to allege facts in support of each

element of the crime of grand larceny. (Pet. at 4-5.) He also

claims the grand jury proceedings, which resulted in the subject

indictment, were flawed since the prosecutor did not instruct the

grand jury regarding the possible defense available to Petitioner.

(Id. at 5.) The indictment/grand jury claims were previously

advanced by Petitioner in his state habeas petition, brought before

he had perfected his judgment appeal, and by which petition he

argued: “[T]he procedures used to induct, convict and sentence the

Petitioner were patently unfair, and constituted an abridgement of

[his] constitutional rights to the due process of law.” (State

Habeas Pet. at ¶5.) In a sweeping statement to the state habeas

court, among other things, McCoy claimed the indictment and grand

jury proceedings were deficient because they failed to state the

evidence to support each of the element of the crimes of which he

was ultimately convicted. (Id.) The state court denied McCoy’s

habeas petition. (See ECF No. 9-10.)

In appealing the state court’s habeas denial, through

counsel, McCoy did not renew his indictment/grand jury claims, but

advanced different claims. (See, e.g., ECF No. 9-13 at ECF p.16.)

Hence, the indictment/grand jury claims were not properly

exhausted. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999) (instructing a petitioner must “fairly present” his federal

constitutional claims to the highest court of the state before a

federal court may consider their merits). As Respondent aptly

states: “Because [Petitioner] failed to raise these claims before

either the Fourth Department or the New York Court of Appeals, the

instant claims were not exhausted in state court for federal habeas

purposes.” (Opp’n at 5.) As such, this Court need not conduct a

procedural bar analysis4 or a merits-based analysis.

More fundamentally, the Court cannot review Petitioner’s

indictment/grand jury claims because they are not cognizable

federal habeas corpus claims. Specifically, “[h]abeas corpus is

not available to test the sufficiency of the [state court]

indictment.” United States ex rel. Mintzer v. Dros, 403 F.2d 42,

4 As Respondent asserts, McCoy’s indictment/grand jury claims

would be procedurally barred given his failure to exhaust those

claims in the state courts. (See Opp’n at 6.) Further, McCoy did

not provide any meaningful explanation for said failure, nor

proffer the prejudice he would suffer were these claims not

reviewed by this Court. (See id. at 6-7; see also Pet. at 4-5;

Reply at 10-11.) And, both McCoy’s Petition and Reply are devoid

of any facts that could be interpreted as demonstrating a

constitutional deprivation he suffered since an “‘indictment by

grand jury is not part of due process of law guaranteed to state

criminal defendants by the Fourteenth Amendment.’” Kattis v.

Rockwood, No. 19-CV-6916, 2024 WL 2882610, *4 (E.D.N.Y. June 7,

2024) (quoting Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972)).

43 (2d Cir.1967) (citing United States ex rel. Tangredi v. Wallack,

343 F.2d 752, 753 (2d Cir.1965) (per curiam). Moreover, courts in

this Circuit recognize claims of deficiencies in state grand jury

proceedings are not cognizable in a federal habeas corpus

proceeding where, like here, the alleged shortcomings were cured

in the court’s instructions to the petit jury. See Lopez v. Riley,

865 F.2d 30, 32-33 (2d Cir. 1989) (holding “claims of impropriety

before the grand jury . . . concern[ing] the sufficiency of the

evidence, a failure to develop exculpatory evidence by the

prosecutor, the presentation of prejudicial evidence and error in

explaining the law” were “cured in the trial before the petit jury,

which convicted”). Petitioner’s argument that Lopez does not apply

is without merit in this instance since the trial court, acting

sua sponte, provided the jury with the instruction about the “right

of claim” defense. (See Trial Tr. at 1284-85; see also Pet. at

5.) Therefore, the Court declines to review Petitioner’s claims

of the alleged deficiencies of the state criminal indictment and

grand jury proceedings; as such, McCoy’s first ground for habeas

relief is unavailing.

B. Ground Two: Legal Sufficiency Claim

As he did on direct appeal, Petitioner again claims here:

his conviction was not supported by legally sufficient evidence

(see Pet. at 5-8); and “[t]he prosecution failed to even address

–-[l]et alone disprove--Petitioner[’s] good faith claim of right”

defense at trial. (Pet. at 5-6.) Petitioner’s position fails to

warrant habeas relief.

Below, addressing Petitioner’s claims related to the

legal sufficiency of the evidence, the Second Department rejected

McCoy’s claims that the evidence was insufficient. See McCoy, 188

A.D.3d at 1262-63. As an initial matter, the Second Department

found Petitioner’s sufficiency-of-the-evidence claims unpreserved

for appellate review. See id. at 1262 (citing C.P.L. § 470.05(2)).

Nonetheless, it continued, proceeding to view the evidence in the

light most favorable to the prosecution, and, upon such review,

found the evidence supported Petitioner’s conviction. See id.

Hence, the Second Department’s decision was dual-based: first,

independently based upon state law procedural grounds; and,

second, alternatively based upon the merits. Like the Southern

District Vinson Court found, here:

[i]t is clear from the Second Department’s

written decision that it actually relied on

New York’s contemporaneous objection rule in

denying this [insufficient-evidence] claim as

unpreserved for appellate review. [People v.]

Vinson, [18 A.D.3d 784,] 794 N.Y.S.2d [919,]

920 [(N.Y. App. Div., 2d Dept. May 23, 2005)].

While the court went on to also deny the claim

on the merits, the court’s primary reliance on

the state procedural law constitutes an

independent and adequate ground for its

decision. See Harris, 489 U.S. at 264 n.10

(state court decision that relies on a

procedural rule to dismiss a claim, but which,

in the alternative, also proceeds to dismiss

the claim on the merits, relies on the

independent state law ground for dismissal);

Fama v. Comm’r of Corr. Servs., 235 F.3d 804,

810 n.4 (2d Cir.2000) (noting that when a

state court opines that a claim is “not

preserved for appellate review” and then rules

“in any event” that the claim also fails on

its merits, the claim rests on the adequate

and independent state law rule which precludes

federal habeas review); see also Wainwright v.

Sykes, 433 U.S. 72, 86, 97 S. Ct. 2497, 53 L.

Ed.2d 594 (1977) (contemporaneous objection

rule constitutes adequate procedural ground

for dismissal); Bossett v. Walker, 41 F.3d

825, 829 n.2 (2d Cir.1994) (same).

Vinson v. Brown, No. 07-CV-2972, 2011 WL 7640001, at *8 (S.D.N.Y.

July 11,2011); see also id. at n.15 (quoting Second Department’s

decision, which cited C.P.L. § 470.05(2) to support holding

defendant did not preserve his insufficient-evidence argument for

appellate review; explaining “[t]he court’s citation to N.Y. Crim.

Proc. Law § 470.05(2) reveals that it relied on New York’s

contemporaneous objection rule”). Thus, as the Vinson Court

determined, this Court is precluded from reviewing McCoy’s

insufficient-evidence claims raised as his second ground for

habeas relief. See id. (“Accordingly, this Court is precluded

from further review of [petitioner’s insufficient-evidence] Claim

[].”); see also Garvey v. Duncan, 485 F.3d 709, 720 (2d Cir. 2007)

(“[B]ecause § 470.05(2) is a state law ground on which the New

York appellate court’s decision is based, and that ground is both

independent of any federal question and adequate under firmly

established and regularly followed state law, we will not disturb

the state appellate court’s ruling that the defendant’s protest at

trial was insufficient to preserve the arguments he wishes to raise

on appeal.”); see generally Coleman, 501 U.S. at 729. Furthermore,

having reviewed the record presented, the Court finds Petitioner

provides no arguments nor proffers any facts warranting the

overcoming of this procedural bar. See, e.g., Garvey, 485 F.3d at

718-20. Nor, upon the same review, is he able to show prejudice

or actual innocence.

While the Court need not reach the merits of Petitioner’s

insufficient-evidence claim in this instance, like the Second

Department, it nevertheless does so. In its alternative holding,

the Second Department determined Petitioner’s conviction was

supported by legally sufficient evidence beyond a reasonable

doubt. See McCoy, 188 A.D.3d at 1262. This Court’s review of the

record evidence yields the same conclusion.

Under the applicable federal standard, evidence is

deemed legally sufficient when, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis omitted); see Ponnapula v. Spitzer, 297 F.3d 172, 179

(2d Cir. 2002). Petitioner does not allege, and this Court’s

independent review of the record does not reveal, any facts

supporting a conclusion that the state court’s finding was contrary

to, or involved an unreasonable application of, clearly

established federal law. The evidence adduced at trial was legally

sufficient to support Petitioner’s conviction of Grand Larceny in

the Second Degree in violation of Penal Law § 155.40(1), and Scheme

to Defraud in the First Degree in violation of Penal Law §

190.65(1)(b).

As to the Grand Larceny Count: According to New York

Penal Law, a person commits larceny in the second degree when he

or she “steals property” the value of which “exceeds fifty thousand

dollars.” Penal Law § 155.40(1). Further, embezzlement, i.e.,

conversion by one person of a belonging of another person which

had been entrusted to the embezzler to hold on behalf of the owner,

is one way of committing larceny. See Penal Law § 155.05(2)(a).

One of the defenses to the charge of larceny by embezzlement is

that “the property was appropriated under a claim of right made in

good faith.” Penal Law § 155.15(1). Here, the prosecution

presented evidence establishing the Blatters agreed to provide the

$200,000 Down Payment for the Rizzos’ party boat business and

Petitioner agreed to hold the sum “in escrow” with an understanding

that money was required for a down payment. The escrow agreement

executed between the relevant parties stated Petitioner was not to

use any of the escrow funds without written permission from all

those parties. Undisputed trial testimony established Petitioner

used the “escrow” funds (1) without written permission from those

parties and (2) to his own benefit, such as paying to himself his

fees, thereby not being able to provide the necessary Down Payment

money at the Business Transaction closing. Review of the trial

court record shows the prosecution presented sufficient evidence,

via testimony and documentation, to prove beyond a reasonable doubt

that Petitioner committed larceny by embezzlement and to disprove

any notion of a claim of right on the part of Petitioner.

Additionally, the trial court charged the jury on the

theory of larceny by false pretense. Under New York law, a person

commits a larceny by false pretense when he “obtain[s] title or

possession” of money or property “by means of an intentional false

statement concerning a material fact upon which the victim relied

in parting with property.” Penal Law § 155.05(2)(a). Here,

despite Petitioner’s insistence otherwise, the prosecution

established at trial, with legally sufficient evidence to prove

beyond a reasonable doubt, that Petitioner misrepresented himself

as an attorney to the parties, and mislead them to believe he was

holding the $200,000 Down Payment in a legitimate escrow account.

As to the Scheme to Defraud Count: To prove a crime of

Scheme to Defraud in the First Degree, the prosecution had to prove

Petitioner (1) intended to defraud or obtain property from more

than one person and (2) thereby obtained more than $1,000 from at

least one such person. See Penal Law § 190.65(10(b). Here, the

evidence presented at trial convincingly established Petitioner

fraudulently held himself out as an attorney to Cooke and the

Blatters, received the $200,000 Down Payment from the latter to be

held in escrow, and then misappropriated more than $1,000 from the

Down Payment for his own benefit.

Hence, even if not procedurally barred, Petitioner’s

second ground for seeking habeas relief would fail on the merits.

Review of the record evidence confirms McCoy’s assertion of

insufficient evidence rings hallow. Thus, Ground Two is rejected

as a basis for granting McCoy’s Petition.

C. Ground Three: Ineffective Assistance of Counsel Claim

As he did on his direct appeal, here, Petitioner argues

his counsel was ineffective. (Pet. at. 8-10.) The Second

Department found Petitioner’s ineffective assistance claims were

based, at least in part, on matters outside the record; therefore,

such “mixed claim of ineffective assistance” should have been

pursued through a motion pursuant to C.P.L. § 440.10 (hereafter,

a “§ 440 Motion”). See McCoy, 188 A.D.3d at 1263. Thus, it

declined to review on appeal Petitioner’s ineffective assistance

claim. See id.

The present record does not show Petitioner pursued his

ineffective assistance claim via a § 440 Motion, i.e., that he

exhausted this claim below. Rather, he proceeds to raise this

claim—unexhausted—before this Court. Petitioner premises his

claim on two arguments: trial counsel was ineffective given the

manner in which he cross-examined witnesses, and trial counsel was

ineffective given his comments made during summation. (Pet. at

8-10.)

As an initial matter: Petitioner’s claim of ineffective

assistance is unexhausted, as well as procedurally barred from the

review by this Court. Regarding the procedural bar: As observed,

supra, the Second Department declined to review Petitioner’s

ineffective assistance claim on the independent and adequate state

law ground that, because it was a “mixed claim” based in part on

matters outside the trial court record, McCoy was required to

pursue his claim via a § 440 Motion, which had not occurred. See

McCoy, 188 A.D.3d at 1263. Regarding exhaustion: There is no

record evidence Petitioner then pursued his ineffective assistance

claim with a § 440.10 Motion. Nor does Petitioner provide cause

or prejudice that would warrant overcoming this procedural

default. Similarly, Petitioner has not advanced an argument that

this Court’s failure to review his claims would result in a

fundamental miscarriage of justice, e.g., an assertion of actual

innocence. Nevertheless, based upon its independent review of the

record, the Court finds Petitioner’s claim of ineffective

assistance is not supported beyond his own assertions and

conclusions. As such, and even though the claim is unexhausted,

having considered the merits of the claim, upon careful review of

the record, the Court finds Petitioner’s ineffective assistance

claim fails the Strickland standard as Petitioner has not shown

counsel’s performance was deficient or that the outcome of the

underlying trial would have been different but for counsel’s

alleged shortcomings. Therefore, the ineffective assistance claim

is denied, and Petitioner’s Ground Three is rejected as a basis

for granting habeas relief.

To the extent not explicitly articulated herein, the

Court has considered Petitioner’s remaining arguments in support

of habeas relief, but finds them to be without merit.

CONCLUSION

Accordingly, for the foregoing reasons, IT IS HEREBY

ORDERED that the Petition (ECF No. 1) is DENIED. The Clerk of the

Court is directed to: dismiss the Petition; close the case; and,

mail a copy of this Order to Petitioner; and

IT IS FURTHER ORDERED that the Court:

I. Declines to issue a certificate of appealability because

Petitioner has not “made a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2); and

II. Pursuant to 28 U.S.C. § 1915(a)(3), certifies that any appeal

from this Order would not be taken in good faith, and,

therefore, in forma pauperis status is denied for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438,

444-45 (1962).

SO ORDERED.

_/s/_JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: May 30, 2025

Central Islip, New York