# Dunaway v. Kopp

> District Court, E.D. New York · August 1, 2025

URL: https://www.frixlaw.com/law-library/cases/11113175

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 1, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11113175

## How later opinions describe it (automated extraction)

- holding that prosecutor’s comments in summation that witness was “careful” and that the jury “[could] rely on her” were direct response to defense counsel’s argument that the witness’s testimony was vague and lacking in detail
- concluding that counsel was not ineffective for failing to call alibi witnesses he did not believe were credible, particularly where counsel extensively cross-examined the state’s witnesses and presented a theory of self-defense

## Opinion text

UNITED STATES DISTRICT COURT NOT FOR PUBLICATION
EASTERN DISTRICT OF NEW YORK

RAHEEM DUNAWAY,

Petitioner,
MEMORANDUM & ORDER
– against –

M. KOPP, 23-CV-7404 (ERK)

Respondent.

KORMAN, J.:
Petitioner Raheem Dunaway, proceeding pro se, brings this petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction by a jury
in the Supreme Court of the State of New York, Kings County, of murder in the
second degree and criminal possession of a weapon in the second degree. For the
reasons set forth below, the petition for a writ of habeas corpus is denied.
I. Background
a. Factual Background1
This case arises from the fatal shooting of Daquan Spencer on August 21,
2016 at approximately 1:30 a.m. in Scarangella “Shady” Park in the Coney Island
area of Brooklyn. Shady Park is located across the street from the Marlboro Houses,

1 The following facts are taken from the state court record and are viewed in the light
most favorable to the prosecution. See Garbutt v. Conway, 668 F.3d 79, 80 (2d
Cir. 2012).
a twenty-eight building New York City Housing Authority complex. ECF No. 7-1
at 307, 311.2 At the time of the shooting, Spencer was engaged to Latoya James,
and together they were raising two children. Id. at 307–08.

i. Shooting of Daquan Spencer
On the evening of August 20, 2016, Spencer and James were hosting a
birthday party for their three-year-old son at a playground in Shady Park. Id. at 311.

The same night, a memorial event called “Love and Loyalty,” which honored six
residents of the Marlboro Houses who had died from gun violence, was also being
held in Shady Park. Id. at 312, 353. Residents of the Marlboro Houses attended
both events. Id. at 316, 419.

At approximately 1:30 a.m. on August 21, 2016, Spencer was shot multiple
times on the basketball court in Shady Park. An ambulance took Spencer to Coney
Island Hospital, where he was pronounced dead. Id. at 323, 521. An autopsy

conducted the next day confirmed that Spencer had suffered seventeen gunshot
wounds and one shrapnel wound to various parts of his body and that the cause of
his death was multiple gunshot wounds. Id. at 609, 625.
ii. Investigation & Arrest of Petitioner

Detectives James Riordan and James McCafferty were assigned to investigate
the shooting of Spencer. Id. at 538–40. On the day of the shooting, two witnesses—

2 Citation to ECF pagination.
Deja Bass (sister of Spencer) and Janice Pippins—separately informed the police
that they had seen Petitioner shoot Spencer. Id. at 375, 467–68, 542–44. Both
witnesses were familiar with Petitioner from around the Marlboro Houses, where he

was known as “Jaws” and “Montana.” Id. at 348–51, 447–48. Bass also provided
the police with a photo of Petitioner from Facebook. Id. at 375–76.
The police issued a probable cause investigation card (I-Card)3 for Petitioner.

Id. at 545–46. Between August 22, 2016 and November 10, 2016, detectives
unsuccessfully searched for Petitioner in and outside of New York City. See id. at
697–719. On November 10, 2016, at approximately 10:15 a.m., police arrested
Petitioner in Longs, South Carolina, at the residence of a woman named Jessica

Gore. Id. at 719–21. At trial, Detective Jaime Rosado, who was present for the
arrest of Petitioner, testified that he believed Gore was Petitioner’s girlfriend or
“possible girlfriend.” Id. at 722.

iii. Lineup and Identification
The following day, on November 11, 2016, Detective Riordan and Detective
McCafferty arranged a lineup that consisted of Petitioner and five men who served
as lineup fillers. Id. at 547–49. At the time, Petitioner was thirty-four years old,

3 An “I-Card” is an investigation card issued by the police to alert other officers that
an individual witnessed a crime, that an individual is suspected of committing a
crime that has occurred, or that there is probable cause to arrest an individual for a
crime that has occurred. See ECF No. 7-1 at 545–46.
weighed 310 pounds, and was six-feet-and-one-inch tall. Id. at 564. The fillers’
ages ranged from thirty to fifty, and their weights ranged from 155 to 220 pounds.
Id. The fillers resembled Petitioner in ethnicity, complexion, and facial hair. Id. at

94. During the lineup, Petitioner and the fillers all wore baseball caps, hospital
gowns, and sheets covering their lower bodies. Id. at 30, 548–49, 554. The men
were also seated so that they would look similar in size, and each man held a large

card with his lineup number that blocked part of his body. Id. at 31, 91, 554.
Petitioner was permitted to choose his position in the lineup and to choose the
positions of the fillers. Id. at 30, 549. Petitioner chose to sit in position number one
and to allow the fillers to select their own positions. Id. at 30, 549, 554. Petitioner’s

then-attorney was present throughout the entire set up of the lineup and did not have
any objections or suggestions for the lineup arrangement. Id. at 30, 547–49.
Bass and Pippins were separately called to the police station and asked to view

the lineup. Id. at 35–40, 550–51. Bass identified Petitioner as the person who
“murdered [her] brother.” Id. at 398. At trial, she testified that she was “[a] hundred
percent” confident in her identification. Id. Pippins likewise identified Petitioner as
the person who “shot that boy in the park.” Id. at 40, 470–71. At trial, she also

testified that she was “[a] hundred percent confident” in her identification. Id.
at 471.
b. Procedural Background
Petitioner was indicted in the Supreme Court of the State of New York, Kings
County, on one count of murder in the second degree and two counts of criminal

possession of a weapon in the second degree. See ECF No. 7-2 at 2.
i. Suppression Hearing
At a pretrial suppression hearing, Petitioner, who was represented by counsel,

moved to suppress the in-person lineup identifications based on disparities in age
and weight between the fillers and Petitioner. ECF No. 7-1 at 75–76. In particular,
he argued that it was improper to have fillers who were between fifteen and twenty
years older than Petitioner and fillers who weighed up to 155 pounds less than

Petitioner. Id.
The trial judge denied Petitioner’s motion. The judge found that the lineup
was “devoid of any suggestion” and that the lineup participants “closely resembled

the physical characteristics of [Petitioner], including approximate age, skin tone, and
facial hair.” Id. at 95–96. The judge also noted that the “detectives took steps to
ensure the fairness of the lineup by having the participants remain seated, thereby
eliminating possible height discrepancies” and by having “all of them dress in

hospital gowns and hold up a sheet and hold up large numbers in front of their chests,
thereby eliminating any meaningful weight discrepancies.” Id. at 96. The judge
observed that, in looking at the photographs of the lineup, “it is clear that none of

the participants appear significantly older or younger than any of the others” and that
it is “impossible . . . to discern the precise height or the precise weight of the
individuals in the lineup as they are seated.” Id. at 97. Moreover, the judge found
that “[t]here is no evidence that the manner in which the lineups were conducted

were suggestive.” Id. at 96.
Separately, Petitioner also argued that the lineup identifications should be
suppressed because he was arrested in violation of Payton v. United States, in which

the Supreme Court held that the Fourth Amendment prohibits law enforcement
officers from making a warrantless and nonconsensual entry into a home for the
purpose of conducting a routine felony arrest. 445 U.S. 573, 584–90 (1980).
Defense counsel contended that Petitioner, who was arrested without a warrant, had

a reasonable expectation of privacy in the home in which he was arrested because
he was an invited guest and that his arrest thus violated Payton. ECF No. 7-1 at 73–
74. As evidence of this, defense counsel pointed to the fact that Petitioner was “in

the house with another woman” and that the police officers found Petitioner’s clothes
inside the house. Id. at 74.
The trial judge ruled that there was no Payton violation in this case. Id. at 84–
85. The judge found that there was “zero evidence in this record that [Petitioner]

had an expectation of privacy in the premises where he was apprehended, zero.” Id.
at 84. In so finding, the judge noted that Petitioner told the arresting officers that he
lived in Brooklyn, while he was arrested in South Carolina. Id.
ii. Motion to Admit Bass’s 911 Call
Prior to trial, the District Attorney moved to admit into evidence the recording
of a 911 call made by Bass immediately after the shooting under the excited

utterance and present sense impression exceptions to the rule against hearsay. ECF
No. 7-1 at 103–04. The recording of the 911 call was played at the pretrial hearing.
Id. at 107. According to a transcript of the call included in the record, Bass told the

911 operator, among other things, that the shooter’s “name is Raheem . . . they just
call him Jaws Montana,” that the shooter “just walked off,” and that he was wearing
“[a]ll black.” See ECF No. 7-3 at 14–15.
Defense counsel requested that the court redact Bass’s statements in the call

that Petitioner was the shooter, that he “just walked off,” and that he was wearing
black. ECF No. 7-1 at 107–08. Defense counsel argued that, because Bass did not
explicitly tell the 911 operator that she saw the shooting, it would be speculation to

assume that she did, and thus the disputed portions of the call should not be admitted
under any exception to the rule against hearsay. Id. at 107–11.
The trial judge ruled that the 911 call could be admitted into evidence without
redactions, noting that Bass would testify at trial that she saw the shooting and would

be subject to cross-examination on this point. Id. at 110. The judge determined that
the 911 call was an excited utterance, noting that Bass was “downright hysterical,”
“wailing, crying, begging for assistance for her brother,” and that “no time” had

elapsed between the shooting and the call. Id. at 111–12. Moreover, the judge
determined that the 911 call was not the product of the declarant’s studied reflection.
Id. at 112. Finally, the judge concluded that the 911 call could also be admitted as a
present sense impression because Bass described the events after only a marginal lag

time and her statements were corroborated by other evidence. Id. at 113.
iii. Trial & Sentencing
Petitioner was tried before a jury in the Supreme Court of the State of New

York. At trial, James testified that she arrived at Shady Park at around 3:00 p.m. on
August 20, 2016 to set up for her son’s birthday party. Id. at 312. While in the park,
James saw Petitioner, who she knew from the Marlboro Houses, and another
individual, known to James as “Ra-Ra,” having an altercation near the basketball

court. Id. at 306, 309, 313. James observed that Petitioner was “[d]runk and angry.”
Id. at 313. As Petitioner and Ra-Ra were fighting, Petitioner lifted up his shirt,
displaying a gun to Ra-Ra. Id. at 314. Petitioner’s cousin, known to James as

“Day-Day” or “Daquan,” held Petitioner back. Id. at 317. James told Petitioner,
who was invited to her son’s birthday party, not to bring the gun to the party. Id. at
315. Petitioner attended the party later that day, and James observed that he was
angry and “starting with everybody” and that he appeared drunk. Id. at 316.

The birthday party ended around 11:30 p.m., at which time some people who
had attended the party walked over to the Love and Loyalty event, which was taking
place on a basketball court in Shady Park. Id. at 318. James observed that Petitioner

was there drinking. Id. at 319. At around 1:30 a.m., James was walking back to the
Marlboro Houses with her three-year-old son and mother when she heard five or six
gunshots. Id. at 320–21, 343. She ran back towards the park because her older son
was still there and saw Spencer lying on the basketball court with gunshot wounds.

Id. at 321–22. James stayed with Spencer until the ambulance arrived and took him
to Coney Island Hospital, where he was pronounced dead. Id. at 323.
Bass, Spencer’s sister, also testified at trial. Id. at 347. She was living at the

Marlboro Houses at the time of the events in question and had known Petitioner for
about ten years, although she denied that they were friends or that she knew him
“personally.” Id. at 347–49. On August 20, 2021, Bass arrived at Shady Park
between 4:30 p.m. and 5:00 p.m. for the birthday party. Id. at 353. When the

birthday party ended, she went to the Love and Loyalty event. Id. at 355. At the
Love and Loyalty event, she played basketball with some friends and, at one point,
had a “regular, normal conversation” with Petitioner during which he appeared

“normal, fine.” Id. 357–58, 399, 427.
Later on, Bass was sitting with some friends in Shady Park when she heard
Petitioner and his cousin, known to Bass as “Daytime,” arguing as they were walking
out of the park. Id. at 358–60, 439. She observed that both of them appeared to be

angry. Id. at 360. Bass then also left the park to go to the store. Id. at 361. When
Bass was approximately five feet away from Petitioner, she overheard him say to
Daytime, “I’m a different type of [person]. I shoot to kill.” Id. at 361–62, 442.
Petitioner then demanded to Daytime, “Give me my shit.” Id. at 362. Daytime
pulled a black gun out of his waistband and handed it to Petitioner. Id. at 362–63.
Later in the evening, back in Shady Park, Bass was talking to a friend by the

basketball court when she heard shots from behind the court. Id. at 366, 431–32.
She started to run but, after a few steps, she turned around and saw what she thought
were her brother’s red and white sneakers sticking up from the ground on the

basketball court. Id. at 366–67, 402, 432–34. Bass testified that she then ran back
towards the basketball court and saw Petitioner shooting Spencer. Id. at 367, 434.
According to Bass, Petitioner and Spencer were close to one another, with Petitioner
over Spencer. Id. at 368. Bass then screamed for Petitioner to stop. Id. at 367. After

firing several shots, Petitioner “walked off” “not that far,” and Bass moved closer to
her brother. Id. at 368–69, 403–05. Petitioner then turned back and fired more shots
at Spencer, who was on his back, with Bass now ten or fifteen feet away. Id. at 369–

70, 403–05. Petitioner then walked away again, and Bass ran over to Spencer and
called 911. Id. at 370–71. While Bass was on the phone with 911, James ran over
and asked what had happened. Id. at 371.
After the ambulance arrived for Spencer, Bass went to the hospital, where she

spoke to police officers about what she had seen. Id. at 375. She also showed a
picture of Petitioner from Facebook to the police officers, and the officers printed
out a copy. Id. at 376. Later that day, she identified Petitioner as the shooter to the

police from a photo array. See id. at 16.
Pippins also testified at trial about the events of August 20 and 21, 2016.
Pippins had lived in the Marlboro Houses most of her life and had known Petitioner
as a friend of her brother for more than ten years. Id. at 446–48. She had also worked

with the mother of Petitioner’s child, who also lived in the Marlboro Houses. Id. at
447–48. Pippins testified that she and Petitioner did not know each other personally
but that they waved and spoke to each other occasionally. Id. at 507.

On August 21, 2016, at around 1:30 a.m., Pippins was cleaning up from the
Love and Loyalty event in the park with her nine-year-old son when she heard a
popping noise from in front of her, near the basketball court. Id. at 458–59, 476.
She looked up and, from about fifteen feet away, saw Petitioner, wearing a black

hoodie, shooting down at someone who was on the ground on their back. Id. at 460–
61, 496–97. She later learned that the person being shot at was Spencer, who Pippins
did not know personally. Id. at 461. Pippins heard approximately fifteen to twenty

shots fired in quick succession. Id. at 461, 493–95. Pippins testified that, as the
shooting was happening, her “eyes never left [Petitioner’s] face.” Id. at 494.
After the shooting stopped, she grabbed her son and ran to a tree for
protection. Id. at 462, 479. Petitioner walked closer to Pippins and then walked out

of the park holding the gun. Id. at 462–64, 481, 497–98. Once outside the park,
Petitioner got into a black car that drove away. Id. at 464, 484. Pippins called 911
and then left the park because her son was very upset. Id. at 465–66. Later that day,

Pippins spoke to the police at the park and then at the precinct about what she had
seen. Id. at 467. Pippins also identified Petitioner as the shooter to the police from
a photo array. Id. at 504–05.
During summation at trial, Petitioner’s counsel argued that Bass and Pippins

could not have seen the shooting clearly because the park was dark and there were
many trees and people around. Id. at 764–67. Defense counsel also argued to the
jury that Petitioner had no motive to shoot Spencer, referring to testimony from Bass

that Spencer and Petitioner did not have a bad relationship and had not been seen
arguing prior to the shooting. Id. at 769–71; see also id. at 344, 426–27. Defense
counsel also suggested to the jury that Jeffrey Bush, another resident of the Marlboro
Houses and the father of James’s older child, may have had a motive to commit the

shooting, relying on witness testimony that Bush and Spencer had had an altercation
several years earlier. Id. at 771; see also id. at 425–26, 429–30, 491–92, 597–600.
The prosecutor, in his closing argument, made several statements to which

defense counsel objected. In particular, the prosecutor stated that, on the evening
and early morning in question, Petitioner was at Shady Park “intimidating” people
with a gun “at an event commemorating the lives of people that died through gun
violence,” showing his community “what he felt . . . about people who died from the

Marlboro projects.” Id. at 778. After defense counsel objected that the prosecutor
was calling for speculation, the judge reminded the jury that they could not speculate
and that they should not consider arguments by counsel not based on the evidence.

Id. at 778–79. The prosecutor then continued, calling Petitioner “arrogant,
bullying,” “belligerent,” and “boastful of” his gun. Id. at 779–80, 786. The
prosecutor also suggested that the park where the shooting occurred was called
“Shady Park” not because of the trees, as defense counsel had suggested, but because

it was “[s]hady” in another sense of the word, implying that community members
were afraid to speak to the police about the shooting. Id. at 789. The prosecutor
also suggested that, by shooting Spencer twenty times, Petitioner was sending the

message to witnesses: “[D]on’t come forward to the policeman. I am dangerous.”
Id. at 811.
Following the prosecutor’s summation, defense counsel moved for a mistrial
based on the prosecution’s “numerous references to other matters happening in the

community” that “only served to inflame the jury and detracted from the case at
hand.” Id. at 812–13. The trial judge denied the motion, reasoning that the Love
and Loyalty event was part of the case before the jury and that the court had

addressed the aspects of the prosecutor’s argument that it considered out of bounds.
Id. at 813–14. While providing the jury charge, the judge also reminded the jury
that the testimony about the Love and Loyalty event was only provided “as
background information and to complete the narrative of what’s alleged to have

occurred that day.” Id. at 829.
Two counts were submitted to the jury: murder in the second degree and
criminal possession of a weapon in the second degree. See id. at 835–39. The jury

convicted Petitioner on both counts. Id. at 848. Petitioner was sentenced to
concurrent terms of imprisonment of twenty-five years to life on the second-degree
murder count and fifteen years on the second-degree weapon count, followed by five
years of post-release supervision. Id. at 858. Petitioner is currently incarcerated at

Sing Sing Correctional Facility.
iv. Direct Appeal
Petitioner, represented by counsel, appealed the conviction. As relevant to

this petition, Petitioner argued that his conviction should be reversed because
Pippins and Bass were subject to a “suggestive lineup” in which he “stood out” due
to his weight and age compared to the fillers, depriving him of his right to due
process. ECF No. 7-2 at 23–27. He also argued that portions of the recording of

Bass’s 911 call should not have been admitted into evidence because “there was no
evidentiary foundation for admitting the portions of the call containing the
identification and the related description of and further discussion of the shooter.”

Id. at 27–32. Finally, Petitioner argued that he was deprived of due process and a
fair trial because the prosecution “attacked [Petitioner] personally by repeatedly
characterizing him as violent and aggressive” during summation. Id. at 33–37.
Petitioner also filed a pro se supplemental brief, in which he argued that he

was denied the effective assistance of counsel at trial on several grounds. First, he
argued that Detective Rosado’s testimony that Petitioner was found at the home of
a “possible girlfriend” established that Petitioner had an expectation of privacy in

the premise where he was arrested and that, as a result, his trial counsel was
ineffective for failing to move to reopen the suppression hearing to explore whether
he was arrested in violation of Payton. ECF No. 7-5 at 18–19.4 Second, he asserted
that trial counsel was ineffective for failing to offer evidence that Petitioner was

drunk at the time of the instant offense, arguing that this may have negated the
element of specific intent. Id. at 19–20. Finally, he argued that trial counsel was
ineffective for failing to call Bush as a witness, alleging that Bush would have

testified that he saw another assailant kill Spencer. Id. at 20–21.
The Appellate Division, Second Department, unanimously affirmed
Petitioner’s conviction. People v. Dunaway, 172 N.Y.S.3d 108 (App. Div. 2022).
First, the court found that Petitioner had failed to establish that the lineup

identification procedures were unduly suggestive, noting that the fillers “sufficiently
resembled him,” including with respect to age, and that the police officers took
reasonable steps to conceal any differences in weight between Petitioner and the

fillers. Id. at 111. The Appellate Division also found that the 911 call was properly
admitted into evidence under the excited utterance and present sense impression
exceptions to the rule against hearsay. Id. at 111–12. Moreover, the court found
that Petitioner had failed to preserve for appellate review his arguments regarding

the prosecutor’s summation and that, even if he had, the “challenged remarks were
largely proper as fair comments on the evidence and fair responses to the defense

4 Citation to ECF pagination.
summation” and any improper remarks were harmless error. Id. at 112. Finally, the
Appellate Division determined that Petitioner’s ineffective assistance of counsel
argument was based, in part, on matters appearing outside the record and thus should

be raised in a motion to vacate the judgment pursuant to New York Criminal
Procedure Law (“C.P.L.”) § 440.10. Id.
Petitioner unsuccessfully sought leave to appeal to the Court of Appeals. See

People v. Dunaway, 39 N.Y.3d 939 (2022). In his leave application, Petitioner
sought review of all the issues that he raised to the Appellate Division in his
counseled brief and his pro se supplemental brief. See ECF No. 8-2 at 2.
v. Petition to Vacate Conviction

While his appeal to the Appellate Division was pending, Petitioner also filed
a pro se motion to vacate his conviction pursuant to C.P.L. § 440.10 in the New York
Supreme Court, Kings County. He raised the same claims of ineffective assistance

of counsel that he raised in his pro se supplemental brief to the Appellate Division.
See ECF No. 8-4 at 19–27.5
The trial court denied Petitioner’s motion to vacate his conviction. See ECF
No. 8-7. The court determined that Petitioner’s trial counsel had provided

meaningful representation, including by cross-examining witnesses, presenting
arguments in favor of Petitioner’s suppression motion, and securing the suppression

5 Citation to ECF pagination.
of a statement that Petitioner made at the time of his arrest. Id. at 3–4. The court
also found that counsel had presented cogent opening and closing remarks, in which
he highlighted the lack of DNA and video evidence and attacked the credibility of

the identifying witnesses by noting that the crime occurred at night, in a park with
lots of trees, and at a party attended by hundreds of people. Id. at 4. The court also
noted that counsel had underscored Petitioner’s lack of motive and presented the

argument that another individual, Bush, had a motive to kill Spencer. Id.
In response to Petitioner’s specific claims of ineffective assistance, the court
rejected Petitioner’s argument that counsel should have moved to reopen the
suppression hearing, concluding that the evidence at trial did not advance counsel’s

argument made at the suppression hearing that Petitioner had an expectation of
privacy in the premise where he was arrested. Id. at 5–6. The court also rejected the
argument that counsel should have pursued an intoxication defense, finding that the

evidence was insufficient to support that defense because the witnesses at trial made
clear that Petitioner was behaving normally and purposefully without signs of
intoxication. Id. at 6–7. Finally, the court rejected Petitioner’s argument that
counsel should have secured the attendance of Bush to testify on Petitioner’s behalf,

determining that Petitioner had failed to support his claim that testimony from Bush
would have advanced his case. Id. at 7–8. Moreover, the court concluded that the
strength of the evidence against Petitioner at trial left no reasonable possibility that

Bush’s allegations were true. Id.
Petitioner unsuccessfully sought leave to appeal the order denying his motion
to vacate to the Appellate Division. See ECF No. 8-8; ECF No. 8-10.
vi. Petition for a Writ of Habeas Corpus

Petitioner filed the instant pro se petition, dated November 13, 2023, for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. See generally ECF No. 3. Construed
liberally, his petition raises four primary grounds for relief: (1) the lineup was unduly

suggestive and violated his right to due process; (2) the recording of Bass’s 911 call
was improperly admitted into evidence at trial; (3) he was deprived of a fair trial by
certain comments that the prosecutor made on summation; and (4) his trial counsel
provided ineffective assistance by failing to: (a) move to reopen the suppression

hearing to explore whether Petitioner had an expectation of privacy in the premise
where he was arrested and thus whether the police had arrested him in violation of
Payton; (b) argue for a possible intoxication defense; and (c) secure the attendance

of Bush to testify on Petitioner’s behalf at trial. Id. at 4–5.6
Respondent opposes the petition, arguing that Petitioner is not entitled to
habeas relief on any of the grounds raised. See ECF No. 7.

6 Petitioner also appears to argue that habeas relief should be granted because the
state court relied on “inadequate procedural bars” to deny him an evidentiary hearing
on his C.P.L. § 440.10 motion, which denied him “meaningful representation,
effective assistance of counsel, and a fair trial.” ECF No. 3 at 5. A state court’s
refusal to hold an evidentiary hearing does not present a federal constitutional issue,
however, and thus is not cognizable on federal habeas review. See, e.g., Diaz v.
Greiner, 110 F. Supp. 2d 225, 235–36 (S.D.N.Y. 2000).
II. Discussion
a. Standard of Review
A person in state custody pursuant to a state-court judgment may seek a writ

of habeas corpus on the ground that he is being held “in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C § 2254(a). In order to obtain
relief, the petitioner must demonstrate, inter alia, that he has: “(1) exhausted his

potential state remedies; (2) asserted his claims in his state appeals such that they are
not procedurally barred from federal habeas review; and (3) satisfied the deferential
standard of review set forth in the Antiterrorism and Effective Death Penalty Act of
1996 (‘AEDPA’), if his appeals were decided on the merits.” Edwards v.

Superintendent, Southport C.F., 991 F. Supp. 2d 348, 365–66 (E.D.N.Y. 2013).
AEDPA provides that an “application for a writ of habeas corpus . . . pursuant
to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings,” unless adjudication of that
claim 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 “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A decision on the merits is “contrary to . . . clearly established” federal law if the
state court “(1) arrives at a conclusion opposite to one reached by the Supreme Court

on a question of law; or (2) decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts.” Dale v. Russell, No. 24-CV-00143,
2025 WL 486686, at *4 (E.D.N.Y. Feb. 13, 2025). “A state court decision is an
‘unreasonable application’ of clearly established federal law if the state court

identifies the correct controlling legal principle announced by the Supreme Court
but unreasonably applies that principle to the facts of the petitioner’s case.” Id. “The
focus . . . is on whether the state court’s application of clearly established federal

law is objectively unreasonable[;] . . . an unreasonable application is different from
an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011).

b. Exhaustion
A petitioner seeking habeas relief must also demonstrate that he has exhausted
his remedies available in state court. See 28 U.S.C. § 2254(b)(1). To satisfy the
exhaustion requirement, a habeas petitioner must have “fairly presented” his claims

to the state courts, affording the courts the “opportunity to pass upon and correct
alleged violations” of the petitioner’s federal rights. Picard v. Connor, 404 U.S.
270, 275 (1971) (internal quotation marks and citation omitted). In doing so, the

petitioner must inform the state courts “about both the factual and legal bases for the
federal claim.” Ramirez v. Att’y Gen. of N.Y., 280 F.3d 87, 94 (2d Cir. 2001). The
exhaustion requirement is fulfilled only when the petitioner’s claims have been
presented to the highest court of the pertinent state. Id.

In the instant case, Respondent does not argue that Petitioner failed to exhaust
his claims in state court. Indeed, Petitioner raised his claims regarding the lineup,
Bass’s 911 call, and the prosecution’s summation on direct appeal, and he raised his

ineffective assistance of counsel claims in his C.P.L. § 440.10 motion. He
subsequently sought leave to appeal from both orders denying his appeal and his
§ 440.10 motion. Accordingly, Petitioner’s claims are exhausted.
c. Merits

i. Suppression of Lineup Identifications
Petitioner argues that the pretrial lineup was unduly suggestive because he
was placed with fillers who did not resemble him and who were older and weighed

less than him, denying Petitioner his right to due process. ECF No. 3 at 4.7

7 In his reply brief, Petitioner also argues that the lineup was impermissible because
the identifying witnesses had “prior contact and corroboration with each other before
or after process.” ECF No. 10 at 3. Petitioner did not raise this claim in his original
petition, and therefore he cannot raise it in his reply brief. See Rosario v. Laclair,
No. 20-CV-5475, 2024 WL 4476165, at *16 n.13 (S.D.N.Y. Oct. 11, 2024) (“[T]o
allow petitioner to raise . . . new claims on reply would undermine AEDPA’s purpose
of preventing abuse of the writ by piecemeal litigation of claims.”). In any event,
this assertion is belied by the record. The police officer who arranged the lineup
testified that Bass and Pippins had no contact the day of the lineup. See ECF No.
7-1 at 37–39. Moreover, Pippins testified that she did not know Bass, see id. at 454,
and both Pippins and Bass testified that, when they were at the police station for the
A defendant’s right to due process includes the right not to be the object of
pretrial identification procedures that are “so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification.” See Simmons

v. United States, 390 U.S. 377, 384 (1968). “A lineup is unduly suggestive as to a
given defendant if he meets the description of the perpetrator previously given by
the witness and the other lineup participants obviously do not.” Raheem v. Kelly,

257 F.3d 122, 134 (2d Cir. 2001). However, “[t]here is no requirement that a suspect
in a lineup be surrounded by people identical in appearance.” Tavarez v. LeFevre,
649 F. Supp. 526, 530 (S.D.N.Y. 1986). If the procedure was not unduly suggestive,
then the identification evidence presents no due process obstacle to admissibility,

and no further inquiry is required. Raheem, 257 F.3d at 133. If the procedure is
found to be impermissibly suggestive, the court must determine if the “totality of the
circumstances” establishes that the identification was independently reliable. See

Manson v. Brathwaite, 432 U.S. 98, 110–14 (1977). If the court concludes that the
identification was independently reliable, the identification may nevertheless be
admitted. Raheem, 257 F.3d at 133.
At the suppression hearing in the instant case, the trial judge heard testimony

and reviewed photographs of the lineup and determined that “the lineup was devoid

lineup, they waited in rooms with closed doors by themselves or with only family
members, see id. at 397, 469–70.
of any suggestion.” ECF No. 7-1 at 95. The judge observed that “[t]he lineup
participants closely resemble [Petitioner], including approximate age, skin tone, and
facial hair.” Id. at 95–96. The trial judge also stated that, looking at the photograph

of the lineup, “it is clear that none of the participants appear significantly older or
younger than any of the others” and that “it is . . . impossible . . . to discern the
precise height or the precise weight of the individuals in the lineup as they are seated

. . . holding not just the sheet but wearing the same outfit, a loose-fitting hospital
gown covering their bodies, and holding large numbers.” Id. at 97. On appeal, the
Appellate Division upheld these findings, concluding that “the fillers sufficiently
resembled [Petitioner]” and thus “the lineup identification procedures were not

unduly suggestive.” Dunaway, 172 N.Y.S.3d at 111.
A state court’s factual findings with respect to the suggestiveness of a lineup
are presumed correct unless rebutted with clear and convincing evidence to the

contrary. See, e.g., Espiritu v. Haponik, No. 05-CV-7057, 2012 WL 161809, at *6
(S.D.N.Y. Jan. 19, 2012) (“[A]ll of the factual findings of the state court regarding
the suggestiveness of the lineup must be presumed correct in the absence of clear
and convincing evidence to the contrary.” (citing 28 U.S.C. § 2254(e)(1))).

Petitioner has not set forth clear and convincing evidence to rebut the state court’s
finding that the fillers sufficiently resembled him. Although it is undisputed that the
fillers in the lineup weighed less than Petitioner and that two of the fillers were older

than Petitioner, this alone is not enough to constitute an unduly suggestive lineup,
particularly given the steps that the police officers took to minimize any differences
in appearance between Petitioner and the fillers. See, e.g., Campbell v. McCarthy,
No. 19-CV-2980, 2020 WL 8258241, at *9 (S.D.N.Y. Aug. 19, 2020) (finding that

lineup was not unduly suggestive even though defendant was “markedly younger”
than fillers), report and recommendation adopted, 2021 WL 229608 (S.D.N.Y. Jan.
22, 2021); Stallings v. Heath, No. 11-CV-4894, 2012 WL 735399, at *11 (S.D.N.Y.

Mar. 7, 2012) (“[W]hile the fillers were between 20 to 123 pounds heavier than
[petitioner], the lineup was not unduly suggestive based on disparate weights since
the lineup participants were seated, with their lower bodies covered and their torso
largely covered by their number cards.”), report and recommendation adopted, 2012

WL 1538513 (S.D.N.Y. May 2, 2023). Accordingly, the Appellate Division’s
determination that the lineup was not unduly suggestive was not contrary to, or an
unreasonable application of, federal law.8

ii. Admittance of 911 Call
Petitioner argues that he is entitled to habeas relief because the trial court
erroneously admitted into evidence portions of Bass’s call to 911 without a proper
foundation and in violation of state law, violating Petitioner’s right to due process.

ECF No. 3 at 4. Construing his pro se petition liberally, Petitioner contends that the

8 Having so concluded, it is not necessary to consider the parties’ arguments
regarding the independent reliability of Pippins’s and Bass’s identifications of
Petitioner.
call should not have been admitted into evidence under the excited utterance or the
present sense impression exception to the hearsay rule because Bass did not state on
the call that she personally saw the shooting and because she in fact could not have

observed the shooting given that her view was obstructed by trees and other people
in the park. See ECF No. 10 at 3. He further contends that Bass’s trial testimony
that she saw the shooting is insufficient to establish this fact because she had time to

reflect on her testimony after the events at issue and therefore her testimony is
“inherently unreliable.” See ECF No. 7-2 at 31.
A federal court “may not issue the writ [of habeas corpus] on the basis of a
perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). “For a

federal court to grant relief to a habeas petitioner, he must demonstrate that the
allegedly erroneous state court evidentiary rulings violated an identifiable federal
right.” Gutierrez v. McGinnis, No. 00-CV-395, 2003 WL 21782628, at *3 (S.D.N.Y.

July 31, 2003). In other words, to constitute an error of constitutional magnitude
sufficient for habeas relief, “erroneously admitted evidence must have been
sufficiently material to provide the basis for conviction or to remove a reasonable
doubt that would have existed on the record without it.” Osbourne v. Heath, No.

12-CV-1138, 2015 WL 1548947, at *13 (E.D.N.Y. Apr. 8, 2015) (internal quotation
marks and citation omitted). To determine whether an evidentiary ruling warrants
habeas relief, the court must first determine “whether the trial court’s evidentiary

ruling was erroneous under New York law.” Id. If the ruling was erroneous under
New York law, then the court must evaluate “whether the error amounted to the
denial of the constitutional right to a fundamentally fair trial.” Id.
In the instant case, the trial judge admitted Bass’s 911 call as an excited

utterance, finding that Bass’s statements on the call were made while she was
“hysterical” and under the stress of the shooting. ECF No. 7-1 at 111–12. The trial
judge also determined that “[t]here is no way [Bass’s statements] could be the

product of the declarant’s studied reflection in any way, shape, or form.” Id. at 112.
In coming to this conclusion, the judge observed that Bass would testify at trial that
she had observed the shooting and could be cross-examined on this point. Id. at 110,
114. Separately, the judge also determined that the 911 call could be admitted as a

present sense impression because of “the contemporaneity of it, minimizing any
possibility of calculated misstatement,” and because the statements were
corroborated. Id. at 113–14.

The Appellate Division upheld the admission of the 911 call, concluding that
“the People laid a proper foundation for the admission of a recording of a 911 call
into evidence under the excited utterance and present sense impression exceptions
to the prohibition on hearsay.” Dunaway, 172 N.Y.S.3d at 111–12. With respect to

Petitioner’s claim that the call should not have been admitted because Bass did not
state that she observed the shooting, the Appellate Division found that “the People
demonstrated that the witness had personally observed the subject events through
her trial testimony that she had witnessed [Petitioner] shooting the victim, which
testimony was elicited before the recording was admitted into evidence.” Id. at 112.
The admission of Bass’s 911 call into evidence as an excited utterance or

present sense impression was not erroneous under New York law. An “excited
utterance” is made “contemporaneously or immediately after a startling event which
asserts the circumstances of that occasion as observed by the declarant.” People v.

Edwards, 392 N.E.2d 1229, 1231 (N.Y. 1979). An excited utterance is admissible
if “the surrounding circumstances reasonably justify the conclusion that the remarks
were not made under the impetus of studied reflection.” People v. Brown, 517
N.E.2d 515, 519 (N.Y. 1987). For a statement to qualify as an excited utterance, “it

must be inferable that the declarant had an opportunity to observe personally the
event described in the [spontaneous] declaration.” People v. Cummings, 99 N.E.3d
877, 881 (N.Y. 2018) (internal quotation marks and citation omitted). Present sense

impression declarations, on the other hand, “are descriptions of events made by a
person who is perceiving the event as it is unfolding.” People v. Portious, 160
N.Y.S.3d 103, 105 (N.Y. App. Div. 2022) (internal quotation marks and citation
omitted).

Here, Bass was clearly under the “stress of excitement caused by” the shooting
during the 911 call. See Edwards, 392 N.E.2d at 1231. Bass told the 911 operator
that her brother “was shot a couple of times” in the head and chest and begged for

help, repeating “[p]lease, please” and asking the operator to “[p]lease come.” ECF
No. 7-3 at 8. The 911 operator, in response, told Bass that she needed to stop
“panicking.” Id. Bass then described Petitioner as the shooter, including his
appearance and clothing. Id. She also provided Petitioner’s name to the 911

operator and noted that he had “just walked off.” Id. Given these circumstances and
the fact that Bass testified at trial that she personally viewed the shooting, the
Appellate Division’s determination that the 911 call could be admitted into evidence

as an excited utterance or present sense impression was proper and not contrary to
state law. Cf. People v. Fratello, 92 N.Y.2d 565, 571 (1998) (indicating that court
could infer that declarant had personally observed startling event from the
circumstances).

Moreover, even if the statements on the 911 call were erroneously admitted,
Petitioner was not denied a fair trial. There was overwhelming other evidence
pointing to his guilt, including the testimony of Bass and Pippins at trial that they

observed Petitioner shooting Spencer and James’s testimony that she had seen
Petitioner with a gun in the park several hours before the shooting. Thus, the
challenged statements in Bass’s 911 call could not have had a substantial and
injurious effect on the jury’s verdict, and any alleged evidentiary error was harmless.

See Coleman v. Squilliante, No. 06-CV-13518, 2008 WL 4452351, at *10 (S.D.N.Y.
Oct. 2, 2008) (considering challenged statement in light of other evidence admitted
at trial to determine whether defendant was deprived of a fair trial). Petitioner is

therefore not entitled to habeas relief on this ground.
iii. Prosecution’s Summation
Petitioner argues that statements made by the prosecutor during his
summation amounted to prosecutorial misconduct and thus Petitioner is entitled to

habeas relief. In particular, Petitioner asserts that the prosecutor’s “remarks that
defendant shoot to kill were not a fair comment on the evidence where defendant
wasn’t the shooter.” ECF No. 3 at 4. In his direct appeal, Petitioner also challenged

the prosecutor’s remarks that characterized Petitioner as “arrogant,” “bullying,” and
“belligerent,” as well as the prosecutor’s statements that suggested that the witnesses
who testified on behalf of the prosecution did so despite facing intimidation from
Petitioner, arguing that these statements deprived of him of due process and a fair

trial. ECF No. 7-2 at 33–37.
Petitioner raised this claim on direct appeal, and the Appellate Division found
that Petitioner’s objections to the prosecutor’s summation were not preserved for

appellate review because defense counsel “either did not object to the subject
remarks or made one word objections that were based on different grounds than he
raises on appeal.” Dunaway, 172 N.Y.S.3d at 112. The Appellate Division also
found that “where the Supreme Court gave curative instructions, [Petitioner] did not

object to the instructions or request additional instructions, and his post-summations
motion for a mistrial was untimely and failed to preserve his contentions.” Id.
Finally, the Appellate Division concluded that the challenged remarks were “largely
proper as fair comments on the evidence and fair responses to the defense
summation,” and that any improper remarks were harmless error. Id.
Petitioner’s claim is procedurally barred from federal habeas review because

the Appellate Division dismissed his challenges to the prosecution’s summation on
an independent and adequate state law procedural ground—namely, that they were
not preserved for appellate review. A claim is procedurally barred from federal

habeas review if the state court’s decision “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). When a claim is procedurally
barred, a petitioner can only obtain federal habeas relief if he can demonstrate “cause

for the default and actual prejudice as a result of the alleged violation of federal law”
or that failure to consider the claim will result in a “fundamental miscarriage of
justice.” Id. at 750. “To show cause for failing to preserve a claim, Petitioner must

show some external impediment preventing counsel from constructing or raising the
claim.” Degree v. Corey, No. 21-CV-11012, 2024 WL 947028, at *7 (S.D.N.Y. Jan.
19, 2024) (internal quotation marks and citation omitted). Examples of an external
impediment include: “1) a showing that the defendant was represented by counsel

who was constitutionally ineffective; (2) a showing that the factual or legal basis for
a claim was not reasonably available at the time of default; or (3) interference by
state officials that made compliance with the procedural mechanism impracticable.”

Id.
Under New York law, to appeal a ruling or instruction of a criminal court
during a trial or proceeding, the party claiming error must have objected to the ruling
“at the time of such ruling . . . or at any subsequent time when the [trial] court had

an opportunity of effectively changing the same.” C.P.L. § 470.05(2); see also
Portes v. Capra, 420 F. Supp. 3d 49, 57 (E.D.N.Y. 2018). This rule, known as the
contemporaneous objection rule, requires, “at the very least, that any matter which

a party wishes” to preserve for appellate review be “brought to the attention of the
trial court at a time and in a way that gave [it] the opportunity to remedy the problem
and thereby avert reversible error.” People v. Luperon, 85 N.Y.2d 71, 78 (1995).
This rule is “firmly established and regularly followed,” and it serves as an

independent and adequate state law ground upon which to bar a petitioner’s claim
from federal habeas review. Whitley v. Ercole, 642 F.3d 278, 286–88 (2d Cir. 2011);
see also Portes, 420 F. Supp. 3d at 57. Thus, because the Appellate Division

concluded that Petitioner had not preserved his arguments regarding the prosecutor’s
summation for appellate review, and because Petitioner has not demonstrated cause
for his failure to preserve these challenges or argued that a fundamental miscarriage
of justice would result from a failure to consider his claim, his claim is barred from

federal habeas review.
In any event, Petitioner’s claim also fails on the merits. Prosecutorial
misconduct violates a defendant’s due process rights only when it is of “sufficient

significance to result in the denial of the defendant’s right to a fair trial.” Greer v.
Miller, 483 U.S. 756, 765 (1987) (internal quotation marks and citation omitted).
“To properly evaluate the prosecution’s actions, the alleged misdeeds must be placed
in context, and ‘[t]he severity of the misconduct, curative measures, and the certainty

of conviction absent the misconduct are all relevant to the inquiry.’” Green v.
Herbert, No. 01-CV-11881, 2002 WL 1587133, at *17 (S.D.N.Y. July 18, 2002)
(quoting Blisset v. LeFevre, 924 F.2d 434, 440 (2d Cir. 1991)), report and

recommendation adopted, Sept. 5, 2002 ECF Order. Under New York law,
statements during summation are permissible if they constitute a “fair comment on
the evidence” at trial and reasonable inference therefrom or a “fair response to
remarks made by the defense counsel during summation.” See People v. Perez, 794

N.Y.S.2d 439, 440 (N.Y. App. Div. 2005).
Here, the challenged comments during the prosecutor’s summations did not
deny Petitioner a fair trial. Witnesses at trial testified that Petitioner was angry,

yelling, and picking fights with people leading up to the shooting of Spencer. The
testimony also established that Petitioner flashed his gun at his cousin and stated that
he “shoot[s] to kill.” See ECF No. 7-1 at 362. The prosecutor’s challenged
comments and descriptions of Petitioner as arrogant, bullying, and intimidating were

fairly based on this evidence. See United States v. Rivera, 971 F.2d 876, 884 (2d
Cir. 1992) (“A prosecutor is not precluded from vigorous advocacy, or the use of
colorful adjectives, in summation.”). Similarly, the prosecutor’s statements about

the witnesses testifying despite intimidation, read in context, can be seen as a direct
response to defense counsel’s argument that the identifying witnesses lacked
credibility. Cf. Velazquez v. Poole, 614 F. Supp. 2d 284, 314–15 (E.D.N.Y. 2007)
(holding that prosecutor’s comments in summation that witness was “careful” and

that the jury “[could] rely on her” were direct response to defense counsel’s
argument that the witness’s testimony was vague and lacking in detail). Moreover,
the trial judge instructed the jury that they could not consider arguments not based

on evidence and that the testimony about the Love and Loyalty event was only
provided as background information. Finally, the evidence against Petitioner was
overwhelming, and thus it is almost certain that Petitioner would have been
convicted absent the challenged comments. In light of these considerations, the

prosecution’s challenged remarks did not deny Petitioner a fair trial. Petitioner is
thus not entitled to habeas relief on this ground.
iv. Ineffective Assistance of Counsel

Finally, Petitioner claims that his trial counsel was constitutionally ineffective
for: (1) failing to move to reopen the suppression hearing after testimony at trial that
Defendant was found at the home of a “possible girlfriend” to explore whether
Petitioner had an expectation of privacy in the arrest location and thus whether his

arrest violated Payton; (2) failing to pursue an intoxication defense; and (3) failing
to call Bush to testify at trial. ECF No. 3 at 4–5.
To establish ineffective assistance of counsel, a petitioner must show: (1) that

his counsel’s performance was unreasonable under “prevailing professional norms”
and (2) that, but for the deficiency, there is a reasonable probability that “the result
of the proceeding would have been different.” Strickland v. Washington, 466 U.S.
668, 687–88, 694 (1984). In assessing reasonableness of performance, the court

must view the petitioner’s claim through the eyes of trial counsel, rather than through
the “distorting effects of hindsight.” Id. at 689. In addition, courts must “indulge a
strong presumption that counsel’s conduct [fell] within the wide range of reasonable

professional assistance,” and that counsel’s decisions were, under the circumstances,
sound trial strategy. Id.
In the habeas context, where a petitioner challenges under § 2254 the state
court’s denial of his Strickland claim, “a petitioner must show not only that counsel’s

performance fell below the Strickland standard but also that the state court’s
adjudication of the Strickland standard was itself unreasonable.” See Prescott v. Lee,
No. 11-CV-482, 2013 WL 1192784, at *10 (E.D.N.Y. Mar. 22, 2013). “The

standards created by Strickland and § 2254(d) are both highly deferential,” and a
federal collateral attack on a state court’s Strickland ruling is therefore subject to a
“doubly” deferential standard. Harrington, 562 U.S. at 105 (internal quotation
marks and citations omitted). “The pivotal question is whether the state court’s

application of the Strickland standard was unreasonable.” Id. at 101.
1. Failure to Move to Reopen Suppression Hearing
Petitioner first argues that his trial counsel was ineffective for failing to move

to reopen the suppression hearing pursuant to C.P.L. § 470.40(4) and C.P.L.
§ 470.15(6)(a) following Detective Rosado’s testimony at trial that Petitioner was
arrested at the house of his girlfriend or “possible girlfriend.” ECF No. 3 at 4. ECF
No. 7-1 at 722. According to Petitioner, this testimony established that he had an

expectation of privacy in the home where he was arrested and thus that his arrest
violated Payton. See ECF No. 7-5 at 19; ECF No. 8-4 at 23.
The trial court, in denying Petitioner’s C.P.L. § 440.10 motion, concluded that

it was reasonable for trial counsel to decline to move to reopen the suppression
hearing on Payton grounds because Detective Rosado’s testimony did not warrant
such a motion. The court reasoned that, for one, the trial court had previously
rejected the argument that Petitioner had an expectation of privacy in the premise

where he was arrested as an “invited guest,” finding “zero evidence in this record
that [Petitioner] had an expectation of privacy in the premises where he was
apprehended, zero.” ECF No. 8-7 at 5–6. Moreover, the state court found that,

because the New York Court of Appeals has concluded that the suppression of
evidence of a lineup identification made after an arrest based on probable cause but
in violation of Payton is not required, it was reasonable for trial counsel to decline
to move to reopen the hearing to reargue a Payton violation because “there would

have been nothing to suppress.” Id. at 6 (citing People v. Jones, 810 N.E.2d 415,
419–22 (N.Y. 2004)).
Petitioner has not established that the state court acted unreasonably in

determining that his counsel did not provide ineffective assistance of counsel under
Strickland. Under New York law, a suppression hearing may be reopened upon a
showing that the defendant has “discovered ‘additional pertinent facts’ that ‘could
not have [been] discovered with reasonable diligence before the determination of the

motion.’” People v. Kindell, 23 N.Y.S.3d 65, 67 (N.Y. App. Div. 2016) (quoting
C.P.L. § 710.40(4)). Here, Petitioner would have known whether he was arrested at
his girlfriend’s residence and could have raised this point at the suppression hearing,

therefore it is not an “additional pertinent fact” that could not have been discovered
earlier such that it would have warranted reopening the hearing. Cf. Jones v. Cronin,
No. 20-CV-05348, 2022 WL 21853203, at *9–10 (S.D.N.Y. Apr. 29, 2022) (denying
habeas petitioner’s argument that counsel was ineffective for failing to move to

reopen suppression hearing where petitioner “offered no additional pertinent facts
that could not have been discovered earlier with due diligence”), report and
recommendation adopted, 2023 WL 8643800 (S.D.N.Y. Dec. 14, 2023). Moreover,

Petitioner’s counsel argued at the suppression hearing that Petitioner had an
expectation of privacy as an invited guest and the state court rejected this argument
on the merits because Petitioner explicitly told the arresting officers that he lived in
Brooklyn. Accordingly, Petitioner’s counsel reasonably could have concluded that

any argument that Petitioner had an expectation of privacy in the residence because
it was the home of his girlfriend would have also been rejected on the merits.
Furthermore, as the state court found, even assuming that Petitioner’s counsel

had moved to reopen the suppression hearing and the state court had found that there
was a Payton violation, the lineup identifications made after Petitioner’s arrest
would still be admissible because the arrest of Petitioner was based on probable
cause. New York courts have consistently declined to suppress lineup identifications

following Payton violations where the arrest of the defendant was based on probable
cause. See e.g., Jones, 810 N.E.2d at 419–22; People v. Riffas, 994 N.Y.S.2d 136,
137 (N.Y. App. Div. 2014). Petitioner therefore cannot demonstrate prejudice under

the second prong of Strickland, and his claim is accordingly denied.
2. Failure to Raise Intoxication Defense
Petitioner next argues that his trial counsel was ineffective for failing to
inform him of a possible intoxication defense and failing to raise an intoxication

defense at trial. ECF No. 3 at 4–5.
Petitioner raised this claim in his C.P.L. § 440.10 motion, and the trial court
found that it was without merit, concluding that “[i]t was reasonable for trial counsel

to forego an intoxication defense as [Petitioner] never claimed that he was
intoxicated [and] the record was insufficient to support an intoxication charge.” ECF
No. 8-7 at 6. The court also concluded that it was strategically reasonable for counsel
to decline to mount an intoxication defense because his trial strategy was to argue

that Petitioner was misidentified as the shooter. Id.
Petitioner has not shown that the state court acted unreasonably in denying
this claim. The Supreme Court has stated that “where the alleged error of counsel is

a failure to advise the defendant of a potential affirmative defense to the crime
charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985). Petitioner has failed to put forth any evidence that establishes that an

intoxication defense would have succeeded at trial. Under New York law,
intoxication is not a complete affirmative defense to a criminal charge; rather it can
reduce the severity of the offense by negating the specific intent element of the crime

charged. People v. Harris, 779 N.E.2d 705, 712 n.4 (N.Y. 2002) (citing N.Y. Penal
Law § 15.25). However, “[w]hile the requisite level of intoxication need not be to
the extent of depriving the accused of all power of volition or of all ability to form
an intent, the degree of intoxication that a defendant must demonstrate is quite high.”

Velasquez v. Ercole, 878 F. Supp. 2d 387, 408 (E.D.N.Y. 2012) (internal quotation
marks and citation omitted).
In the instant case, there was minimal evidence introduced at trial that would

have supported an intoxication defense. Although James testified that Petitioner
appeared drunk during the afternoon of August 20, 2016 and that she saw him
drinking later in the evening at the Love and Loyalty event, see ECF No. 7-1 at 313,
316, 319, this testimony only indicates that Petitioner was drinking several hours

before the shooting occurred. Without more, this testimony is insufficient to support
an intoxication defense. See People v. Gaines, 638 N.E.2d 954, 955 (N.Y. 1994)
(suggesting that an intoxication defense must be supported by evidence “such as the

number of drinks [consumed], the period of time during which they were consumed,
the lapse of time between consumption and the event at issue, whether [alcohol was]
consumed [] on an empty stomach, whether [the] drinks were high in alcohol content,
and the specific impact of the alcohol upon [defendant’s] behavior or mental state”).

Moreover, Bass testified that she had a conversation with Petitioner approximately
an hour and a half before the shooting in which he appeared “normal,” and on
cross-examination she testified that she had not seen anyone “drunk and out of

control” in Shady Park. See ECF No. 7-1 at. 357–58, 399, 427, 429.
Additionally, defense counsel’s strategy at trial was to argue that the
identifying witnesses could not have seen the shooting clearly because the park was
dark and there were many trees and people around. In light of this strategy, it was

reasonable for defense counsel to choose not to also present an intoxication defense
because doing so may have confused or alienated the jury. See Williams v. Walker,
No. 92-CV-1905, 1993 WL 22128, at *6 (S.D.N.Y. Jan. 26, 1993) (“Although it

would not have been impossible for counsel to argue inconsistent and alternative
theories to the jury, ‘competent trial counsel know that reasonableness is absolutely
mandatory if one hopes to achieve credibility with the jury.’” (quoting White v.
Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992))). Thus, Petitioner has not shown

that an intoxication defense was likely to have succeeded at trial, nor has he shown
that the state court unreasonably applied Strickland in finding that his counsel was
not ineffective for declining to pursue an intoxication defense. He is therefore not

entitled to habeas relief on this ground.
3. Failure to Call Witness at Trial
Finally, Petitioner argues that his counsel was ineffective for failing to call
Bush as a witness at trial. ECF No. 3 at 5. In his motion to vacate the judgment,

Petitioner alleged that Bush would have testified that he saw another assailant shoot
Spencer and that Bass and Pippins were not close enough to the shooting to have
been able to identify the shooter. ECF No. 8-4 at 23–24. Petitioner submitted an

unsigned, unsworn, undated document, ostensibly drafted by Bush, to the trial court
with his motion to vacate judgement, in which Bush stated that he “was with
[Spencer] when he was killed” and that he “saw the guy that kille[d] [Spencer]” and
that it “was not Raheem.”9 Id. at 126–27.

Petitioner raised this claim in state court in his C.P.L. § 440.10 motion, and
the state court found that defense counsel “exercised sound trial strategy” in
attempting to persuade the jury that the eyewitnesses could not have seen the

shooting and that Bush had in fact committed the shooting. ECF No. 8-7 at 8. The
state court also noted that because Bush’s declaration, provided by Petitioner, was
unsworn, unsigned, and undated, the only evidence supporting Petitioner’s claim
was his own assertions. Id. at 7–8. Finally, the court concluded that “in view of the

9 In his reply brief, Petitioner briefly asserts that his counsel was also ineffective in
failing to call Bush because of a “conflict of interest.” ECF No. 10 at 7. As discussed
above, Petitioner cannot raise a claim for the first time in his reply brief. See
Rosario, 2024 WL 4476165, at *16 n.13. Moreover, there is no support in the record
for Petitioner’s undeveloped claim that his counsel had a conflict of interest.
strength of the evidence against [Petitioner], there is no reasonable probability that
[his] allegations of fact are true.” Id. at 8.
Petitioner has not established that the state court’s application of Strickland to

this claim was unreasonable. “The decision whether to call any witnesses on behalf
of the defendant, and if so which witnesses to call, is a tactical decision of the sort
engaged in by defense attorneys in almost every trial.” United States v. Nersesian,

824 F.2d 1294, 1321 (2d Cir. 1987). “Because of this inherently tactical nature, the
decision not to call a particular witness generally should not be disturbed.” United
States v. DeJesus, 57 F. App’x 474, 478 (2d Cir. 2003); accord Harris v. Hollins,
No. 95-CV-4376, 1997 WL 633440, at *6 (S.D.N.Y. Oct. 14, 1997) (concluding that

counsel was not ineffective for failing to call alibi witnesses where counsel presented
a vigorous defense). This applies even to witnesses that may offer exculpatory
evidence. See United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000).

Here, Petitioner’s counsel did not act unreasonably in failing to call Bush at
trial. Defense counsel attempted to convince the jury that Bass and Pippins
misidentified Petitioner as the shooter. In doing so, he suggested that Bush was the
actual shooter, relying on testimony at trial about prior incidents between Bush and

Spencer. It was reasonable for counsel to conclude that the jury would be more
likely to believe that the identifying witnesses misidentified Petitioner than to accept
Bush’s testimony that an unknown third person killed Spencer, particularly because

Bush’s testimony would have directly contradicted the testimony of Spencer and
Bass, forcing the jury to make credibility determinations. Cf. Lawson v. Caspari,
963 F.2d 1094, 1095–96 (8th Cir. 1992) (concluding that counsel was not ineffective
for failing to call alibi witnesses he did not believe were credible, particularly where

counsel extensively cross-examined the state’s witnesses and presented a theory of
self-defense). In light of these considerations, the state court did not apply Strickland
unreasonably in finding that Petitioner’s counsel did not provide ineffective

assistance by failing to call Bush to testify at trial.
III. Conclusion
The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
denied. Because Petitioner has failed to make a substantial showing of a denial of a

constitutional right, a certificate of appealability shall not issue. See 28 U.S.C.
§ 2253(c)(2).
SO ORDERED.

Brooklyn, New York
August 1, 2025 Edward R. Korman
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11113175. Public record. Not legal advice.