McClinton v. Collado

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KEVIN McCLINTON,

Petitioner, MEMORANDUM & ORDER

21-CV-5222(EK)

-against-

SUPERINTENDENT JOHN WOOD,1

Respondent.

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ERIC KOMITEE, United States District Judge:

Introduction

Petitioner Kevin McClinton seeks a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. McClinton was convicted of

one count of second-degree murder and two counts of criminal

possession of a weapon in connection with the 2013 shooting of a

teenage girl in Queens County. The state Supreme Court Justice

who presided over McClinton’s trial sentenced him to twenty-five

years to life in prison on the murder charge. McClinton has

since served nine of those years; he is currently incarcerated

at the Shawangunk Correctional Facility in Wallkill, New York.

1 John Wood is now the superintendent of Shawangunk Correctional

Facility. The Court has therefore substituted him in Jaifa Collado’s place

as the proper defendant. Fed. R. Civ. P. 25(d). The Clerk of Court is

respectfully directed to update the docket to reflect the amended case

caption.

Proceeding pro se,2 McClinton raises four arguments in

his petition. Most notably, he argues that prosecutors violated

their disclosure obligations under Brady v. Maryland by, among

other things, refusing to reveal the name of Lael Jappa.

Jappa testified for the prosecution at McClinton’s

2016 trial, telling the jury that he saw McClinton take a gun

from another person who was shooting in the girl’s direction —

Shamel Capers — and then heard several additional shots after he

turned to flee the scene. —. Years prior, however, Jappa had

spoken with officers of the New York City Police Department.

The N.Y.P.D. memorandum of Jappa’s May 19, 2013 interview —

first revealed to McClinton in 2024, in response to this Court’s

order — records Jappa’s statement that he “did not see who was

shooting” during the events in question. A second N.Y.P.D.

report, also dated May 19, 2013 (but again produced only 2024

after my directive), indicated that Jappa had picked Capers (not

McClinton) out of a photo array. The district attorney’s office

had expressly declined to share Jappa’s identity with McClinton

prior to trial. Respondent now asserts that such disclosure was

not required because prosecutors had charged McClinton under an

2 After oral argument in this case, McClinton filed a letter seeking to

amend his petition based on evidence that a witness (Lael Jappa) had recanted

his testimony. See ECF No. 18. The Court appointed counsel for the limited

purpose of determining whether any relief, including a stay or an amendment

to the original petition, was appropriate given McClinton’s request. ECF No.

23. Counsel ultimately informed the Court that McClinton wished to proceed

with his original petition, and has taken no further part in this case. ECF

No. 28. The Court therefore treats McClinton as proceeding pro se.

“acting-in-concert theory,” meaning he would have been equally

liable whether he or a compatriot — such as Capers — had pulled

the trigger.

In addition to several other Brady objections,

McClinton further argues that:



The evidence at trial was insufficient to

support his convictions;



He was deprived of a fair trial by the

introduction of “inflammatory” evidence and

improper prosecution summations; and



His sentence was excessively long.

See Petition 5-8, ECF No. 1.

For the following reasons, the petition must be

denied, notwithstanding the serious questions raised by the

prosecutors’ refusal to disclose information about Jappa at an

earlier date.

Background

On May 18, 2013, a fourteen-year-old girl named D’Aja

Robinson was shot and killed while sitting in a New York City

bus in South Jamaica, Queens. Robinson was the victim of a

dispute between rival gangs.

McClinton was arrested for the killing approximately

two weeks later and indicted shortly thereafter. Though he was

the only defendant charged in the operative indictment, the

grand jury alleged that he committed Robinson’s murder while

“acting in concert with other persons.” Indictment 1-2, ECF

No. 13-2. The weapons-possession charges were also alleged to

have been the product of action in concert — a theory of

accomplice liability under New York State law. Id.; see also

People v. Scott, 35 N.E.3d 476, 477 (N.Y. 2015) (citing N.Y.

Penal Law § 20.00) (under acting-in-concert theory, accomplice

is liable when, “acting with the mental culpability required for

the commission of the crime,” he “solicits, requests, commands,

importunes, or intentionally aids the principal to engage in the

commission of the crime”).3

A. Pretrial Proceedings

1. McClinton’s Motion to Compel Disclosure

In October 2014, eighteen months before trial,

McClinton’s trial counsel moved to compel the prosecution to

disclose the names of two witnesses pursuant to Brady v.

Maryland, 373 U.S. 83 (1963). Pet. Mot. to Compel 3, ECF No.

11. McClinton’s counsel said he had recently discovered that

the Queens District Attorney’s Office had also charged Shamel

Capers with Robinson’s murder — albeit in a separate case. Id.

at 2.4 And in that case, the People had filed a Section 710.30

3 McClinton was also charged with reckless endangerment and depraved

indifference, but the People moved to dismiss these counts prior to the close

of trial, and the court granted those motions. Tr. 909:12-910:3.

4 McClinton was indicted under Indictment No. 1725/2013, while Capers

was indicted separately under Indictment No. 1003/2015. See id. at 1

(McClinton); Notice of Intent to Offer Witness Testimony 1, ECF No. 11

(Capers).

notice identifying two witnesses (albeit not by name) who had

identified Capers as the shooter. 710.30 Notice 1, ECF No.

16-1.5 The first identification occurred on June 4, 2013, in a

“confirmatory procedure” at the “Lexington County Sheriff’s

Office, South Carolina” to an NYPD detective. Id. The second

was made to the same detective on July 21, 2014, in response to

a “photo array” on the “1st floor of 125-01 Queens Blvd.” Id.

McClinton argued, based on the 710.30 notice, that the

“existence of witnesses who point to Shamel Capers as the person

who fired the shot that killed [D’Aja] Robinson” was subject to

disclosure under Brady. Pet. Mot. to Compel 2-3. He asked

Justice Lasak to compel the People to disclose the names of the

two witnesses identified. Id. at 3.

In response, the People identified the first witness

as McClinton himself. People’s Resp. to Mot. to Compel 2, ECF

No. 11. McClinton, they reported, had named Capers as the

shooter after his initial arrest in South Carolina. Id. The

People declined to identify the other witness, arguing that

because the state was prosecuting McClinton and Capers under an

acting-in-concert theory, one defendant’s culpability would not

5 Section 710.30 notices are required by New York law. N.Y. Crim. Proc.

§ 710.30. “Whenever the people intend to offer at a trial . . . testimony

regarding an observation of the defendant either at the time or place of the

commission of the offense or upon some other occasion relevant to the case,”

they are required to provide the defendant with notice of that intention and

to specify “the evidence intended to be offered.” Id. § 710.30(1). The

notice must be provided within fifteen days after arraignment. Id.

§ 710.30(2).

tend to exculpate the other. Id. at 2-3. Justice Lasak

ultimately agreed with the People and denied McClinton’s motion.

Order Denying Mot. to Compel 1, ECF No. 8.

The name of the second witness was never disclosed

during the pendency of the state-court litigation, including on

direct appeal. In 2024, however, at the direction of this

Court, Respondent revealed that the witness was Lael Jappa.

Resp. Aug. 9, 2024 Ltr. 2, ECF No. 16. Jappa did actually

testify at McClinton’s trial — for the prosecution. During his

testimony, he said that he saw Capers shoot first, that

McClinton took the gun from Capers’ hand, and that he (Jappa)

heard “[a]bout three” additional shots after he turned to flee

the scene. Jappa 227:1-4, 228:12-23, 230:7-16, ECF No. 16-4.6

McClinton now argues that the state’s failure to disclose

Jappa’s name during the state proceedings violated Brady.

2. The April 14, 2016 Pretrial Conference

Justice Lasak held a pretrial conference on April 14,

two days before jury selection. See generally Pretrial H’ing

Tr., ECF No. 8-1.7 There, the People disclosed the names of two

additional Brady witnesses — Janiah Gulley and Supreme Moye —

6 Citations to “Tr.” denote non-testimonial portions of the trial

record. Citations to a name indicate testimony given by that witness during

the trial before Justice Lasak on April 25 through May 9, 2016.

7 This Order will refer to the transcript from the April 14, 2016

hearing as “Pretrial H’ing Tr.” The transcript begins at page 125 of ECF No.

8-1. The Court will hereafter cite to the transcript using its native

pagination, rather than the pagination of ECF No. 8-1.

separate and apart from the 710.30 notice. Id. at 3:14-24,

4:24-5:6. Gulley, a teenager who was on the bus on the night of

the crime, had previously identified McClinton’s brother —

Nathaniel Parker — as the shooter in a police photo array. Id.

at 3:14-25. As for Moye, an incarcerated man named Terry

Baboolal had informed a detective that Moye admitted to having

“fired some shots” at “that 6 bus shooting.” Id. at 4:15-5:6.

Gulley ultimately testified at trial as a defense

witness. Moye did not. In his petition, McClinton argues the

People should have disclosed Moye’s and Gulley’s names earlier,

and that the decision to do so on the “eve of trial” violated

Brady. See Petition 5, 7 (citing Pet.’s App. Br. 44-52, ECF No.

8-6).

B. The Trial

1. The People’s Opening Statement

Trial began on April 25, 2016 before Justice Lasak.

Assistant District Attorney Patricia Theodorou opened for the

People. Tr. 8:9-13, ECF No. 8-4. She referred to Robinson’s

“devastating, violent death” from a bullet that “ripped into the

right side of her head” and “ripped into her brain.” Tr. 10:5-

6. She foreshadowed testimony, from the victim’s mother, that

Robinson “liked little kids and liked music and liked to sing.”

Id. 10:17-21; Sands 37:16-18. And she repeatedly referenced

Robinson’s age, noting that she “never got to have her own Sweet

[Sixteen] party.” Tr. 10:10-11; see also id. at 8:15, 17:6,

23:24 (additional references to Robinson’s age). Though

McClinton now argues that both this statement and the testimony

it referenced were improperly inflammatory, the defense raised

no contemporaneous objection.

2. The People’s Case-in-Chief

In its case-in-chief, the People relied largely on two

types of witnesses: (1) witnesses from the scene of the crime,

including Lael Jappa; and (2) law enforcement officers.

a. Lael Jappa

Jappa and another witness named Shaquan Bryant first

encountered McClinton that day in Rochdale Park. Jappa

211:8-25, 214:2-12; Bryant 728:7-20, 729:18-730:15. The three

were members of allied local gangs. Jappa 214:13—215:8; Bryant

726:8-22. Jappa told the jury that McClinton was with Shamel

Capers, whom he introduced as his “drop,” or gang subordinate.

Jappa 215:22-216:11; see also Bryant 730:2-731:23. Bryant then

received a phone call from a fellow gang member, who said

members of a rival gang — Wood City — were nearby, at a Sweet

Sixteen celebration at Club Onyx. Bryant 727:11-21, 734:12-24,

784:11-15. McClinton and Capers headed to Club Onyx. Jappa

219:15-220:1; Bryant 735:2-13.

Jappa testified that he, too, headed to Club Onyx, but

it had closed by the time he arrived. Jappa 221:1-222:9. He

then walked to the Q6 bus stop, id., where he recognized

Robinson through the bus window, id. at 224:11-225:2. As he

walked toward the bus, he heard someone say “blow that” (which

he took to mean “shoot”), and then heard gunshots behind him.

Id. at 225:23-226:14. When he turned around, he saw “Mel

[Capers] shooting a gun” toward the back of the bus, firing

“three to four” times. Id. at 226:25-227:7, 230:2-4. He then

saw McClinton — who had a bandana over his mouth — “snatch the

gun out of [Capers’s] hand.” Id. at 228:12-15, 229:15-24.

Jappa testified that he “couldn’t clearly see [McClinton]” fire,

because he ran after McClinton grabbed the gun. Id. at

228:22-24. But he saw McClinton grab the gun, and then heard

“[a]bout three shots more” after he turned to run. Id. at

229:4-9, 230:14-16.

Jappa’s testimony at trial was in tension, at least,

with certain of the earlier statements he had made to N.Y.P.D.

officers. According to police interview reports from May 2013 —

which were only disclosed at the Court’s request in 2024 — Jappa

told officers that he “did not see who was shooting” and had

only “heard gun shots.” See ECF Nos. 16-2, 16-3. And in July

2014, Jappa identified Capers (but not McClinton) in a photo

array. ECF No. 19-1. At the trial, when both the prosecution

and defense counsel asked Jappa about his May 2013 statements to

police, he admitted that he had “lied,” Jappa 276:13-14, and

“not [told] the police what [he] saw that day[.]” Id. 238:7-9.

b. Other Witnesses at the Scene

The prosecution called two other cooperating witnesses

— Bryant and Terrance Payne — to describe the events surrounding

Robinson’s killing.

Payne also tried unsuccessfully to get into Club Onyx.

Payne 622:7-14. He saw Robinson and another girl (Sierra

Orival) leave the corner by Club Onyx and head toward the Q6 bus

stop at the corner of Sutphin and Rockaway Boulevards. Id. at

625:10-24. He headed towards the same bus stop. Id. at

626:9-19. A second group then approached him. Id. at 629:9-14.

One man from the group, who wore a face covering and held a gun,

asked Payne if he was “with Wood City.” Id. at 629:15-18,

631:2-11. Payne said no, and the group headed for the bus stop.

Id. at 631:10-15, 632:10-25. As he walked toward the bus, Payne

heard the first shots. Id. at 634:24-635:6. Payne testified

that McClinton (who he identified in court) was the “person

shooting” into the bus. Id. at 636:4-24. He also said he

watched McClinton flee into the park after the shooting. Id. at

637:24-25. Payne was the only witness to testify that he

actually saw McClinton fire in the direction of the bus.

Bryant, who had stayed in the park, testified that he

met McClinton there later that night. Bryant 737:15-17.

According to Bryant, McClinton told him that he had seen Orival

sitting on the bus “throwing up” Wood City gang signs. Id. at

738:2-20. Bryant further testified that McClinton told him

Capers “started shooting,” and that McClinton then “took the gun

away from him and started shooting” himself. Id. at 739:10-12.

Bryant did not testify that he witnessed McClinton or Capers

fire into the bus.

c. Law Enforcement Witnesses

NYPD Detective Peter Galasso was among the police

officers who subsequently investigated the shooting. Galasso

469:9-18. He testified that, with help from federal marshals,

he tracked down McClinton and arrested him at his aunt’s home in

South Carolina. Id. at 486:2-7; Rao 436:3-23, 440:11-443:3.

During a subsequent interview at a South Carolina police

precinct, McClinton initially told Detective Galasso that Capers

was the sole shooter. Galasso 497:16-20, 508:2-4. Upon further

questioning, McClinton admitted that he “actually did fire the

gun that day,” but maintained that although Capers “handed him

the firearm, he fired two to three times into the air,” rather

than at the bus itself. Id. at 519:8-24.

* * *

In sum, only one government witness (Payne) testified

at trial that he saw McClinton fire into the bus. Jappa

testified that saw Capers shooting and heard subsequent shots as

he turned his back; Bryant testified that he heard McClinton

confess to the shooting later in Rochdale Park; and N.Y.P.D.

officers testified that McClinton admitted to shooting into the

air.

3. The Defense Case

McClinton’s counsel called Janiah Gulley — one of the

witnesses the People had disclosed at the April 14 pretrial

conference. See supra Section II.A.2.

Gulley testified that she witnessed the shooting, but

that she did not know who fired first because it was too dark.

Gulley 802:14-17, 803:16-19. On direct, she confirmed that she

had previously identified a “guy” as the shooter in a police

photo array. Id. at 804:18-21, 806:4-6, 810:20. But she

testified that she did not “remember the name” of this “guy,”

only “the picture.” Id. at 806:6, 810:20. She denied having

identified the shooter to the police by name, and said nothing

could refresh her memory about the initial identification. Id.

at 865:22-866:18.

Because Gulley claimed not to know the name of the

person she had identified, the defense called the detective who

had interviewed her, Anthony Faranda. Detective Faranda

testified that Gulley had identified Nate Parker, McClinton’s

half-brother, as the shooter. Faranda 883:22-884:1. Neither

party contended that Parker was actually the shooter. The

defense indicated, outside the presence of the jury, that

despite having the opportunity to do so, they would not call

Parker to testify. Tr. 888:10-11. Instead, they called his

girlfriend, Aaliyah Watson. Her testimony, uncontroverted at

trial, was that Parker was not at the scene when the shooting

occurred. Watson 838:24-839:18.

Finally, the defense called Richard Thomas, an MTA bus

driver. He testified that upon arriving at the stop he saw

muzzle flashes and heard gunshots, but not the shooter’s face:

when asked whether he saw “the person holding the gun,” he

responded that “[i]t was dark.” Thomas 817:5-12. He also did

not see what the shooter was wearing (again because of the

darkness). Id. at 821:1-6.

4. Closing Arguments

ADA Theodorou delivered closing arguments for the

prosecution. Tr. 932. Once more, she repeatedly invoked

Robinson’s age. See, e.g., id. at 932:19, 933:7, 933:23,

934:11, 934:23. She again referred to the graphic nature of

Robinson’s head wound. Id. at 961:23-962:1. And she again

invoked the grief of Robinson’s mother, stating that she “did

not deserve” to bury her daughter, who “should be getting ready

to go off” to college. Id. at 932:18-19, 933:1-2. Theodorou

also called back to Sands’ testimony about her grief, such as

the statement that when she saw Robinson’s dead body, she

“climbed on the table trying to squeeze her daughter back to

life.” Id. at 936:19-25.

5. Verdict and Sentencing

The jury returned a verdict of guilty on all counts —

second-degree murder and two counts of second-degree weapon

possession.8 Tr. 1028:7-1029:23. On the murder count, Justice

Lasak sentenced McClinton to an indeterminate sentence of

twenty-five years to life. Sentencing Tr. 19:22-25, ECF No.

8-5. On each of the possession counts, Justice Lasak sentenced

McClinton to a determinate sentence of fifteen years to be

followed by five years of post-release supervision. Id. at

19:14-22. Justice Lasak ran the murder count and the first

weapon-possession count concurrently, but ran the second

possession count consecutively, such that McClinton’s aggregate

sentence amounted to forty years to life. Id. at 20:1-4.

C. Appeal and Collateral Proceedings

McClinton appealed his conviction and sentence to the

Second Department, making the same arguments he now presents on

collateral review. People v McClinton, 180 A.D.3d 712 (2d Dep’t

2020). The Second Department affirmed the conviction on

February 5, 2020. Id. at 715. It held that the evidence was

sufficient to convict him; that his Brady objections were

8 The first possession charge concerned possession of a weapon with

intent to use it, while the second concerned possession of a weapon outside

one’s home or place of business. See Indictment 3.

meritless; that he had failed to preserve objections to the

introduction of inflammatory evidence or improper argument; and

that excluding the allegedly inflammatory evidence or argument

would not, in any case, have altered the outcome of his trial.

Id. at 712-14. However, the Second Department also held that

Justice Lasak had improperly run McClinton’s second

weapon-possession sentence consecutive to his other sentences,

and therefore modified that sentence to run concurrently. Id.

at 715. It held that McClinton’s sentence was not otherwise

excessive under New York law. Id.

McClinton’s application for leave to appeal to the New

York Court of Appeals was denied on June 24, 2020. People v.

McClinton, 35 N.Y.3d 1028 (2020). McClinton’s conviction became

final ninety days later, on September 22, 2020. See McKinney v.

Artuz, 326 F.3d 87, 96 (2d Cir. 2003). He filed this petition

on September 14, 2021, within the one-year statute of

limitations set out by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2244(d)(1).

Legal Standard

An application for a writ of habeas corpus by a person

in state custody is governed by 28 U.S.C. § 2254. Under AEDPA,

a petitioner challenging a determination that was “adjudicated

on the merits” in state court must demonstrate that the state

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or was “based on an unreasonable determination of

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

proceeding.” Id. § 2254(d)(2).

A legal conclusion is “contrary to” clearly

established federal law if it “contradicts the governing law set

forth in” the Supreme Court’s cases or “confronts a set of facts

that are materially indistinguishable from a decision” of the

Supreme Court, yet “arrives at a result different from [that]

precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003).9 And a

decision involves an “unreasonable application” of federal law

“if the state court identifies the correct governing legal

principle” in the Supreme Court’s decisions but “unreasonably

applies that principle to the facts of the prisoner’s case.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). It is the

petitioner’s burden to show that the state court applied the

governing principle in an objectively unreasonable manner.

Price, 538 U.S. at 641.

It is not enough that the federal court conclude, in

its independent judgment, that the state court’s decision was

incorrect or erroneous: A petitioner “must show that the state

9 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

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.” Carmichael v.

Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (quoting Harrington

v. Richter, 562 U.S. 86, 103 (2011)).

Discussion

McClinton raises four claims in his petition, all of

which he raised on direct appeal to the Second Department. See

Pet. 5. His petition incorporates his brief to the Second

Department by reference.10 See id. at 7-8. We review these

claims in turn.

A. Brady Challenges

McClinton argues that the prosecution improperly

delayed the identification of four exculpatory witnesses, and

improperly declined to identify the fifth witness — Jappa — at

all. Those failures, he contends, violated his rights under

Brady v. Maryland, 373 U.S. 83 (1963).

McClinton exhausted this claim in state court. The

Second Department held that “the People did not violate their

10 The Court therefore cites the petition and the appellate brief

throughout this opinion. District courts in this circuit have routinely

permitted this kind of incorporation-by-reference, at least in cases

involving pro se petitioners. See, e.g., Lopez v. Sanders, 302 F. Supp. 2d

241, 245 n.3 (S.D.N.Y. 2004); Marino v. Berbary, No. 06-CV-2728, 2007 WL

14561, at *1 n.1 (E.D.N.Y. Jan. 3, 2007).

obligations under [Brady] by improperly withholding or delaying

disclosure of information about five witnesses.” McClinton, 180

A.D.3d at 713. The panel explained that as to the four

identified witnesses (Gulley, Moye, Thomas, and a teenage

eyewitness named Ashley West), the defense had been provided

with their names “as well as additional contact information or

access,” and that “there [wa]s no indication that earlier

disclosure might have had any effect on the outcome of the

trial.” Id. As to the fifth witness (Jappa) — who identified

Capers as a shooter — the Second Department explained that

because McClinton was charged “on an acting-in-concert theory,

there is no reasonable possibility that disclosure of that

witness would have changed the outcome of the trial.” Id. at

714.

McClinton must show that this decision was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Id. § 2254(d)(2); see

also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (on habeas

review, a federal court looks to the last reasoned state-court

decision).

The relevant clearly established law is Brady and its

progeny. In Brady, the Supreme Court held that “the suppression

by the prosecution of evidence favorable to the accused upon

request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” 373 U.S. at 87. Evidence is

“favorable to the accused” if it tends to exculpate the

defendant or impeaches the credibility of the government’s

witnesses. See United States v. Bagley, 473 U.S. 667, 676-77

(1985). And evidence is material if there is a “reasonable

probability that, had the evidence been disclosed, the result of

the proceeding would have been different.” Cone v. Bell, 556

U.S. 449, 469-70 (2009). The reasonable probability standard is

met when suppression of evidence “undermines confidence in the

outcome of the trial.” Bagley, 473 U.S. at 678.

1. Lael Jappa

Of the five witnesses whose names or contact

information McClinton contends the People suppressed, only one

was never revealed in state court: Lael Jappa.11 As noted above,

Jappa testified (for the People) that he saw Capers shoot at the

bus, that he saw McClinton take Capers’ gun, and that — after he

11 In August 2024, McClinton filed a motion to amend his petition,

contending that Jappa had recanted his trial testimony. ECF No. 18.

Ultimately, after consulting with appointed counsel, McClinton did not so

amend. ECF No. 28. The Court therefore does not consider the alleged

recantation.

turned to run — he heard “about three” more shots. Jappa 227:1-

230:16. McClinton argues that Jappa’s testimony identifying

Capers as the shooter tended to exculpate him, Pet. Mot. to

Compel 2-3, a theory both Justice Lasak and the Second

Department rejected. McClinton, 180 A.D.3d at 714.

Brady and its progeny require a three-step analysis.

Strickler v. Greene, 527 U.S. 263, 281 (1999). The state

violates Brady when (1) it suppresses evidence, (2) the evidence

is “favorable to the accused,” and (3) the evidence is material,

such that its omission prejudices the defendant. Id. at 281-82.

Here, we train our focus on the last two elements. We first ask

whether the information withheld was exculpatory, or “favorable

to [the] accused.” Brady, 373 U.S. at 87. If so, we ask

whether the withheld evidence was material — that is, whether

there is a “reasonable probability” that the verdict “would have

been different” if the information had been disclosed. Cone,

556 U.S. at 469-70. As discussed below, this Court cannot find

a violation of clear Supreme Court precedent in the state

appellate court’s conclusion of immateriality. That

determination forecloses relief on this claim.

Before reaching the materiality issue, however, it is

worth pausing to address the respondent’s argument that, because

McClinton was charged with acting in concert during the

shooting, Jappa’s pretrial statements were not “favorable to”

McClinton. In essence, respondent argues that the combination

of Jappa’s name, his statement to the N.Y.P.D. that he could not

identify the shooter, and his later identification of Capers

(without any reference to McClinton) is not exculpatory under

Brady. This Court will not endorse that claim.

To be sure, the acting-in-concert charge provides some

support for the respondent’s contention. It is true, for

example, that the prosecution expressly declined, at trial, to

stake out a position on who fired the bullet that killed

Robinson. Tr. 20:25-21:6. And Brady itself acknowledged that

evidence of an accomplice’s guilt will not necessarily exculpate

a defendant charged under a theory of accomplice liability. 373

U.S. at 88.12

At the same time, McClinton’s prosecutor asked the

jury to conclude that McClinton fired at the bus “over and over

again.” Tr. 15:5-9. Jappa’s trial testimony may have supported

this conclusion, but his prior statements to the N.Y.P.D. and

his identification of Capers in a photo array can easily be read

to cut against it. Evidence may be “favorable to an accused”

when it undermines a key aspect of the prosecution’s theory of a

case, even if that aspect is not required to prove an element of

12 McClinton does not argue that Jappa’s testimony was material to

punishment, or that his testimony was suppressed at sentencing. Brady v.

State, 174 A.2d 167, 172 (Md. 1961), aff’d sub nom. Brady v. Maryland, 373

U.S. at 91 (finding that suppressed evidence was material to punishment and

remanding for a new trial on punishment alone).

the charged crime. Moreover, evidence can be consistent with

both the prosecution and defense theories of the case. See

United States v. Mahaffy, 693 F.3d 113, 130 (2d Cir. 2012)

(evidence may be subject to Brady when it has both incriminating

and exculpatory aspects). So, at a minimum, the prosecution

must have realized by the time of trial that Jappa’s prior

statements would be useful fodder for impeachment on cross-

examination. See Bagley, 473 U.S. at 676-77; Giglio v. United

States, 405 U.S. 150, 154-55 (1972).

Still, there is the question of materiality. And the

trial record does not permit finding that the state courts acted

unreasonably in rejecting the conclusion that refusal to

disclose Jappa’s name prejudiced McClinton. Another eyewitness

— Payne — gave more damaging trial testimony than Jappa did, and

Payne’s assertion is not the subject of any claim here, under

Brady or otherwise. And McClinton’s own admission that he fired

a gun in the vicinity of the bus constituted powerful evidence

of his guilt, even if he maintained that he fired into the air.

Again, McClinton makes no claim here that this admission was

somehow tainted.

Furthermore, the prosecution did go some part of the

way towards mitigating its refusal to disclose. Jappa testified

at trial that he saw “Mel [Capers] shooting a gun” at the bus,

which is the same evidence recorded in the 710.30 notice. Jappa

226:24-227:4; 710.30 Notice 1. And Jappa admitted, both on

direct- and cross-examination, that he had “lied” to police

officers when first interviewed, e.g., Jappa 276:13-14, even if

the defense could not confront him with his relatively

definitive prior statement that he “did not see who was

shooting” during the critical time period. See ECF No. 16-2.

Ultimately, because defense counsel was still able to

impeach Jappa’s credibility on cross-examination by reference to

his May 2013 statements, the Court cannot conclude that the

state’s nondisclosure was sufficient to “undermine[] confidence

in the outcome of the trial.” Bagley, 473 U.S. at 678; cf.

United States v. Hunter, 32 F.4th 22, 34 (2d Cir. 2022)

(nondisclosure of additional impeachment evidence does not

violate Brady where the evidence “merely furnishes an additional

basis on which to impeach a witness whose credibility has

already been shown to be questionable”).

* * *

As the foregoing discussion indicates, it is this

Court’s firm view that prosecutors act at great risk — to a

defendant’s rights, most importantly, but also to the integrity

of any conviction they may obtain — when they push the envelope

of what constitutes “favorable” evidence in the manner shown

here. In the end, however, the failure to disclose Jappa’s

name, his interview memoranda, and the report of his

identification cannot be said, when measured against the Brady

framework established by the U.S. Supreme Court, to have

undermined confidence in the outcome of McClinton’s trial. See

Bagley, 473 U.S. at 682. McClinton’s Brady claim thus falls

short as to Lael Jappa.

2. Janiah Gulley

Janiah Gulley attended the Sweet Sixteen and was

aboard the same bus as Robinson when the shooting began. As

noted above, she initially (according to Detective Faranda)

identified McClinton’s half-brother, Nate Parker, as the

shooter. Faranda 883:2-4, 886:5-7. At trial, however, she

testified that she could not recall the nature of this

identification. Gulley 865:22-866:18. McClinton does not argue

that the People failed to disclose Gulley’s statements to the

defense. Rather, he argued that government’s failure to

disclose her name until the April 14 pretrial conference —

eleven days before opening statements — prejudiced him because

his counsel had less time to prepare for her rather evasive

testimony.13 Pet.’s App. Br. 47.

McClinton identifies no clearly established Supreme

Court precedent holding that Brady requires the prosecution to

13 McClinton also challenges the government’s failure to turn over

Gulley’s contact information. Pet.’s App. Br. 47. But as discussed in more

depth below, no clearly established law requires the government to organize

or facilitate meetings between defense counsel and witnesses with potentially

exculpatory testimony.

disclose information about a witness early enough to guarantee

the defendant extensive preparation time. And this omission

makes sense. The Supreme Court has never clearly established,

or even really discussed at any length, the “timing of

disclosure Brady and its progeny require.” Leka v. Portuondo,

257 F.3d 89, 100 (2d Cir. 2001); see also Ward v. Herbert, 509

F. Supp. 2d 253, 260 (W.D.N.Y. 2007) (“Neither the Second

Circuit nor the Supreme Court has specified the timing of

disclosure that Brady requires, but it is clearly established

that disclosure prior to trial is not mandated.”). At most, the

Court has observed that Brady requires “less of the prosecution”

than the ABA Standards of Criminal Justice, which require

disclosure at the “earliest feasible opportunity.” Kyles v.

Whitley, 514 U.S. 419, 437 (1995) (citing ABA Standards for

Criminal Justice, Prosecution Function and Defense Function 3–

3.11(a) (3d ed. 1993)).

To the extent a timeliness requirement exists, it

flows from the Second Circuit’s mandate that a disclosure occur

with “sufficient time to afford the defense an opportunity for

use [of the evidence].” Leka, 257 F.3d at 103. But “[f]or

purposes of habeas review, ‘clearly established Federal law’

refers to holdings of the United States Supreme Court, and not

an appellate court’s interpretation or extension of such

holding[s].” DeJesus v. Perez, 813 F. App’x 631, 633 (2d Cir.

2020).

In any event, the timing of the state’s disclosure of

Gulley’s name did not violate Brady. A “true Brady violation”

requires not only that the evidence at issue be favorable to the

accused, but also that it “have been suppressed by the State” at

the defendant’s expense. Strickler, 527 U.S. at 281-82. And in

this circuit, “[e]vidence is not suppressed if the defendant

either knew, or should have known, of the essential facts

permitting him to take advantage of any exculpatory evidence.”

United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982).

Gulley’s name was not suppressed under the standards

outlined in Leka or LeRoy, even if those standards applied to a

Section 2254 analysis. The prosecution disclosed Gulley’s name

early enough for the defense to call her. And although there

were gaps in her recollection, Justice Lasak permitted the

defense to supplement her testimony with testimony from

Detective Faranda, who confirmed the defense-friendly fact that

Gulley had identified Nate Parker as the shooter. Faranda

886:5-7. When an allegedly exculpatory witness “in fact

testified for [the defendant] at trial and the jury heard and

fully considered the exculpatory information,” there can be “no

suppression of exculpatory information . . . within the meaning

of Brady.” United States v. Barlow, 732 F. Supp. 2d 1, 4

(E.D.N.Y. 2010).

3. Supreme Moye

At the April 2016 pretrial conference, the People also

informed the defense about Supreme Moye’s potential testimony.

Pretrial H’ing Tr. 5:1-6. In February or March 2016, the Queens

District Attorney’s Office learned that an incarcerated man

named Terry Baboolal claimed to have information concerning the

Q6 bus shooting. Id. at 4:15-21. An ADA interviewed Baboolal,

who said that Moye told him (at some unspecified time) that he

“fired some shots” at “that 6 bus shooting.” Id. at 5:1-6.

Moye’s attorneys informed the prosecutor that he did not wish to

speak with her office, and that he had denied making the alleged

statement to Baboolal. Id. at 5:9-14.

McClinton again argues that that the prosecution did

not disclose Moye’s statement in a timely manner. But again, no

clearly established Supreme Court precedent required the People

to disclose Moye’s statement within a particular timeframe.

Leka, 257 F.3d at 100. And in any event, the timeliness of the

People’s disclosure comported with Brady. Under Brady, the

timeliness of a disclosure is assessed on a case-by-case basis:

the closer to trial, the more thorough the disclosure must be.

Leka, 257 F.3d at 100. Here, Moye’s attorneys only agreed to

speak with the prosecutor the week of the pretrial hearing.

Pretrial H’ing Tr. 5:9-14. Within a week, the defense was

informed about the potential Brady material and Moye’s name.

Id. And the People’s disclosure provided a detailed account not

only of Baboolal’s assertions, but also of Moye’s position on

those assertions. By comparison, part of the constitutional

violation in Leka was that the prosecution’s eve-of-trial

disclosure “consisted of nothing but [the witness’s] name and

perhaps his address.” 257 F.3d at 101-02. That bare-bones

disclosure “afforded insufficient opportunity to use the

information” because it required the defense to undertake

significant investigatory work on an unreasonably truncated

timeline. Id. at 102.

Ultimately, defense counsel did not call (or subpoena)

either Moye or Baboolal. And absent any indication in the

record that the timing of the prosecution’s disclosure

prejudiced the defendant, McClinton’s Brady claim fails as to

Moye.

4. Richard Thomas

McClinton further argues that the prosecution failed

to timely disclose information about Richard Thomas, the MTA bus

driver. According to the People’s disclosure, Thomas had

previously told police officers that the shooter wore a blue

sweater. Pet.’s App. Br. 7. This was Brady material, McClinton

argues, because while Jappa was wearing a blue sweater that

night, McClinton was wearing a white shirt. Id. at 38 n.6.

Three days before trial began, defense counsel said

(for the first time) that he had not been able to contact

Thomas, because “the name’s too common for [defense counsel] to

track it down.” Second Pretrial H’ing 479:5-6, ECF No. 8-3. He

requested that the People provide him with contact information

for Thomas. Id. at 479:8-9. The prosecutor agreed to try but

noted that she did not “know if [she] had recent contact for

him.” Id. at 479:25-480:1. At the end of the first day of

trial, defense counsel again said he could not contact Thomas.

Tr. 121:14-15. The prosecutor said she was still trying to do

so. Id. at 121:17-19. On the penultimate day of the state’s

case, defense counsel handed up a subpoena for Thomas. Id. at

532:11-12. No further discussion was held on the record, but it

appears that a subpoena issued, because Thomas testified two

days later as part of the defense case. Id. at 815:7-14.

McClinton argues that because he could not contact

Thomas earlier, counsel had been forced to “call a witness

cold,” and was “deprived of an adequate opportunity to use the

exculpatory evidence.” Pet.’s App. Br. 49. At the outset, this

argument omits the fact that the government indicated that they

did attempt to help defense counsel contact Thomas (though the

record does not reveal if those efforts were successful). Tr.

121:17-19. But more importantly, once again, McClinton

identifies no clearly established law requiring the prosecution

to arrange meetings between the defense and potential Brady

witnesses. While defense counsel may have had trouble

contacting Thomas, it is a “well-established principle that the

government is not obliged under Brady to furnish a defendant

with information which he . . . can obtain himself” through

reasonable investigative effort. United States v. Pelullo, 399

F.3d 197, 202 (3d Cir. 2005); see also Weatherford v. Bursey,

429 U.S. 545, 559-60 (1977) (“There is no general constitutional

right to discovery in a criminal case, and Brady did not create

one . . . .”).

Moreover, the government did not violate Brady as to

Thomas. Again, “no Brady violation occurs if the defendant knew

or should have known the essential facts permitting him to take

advantage of any exculpatory evidence.” United States v. Gaggi,

811 F.2d 47, 59 (2d Cir. 1987). Here, the People disclosed

Thomas’s identity and his potentially exculpatory statement far

in advance of trial, a disclosure that ultimately enabled the

defense to examine him at trial.

Brady does not require anything more. For instance,

in United States v. Grossman, the government notified the

defense roughly two weeks before trial that witness who

testified before the grand jury “might have exculpatory

information.” 843 F.2d 78, 82 (2d Cir. 1988). The government

provided the witness’s name but not his testimony. Id. The

Second Circuit found that the government satisfied its Brady

obligations, because its disclosure provided the defendant with

the ”essential facts permitting him to take advantage of any

exculpatory evidence.” Id. at 85. Grossman’s reasoning applies

here. In fact, the government in this case provided more to the

defense than the prosecution provided in Grossman, because they

also detailed the nature of Thomas’s potentially exculpatory

statement.

McClinton’s Brady claim fails as to Thomas.

5. Ashley West

As with Thomas, McClinton claims that the prosecution

violated Brady by failing to timely disclose contact information

for Ashley West, a teenager who was at the scene of the crime.

On May 2, defense counsel requested for the first time

that the People make West “available to him.” Tr. 535:11-13.

West had told a police officer that she saw “a person in a dark

blue shirt pull[] out a black gun.” Id. at 795:15-18.

McClinton was wearing a white shirt, whereas Jappa and Payne

were wearing blue shirts — thus, McClinton argued, her statement

was exculpatory. Jappa 260:4-5; Galasso 478:1-2, 482:1-9. The

People disclosed West’s statement months in advance of trial.

But despite extensive efforts ahead of trial, McClinton’s

counsel was unable to contact her. Id. at 795:22-25. McClinton

argues that by not also turning over West’s contact information,

the prosecution deprived him of “a meaningful opportunity to

present a complete defense.” Pet.’s App. Br. 50-51.

As an initial matter, the record does not suggest that

defense counsel failed to contact West because of the

government’s non-disclosure. Rather, it indicates that West (or

her parents) simply did not want to cooperate with the defense.

In response to defense counsel’s May 2 request, the prosecutor

said that West — a minor — “[wa]s not under [er] control,” and

that West’s “mother d[id] not want to be involved in this.” Tr.

535:12-16. Indeed, despite a promise to contact defense counsel

on the afternoon of May 2, see id., West’s mother never did so,

id. at 794:25. Even when the People did (at the court’s

request) ultimately provide defense counsel with West’s phone

number one day before trial, id. at 796:11, he remained unable

to contact her and opted to proceed without her testimony, id.

at 861:3-9.

In any event, as noted above, there is no clearly

established Supreme Court precedent establishing a precise

timeframe in which the government must disclose Brady material.

Rather, the pertinent question in the Second Circuit is whether

the defense had an “opportunity to use the evidence when

disclosure [wa]s made.” Leka, 257 F.3d at 100. And because

the government disclosed West’s identity and potentially

exculpatory statement well in advance of trial, McClinton’s

Brady claim as to West fails on the merits anyway. See

Grossman, 843 F.2d at 85.

* * *

In sum, the government did not violate Brady with

respect to any of the witnesses McClinton identifies.

McClinton’s Brady claims fail both individually and taken

together. See Kyles, 514 U.S. at 436 (allegedly suppressed

evidence must be considered “collectively, not item by item”).

B. Sufficiency of the Evidence

McClinton argues, as he did before the Second

Department, that his conviction was “based on legally

insufficient evidence” because “the only evidence that directly

connected [McClinton] to the murder was cooperating witness

testimony,” which is untrustworthy. Pet.’s App. Br. 35. This

argument was properly exhausted in state court. The Second

Department rejected it on direct appeal, holding that the

evidence at trial “was legally sufficient to establish the

defendant’s guilt beyond a reasonable doubt.” McClinton, 180

A.D.3d at 713.

At the outset, McClinton appears to be alluding to New

York’s rule that a defendant “may not be convicted of any

offense upon the testimony of an accomplice uncorroborated by

corroborative evidence.” N.Y. Crim Proc. § 60.22(1). There is

no equivalent federal rule. On the contrary, “even the

testimony of a single accomplice is sufficient to sustain a

conviction, provided it is not incredible on its face or does

not defy physical realities.” United States v. Truman, 688 F.3d

129, 139 (2d Cir. 2012). Accordingly, the law governing

McClinton’s insufficient claim is the Fourteenth Amendment’s bar

on convictions based on insufficient evidence. Jackson v.

Virginia, 443 U.S. 307, 318 (1979).

“Jackson claims face a high bar in federal habeas

proceedings because they are subject to two layers of judicial

deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per

curiam). The first layer of deference emanates from the limits

of the Due Process Clause of the Fourteenth Amendment. A

“reviewing court may set aside the jury’s verdict on the ground

of insufficient evidence only if no rational trier of fact could

have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2

(2011) (per curiam). The second layer emanates from AEDPA. A

federal court may overturn a state court rejection of a

sufficiency challenge only “if the state court decision was

objectively unreasonable.” Id. Accordingly, a district court

presented with a habeas petition “may not grant the writ unless

[it] conclude[s] that no reasonable court could have held that

any reasonable jury could have read the evidence to establish

[the] petitioner’s guilt beyond a reasonable doubt.” Garbutt v.

Conway, 668 F.3d 79, 82 (2d Cir. 2012).

A person is guilty of murder in the second degree

under New York law when, “[w]ith intent to cause the death of

another person, he causes the death of such person or of a third

person.” N.Y. Penal Law § 125.25(1). And a person is guilty of

criminal possession of a weapon in the second degree if either

(1) “with intent to use the same unlawfully against another,”

they possess a machine-gun, disguised gun, or a loaded firearm,

or (2) if, even absent a finding of intent, “such person

possesses any loaded firearm” outside their home or place of

business. Id. § 265.03.

Here, McClinton admitted to Detective Galasso that he

was present at the scene with Capers, who fired into the bus

before handing the gun to McClinton. Galasso 497:10-20, 519:19-

21. He admitted that he “fire[d] the gun . . . two or three

times into the air as [he and Capers] were running away.” Id.

at 519:11-21. And three witnesses — Payne, Bryant, and Jappa —

testified at trial that they either saw McClinton shoot at the

back of the Q6 bus with Robinson on board, saw him take the gun

from Capers and then heard shots, or heard him confess to the

shooting.

McClinton’s only argument in the face of this evidence

is that the witnesses lacked credibility because they

“implicated [McClinton] to deflect suspicion” from themselves

and to receive leniency for their own crimes. Pet.’s App. Br.

36. But “the assessment of the credibility of witnesses is

generally beyond the scope of review” under Jackson. Schlup v.

Delo, 513 U.S. 298, 330 (1995). Viewing the evidence “in the

light most favorable to the prosecution,” Jackson, 443 U.S. at

319, McClinton cannot establish that no reasonable court could

have held that any reasonable jury could have read the mutually

reinforcing testimony of Bryant, Payne, and Jappa as

establishing his guilt beyond a reasonable doubt. Garbutt, 668

F.3d at 82. McClinton’s sufficiency claim therefore fails.

C. Inflammatory Evidence and Argument

McClinton next argues that he was deprived of a fair

trial for two reasons. First, he argues that the trial court

erred when it allowed “[t]he gratuitous introduction of

inflammatory evidence about the victim’s background and graphic

depictions of her death.” Pet. 5. And second, he argues that

the court erred by allowing the prosecution, in opening and

closing arguments, to “focus[] on that irrelevant evidence” and

to imply “that the victim’s family ‘deserved’ a guilty verdict.”

Id.

1. Inflammatory Evidence

Before the Second Department, McClinton challenged the

trial judge’s admission of evidence about Robinson’s youth, her

innocence, and the pain experienced by her friends and family.

He wrote that those “heart-wrenching facts — that D’Aja was a

beloved child who died in her best friend’s arms, leaving behind

a pool of brain matter and a blood-spattered umbrella — were not

relevant to any material issue in the case and had no bearing on

appellant’s legal culpability,” but were designed only to

“inspire moral outrage.” Pet.’s App. Br. 55.

The most recent clearly established Supreme Court

precedent on this issue is Andrew v. White. There, the Court

held that the Due Process Clause forbids the introduction of

evidence “so unduly prejudicial that it renders the trial

fundamentally unfair.” Andrew v. White, 145 S. Ct. 75, 78

(2025) (per curiam) (quoting Payne v. Tennessee, 501 U.S. 808,

825 (1991)). The Andrew Court declined to determine whether the

evidence before it satisfied the fundamental-unfairness

standard. But even if the evidence in that case did satisfy the

applicable standard, it was clearly distinguishable from the

evidence here. In Andrew, the prosecutors in a murder trial

introduced a barrage of irrelevant and prejudicial evidence,

ranging from details about the defendant’s sexual partners, to

“how often she had sex in her car,” to the “underwear she packed

for vacation.” 145 S. Ct. at 79. Here, the evidence of

Robinson’s death — while certainly emotionally charged — was

neither personally disparaging nor unmoored from the facts of

the underlying crime.

Ultimately, however, the Court need not determine

whether the introduction of the above-mentioned evidence

violated the rule established in White, because McClinton’s

argument is procedurally barred. The Second Department rejected

McClinton’s evidentiary argument on an adequate and independent

state ground. A federal habeas court may not review the

judgment of a state court that rests on a ground of procedural

default that is “independent of the federal question and

adequate to support the judgment.” Coleman v. Thompson, 501

U.S. 722, 729 (1991). A state-law ground is “independent” of

federal law if the court’s “reliance on state law” is “clear

from the face of the opinion.” Fama v. Comm’r of Corr. Servs.,

235 F.3d 804, 809 (2d Cir. 2000) (quoting Coleman, 501 U.S. at

735). And it is “adequate” if it is premised on a state-law

rule that is “firmly established and regularly followed” by

courts of the state. Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.

1999) (quoting Ford v. Georgia, 498 U.S. 411, 423024 (1991)).

Here, the Second Department held that McClinton’s

argument was “unpreserved for appellate review because he failed

to object at the time the evidence was introduced.” McClinton,

180 A.D.3d at 714; see also N.Y. Crim. Proc. § 470.05 (setting

out New York’s contemporaneous objection rule). New York’s

contemporaneous objection rule “is a firmly established and

regularly followed New York procedural rule.” Downs v. Lape,

657 F.3d 97, 102-04 (2d Cir. 2011). Accordingly, this claim is

procedurally barred.

To overcome procedural default, a petition must either

“demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750.

McClinton has not demonstrated that cause existed for

the default. To establish cause, he must “show that some

objective factor external to the defense” — for example, that

the “factual or legal basis for a claim was not reasonably

available to counsel” — “impeded counsel’s efforts to comply

with the State’s procedural rule.” Murray v. Carrier, 477 U.S.

478, 488 (1986). McClinton has offered no argument that cause

existed for his procedural default, and the trial transcript

reveals none.

He also has not shown that failure to consider his

claim would result in a “fundamental miscarriage of justice.”

Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To satisfy the

“miscarriage-of-justice exception,” the petitioner is required

to “establish that, in light of new evidence, it is more likely

than not that no reasonable juror would have found [him] guilty

beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 536-37

(2006). McClinton has not met that burden here (and does not

contend otherwise in his papers).

2. Improper Argument

McClinton also argues that his trial was unfair

because the prosecutor’s “opening and closing arguments were

replete with remarks that had no legitimate purpose and served

only to further inflame the jury’s outrage and sympathy.”

Pet.’s App. Br. 56. Among other things, he points to references

to Robinson’s age, to the violent nature of her death, and to

her mother’s grief.

This claim was properly raised before the Second

Department and exhausted in state court. The Second Department

held that McClinton’s “contention that he was deprived of a fair

trial by remarks made by the prosecutor during her opening and

closing statements is without merit,” and the “remarks did not

deprive the defendant of a fair trial.” McClinton, 180 A.D.3d

at 714.

The Supreme Court’s decision in Darden v. Wainwright,

477 U.S. 168, 181 (1986), is the “clearly established Federal

law” that reviewing courts apply to claims of improper

summations under AEDPA. Parker v. Matthews, 567 U.S. 37, 45

(2012) (per curiam). Under Darden, “it is not enough that the

prosecutor’s remarks were undesirable or even universally

condemned.” 477 U.S. at 181. “[A] prosecutor’s improper

comments will be held to violate the Constitution only if they

so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Parker, 567 U.S. at 45.

Comments that do “not manipulate or misstate the evidence, nor

. . . implicate other specific rights of the accused,” are not

so prejudicial as to warrant habeas relief. Darden, 477 U.S. at

182.

In Darden, despite denying habeas relief (even

pre-AEDPA), the Supreme Court wrote that the prosecutor’s

comments deserved “the condemnation [they have] received from

every court to review [them].” Id. at 179. For example, in

arguing for the death penalty the Darden prosecutor said: Darden

“shouldn’t be out of his cell unless he has a leash on him and a

prison guard at the other end of that leash.” Id. at 180 n.12.

He referring to Darden as an “animal,” telling the jury that he

“wish[ed] that I could see [Darden] sitting here with no face,

blown away by a shotgun.” Id.

The statements at issue here are substantially less

prejudicial than those made in Darden. There is no basis on

which to conclude, under AEDPA, that the state court’s decision

“was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 562 U.S.

at 103. The prosecutor did not demonize McClinton directly, as

in Darden. Her statements describing the nature of Robinson’s

injuries — that a bullet “ripped into her brain” — did not

manipulate or misstate the evidence. Tr. 10:5-6. And the

prosecutor’s references to Robinson’s age were relevant to

explain why she was at a Sweet Sixteen.

Even in the context of a direct appeal from a federal

trial, “a prosecutor is not precluded from vigorous advocacy, or

the use of colorful adjectives, in summation.” United States v.

Jaswal, 47 F.3d 539, 544 (2d Cir. 1995). Furthermore, Justice

Lasak’s cautionary instruction to the jury — that “what an

attorney says in summation is not evidence,” Tr. 5:5-6 — weighs

against finding that the prosecutor’s comments ultimately

infringed on any of McClinton’s specific constitutional rights.

Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (holding,

on a Section 2254 petition, that although a prosecutor’s

comments “overstepped the bounds of fair prosecutorial

summation,” that was ameliorated by the court’s instruction

“that the summations were not evidence”). Here, there is no

reason to believe (especially upon deferential AEDPA review)

that “the prosecutors’ comments so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.” Darden, 477 U.S. at 181. McClinton’s claim therefore

fails.

D. Excessive Sentence Challenge

Lastly, McClinton argues that his sentence was

excessive. Pet.’s App. Br. 67. He relies upon state law for

this claim and has not cited the Eighth Amendment, under which

an excessive punishment claim might otherwise be reviewable.

See Pet. 5; see also Pet.’s App. Br. 64-69 (exclusively citing

New York State court decisions and statutes). “[I]t is not the

province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). This Court is not permitted to inquire

into whether the Second Department was correct that under New

York law, the “sentence imposed, as modified, was not

excessive.” McClinton, 180 A.D.3d at 715. McClinton’s

excessive sentence claim therefore fails.14

Conclusion

For the foregoing reasons, McClinton’s petition is

denied. Yet, as noted above, the Court believes that

McClinton’s Brady claim (with respect to Lael Jappa) presents a

relatively close question. It therefore concludes that

14 Even if McClinton had raised an Eighth Amendment excessive sentence

claim, that claim would fail. “No federal constitutional issue is presented

where, as here, the sentence is within the range proscribed by state law.”

White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam). McClinton’s

sentence, as modified by the Second Department, runs twenty-five years to

life. See McClinton, 180 A.D.3d at 715. He was convicted of murder in the

second degree — a Class A felony under New York law. N.Y. Penal Law

§ 125.25. The maximum term of imprisonment in New York for Class A felonies

is life. Id. § 70.00(2)(a). As a result, he has no federal constitutional

claim.

“reasonable jurists could debate . . . whether the petition

should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). Accordingly, the Court will issue a certificate of

appealability with respect to that claim pursuant to 28 U.S.C.

§ 2253(c)(1).

The Clerk of the Court is respectfully directed to

enter judgment, close the case, and mail a copy of this order to

McClinton.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: August 28, 2025

Brooklyn, New York