Brown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BORIS BROWN,

Petitioner,

24 Civ. 8271 (DEH)

v.

MARLYN KOPP, Superintendent, Sing Sing OPINION

Correctional Facility, AND ORDER

Respondent.

DALE E. HO, United States District Judge:

Boris Brown was convicted of depraved indifference murder and criminal possession of a

weapon in the second degree in the Supreme Court of the State of New York, New York County,

and sentenced to 32 years to life imprisonment. Mem. Supp. Pet. for Writ of Habeas Corpus

(“Pet’r’s Mem.”) at 1, ECF No. 2. He is serving his sentence at the Sing Sing Correctional Facility

in New York. Id. He now petitions, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus.

Id. In his Petition, Brown argues that his trial attorney was paid by a suspect to the crime, creating

(1) an actual conflict of interest that (2) was not harmless, and (3) was not waived, thereby denying

Brown his Sixth Amendment right to counsel. Id. at 13-19. For the reasons that follow, Brown’s

Petition is DENIED and DISMISSED.

BACKGROUND

On July 25, 2012, Boris Brown was convicted by a jury in New York County of depraved

indifference murder and criminal possession of a weapon in the second degree. Id. at 1. The trial

evidence established that on October 3, 2010 at 1:15 am, a shot was fired into a courtyard at the

AK Houses in Upper Manhattan, leading to the death of a seventeen-year-old girl and injuries to

another bystander. Pet. Ex. D-1 (“Dec. 29, 2020 Order”) at 1, ECF No. 1-16. The People

contended that Brown committed the shooting in retaliation for a robbery that took place hours

earlier. Id.

On October 27, 2015, Brown filed a motion to set aside his conviction under Article 440

of New York’s Criminal Procedure Law (Brown’s “440 Motion”) on the ground that his trial

counsel, Jeffrey Chadbrowe, was ineffective due to a conflict of interest arising from his

relationship with Ahmed Salaam, an associate of Brown’s. See Pet. Ex. A-2, ECF No. 1-2. Brown

argued that Salaam paid Chadbrowe to represent Brown at trial, and also hired him to represent

Salaam in an unrelated matter. See id. Brown’s core theory was that Chadbrowe failed to pursue

his best defense theory at his trial—that of pointing the finger of guilt at Salaam—due to his

relationship with Salaam. See id. The New York Supreme Court denied the petition on the papers

without holding a hearing. See Pet. Ex. A-5, ECF No. 1-5

Brown subsequently appealed both his conviction and the denial of his 440 Motion to the

New York Country Supreme Court, Appellate Division. On November 21, 2017, the appellate

court affirmed Brown’s conviction on direct appeal and affirmed the denial of his 440 Motion.

People v. Brown, 155 A.D.3d 509 (N.Y. App. Div. 2017), aff’d in part and rev’d in part, People

v. Brown, 33 N.Y.3d 983 (N.Y. 2019); see Pet. Ex. B-5, ECF No. 1-10.

The New York Court of Appeals granted leave to appeal on May 7, 2018. See Pet. Ex. C-

1, ECF No. 1-11. The Court of Appeals then affirmed the judgment of the Appellate Division as

to Brown’s conviction but reversed it as to the denial of his 440 Motion. Brown, 33 N.Y.3d at

986-87; see Pet. Ex. C-5, ECF No. 1-15. The Court of Appeals held that a hearing was required

to resolve disputed issues of fact as to whether Chadbrowe had a conflict of interest that warranted

the setting aside of Brown’s conviction. Brown, 33 N.Y.3d at 987.

On remand, the New York County Supreme Court held a hearing on the 440 Motion and

concluded that Brown had not proven that Chadbrowe “was aware of any facts giving rise to an

actual conflict of interest arising from having received cash from Salaam for his representation of

Petitioner.” Dec. 29, 2020 Order at 1. Brown appealed to the Appellate Division, which

unanimously affirmed the order of the Supreme Court. People v. Brown, 211 A.D.3d 440, 441-42

(N.Y. App. Div. 2022); see Pet. Ex. D-5 (“Dec. 6, 2022 Order”), ECF No. 1-20. Brown sought

leave to appeal to the New York Court of Appeals, but leave was denied. People v. Brown, 40

N.Y.3d 950 (N.Y. 2023); see Pet. Ex. E-4, ECF No. 1-24.

LEGAL STANDARDS

The Court’s authority to grant the writ of habeas corpus is sharply limited by 28 U.S.C. §

2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See

Cruz v. Superintendent, No. 13 Civ. 2414, 2016 WL 2745848, at *5 (S.D.N.Y. May 11, 2016).

Specifically, the Court may grant the writ “with respect to any claim that was adjudicated on the

merits in State court proceedings” only if (1) the state court’s denial of the petitioner’s claim

“resulted in a decision that was contrary to . . . clearly established Federal law, as determined by

the Supreme Court of the United States”; (2) the state court’s denial of relief “resulted in a decision

that . . . involved an unreasonable application of[] clearly established Federal law, as determined

by the Supreme Court of the United States”; or (3) the state court’s denial of relief “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).

It is well established that a state court decision can be “contrary to” Supreme Court

precedent in either of two ways: first, “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law” or, second, “if the state court confronts facts

that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a

result opposite to [the Court’s].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court

unreasonably applies clearly established precedent “if the state court identifies the correct

governing legal rule” from the Supreme Court’s cases “but unreasonably applies it to the facts of

the particular state prisoner’s case.” Id. at 407. Alternatively, “a state-court decision . . . involves

an unreasonable application of [Supreme Court] precedent if the state court either unreasonably

extends a legal principle from [Supreme Court] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new context where it should apply.”

Id.; see also Richard S. v. Carpinello, 589 F.3d 75, 80 (2d Cir. 2009).

Notably, “an unreasonable application of federal law is different from an incorrect

application of federal law.” Williams, 529 U.S. at 410. That is, the issue is not whether the state

court committed error, or even clear error, but “whether the state court’s application of clearly

established federal law [as determined by the Supreme Court] was objectively unreasonable.” Id.

at 409; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The gloss of clear error fails to give

proper deference to state courts by conflating error (even clear error) with unreasonableness.”).

That threshold is “substantially higher” than incorrectness. Renico v. Lett, 559 U.S. 766, 773

(2010). Specifically, where AEDPA applies, federal habeas relief is precluded “so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Put differently:

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.

Id. at 103. “This is a ‘difficult to meet’ and ‘highly deferential standard for evaluating state-court

rulings . . . .’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

As noted, a federal court may also grant habeas relief under AEDPA if the state court’s

decision 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)(2). But a state court’s factual

determinations are “presumed to be correct” and may only be rebutted “by clear and convincing

evidence.” Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (quoting 28 U.S.C. § 2254(e)(1));

accord Bierenbaum v. Graham, 607 F.3d 36, 48 (2d Cir. 2010). This requires “substantial

deference” to the state court’s determinations. Brumfield v. Cain, 576 U.S. 305, 314 (2015). “If

reasonable minds reviewing the record might disagree about the finding in question, on habeas

review that does not suffice to supersede the trial court’s determination.” Id. (cleaned up). Nor

may a federal court characterize a state court’s decisions as unreasonable “merely because [it]

would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301

(2010). That said, “‘[e]ven in the context of federal habeas, deference does not imply abandonment

or abdication of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield, 576

U.S. at 314 (alteration in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

DISCUSSION

Brown argues that because his attorney was paid by a suspect in the crime, it created a non-

waivable conflict, and therefore his Sixth Amendment rights were violated. Pet’r’s Mem. at 13-

14. Specifically, Brown first argues that an actual conflict of interest existed because “Chabrowe

was personally beholden to Salaam because he was paying Chabrowe’s fees for both

representations.” Id. at 15. Second, Brown argues the conflict was not harmless because

“Chabrowe’s failure to advance a theory that Salaam was the actual shooter actively harmed Mr.

Brown at trial.” Id. at 16. Additionally, Brown argues the conflict was not waived “because

counsel never alerted Mr. Brown or the trial court to that issue.” Id. at 18. The Court concludes

that the Appellate Division’s December 6, 2022 decision was not contrary to clearly established

federal law, based on an unreasonable determination of the facts, or an unreasonable application

of federal law.

I. The Appellate Division’s decision was not contrary to clearly established

federal law.

To succeed on an ineffective assistance of counsel (“IAC”) claim under Strickland, a

defendant must show that 1) counsel’s performance was deficient and 2) that deficient performance

prejudiced his defense, i.e., denied him a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). To satisfy the first element, a defendant must identify acts or omissions that fail to meet

an objective standard of “reasonably effective assistance . . . under prevailing professional

norms.” Id. at 687-88. Judicial review in this context should be “highly differential” given the

range of strategic choices counsel has in presenting a defense. Id. at 689. To satisfy the second

element, a defendant must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome” of the

trial. Id.

In cases involving conflicts of interest, the Strickland Court explained that “prejudice is

presumed when counsel is burdened by an actual conflict of interest.” Strickland, 466 U.S. at 692

(citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980)). But the Court cautioned that “[p]rejudice

is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting

interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Id.

(quoting Cuyler, 446 U.S. at 350, 348). “[T]he possibility of conflict is insufficient to impugn a

criminal conviction.” Cuyler, 446 U.S. at 350 (emphasis added). A “mere theoretical division of

loyalties” is not an actual conflict. Mickens v. Taylor, 535 U.S. 162, 171 (2002).

Here, the Appellate Division’s decision was not contrary to clearly established federal law

as articulated by the Supreme Court. The Appellate Division reasonably articulated the Strickland

standard as to IAC claims. The court stated that to succeed on his ineffective assistance of counsel

claim, Brown would have to show “that his attorney was subject to a potential conflict that

‘actually operated on the defense.’” People v. Brown, 211 A.D.3d at 442 (citing People v. Sanchez,

991 N.E.2d 698, 702 (N.Y. 2013). The court held that “Salaam’s limited role in gathering,

contributing to, and delivering cash collectively raised for defendant’s legal defense did not create

an actual conflict of interest.” Id. at 441. The Appellate Division’s articulation of the standard is

consistent with the governing standard for ineffective assistance of counsel claims as set forth

above—and certainly not contrary to it.

II. The Appellate Division’s decision was not based on an unreasonable

determination of the facts.

The Appellate Division’s decision was based upon reasonably determined facts. In

evaluating a habeas petition, the state court’s factual determinations are presumed to be correct,

barring clear and convincing evidence rebutting that presumption. See Parsad, 337 F.3d at 181.

The Appellate Division explained that the facts adduced at the hearing supported the trial court’s

conclusion that Salaam did not pay Brown’s legal fees:

The hearing evidence showed that Salaam physically handed cash to defendant's

attorney for his retainer and for much of the balance of the fee, but that there was

no proof as to the ultimate source of the cash. Counsel credibly testified that he

viewed Salaam as his contact person and believed that the legal fees were being

collectively raised by a group of defendant’s friends and relatives, including

Salaam. The court's finding was also supported by defendant's recorded calls made

while incarcerated, and the fact that Salaam always delivered cash to the attorney

while accompanied by other friends of defendant. The evidence also shows that

defendant chose and hired the attorney.

People v. Brown, 211 A.D.3d at 441. These facts are presumed to be correct, and Brown has not

presented clear and convincing evidence rebutting that presumption. See Parsad, 337 F.3d at 181.

The Appellate Division further concluded that “Salaam’s limited role in gathering,

contributing to, and delivering cash collectively raised for [Brown’s] legal defense did not create

an actual conflict of interest,” explaining:

[T]he hearing evidence failed to show that defendant and Salaam, although

represented by the same lawyer in unrelated cases, had opposing interests in

defendant’s murder prosecution. Other than Salaam’s presence at the scene of the

murder, the only evidence connecting him to that crime was essentially rumor. The

People unequivocally disclaimed any interest in either prosecuting Salaam for the

murder or calling him as a witness against defendant.

People v. Brown, 211 A.D.3d at 441-442. These facts, too, are presumed to be correct, and Brown

has not rebutted them by clear and convincing evidence.

The Appellate Division ultimately held that Brown had failed to meet the heavy burden of

showing that his trial counsel was subject to a potential conflict of interest that actually operated

on the defense, stating that “[t]here was no impediment to a defense strategy suggesting that

Salaam was the killer.” People v. Brown, 211 A.D.3d at 442. The Court explained: “The attorney

credibly testified that his relationship with Salaam did not affect the strategy he pursued, and that

he would have cast the blame for the murder on Salaam if the evidence had supported that theory.”

Id. These facts are also presumed to be correct and are not rebutted by clear and convincing

evidence.

Having reviewed the Appellate Division’s order with due deference to the factual

determinations of the state court, this Court cannot conclude that the decision rested on an

unreasonable determination of the facts.

III. The Appellate Division’s decision was not an unreasonable application of

clearly established federal law.

The Appellate Division reasonably applied the above facts to the standard articulated by

the U.S. Supreme Court for conflict-of-interest claims. See Strickland, 466 U.S. at 692.

Specifically, the court reasoned that Brown had failed to show by a preponderance of the evidence

that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S.

at 350.

As noted above, the Appellate Division’s decision was based on the trial court’s

determination that the record did not indicate any “impediment to a defense strategy suggesting

that Salaam was the killer,” but that there was no evidence in the record connecting Salaam to the

murder other than his presence at the scene. Brown, 211 A.D.3d at 441-442. In applying the law

to these facts, the Appellate Division concluded that Brown failed to meet his burden of showing

that trial counsel was subject to a potential conflict of interest that actually operated on the defense.

Id. at 442. This was a reasonable application of the law.

To hold otherwise, this Court would have to find in the reasoning of the Appellate Division

an error “beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

“This is a ‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings.’”

Cullen, 563 U.S. at 181. Even if this Court disagreed with the Appellate Division’s application of

the facts, it can identify no clear error that would meet this highly deferential standard.

CONCLUSION

For the reasons stated above, Brown’s Petition must be DENIED and is DISMISSED. His

Letter Motion for Oral Argument (ECF No. 14) is DENIED as moot. As Brown has not made a

substantial showing of the denial of a constitutional right, a certificate of appealability will not

issue. See 28 U.S.C. § 2253(c)(2); see also, e.g., Matthews v. United States, 682 F.3d 180, 185

(2d Cir. 2012). The Clerk of Court is respectfully directed to close this case.

SO ORDERED.

Dated: September 16, 2025

New York, New York

De AT

DALE E. HO

United States District Judge