Leslie

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JEROME LESLIE,

Petitioner, MEMORANDUM & ORDER

21-CV-1036 (EK)

-against-

JOHN G. RICH, ELMIRA CORRECTIONAL

FACILITY SUPERINTENDENT

Respondent.

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ERIC KOMITEE, United States District Judge:

Petitioner Jerome Leslie seeks a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Leslie was convicted of murder

and firearms possession in connection with the 2013 shooting of

a man in Kings County.

Proceeding pro se before this Court, Leslie asserts

that his appellate counsel was constitutionally ineffective for

failing to argue, on direct appeal, that trial counsel had

rendered ineffective assistance. Trial counsel was ineffective,

in Leslie’s view, for pursuing the wrong defense: he asserted a

justification theory (effectively self-defense) instead of the

affirmative defense of “extreme emotional disturbance.”

For the reasons that follow, Leslie’s petition must be

denied.

Background

On Christmas Eve 2013, a teenager named Yaquin English

was shot and killed outside an apartment building in Coney

Island. English was the cousin of Leslie’s ex-girlfriend “Ti-

Ti”; Leslie’s relationship with Ti-Ti had deteriorated after she

informed Leslie that she was pregnant. Leslie was arrested and

ultimately charged with second-degree murder and criminal

possession of a weapon. At trial, defense counsel conceded that

Leslie fired the fatal shots, but contended that he acted in

self-defense.

A. Trial

Trial commenced in the New York State Supreme Court,

Kings County, in April 2016 before the Honorable Neil Jon

Firetog.

The prosecution called two eyewitnesses to the

shooting, who appear to have testified only reluctantly.

Latrell Rickman — a local resident and acquaintance of Leslie’s

— testified that he saw Leslie enter the lobby of 3144 Bayview

Avenue on Christmas Eve 2013. Tr. 182:14-21, ECF No. 12-1; id.

at 183:3-5.1 After he stated that he did not see who pointed a

gun at English, the prosecution impeached that testimony by

reading a portion of Rickman’s grand jury testimony into the

1 Page numbers to record citations other than briefs refer to ECF

pagination.

record. Id. at 189:13-190:22. In the earlier proceeding,

Rickman had testified that an individual named “Savage” held the

door to the building open, allowing Leslie to point his gun at

English as English was tying up his dog. Id. at 190:11-15.

Rickman had also testified that Leslie fired several shots. Id.

at 190:16-17. Leslie did so despite an individual — who Rickman

named but did not describe — saying “Stop, don’t do it. Don’t

do it.” Id. at 190:15-16.2

Next, the People called Ramon Reyes, an acquaintance

of Rickman’s and Leslie’s. Reyes testified that he and Leslie

were in the lobby of 3144 Bay Avenue on Christmas Eve 2013. Id.

at 220:6-8. After Reyes testified that he could not see or hear

the shooting, the People introduced a written statement that

Reyes had given to Detective Brian Ramos after Reyes had been

arrested for selling narcotics. Reyes had stated that he

witnessed Leslie start shooting as English tied up his dog. Id.

at 222:6-9.3 Reyes also said he witnessed English asking Leslie

2 During cross-examination, trial counsel Frank Paone elicited answers

that contradicted this testimony. See, e.g., Tr. 212:14-213:9. (“I did not

physically see, but I heard the shots. . . . No, I didn’t hear any words from

any one.”). Paone also impeached Rickman’s credibility by asking him about a

February 2014 drug arrest that shortly predated his grand jury testimony.

See id. at 212:2-13.

3 Reyes’s statement appears to indicate that English and some others

tried to stop Leslie, but does not make the sequence of events precisely

clear. Id. at 222:6-9. (“As [English] walk[ed] out [of] the building

[Leslie] . . . [p]uts the gun to the back of [English’s] head, we stop him

from shooting at that moment as [English] goes to tie his dog up, [Leslie]

starts shooting.”).

to “stop.” Id. at 234:2-5.4 During cross-examination, Leslie’s

counsel — Frank Paone, Esq. — questioned Reyes about the size of

English’s dog and whether it was tied up, in an effort to

support the justification theory. See id. at 231:1-233:5; id.

at 133:22-134:3.

Detective Ramos then testified, introducing Leslie’s

admission that he had fired at English. Ramos had interviewed

Leslie at the 60th Precinct police station after the shooting,

id. at 318:23-319:16; Leslie made an oral statement that Ramos

documented. Id. at 324:3-19.

According to Ramos’s testimony, Leslie told him (in

“sum and substance”) that he had been in a relationship with

English’s cousin Ti-Ti. Id. at 324:20-24. Earlier in December,

Ti-Ti had informed Leslie that she was pregnant with his child.

Id. at 324:24-325:1. Leslie told Ramos that he was “caught by

surprise” by this revelation, and believed it to be untrue. Id.

at 325:1-325:6. This led Leslie to break off the relationship

with Ti-Ti. Id.

A “few days” thereafter, Leslie had a verbal

altercation with English and his now ex-girlfriend. This began

with Ti-Ti screaming, from one of the windows at 3144 Bayview,

at Leslie standing outside. Id. at 325:6-10. Leslie screamed

4 On cross, Reyes ultimately allowed that his “attention was directed

towards [his] friends and not what was going on with other people such as

[Leslie] and [English].” Id. at 233:20-22.

back, “cursing at Ti-Ti.” Id. at 325:10-12. Then English

surfaced at the window, telling Leslie “not to disrespect his

cousin or he would have to fight him.” Id. at 325:12-14.

The hostilities continued: Leslie told Ramos that

English had written a Facebook post “which stated that [Leslie]

was no good, so to speak.” Id. at 325:16-18. Then, on the day

of the shooting, the hostilities escalated: one of English’s

cousins “poked” — that is, stabbed — Leslie. Id. at 325:18-20.

(This latter assertion emerged in surprisingly brief passing on

direct.)

Ramos then turned to Leslie’s description of the

shooting itself. Leslie had “proceeded to the lobby” of 3144

Bayview and saw English “come out the elevator.” Id. at 325:22-

23. At that point, English attempted to “sick” (sic) his pit

bull on Leslie, and English “put his hand in his pocket,

threatening he was going to shoot Mr. Leslie.” Id. at 325:23-

326:1. Leslie told Ramos that he then pulled out a gun and

began to shoot English. Id. at 326:2-4.5 Ramos placed Leslie

under arrest after the interview. Id. at 328:6-7.

On cross-examination, Paone focused on the portions of

Leslie’s statement that suggested he had acted out of fear.

5 Ramos testified that Leslie also made and signed a written statement

in which he had “crossed out” certain portions. The prosecution introduced

that statement into the record, id. at 326:7-327:21, but neither party has

produced the written statement in this proceeding.

Ramos reported Leslie’s statement that he had “got a weapon to

walk around with” after he had been stabbed. Id. at 339:21-24.

Leslie had also stated that he was scared for his life, that

English “had a big dog,” and that he did not have an intention

“on killing” English. Id. at 340:10-21.

Paone called no witnesses on behalf of the defense.

Id. at 375:19-20. He moved to dismiss the case, arguing to

Justice Firetog that there was “nothing” in the evidence “to

refute” that Leslie acted in self-defense. Id. at 376:4-10.

This motion was denied. Id. at 376:13.

In summation, Paone argued to the jury that Leslie

“did not intend to cause the death of Yaquin English,” and that

he acted on “a reasonable belief he needed to do so for his self

protection or justification.” Id. at 391:8-11. Paone relied on

Leslie’s statement to Ramos, describing the “threats” directed

at him by English, as well as the stabbing. Id. at 394:10-22.

Paone asked the jurors to conclude that a reasonable person

“might feel concerned for their welfare when a person [one is]

having an argument with, in fact, has a pit bull with them.”

Id. at 395:8-10.

The court instructed the jury that the prosecution was

“required to prove beyond a reasonable doubt, that the Defendant

was not justified.” Id. at 449:22-23. Justice Firetog added

that “a person may use deadly physical force” when and if “he

reasonably believes it to be necessary” to defend against the

“imminent use of . . . physical force [that is] readily capable

of causing death or other serious physical injury.” Id. at

450:1-14. The jury deliberated for five hours. It submitted

three notes; one asked the judge to repeat the justification

charge. Id. at 462:24-481:21.

The jury then found Leslie guilty of murder and

criminal possession of a weapon. Id. at 482:12-20. Leslie was

sentenced to twenty-two years to life imprisonment for murder,

and a concurrent ten-year sentence for criminal possession. Id.

at 500:10-14.

B. Appeal and Collateral Proceedings

Leslie was represented by different counsel — Paul

Skip Laisure and Benjamin Litman — on appeal. Br. Def.-App.

(“App. Div. Br.”) 31, ECF No. 12-2. Laisure and Litman raised

three grounds: the prosecution had introduced insufficient

evidence to overcome Leslie’s justification defense beyond a

reasonable doubt, the jury’s verdict was against the weight of

the evidence, and excessive sentencing. App. Div. Br. 16-

31.6 They did not argue that trial counsel was constitutionally

6 “Sufficiency and weight review are distinct concepts” in New York.

People v. Kancharla, 14 N.E.3d 354, 359 (N.Y. 2014). “A weight of the

evidence claim is grounded in a state statutory provision, . . . whereas a

sufficiency of the evidence claim is based on due process principles.”

Williams v. McCarthy, 708 F. Supp. 3d 309, 332 (W.D.N.Y. 2023), appeal

dismissed (Oct. 29, 2024). “To determine whether a verdict was based on

sufficient proof, a court must marshal competent facts most favorable to the

ineffective. The Appellate Division affirmed the conviction and

sentence. People v. Leslie, 99 N.Y.S.3d 707, 708 (App. Div. 1st

Dep’t 2019).

The Court of Appeals denied leave to appeal on August

16, 2019. People v. Leslie, 133 N.E.3d 408 (N.Y. 2019). Leslie

then filed an application for a writ of error coram nobis with

the Appellate Division on September 22, 2020, arguing that

appellate counsel was ineffective for failing to raise the

ineffectiveness of trial counsel. ECF No. 12-6. Leslie argued

that trial counsel should have pursued an extreme emotional

disturbance (“EED”) affirmative defense, instead of a

justification defense. Id. at 23-36. While a justification

defense is exculpatory, the EED affirmative defense mitigates a

murder charge to manslaughter. People v. Harris, 491 N.Y.S.2d

678, 691 (App. Div. 2d Dep’t 1985).7 The Appellate Division

denied this application on December 30, 2020, citing Jones v.

People and determine whether, as a matter of law, a jury could logically

conclude that the People sustained their burden of proof.” Kancharla, 14

N.E.3d at 359. On the other hand, “weight of the evidence review requires an

intermediate appellate court to act, in effect, as a second jury.” Id. “If

it appears that the trier of fact has failed to give the evidence the weight

it should be accorded, then the appellate court may set aside the verdict.”

People v. Bleakley, 508 N.E.2d 672, 675 (N.Y. 1987).

7 “To prove such an affirmative defense, a defendant must demonstrate,

first, that he or she acted under the influence of an extreme emotional

disturbance and, second, that there was a reasonable explanation or excuse

for that disturbance.” People v. Roche, 772 N.E.2d 1133, 1138 (N.Y. 2002).

Barnes, 463 U.S. 745 (1983). People v. Leslie, 135 N.Y.S.3d 308

(App. Div. 1st Dep’t 2020).8

C. The Instant Habeas Action

Leslie filed the instant petition in this Court on

February 22, 2021, and it is timely, notwithstanding the one-

year statute of limitations in the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”).9 In his petition, Leslie

asserted that his conviction violated the United States

Constitution’s Sixth Amendment right to adequate representation

for two reasons: ineffective assistance of trial counsel

(“IATC”) and ineffective assistance of appellate counsel. In

his petition, Leslie admitted that he had not exhausted his IATC

claim but asked this Court for a stay and hold of his petition

in abeyance while he did so. Pet. 5, ECF No. 1. The Court

declined to grant a stay and abeyance as Leslie had not shown

good cause for his failure to exhaust nor that his claims were

potentially meritorious. See Mem. & Order 4, ECF No. 11.

8 The state obtained an affirmation from Samuel Barr — the attorney who

sought leave from the Court of Appeals on direct appeal — describing his

organization’s appellate strategy. Barr Aff., ECF No. 12-8. Specifically,

Barr affirmed that Paone’s decision to pursue a justification defense

“appears reasonable” and that the decision not to pursue an extreme emotional

disturbance defense “involves facts not appearing in the record and could not

have been raised on direct appeal.” Id. ¶¶ 9-10.

9 Leslie’s conviction became final on November 16, 2019, ninety days

after the New York Court of Appeals denied leave to appeal. McKinney v.

Artuz, 326 F.3d 87, 96 (2d Cir. 2003). The statute was tolled during the

period when his properly filed petition for collateral review was pending.

See 28 U.S.C. §§ 2244(d)(1)-(2). It ran for 311 days between this date and

Leslie filing his coram nobis application, and a further forty-eight days

after his application was denied, for a total of 359 days. See Docket Order

dated Jan. 18, 2022.

Regarding Leslie’s remaining claim for ineffective assistance of

appellate counsel, the state has “explained in its brief” that

Leslie exhausted this claim, so it has “explicitly waived”

exhaustion, and the Court “may consider this claim on the

merits.” Cornell v. Kirkpatrick, 665 F.3d 369, 376 (2d Cir.

2011);10 Opp’n Br. 2, ECF No. 12.11

As in his coram nobis petition, Leslie argues that

appellate counsel was ineffective for not arguing trial

counsel’s ineffectiveness in failing to pursue an EED instead of

“justification” (or self-defense) theory. Pet. Mem. 7-8, 14,

ECF No. 1-2. Leslie believes the justification defense was

“incompatible with the law, facts and surrounding circumstances

of this case.” Pet. 5.12

10 Unless otherwise noted, when quoting judicial decisions this order

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

quotation marks.

11 Despite the state’s concession, it is not entirely clear that this

claim was fully exhausted, either. “[T]he proper vehicle for advancing the

ineffectiveness [of appellate counsel] claim . . . is a coram nobis petition

to the Appellate Division.” Turner v. Miller, 124 F. App’x 682, 683 (2d Cir.

2005). As discussed, Leslie so filed. However, “to fully exhaust coram

nobis petitions, a petitioner “must pursue an application for leave to appeal

to the New York Court of Appeals from the Appellate Division’s

denial.” Brooks v. Sticht, No. 20-CV-1108, 2022 WL 1190456, at *13 (W.D.N.Y.

Apr. 21, 2022) (collecting cases); see N.Y. Crim. Proc. Law § 450.90(1).

Leslie did not pursue such an application.

12 After the Court dismissed Leslie’s IATC claim, the state filed its

response. Leslie did not reply. However, because the Court had not set a

deadline for any response, in May 2025, the Court sua sponte provided Leslie

thirty days from receipt of its order to respond. See Docket Order dated May

13, 2025. He has not done so.

AEDPA Standard

28 U.S.C. § 2254, as amended by AEDPA, governs an

application for a writ of habeas corpus for a person in custody

pursuant to the judgment of a state court. 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). The state court’s findings of

fact are “presumed to be correct,” and the petitioner can rebut

this presumption only “by clear and convincing evidence.” Id.

§ 2254(e)(1).

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). 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

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) (citing Harrington v.

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

Discussion

A. Ineffective Assistance — Established Law

Strickland v. Washington, 466 U.S. 668 (1984), and its

progeny apply to the evaluation of appellate counsel as well as

trial counsel. See, e.g., Sellen v. Kuhlman, 261 F.3d. 303, 315

(2d Cir. 2001). On habeas claims alleging ineffective

assistance, “AEDPA review is doubly deferential.” Woods v.

Etherton, 578 U.S. 113, 117 (2016). Strickland “strongly”

presumes that counsel “rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment.” Id. AEDPA layers on deference to the state court’s

decision — here, the Appellate Division’s denial of Leslie’s

coram nobis petition. 28 U.S.C. § 2254(d)(1); Ylst v.

Nunnemaker, 501 U.S. 797, 804 (1991) (federal court looks to the

last reasoned state-court decision). In these circumstances,

federal courts must give “both the state court and the defense

attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S.

12, 15 (2013).

Under Strickland, a criminal defendant must overcome

the “strong presumption” that counsel’s performance fell “within

the wide range of reasonable professional assistance.” 466 U.S.

at 689. This is an “objective standard of reasonableness.” Id.

at 688. Even if the defendant makes this showing, he does not

yet qualify for relief. He must also establish prejudice: “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Id. at 694.

Where, as here, an ineffective assistance of appellate

counsel claim is “based on failure to raise viable issues,” a

petitioner may establish constitutionally inadequate performance

if he shows that his attorney “omitted significant and obvious

issues while pursuing issues that were clearly and significantly

weaker.” Clark v. Stinson, 214 F.3d 315, 322, 328 (2d Cir.

2000). “To establish prejudice . . . , a petitioner must

demonstrate that there was a reasonable probability that his

claim would have been successful before the state’s highest

court.” Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994).

B. Application

The Appellate Division dismissed Leslie’s claim on the

merits. Accordingly, review is deferential under AEDPA.

Because the Appellate Division’s decision was neither contrary

to, nor an unreasonable application of, federal law, Leslie’s

petition must be denied.

No Supreme Court precedent requires counsel to make

all possible arguments on appeal. The Court rejected such a

rule in Jones, which the Appellate Division relied on. In

Jones, an attorney declined to raise a “nonfrivolous” IATC claim

on appeal, despite his client’s request. Jones, 463 U.S. at

750. The Court explained that “advocates since time beyond

memory have emphasized the importance of winnowing out weaker

arguments on appeal.” Id. at 751-52. It described a rule

requiring otherwise as “contrary to all experience and logic,”

and running the risk of “burying good arguments.” Id. at 753.

Thus, even assuming Leslie had asked Laisure or Litman to raise

an IATC claim — and there is no indication he did — the

Constitution would not have required them to so argue. Id.

Nor must trial attorneys raise all possible defenses.

“[A] lawyer’s decision not to pursue a defense does not

constitute deficient performance if . . . the lawyer has a

reasonable justification for the decision.” Greiner v. Wells,

417 F.3d 305, 319 (2d Cir. 2005). In Lopez v. Ercole, for

example, the Second Circuit denied habeas relief on an IATC

claim where counsel had pursued a justification defense in a

murder case and not EED. 588 F. App’x 39, 41 (2d Cir. 2014).

It explained that the record provided a “valid basis” for the

justification defense and “suggest[ed] that the EED argument was

not a compelling one.” Id. There, the defendant had a

“turbulent relationship” with the victim, had suffered “frequent

physical attacks” from the victim, and showed “presence of mind”

and “comportment and cooperation” after the crime. Id.

For similar reasons, Paone’s decisions here appear

eminently justified. The justification defense had support in

the record. Leslie and English had at least one verbal

altercation, which included physical threats, and English had

made a negative post about Leslie on social media — all

indicating a ”turbulent relationship.” Tr. 325:16-20. And

Leslie had suffered a knife attack shortly before the shooting,

after which he obtained a weapon. Finally, it was

uncontroverted that English had a large dog with him, and there

was some testimony that he may have directed the dog at Leslie.13

13 For these reasons, Leslie is incorrect that he was “clearly” the

initial aggressor. Pet. Mem. 14. Under New York law, an “initial aggressor”

On the other hand, the evidence supporting an EED

affirmative defense was surely less compelling. The record

included testimony that Leslie had asked Reyes to call English

to the lobby. Id. at 219:10-220:17. The People could have used

this testimony to argue that Leslie was attempting to lure

English from his home. This, combined with Leslie’s obtaining

of a weapon on the day of the murder, are the type of

“premeditated, deliberate, and calculated acts” that are

“inconsistent and incompatible” with a defendant’s assertion

that he lost control. People v. Bailey, 37 N.Y.S.3d 592, 594

(App. Div. 2d Dep’t 2016). Paone could have also reasonably

concluded that raising EED “may have detracted from the

justification defense that [he] actually presented.” Lopez, 588

F. App’x at 41.

The applicable burdens also support Paone’s decision.

Under New York law, a defendant must prove an EED affirmative

defense by a preponderance of the evidence. People v. Roche,

772 N.E.2d 1133, 1137-38 (N.Y. 2002). But once justification is

raised, it requires the prosecution to disprove it beyond a

reasonable doubt. People v. Brown, 125 N.E.3d 808, 811 (N.Y.

2019).

may not prevail on a defense of justification. N.Y. Penal Law

§ 35.15(2)(a)(i)-(ii).

Finally, even if Laisure and Litman had raised an IATC

claim on appeal, it would have been procedurally improper. In

New York, “where . . . an ineffective assistance of counsel

claim turns on facts that are outside of the trial-court record,

the claim must be brought in collateral proceedings, not on

direct appeal.” Pierotti v. Walsh, 834 F.3d 171, 178 (2d Cir.

2016). Leslie seeks to challenge Paone’s decision to pursue one

jury instruction over another. Such a challenge is generally

appropriate on direct appeal only where counsel “explained his

thinking in plain language on the record.” People v. Nesbitt,

988 N.E.2d 478, 479 (N.Y. 2013). Here, however, Leslie points

to no indication in the record speaking to why Paone pursued

justification rather than EED. A collateral proceeding would

thus have been needed to determine “why counsel acted as he

did.” Id. Leslie recognizes as much; he argues that appellate

counsel should have filed a motion to vacate pursuant to New

York Criminal Penal Law Section 440.10 to challenge trial

counsel’s performance. Pet. Mem. 9-10.14

14 Such a proceeding would be particularly relevant here, “[a]s between

defendant and his counsel, the decision whether to request submission of the

affirmative defense of extreme emotional disturbance to the jury falls to

defendant.” People v. Petrovich, 664 N.E.2d 503, 504 (N.Y. 1996). Nothing

in the record indicates, for example, that Leslie sought to request this

defense, and counsel declined to do so, or that Leslie was unaware of the

defense.

And to the extent Leslie argues that appellate counsel was ineffective

in not filing a 440.10 motion, Pet. Mem. 9-10, that argument must fail.

There is no right to counsel for collateral relief. See Carranza v. United

States, 794 F.3d 237, 242 (2d Cir. 2015); McFadden v. Keyser, No. 20-CV-746,

2023 WL 3355204, at *9 (W.D.N.Y. Mar. 28, 2023) (collecting cases holding

Thus, any IATC claim would almost certainly have been

rejected on appeal, whether procedurally or on the merits. Such

“failure to make a meritless argument does not rise to the level

of ineffective assistance.” United States v. Kirsh, 54 F.3d

1062, 1071 (2d Cir. 1995).

Conclusion

For the foregoing reasons, Leslie’s petition for a

writ of habeas corpus is denied and this case is dismissed. No

certificate of appealability shall issue because Leslie has not

made a substantial showing that he was deprived of any

constitutional right. See 28 U.S.C. § 2253(c)(2). The Court

certifies that any appeal of this order would not be taken in

good faith, and thus in forma pauperis status is denied for the

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

438, 444-45 (1962). The Clerk of Court is respectfully directed

that there is no right to counsel for 440.10 motions), report and

recommendation adopted, 2023 WL 3344446 (W.D.N.Y. May 9, 2023). Accordingly,

Leslie could not have been deprived of effective assistance. See Wainwright

v. Torna, 455 U.S. 586, 587-88 (1982) (“Since respondent had no

constitutional right to counsel, he could not be deprived of the effective

assistance of counsel by his retained counsel’s failure to file the

application timely.”).

to enter judgment, mail a copy of this order to Leslie, note

the mailing on the docket, and close this case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: December 9, 2025

Brooklyn, New York