Crampton

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

ADAM C. CRAMPTON,

Petitioner,

9:23-CV-0226

v. (AJB/ML)

SUPERINTENDENT LILLEY,

Respondent.

_____________________________________________

APPEARANCES: OF COUNSEL:

ADAM C. CRAMPTON

Pro se Petitioner

Mid-State Correctional Facility

Post Office Box 2500

Marcy, New York 13403

LETITIA A. JAMES JALINA J. HUDSON, ESQ.

New York State Attorney General Assistant Attorney General

Counsel for Respondent

28 Liberty Street

New York, New York 10005

MIROSLAV LOVRIC, United States Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Currently before the Court in this habeas corpus proceeding filed by the petitioner, Adam

Crampton (“Petitioner”), pursuant to 28 U.S.C. § 2254, is a referral to the undersigned for a

report and recommendation from United States District Judge Anthony J. Brindisi regarding the

Petition. (Dkt. No. 1.) Petitioner is challenging a judgment of conviction in New York State

Supreme Court of Broome County. (Dkt. No. 1.)

On February 8, 2023, Petitioner filed a pro se Petition seeking a writ of habeas corpus

challenging his confinement. (Dkt. No. 1.) Superintendent Lilley (“Respondent”) has opposed

that motion and Petitioner has not filed a traverse. (Dkt. No. 20; see generally docket sheet.)

For the following reasons, the undersigned recommends that the Petition be denied.

II. BACKGROUND

On June 1, 2017, in Broome County, New York, Petitioner was charged with (1) one

count of rape in the first degree in violation of N.Y. Penal Law § 130.35(1), (2) one count of

criminal sexual act in the first degree in violation of N.Y. Penal Law § 130.50(1), (3) one count

of sexual abuse in the first degree in violation of N.Y. Penal Law § 130.65(4), and (4) one count

of sexual abuse in the first degree in violation of N.Y. Penal Law § 130.65(1). (State Record

[“SR.”] at 128-131.)

On June 2, 2017, Petitioner was assigned counsel through the public defender’s office.

(SR. at 132.)

By letter dated June 29, 2017, Petitioner requested that the trial court reassign him

defense counsel because he felt that his attorney was not representing his best interest. (SR. at

323.)

On July 10, 2017, the trial court conducted a hearing regarding Petitioner’s request for

new counsel. (SR. at 276-281.) At the hearing, Petitioner explained that “anything that

[Petitioner] had to try and defend [himself] against [his] case, [he] just felt like it was shot down”

by his defense counsel. (SR. at 277.) Defense counsel explained that he and Petitioner reviewed

the police reports together and discussed a plea offer from the prosecutor’s office, which was

time sensitive. (Id. at 278.) The Court stated “I’m not hearing anything that suggest in any way

[that defense counsel is] not doing everything that he can to best represent your interests to the

best of his ability. If there’s something you want him to do or would like him to do, if he can do

it within his ethical and legal boundaries, I’m sure he will. But it is in your best interest to work

with Mr. Rothermel.” (Id. at 279-280.)

On August 1, 2017, Petitioner waived indictment and pleaded guilty under a Superior

Court Information to rape in the first degree in violation of N.Y. Penal Law § 130.35(1), with the

understanding that he would be sentenced to 15-years incarceration followed by 15-years post-

release supervision. (Dkt. No. 1 at 1-2, SR. at 76-80, 122-25, 270.) Petitioner admitted that

between 2015 and 2017, he engaged in sexual intercourse by forcible compulsion with the

victim. (SR. at 80.) Petitioner indicated that he was pleading guilty freely and voluntarily and

that no one had forced or coerced him into pleading guilty. (SR. at 078-079.) Petitioner also

expressed understanding that, by pleading guilty, he was waiving his trial rights including the

rights to testify on his own behalf, call witnesses, and cross-examine the prosecution’s witnesses.

(SR. at 79.) Petitioner signed a waiver of appeal (SR. at 126-127) and on the record,

acknowledged (1) reviewing the appeal waiver with defense counsel, and (2) an understanding of

its terms. (SR. at 079-80.)

On October 23, 2017, Petitioner was sentenced to 15-years incarceration and 15-years

post release supervision. (Dkt. No. 1 at 1-2, SR. at 088, 122.)

On September 5, 2019, Petitioner filed a pro se motion in Broome County Supreme Court

pursuant to N.Y. Crim. Proc. L. § 440.10 seeking to vacate the judgment of conviction. (SR. at

001.) Petitioner’s motion argued that (1) his trial counsel was ineffective because (a) defense

counsel coerced Petitioner’s guilty plea, and (b) defense counsel failed to conduct any

investigation, and (2) he is factually innocent. (Id. at 002-013.) In support of his innocence

claim, Petitioner submitted medical records showing that, for many years, he suffered from

various sexually transmitted diseases (“STDs”) including chlamydia, gonorrhea, and herpes.

(SR. at 004, 032-041.) Petitioner claimed that he learned from his grandmother that the victim

had not contracted any STDs and thus, it “would have been impossible for [the victim] to have

not contracted these diseases if [Petitioner] had in fact[,] raped her.” (SR. at 004.) Petitioner

claimed that he reported this potential defense to defense counsel, and defense counsel failed to

conduct any investigation. (Id. at 004-005.)

The People opposed Petitioner’s motion pursuant to N.Y. Crim. Proc. L. § 440.10. (SR.

at 042-047.)

On May 21, 2020, the Broome County Court issued an order directing Petitioner’s trial

counsel to respond to Petitioner’s allegations. (SR. at 199-201.)

On May 26, 2020, trial counsel filed a letter with Broome County Court stating that he

researched the defense of STD transmission and determined that the defense would not be able to

obtain the victim’s medical records to confirm whether she had contracted any STDs. (SR. at

202-204.) In addition, trial counsel explained that he had researched the transmission of herpes

and learned that the disease does not necessarily transfer to a sexual partner when the carrier is

not experiencing a current outbreak. (Id. at 203-204.) Hence, trial counsel reasoned that the

victim’s potential absence of a STD would not necessarily disprove the sexual assault

allegations. (Id.) Finally, trial counsel explained that obtaining the victim’s medical records—if

at all possible—carried a risk because if the victim had contracted a STD, the prosecution could

use that as evidence against Petitioner. (Id.)

In addition, trial counsel informed the motion court that he visited Petitioner on ten

separate dates before the plea proceeding and, in deference to Petitioner’s learning disability,

read the entirety of the discovery to Petitioner. (SR. at 202.) Trial counsel denied coercing

Petitioner to plead guilty and said that an investigator was present during at least one of their

consultations and could confirm the same. (Id. at 202-204.)

On June 8, 2020, trial counsel filed a second letter with the Broome County Court and

affirmed under penalty of perjury pursuant to N.Y. C.P.R.L. § 2106 that the contents of his letter

dated May 26, 2020, are true and accurate to the best of his knowledge. (SR. at 208.)

On July 1, 2020, Broome County Court denied Petitioner’s motion pursuant to N.Y.

Crim. Proc. L. § 440.10 in its entirety. (SR. at 051-056.) The motion court found that trial

counsel had provided meaningful and effective representation at all stages and that a valid guilty

plea foreclosed an independent actual innocence claim. (SR. at 054-055.) The motion court also

noted that Petitioner failed to provide any medical or expert affirmation to support his contention

that the purported lack of an STD infection in the victim was proof that he had not raped her.

(SR. at 54.)

On August 4, 2020, Petitioner moved pursuant to N.Y. Crim. Proc. L. § 460.15 for leave

to appeal to the New York Appellate Division Third Department. (SR. at 057-059.) The People

opposed Petitioner’s motion seeking leave to appeal. (SR. at 113.)

On September 28, 2020, the Appellate Division Third Department granted Petitioner

leave to appeal the N.Y. Crim. Proc. L. § 440.10 motion and consolidated it with his direct

appeal. (SR. 115.)

In the consolidated appeal, Petitioner filed a counseled brief which argued that (1) his

appeal waiver was not knowing, voluntary, and intelligent and was therefore invalid; (2) he was

denied his fundamental right to effective assistance of counsel; (3) his guilty plea was not

knowing, voluntary, and intelligent; (4) the motion court erred in directing his trial counsel to

submit a written response to the issue of fact raised in his motion pursuant to N.Y. Crim. Proc. L.

§ 440, instead of granting a hearing; (5) his constitutional right to counsel was violated when the

trial court refused to grant his request for substitute counsel; and (6) his sentence was harsh and

excessive. (SR. at 211-263.) The People filed a brief opposing Petitioner’s arguments. (SR. at

324-367.)

The Appellate Division Third Department unanimously affirmed the judgment of

conviction and upheld the County Court’s denial of Petitioner’s motion pursuant to N.Y. Crim.

Proc. L. § 440.10. (SR. at 397-403.) The Appellate Division held that (1) Petitioner’s waiver of

his right to appeal was valid; (2) Petitioner’s argument that the trial court erred in denying his

pre-plea request for substitute counsel is unpreserved for review absent a motion to withdraw his

plea and, in any event, Petitioner’s generalized disagreements with trial counsel regarding

matters of strategy did not rise to the level of “serious complaints about counsel” and thus, were

insufficient to warrant substitution; (3) Petitioner’s claims that his plea was involuntary due to

the trial court’s failure to apprise him of the potential maximum period of incarceration, inquire

as to his mental health status, place him under oath before accepting his plea, or sufficiently

advise him of his Boykin rights, are unpreserved for review in the absence of a post-allocution

motion and, in any event, are without merit because (a) there is nothing on the face of the plea

colloquy that suggests Petitioner’s claimed mental health issues hampered his ability to enter a

knowing, intelligent, and voluntary plea of guilty, (b) there is nothing on the face of the plea

colloquy that suggests that the purported lack of information regarding Petitioner’s maximum

sentencing exposure influenced his decision to plead guilty, (c) Petitioner was not required to

recite the facts underlying his crime and N.Y. Crim. Proc. L. § 220.50 does not require a plea to

be made under oath, and (d) although it would have been preferable for the trial court to engage

in a more detailed explanation of the trial-related rights that Petitioner would forfeit by pleading

guilty, there is no basis upon which to invalidate his plea where he had ample opportunity to

move to withdraw his plea before sentencing and did not do so; (5) to the extent that Petitioner’s

motion pursuant to N.Y. Crim. Proc. L. § 440 is predicated on his claim of actual innocence, his

plea of guilty forecloses a vacatur of judgment of conviction on this ground; (6) Petitioner’s

claim that counsel pressured him to plead guilty and assured him that he would be protected in

prison due to his mental infirmities are (a) supported only by his self-serving affidavit, and (b)

belied by the record, which reveals that there is no reasonable probability that such allegations

are true; and (7) trial counsel cannot be deemed ineffective for failing to pursue a strategy or

defense that had little or no chance of success and Petitioner’s claim that he had a lengthy history

of sexually transmitted infections which would have rendered it impossible for him to have

engaged in sexual intercourse with the victim without infecting her is flawed and unsupported by

his submissions. (Id.)

Petitioner filed a counseled motion seeking leave to appeal to the New York Court of

Appeals. (SR. at 404-417.) Petitioner’s application argued that (1) the lower court improperly

directed trial counsel to submit a response to Petitioner’s pro se motion pursuant to N.Y. Crim.

Proc. L. § 440, instead of holding a fact-finding hearing and the Third Department erred in

dismissing this as a mere procedural irregularity, (2) the Third Department erred in holding that

Petitioner’s appeal waiver was valid, (3) the Third Department erred in holding that Petitioner

received effective assistance of counsel, (4) the Third Department erred in holding that

Petitioner’s plea was knowing and voluntary, (5) the Third Department incorrectly held that there

was no error in the trial court’s refusal to grant Petitioner’s request for substitute counsel due to

counsel’s inadequate representation, and (6) the Third Department erred in holding that

Petitioner’s claim of factual innocence was foreclosed by his guilty plea. (Id.) The People

opposed Petitioner’s application for leave to appeal to the Court of Appeals. (SR. at 418.)

On January 27, 2022, the New York Court of Appeals denied Petitioner’s application for

leave to appeal to the Court of Appeals. (SR. at 419.)

III. GROUNDS RAISED

A. Petition

On February 8, 2023, Petitioner commenced this action by the filing of a verified Petition

for writ of habeas corpus. (Dkt. No. 1.) Petitioner asserts that he is entitled to habeas relief

because his right to effective assistance of trial counsel pursuant to the Sixth Amendment was

violated. (Id.) Petitioner argues that (1) his trial counsel would not investigate Petitioner’s

defenses, (2) trial counsel did not obtain or provide Petitioner with discovery, (3) Petitioner

sought reassignment of trial counsel and was denied, and (4) Petitioner was intimidated and

coerced into taking a plea. (Id. at 5.)

B. Respondent’s Answer and Memorandum of Law

Generally, Respondent makes the following two arguments in support of her answer: (1)

Petitioner’s claim that his Sixth Amendment right to counsel was violated is procedurally

defaulted and entirely meritless; and (2) the State Court reasonably rejected Petitioner’s claim

that he was denied effective assistance of counsel. (See generally Dkt. No. 20.)

More specifically, with respect to her first argument, Respondent asserts that Petitioner’s

claim that the trial court erred in denying his pre-plea request for new counsel is procedurally

defaulted because Petitioner failed to file a motion pursuant to N.Y. Crim. Proc. L. § 220.60(3)

before sentencing, which, the Appellate Division determined, rendered this issue unpreserved for

appellate review. (Dkt. No. 20 at 13-14.) Further, Respondent asserts that Petitioner fails to (a)

demonstrate cause for the default and prejudice from a violation of his federal constitutional

rights, or (b) show that this Court’s refusal to consider his claim will result in a fundamental

miscarriage of justice owing to his actual innocence claim. (Id. at 15-16.) Respondent asserts

that, in any event, Petitioner’s claim that the trial court erred by denying his pre-plea request for

new counsel is meritless because Petitioner made no showing of good cause. (Id. at 16-19.)

With respect to her second argument, Respondent asserts that the Appellate Division

reasonably determined that Petitioner’s trial counsel was not ineffective. (Dkt. No. 20 at 19-26.)

Respondent argues that this reasonable conclusion is entitled to doubly deferential review set

forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Id. at 19-23.)

Respondent asserts that the Appellate Division reasonably rejected Petitioner’s claim that trial

counsel intimidated and coerced him into pleading guilty given that (a) trial counsel denied

coercing Petitioner to accept the plea offer, (b) during the plea allocution Petitioner stated that he

was not being coerced or promised anything other than the terms of the plea agreement, and (c)

Petitioner addressed a letter to the prosecution expressing an interest in pleading guilty. (Id. at

23-24.) Respondent asserts that the Appellate Division reasonably rejected Petitioner’s claim

that trial counsel failed to investigate potential defenses given that (a) trial counsel informed

Petitioner that the defense was unable to obtain the victim’s medical records to prove Petitioner’s

suspicion that she did not have any STDs, (b) trial counsel identified that obtaining the victim’s

medical records posed a risk to the defense because the records could be used against Petitioner

at trial, and (c) Petitioner would not necessarily have infected the victim any time he had sex

with her and hence, the victim’s potential absence of an STD would not disprove a sexual

assault. (Id. at 25-26.) Respondent asserts that the Appellate Division reasonably rejected

Petitioner’s claim that trial counsel failed to disclose discovery material where trial counsel

visited Petitioner on ten separate dates and, in deference to Petitioner’s learning disability, read

the entirety of discovery to Petitioner. (Id. at 26.) Thus, Respondent asserts that Petitioner failed

to demonstrate that trial counsel provided deficient representation or that any such deficiency

resulted in a reasonable probability that the result of the state proceeding would have been

different. (Id. at 19-26.)

To date, Petitioner has not filed a Traverse. (See generally docket sheet.)

IV. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Review of Habeas Petition

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

No. 104-132, 110 Stat. 1214 (1996) a federal court may grant habeas corpus relief with respect to

a claim adjudicated on the merits in state court only if, based upon the record before the state

court, the adjudication of the claim (1) was contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) was based on an unreasonable determination of the facts in light of the evidence presented in

the state court proceeding. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. §

2254(d)); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Thibodeau v. Portuondo, 486 F.3d 61,

65 (2d Cir. 2007) (Sotomayor, J.).

The AEDPA “imposes a highly deferential standard for evaluating state-court rulings’

and ‘demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson,

562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010));

accord, Cullen, 563 U.S. at 181. Federal habeas courts must presume that the state court’s

factual findings are correct “unless applicants rebut this presumption with ‘clear and convincing

evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting 28 U.S.C. §

2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). “The question under

AEDPA is not whether a federal court believes the state court’s determination was incorrect but

whether that determination was unreasonable—a substantially higher threshold.” Schriro, 550

U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

As required by section 2254, on federal habeas review, a court may only consider claims

that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 563

U.S. at 181; Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has

held that, when a state court adjudicates a claim on the merits, “a federal habeas court must defer

in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court’s decision on the federal

claim—even if the state court does not explicitly refer to either the federal claim or to relevant

federal case law.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see Willson v. Sellars,

138 S. Ct. 1188, 1192 (2018) (holding that a federal habeas court reviewing an unexplained

state-court decision on the merits “should ‘look through’ the unexplained decision to the last

related state-court decision that does provide a relevant rationale” and “presume that the

unexplained decision adopted the same reasoning,” but that “the State may rebut the presumption

by showing that the unexplained affirmance relied or most likely did rely on different grounds

than the lower state court’s decision”).

B. Legal Standard Governing Procedural Default

Procedurally defaulted claims are not subject to habeas review unless a petitioner shows

cause for the default and that actual prejudice results, or that the denial of habeas relief would

result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536-539, 126 S. Ct.

2064, 165 L. Ed. 2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d

808 (1995). To meet the “cause” requirement, a petitioner must show that some objective

external factor impeded his ability to comply with the relevant procedural rule. Maples v.

Thomas, 565 U.S. 266, 280, 132 S. Ct. 912, 181 L. Ed. 2d 807 (2012); Coleman v. Thompson,

501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Prejudice requires a petitioner to

show “not merely that the errors at . . . trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494, 106 S. Ct. 2639, 91 L. Ed. 2d

397 (1986) (quoting United States v. Frady, 456 U.S. 154, 170 (1982)).

Additionally, there is an exception to the procedural bar in cases where a petitioner can

prove actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S. Ct. 1924, 185 L. Ed.

2d 1019 (2013) (“[A] credible showing of actual innocence may allow a prisoner to pursue his

constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to

relief.”). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Dunham

v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623,

118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). “To be credible, such a claim requires petitioner to

support his allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence—

that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. 851; see also Whitley v.

Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addition, “prisoners asserting innocence as a

gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than

not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”

House, 547 U.S. at 536-37, 126 S. Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. 851);

see also Doe v. Menafee, 391 F.3d 147, 160-62 (2d Cir. 2004).

C. Legal Standard Governing Ineffective Assistance of Trial Counsel Claims

For ineffective assistance of counsel claims, federal habeas “review is ‘doubly

deferential’ because counsel is strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment[.]” Woods v.

Etherton, 578 U.S. 113, 117 (2016) (internal quotation marks and citation omitted).

To prove ineffective assistance of counsel, petitioner must meet the two-prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong requires petitioner to

show that counsel’s performance fell below “an objective standard of reasonableness” under

“prevailing professional norms.” Strickland, 466 U.S. at 688. The Court must apply a “strong

presumption of competence” and “affirmatively entertain the range of possible reasons

[petitioner’s] counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S.

170, 196 (2011) (citation and internal quotation marks omitted). The second prong requires

petitioner to demonstrate that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 669. “The likelihood of a different result must be substantial, not just conceivable.”

Harrington v. Richter, 562 U.S. 86, 112 (2011).

V. ANALYSIS

A. Petitioner’s Claim That His Sixth Amendment Right to Counsel Was

Violated in Denying His Pre-Plea Request for New Counsel Is Procedurally

Defaulted

After carefully considering the matter, I recommend that Petitioner’s claim that his Sixth

Amendment right to counsel was violated by the trial court’s denial of his pre-plea request for

new counsel, be denied for the reasons set forth in Respondent’s memorandum of law. (Dkt. No.

20 at 13-19.) The following is intended to supplement—not supplant—those reasons.

As set forth by Respondent, the Appellate Division properly held that Petitioner’s claim

that his Sixth Amendment right to counsel was violated by the trial court’s denial of his pre-plea

request for new counsel, is procedurally defaulted. (Id. at 13-16.) More specifically, the

Appellate Division held that “this argument is unpreserved for our review absent a motion to

withdraw [Petitioner’s] plea.” (SR. at 399.)

To preserve this claim, Petitioner was required to make a contemporaneous objection by

filing a motion pursuant to N.Y. Crim. Proc. L. § 220.60(3) to withdraw his guilty plea before

sentencing. See People v. Morehouse, 140 A.D.3d 1202, 1203 (N.Y. App. Div. 3d Dep’t 2016)

(citing N.Y. Crim. Proc. L. § 220.60(3)) (“defendant failed to preserve [his] claim [that the

county court failed to make an adequate inquiry before denying his request for substitute

counsel] by moving to withdraw his plea.”). Petitioner’s failure to file such a motion rendered

the issue unpreserved for appellate review. N.Y. Crim. Proc. L. § 470.05(2).

The Appellate Division’s reliance on the contemporaneous objection rule to deny

Petitioner’s claim constitutes an adequate and independent state law ground for its decision. See

Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (noting that “we have held repeatedly that the

contemporaneous objection rule is a firmly established and regularly followed New York

procedural rule” and collecting cases); Whitley v. Ercole, 642 F.3d 278, 286-87 (2d Cir. 2011)

(“Our case law has long made clear that New York’s contemporaneous objection rule is just such

a ‘firmly established and regularly followed’ rule.”).

Hence, this Court cannot review Petitioner’s defaulted claim unless Petitioner (1)

demonstrates cause for the default and prejudice from a violation of his constitutional rights, or

(2) shows that this Court’s refusal to consider his claim will result in a fundamental miscarriage

of justice owing to his actual innocence. House v. Bell, 547 U.S. 518, 536-539, 126 S. Ct. 2064,

165 L. Ed. 2d 1 (2006).

Petitioner has failed to offer any reason why he failed to move to withdraw his guilty plea

and thus, has not shown cause for his default. See Levine v. Comm’r of Corr. Servs., 44 F.3d

121, 127 (2d Cir. 1995) (“Since [the petitioner] has failed to show cause [for his default], there is

no need to address the prejudice requirement”). Moreover, Petitioner has failed to establish

actual innocence to circumvent his procedural default. The medical records provided by

Petitioner are insufficient to prove that he did not have sexual intercourse with the victim and he

has not provided this Court with any new evidence to establish that he is actually innocent of

first-degree rape. (See SR. at 402-403 [Appellate Division decision holding that the medical

records provided by Petitioner do not support his contention that he necessarily did not have

sexual intercourse with the victim].)

Moreover, as set forth by Respondent, even if Petitioner’s claim was not subject to a

procedural default, the Appellate Division reasonably concluded that the claim was meritless.

(Dkt. No. 20 at 16-19; SR. at 399.) More specifically, the Appellate Division held that even if it

were to hold that Petitioner’s claim was preserved, “we would find that [his] generalized

disagreements with counsel regarding matters of strategy did not rise to the level of ‘serious

complaints about counsel’ and, thus, were ‘insufficient to warrant substitution.’” (SR. at 399.)

An indigent criminal defendant has the right to counsel but does not have the right to

counsel of his choice. See Pizarro v. Bartlett, 776 F. Supp. 815, 819 (S.D.N.Y. 1991). The

focus of the Sixth Amendment’s protection is “the adversarial process, not . . . the accused’s

relationship with his lawyer.” United States v. Cronic, 466 U.S. 648, 657 n.21 (1984).

Notwithstanding, “[i]t is settled that where a [criminal] defendant voices a seemingly

substantial complaint about [assigned] counsel, the court should inquire into the reasons for

dissatisfaction.” McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981) (internal quotation marks

omitted). “To succeed on a substitution claim, a defendant must ‘demonstrate good cause for the

substitution of assigned counsel.’” Burns v. Capra, 22-CV-0381, 2025 WL 624952, at *4

(N.D.N.Y. Feb. 26, 2025) (Suddaby, J.) (quoting Nelson v. Smith, 04-CV-0564, 2008 WL

2357098, at *4 (N.D.N.Y. June 4, 2008)).

Before pleading guilty, Petitioner requested new counsel, accusing trial counsel of not

representing Petitioner’s “best interest.” (SR. at 323.) After this request, the trial court held a

hearing inquiring about Petitioner’s relationship with counsel. (SR. at 276-281.) The Third

Department found such efforts satisfied the minimum inquiry standard and, further—as set forth

above—Petitioner’s “generalized disagreements with counsel regarding strategy did not rise to

the level of ‘serious complaints about counsel’ and, thus, were ‘insufficient to warrant

substitution.’” (SR. at 399.) Therefore, “to rule for [P]etitioner on [this ground], this Court must

find the state courts’ decision to be ‘objectively unreasonable.’” Burns, 2025 WL 624952, at *4

(quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)).

Given that Petitioner’s allegation regarding his discontentment with trial counsel was

supported with little to no evidence, the undersigned finds that the trial court went above and

beyond its duty in holding a hearing inquiring about Petitioner’s relationship with counsel.

Burns, 2025 WL 624952, at *5. Further, Petitioner has not demonstrated any “good cause” to

replace trial counsel. Petitioner’s dissatisfaction with his trial counsel’s advice about the

likelihood of success at trial did not establish good cause warranting the appointment of new

counsel. An examination of the record reveals that trial counsel went to great lengths to

communicate with Petitioner and met with him on ten separate dates. (SR. at 202-204.) Thus,

the undersigned refuses to find that the trial court acted unreasonably.

B. Petitioner’s Claim That His Sixth Amendment Right to Effective Assistance

of Counsel Was Violated Is Meritless

After carefully considering the matter, I recommend that Petitioner’s claim that his Sixth

Amendment right to effective assistance of counsel was violated, be denied for the reasons set

forth in Respondent’s memorandum of law. (Dkt. No. 20 at 19-26.) The following is intended

to supplement—not supplant—those reasons.

First, as set forth by Respondent, the Appellate Division reasonably found that Petitioner

failed to establish that his trial counsel coerced him to plead guilty. (SR. at 402.) More

specifically, the record reflects that (a) defense counsel denied coercing Petitioner to accept the

plea offer (SR. at 204), (b) during the plea allocution, Petitioner expressly denied being coerced

into pleading guilty (SR. at 166), and (c) Petitioner expressed a desire to plead guilty with the

most favorable plea terms available (SR. at 372). Hence, it was reasonable to conclude that

Petitioner was not coerced into pleading guilty.

Second, the Appellate Division reasonably found that trial counsel did not fail to

investigate potential defenses. (SR. at 402-403.) Indeed, trial counsel provided a sworn

statement explaining that he advised Petitioner regarding his proposed defense and expressed

that it was not viable because (a) the defense could not obtain the victim’s medical records to

prove that she did not have any STDs, (b) if the defense was able to obtain the victim’s medical

records, the records posed a risk to the defense if the victim did have a history of STDs, and (c)

after conducting research, herpes does not always transfer during sexual contact when the carrier

is not experiencing a current outbreak. (SR. 203-204, 208.) Thus, it was reasonable to conclude

that trial counsel thoroughly investigated Petitioner’s potential defenses.

Third, defense counsel provided a sworn statement indicating that he visited Petitioner on

ten separate dates before Petitioner entered a guilty plea and, in deference to Petitioner’s learning

disability, read the entirety of discovery to Petitioner. (SR. at 202.)

Hence, Petitioner has not demonstrated that his trial counsel provided deficient

representation or that any such deficiency resulted in a reasonable probability that the result of

the state proceeding would have been different. Strickland, 466 U.S. at 694.

For each of these reasons, I recommend that the Petition be denied and dismissed.

VI. CERTIFICATE OF APPEALABILITY

To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner

must obtain from the court a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A);

see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal unless a circuit justice

or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In

the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the

denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may

issue only “if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a

“substantial showing” if “the issues are debatable among jurists of reason; . . . a court could

resolve the issues in a different manner; or . . . the questions are adequate to deserve

encouragement to proceed further.”1 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)

(quotation marks omitted).

1 A similar standard applies when a COA is sought to challenge the denial of a habeas

petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[A] COA

should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right, and that jurists of

reason would find it debatable whether the district court was correct in its procedural ruling.”).

In this instance, I find that jurists of reason would not find it debatable as to whether the

petition in this matter is meritorious. Accordingly, I recommend against the issuance of a COA.

ACCORDINGLY, it is

RECOMMENDED that the Petition (Dkt. No. 1) be DENIED and DISMISSED, and

that a certificate of appealability not be issued to Petitioner; and it is further

ORDERED that the Clerk of the Court shall file a copy of this Report and

Recommendation on the parties, along with copies of the unpublished decisions cited herein in

accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)

(per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within

which to file written objections to the foregoing report.” Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: February 5 , 2026

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

2 If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

19

2025 WL 624952 that petitioner snitched to the police in an unrelated matter.

Only the Westlaw citation is currently available. Dkt. No. 17-3 at 427. Petitioner demanded an apology and

United States District Court, N.D. New York. Hellijas, confused, asked “[s]orry for what[?]” Dkt. No. 17-7

at 162. Petitioner then punched Hellijas in the face. Dkt. No.

Thomas BURNS, Petitioner, 17-3 at 19-20, 428. Hellijas stumbled and did not attempt

v. to fight back but instead walked away from petitioner. Id.

Michael CAPRA, Respondent. at 20, 428. Sufficiently inebriated to dull the immediate

pain, Hellijas did not seek medical attention. Id. at 428. As

9:22-CV-0381 (GTS) Hellijas sobered up, he felt intense pain in his jaw and sought

| medical attention early the following morning. Id. After an

Signed February 26, 2025 examination, doctors informed Hellijas that petitioner broke

his jaw in two places. Id. The next day, petitioner underwent

Attorneys and Law Firms surgery to repair the fractures. Id. After surgery, the surgeon

informed Hellijas that the punch also broke several of his teeth

THOMAS BURNS, Petitioner, pro se, 16-A-1856, Sing Sing

which required dental attention. Id. Hellijas eventually had

Correctional Facility, 354 Hunter Street, Ossining, NY 10562.

multiple teeth removed as a result of petitioner's punch. Id.

HON. LETITIA JAMES, Attorney for Respondents, Michelle

Elaine Maerov, ESQ., Ass't Attorney General, Attorney

B. Bingham Shooting

General of New York, 28 Liberty Street, New York, NY

Petitioner and Mervin Bingham met in late 2013. Dkt. No.

10005.

17-3 at 428; Dkt. No.17-7 at 613. After a fire destroyed

Bingham's rental apartment in January 2014, Bingham and

his girlfriend, Ashante Ayala, moved into petitioner's house.

DECISION and ORDER Dkt. No. 17-3 at 428. The cohabitation lasted less than a

month before petitioner evicted Bingham following various

Glenn T. Suddaby, Senior United States District Judge

disagreements. Dkt. No. 17-7 at 625; Dkt. No. 17-3 at 428.

I. INTRODUCTION After Bingham's eviction, petitioner and Bingham saw each

*1 Petitioner pro se Thomas Burns seeks federal habeas other a few times but the meetings were not cordial, both

corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. clearly upset with how their relationship broke down. Dkt.

1, Petition (“Pet.”); Dkt. No. 1-1, Supporting Exhibits. No. 17-7 at 624.

Respondent opposed the Petition. Dkt. No. 17, Answer; Dkt.

No. 17-1, Response Memorandum (“Resp.”); Dkt. No. 17-2– On the night of April 19, 2014, Bingham exited a store to see

17-10, Supporting Exhibits. Petitioner replied. Dkt. No. 23, petitioner walking down the street. Dkt. No. 17-3 at 429; Dkt.

Traverse (“Trav.”).1 For the reasons below, the Petition is No. 17-7 at 638-39. Upon making eye contact with each other,

petitioner flashed a .45 caliber pistol at Bingham and began

dismissed and denied in its entirety.

to berate Bingham about their past disagreements. Dkt. No.

17-3 at 429. The argument escalated and petitioner pointed the

II. RELEVANT BACKGROUND pistol in Bingham's face. Id.; Dkt. No. 17-7 at 642. Bingham

Petitioner's 2016 conviction arose out of two separate then tried to grab the gun, and, after a brief scuffle, petitioner

incidents in late 2013 and early 2014. Dkt. No. 17-3 at 19-29. freed himself, took a step back from Bingham, and fired a

Each incident is discussed below. shot at Bingham's torso. Dkt. No. 17-3 at 429. The bullet

struck Bingham, knocking him to the ground, after which

petitioner walked away from the scene. Id.; Dkt. No. 17-7 at

A. Hellijas Assault 646. Bingham survived the gunshot but remained paralyzed

Throughout 2013, Joseph Hellijas and petitioner became below the waist. Dkt. No. 17-3 at 429.

acquainted from “being on the street[s]” in Schenectady

County. Dkt. No. 17-7 at 154-55. On December 29, 2013,

Hellijas encountered petitioner while picking up beer in his C. Arrest and Indictment

with the Bingham shooting. Dkt. No. 17-3 at 429. Following 54-56. On May 2, 2016, the court imposed an aggregate

a further investigation, police also tied petitioner to Hellijas’ sentence of 27 years, followed by 5 years of post-release

assault. Id. at 22, 429-30. On July 30, 2014, in connection supervision. Dkt. No. 17-10 at 22-26.

with both the Bingham and Hellijas incidents, a Schenectady

County grand jury indicted petitioner on: (1) one count of

Attempted Murder in the Second Degree (Bingham incident); D. Direct Appeal

(2) one count of Assault in the First Degree (Bingham Petitioner timely appealed his conviction to the New York

incident); (3-4) two counts of Criminal Possession of a Appellate Division, Third Department (“Third Department”).

Weapon in the Second Degree; (5) one count of Reckless Dkt. No. 17-3 at 1-70. Between petitioner's counseled brief

Endangerment in the First Degree; (6) one count of Assault and his pro se reply brief, petitioner raised inter alia the

in the Second Degree (Hellijas incident); and (7) one count of following claims: (1) the Hellijas and Bingham assaults were

Criminal Possession of a Weapon in the Third Degree.2 Id. improperly joined; (2) the trial court failed to give a lesser

at 464-68. Petitioner's case proceeded through discovery and included offense instructions on the counts 1 and 2, and counts

motion practice without a request for severance of the Hellijas 1 and 2 were multiplicitous; (3) the prosecutor engaged in

and Bingham charges. Id. at 430. 16 incidents of misconduct throughout the trial; and (4) trial

counsel's cumulative errors deprived petitioner of his right to

Petitioner elected for a jury trial. Dkt. No. 17-3 at 430. At effective counsel. Dkt. No. 17-3 at 1-70, 327-57.

trial, Hellijas testified about the incident with petitioner and

his injuries. Id.; Dkt. No. 17-7 at 160-174. Petitioner testified *3 On November 25, 2020, the Third Department denied

and admitted to striking Hellijas on December 29, 2013. Dkt. petitioner's appeal. Dkt. No. 17-3 at 760-67. The Third

No. 17-3 at 430; Dkt. No. 17-7 at 1172-73. Department first held petitioner received effective assistance

of counsel. Id. at 761-63. The court found that trial counsel

Bingham also testified, identifying petitioner as his shooter. was not ineffective for failing to sever the Hellijas and

Dkt. No. 17-7 at 639-50. Ayala, Bingham's girlfriend, testified Bingham counts, noting that petitioner “failed to establish that

that Bingham called her immediately after the shooting and a motion for severance would have been granted or that he

identified petitioner as the culprit and that, a few weeks suffered any prejudice from the lack of severance[.]” Id. at

after the incident, petitioner apologized to Ayala for shooting 762. Next, the Third Department found petitioner's claim that

Bingham. Dkt. No. 17-3 at 430, 500; Dkt. No. 17-7 at 983. counsel failed to request lesser included offense charges for

A neighborhood witness of the shooting also testified that count 1 and count 2 of the indictment factually inaccurate as

she heard the gunshot and saw a man matching petitioner's the record reflected that counsel did request these charges.

description walking away from the scene. Dkt. No. 17-3 at Id. at 763. The Third Department also noted that “we [are

430. Further, petitioner's daughter testified that petitioner sent not] persuaded that counsel's decision to obtain an expert

her an article about the shooting and stated that he faced witness, whom [the trial court] ultimately deemed unqualified

prison in connection with the shooting. Id. In his defense, to testify on a specific issue, was anything other than a trial

petitioner offered convoluted, and at times conflicting, alibis tactic that proved to be unsuccessful and does not, in and of

as to his whereabouts on the day of the Bingham shooting. itself, constitute ineffective assistance of counsel[.]” Id.

Dkt. No. 17-7 at 1140-48, 1325-48. Petitioner also introduced

a witness who testified that the stippling3 on Bingham's The Third Department next turned to petitioner's

prosecutorial misconduct claims. Dkt. No. 17-3 at 763-64.

clothing indicated that Bingham was shot at a distance of less

The court first found that petitioner failed to object to the

than one-foot, conflicting Bingham's testimony that petitioner

prosecutor's comments on petitioner's religion and parenting

took a large step back before firing at Bingham. Dkt. No. 17-8

at trial, and, therefore, found the two claims unpreserved for

at 60-91.

appellate review. Id. at 763. The Third Department noted that

even if the “issues [were] properly before us, we would find

Following closing arguments, a New York Supreme Court,

[no fault with] the challenged questions” as defense counsel

County of Schenectady jury ruled petitioner not guilty of

raised the issues during petitioner's direct testimony. Id. The

count 1, Attempted Murder in the Second Degree, but found

Third Department then found all of petitioner's remaining

petitioner guilty of the lesser included charge of Assault in the

preserved contentions meritless, noting that a review of

engaged in a flagrant and pervasive pattern of prosecutorial IV. DISCUSSION

misconduct so as to deprive defendant of a fair trial.” Id. at

A. Standard of Review

764 (internal quotation marks and citations omitted).

*4 Prior to reviewing petitioner's claims, the Court notes the

heightened standard of review under the Antiterrorism and

The Third Department also found that the trial court did

Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA

not err in refusing a jury charge on the lesser included

requires a federal court sitting in habeas review to defer to a

offense of assault in the third degree as to count 6 (the

state court's adjudication of claims made on the merits unless

Hellijas assault charge). Dkt. No. 17-3 at 764-65. The Third

the “decision [ ] was contrary to, or involved an unreasonable

Department explained that Hellijas suffered a fractured jaw

application of, clearly established federal law[ ] ... or ... was

and lost numerous teeth, and “[b]ased upon this evidence,

based on an unreasonable determination of the facts in light

no reasonable view of the evidence could support a finding

of the evidence presented in the State court proceeding.”

[of the lesser included charge as] the victim sustained ... a

28 U.S.C. § 2254(d). Thus, a federal court may not grant

serious physical injury.” Id. at 765 (internal quotation marks

relief “simply because that court concludes in its independent

and citations omitted).

judgment that the relevant state-court decision applied ...

federal law erroneously or incorrectly.” Williams v. Taylor,

The Third Department then rejected petitioner's claim that the

529 U.S. 362, 411 (2000). Rather, a federal court may only

trial court did not conduct the necessary minimum inquiry

grant relief if it finds the state court's application of federal

into petitioner's request for a new counsel. Dkt. No. 17-3 at

law or fact “objectively unreasonable.” Id. at 409.

765-66. Examining the record, the Third Department noted

that the trial court held two in camera hearings inquiring about

Thus, to find for petitioner on claims that the state courts

petitioner's relationship with counsel, and the court found that

found meritless, this Court must hold the state court's

such efforts satisfied the minimum inquiry standard. Id.

application of fact or federal law objectively unreasonable.

Williams, 529 U.S. at 409.

Lastly, the Third Department found petitioner's remaining

contentions unpreserved for appellate review and affirmed

petitioner's guilty verdict. Dkt. No. 17-3 at 766. B. Claim 1: Defective Grand Jury

Petitioner's seeks review of his state grand jury proceedings.

Petitioner sought leave to appeal to the New York State Court Pet. at 5-7. However, the Constitution does not guarantee

of Appeals. Dkt. No. 17-3 at 768-78. The Court of Appeals a right to a grand jury in a state criminal prosecution. See

denied leave on March 21, 2022. Id. at 783. LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002)

(finding that the Fifth Amendment right to a grand jury

Petitioner then filed the instant Petition on April 13, 2022. indictment is not incorporated by the Due Process Clause of

Pet. at 1. the Fourteenth Amendment, and, therefore, does not apply to

the states); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.

1989) (“[D]eficiencies in the state grand jury proceedings are

III. PETITION

[not] cognizable in a habeas corpus proceeding.”); Davis v.

Petitioner challenges his 2016 judgment of conviction in New

Mantello, 42 F. App'x 488, 490 (2d Cir. 2002) (“Claims of

York Supreme Court. Pet. 1-12. Petitioner argues he is entitled

deficiencies in state grand jury proceedings are not cognizable

to federal habeas corpus relief because: (1) his grand jury

in a habeas corpus proceeding in federal court.”). Under

proceedings were defective, id. at 5-7; (2) the trial court failed

28 U.S.C. § 2254(a), this Court may only “entertain an

to conduct a minimal inquiry into petitioner's request for new

application for a writ of habeas corpus ... on the ground that

counsel, id. at 7; (3) the trial court improperly joined the

[a petitioner] is in custody in violation of the Constitution

Hellijas and Bingham assaults, id. at 8; (4) counts 1 and 2

or laws or treaties of the United States.” § 2254(a); see also

of the indictment were multiplicitous, id. at 8-9; (5) rampant

Thomas v. Larkin, No. 1:12–CV–2899, 2013 WL 5963133, at

prosecutorial misconduct violated his right to a fair trial, id. at

*13 (E.D.N.Y. Nov. 7, 2013) (“[F]ederal courts may not issue

9; and (6) of ineffective assistance of trial counsel, id. at 9-10.

the writ of habeas corpus on the basis of a perceived error

Petitioner does not specify the relief he seeks.

of state law[.]”) (cleaned up). Accordingly, the Court finds

petitioner's claim non-cognizable. Count I is denied.

McKee, 649 F.2d at 933. Indeed, if the “proffered reasons

C. Claim 2: Minimal Inquiry [for dissatisfaction with counsel] are insubstantial and the

Petitioner claims that the trial court failed to make a minimum defendant receives competent representation from counsel,

inquiry into his requests for substitute counsel, infringing on the court's failure to inquire further constitutes harmless

his right to effective counsel under the Sixth Amendment. Pet. error.” Carpenter v. Conway, No. 2:07–CV–3602, 2011 WL

at 7. 795860, at *5 (E.D.N.Y. Feb. 25, 2011) (citing McKee, 649

F.2d at 933). Here, the proffered reasons for petitioner's

“It is settled that where a defendant voices a seemingly dissatisfaction were conclusory and not supported by the

substantial complaint about [assigned] counsel, the court record. Moreover, as discussed in Section IV.G below and

should inquire into the reasons for dissatisfaction.” McKee v. evident from a review of the record, trial counsel provided

Harris, 649 F.2d 927, 933 (2d Cir. 1981) (internal quotation competent representation, and, therefore, this Court considers

marks omitted). To succeed on a substitution claim, a any alleged failure by the trial court to constitute harmless

defendant must “demonstrate good cause for the substitution error.

of assigned counsel.” Nelson v. Smith, No. 9:04-CV-0564

(LEK/RFT), 2008 WL 2357098, at *4 (N.D.N.Y. June 4, Accordingly, the alleged failure of the trial court to make

2008). a minimal inquiry did not result in a violation of the Sixth

Amendment.

Once prior to trial and once during his trial petitioner

requested new counsel, accusing trial counsel of being

ineffective. Trav. at 32. Specifically, petitioner stated that D. Claim 3: Improper Joinder

counsel refused to communicate with petitioner. Id. After Petitioner asserts that the trial court erred when it did not

both requests for new counsel, the trial court held two in sever the Hellijas assault (Count 6 of the indictment) from

camera hearings inquiring about petitioner's relationship with the Bingham shooting (Counts 1-5, 7). Pet. at 8. Petitioner

counsel. Dkt. No. 17-3 at 765. The Third Department found claims the failure to sever resulted in a violation of his Sixth

such efforts satisfied the minimum inquiry standard and, Amendment right to a fair trial. Id. Respondent argues that the

further, petitioner's complaints “did not create good cause for claim is: (1) procedurally barred; and (2) meritless.5 Resp.

the substitution of trial counsel[.]” Id. at 765-66. Therefore, at 41-45.

to rule for petitioner on Claim 2, this Court must find the state

courts’ decision to be “objectively unreasonable.” Williams,

529 U.S. at 409.

1. Procedural Bar

*5 Considering petitioner's two allegations were supported

Respondent first argues that Claim 3 is procedurally barred

with little to no evidence, this Court finds the trial court went

above and beyond its duty in holding two in camera hearings

under the adequate and independent doctrine.6 Resp. at

inquiring about petitioner's relationship with counsel. Further, 41-43. A procedural default in a federal habeas case occurs

petitioner has not demonstrated any “good cause” to replace “if the state court's rejection of a federal claim rests on a state

trial counsel. An examination of the record reveals that law ground – such as the operation of a state procedural rule –

trial counsel went to extreme lengths to communicate with that is both independent of the federal question and adequate

petitioner, even meeting with petitioner privately after cross- to support the judgment.” Jackson v. Conway, 763 F.3d

examining each witness to ensure all of petitioner's questions 115, 133 (2d Cir. 2014) (internal quotation marks omitted);

were asked. Dkt. No. 17-3 at 450-51; see e.g. Dkt. No. 17-7 at Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (holding

280. Thus, this Court refuses to find that the trial court acted that “when a state court declined to address a prisoner's

unreasonably. federal claims because the prisoner had failed to meet a state

procedural requirement[,]” federal habeas review is barred

Even if this Court found the trial court did not make a by the independent and adequate state ground doctrine).

sufficient inquiry into petitioner's requests, petitioner suffered Procedural default precluding federal habeas review applies

no prejudice from the trial court's alleged failure to inquire only “if the last state court rendering a judgment in the case

into the attorney/client relationship. Where “the failure to rests its judgment on the procedural default.” Harris v. Reed,

288, 294 (2d Cir. 2005). petitioner's actual innocence or any cause for petitioner's

noncompliance.8 Thus, the Court see no reason to lift the

*6 Respondent correctly contends that the Third Department procedural bar to Claim 3. As such, the Court dismisses

rejected the improper joinder claim on the contemporaneous the claim as procedurally barred under the independent and

objection rule, an independent and adequate state ground adequate state ground doctrine.

under Jackson. Resp. at 41. “New York's contemporaneous

objection rule provides that a party seeking to preserve a claim

of error at trial must lodge a protest to the objectionable ruling

‘at the time of such ruling ... or at any subsequent time when 2. Claim 3 Dismissed on the Merits

the [trial] court had an opportunity of effectively changing the

Even if not procedurally barred, the Court finds Claim

same.’ ” Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)

3 meritless. An erroneous “[j]oinder of offenses rises to

(quoting C.P.L § 470.05(2)). “The rule has been interpreted by

the level of a constitutional violation only if it ‘actually

New York courts to require, ‘at the very least, that any matter

render[s] petitioner's state trial fundamentally unfair and

which a party wishes’ ” to preserve for appellate review be

hence, violative of due process.’ ” Herring v. Meachum, 11

“ ‘brought to the attention of the trial court at a time and in

F.3d 374, 377 (2d Cir. 1993) (quoting Tribbitt v. Wainwright,

a way that gave [the trial court] the opportunity to remedy

540 F.2d 840, 841 (5th Cir. 1976)). “[W]here a defendant

the problem and thereby avert reversible error.’ ” Id. (quoting

is claiming a due process violation based upon joinder of

People v. Luperon, 623 N.Y.S.2d 735, 738-39 (1995)).

offenses, he must, to succeed, go beyond the potential for

prejudice and prove that actual prejudice resulted from the

Here, petitioner did raise an objection to the failure to

events as they unfolded during the joint trial.” Id. at 377-78.

sever but not until after petitioner's sentencing, too late

Habeas courts generally have refused to find actual prejudice

for the trial court to have “the opportunity to remedy the

when the crimes are “distinct and easily compartmentalized.”

problem.” Dkt. No. 17-3 at 118-120; Whitley, 642 F.3d

Id. at 378; Burrows v. Herbert, No. 6:02-CV-6314, 2009

at 286 (internal quotation marks omitted). Thus, the Third

WL 1514917, at *5 (W.D.N.Y. June 1, 2009) (finding the

Department held the issue unpreserved for its review based

proof, “as presented at trial, was such that it was able to be

on the contemporaneous objection rule.7 Dkt. No. 17-3 at

easily considered separate in the minds of the jury[,]” and,

766. Such a holding constitutes an adequate and independent thus, avoid confusion and prejudice); see also United States

state law ground for dismissal, and, thus, precludes this v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir. 1988) (finding

Court from habeas review. See Rutigliano v. Lamanna, that defendants were not substantially prejudiced by joint trial

No. 9:19-CV-0745 (GLS/ML), 2022 WL 4348580, at *7 where “the evidence with respect to each of the defendants

(N.D.N.Y. July 20, 2022) (“The Third Department's holding was adequately straightforward that the jury could consider it

that Petitioner's argument was unpreserved, constitutes an without any significant spillover effect.”).

adequate and independent state law ground, which generally

precludes habeas review.”). *7 Here, the Hellijas assault and the Bingham shooting

were distinct and easily compartmentalized. The incidents

Therefore, this Court finds petitioner's improper joinder were four months apart and involved different victims;

claim procedurally barred. We may only review the claim further, one involved a punch, the other involved a gun.

if petitioner can establish either cause for noncompliance Based on the vast differences, the jury could easily keep

and resulting prejudice or actual innocence. Rutigliano, 2022 the crimes “separate in the[ir] minds[.]” Burrows, 2009 WL

WL 4348580, at *7 (finding a “narrow exception to the 1514917, at *5. Further, for both crimes, the evidence was

preservation rule” where a petitioner can “demonstrate[ ] “adequately straightforward.” Chang An-Lo, 851 F.2d at 556.

cause for [ ] procedural default and actual prejudice”); In fact, petitioner admitted to punching Hellijas at trial,

Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (finding thus negating the risk that the jury relied on any Bingham

an exception to the preservation rule where a petitioner can shooting evidence when convicting petitioner of the Hellijas

demonstrate “a fundamental miscarriage of justice, i.e., that assault. Dkt. No. 17-7 at 1172-73. The prosecution also

he is actually innocent of the crime for which he has been introduced overwhelming evidence of petitioner's guilt in

convicted”). the Bingham shooting, including testimony from the victim's

17-3 at 430. Accordingly, the easily compartmentalized and convicted”).

straightforward evidence for both crimes convince the Court

that petitioner suffered no actual prejudice from the joinder. Here, petitioner does not contend, nor does the record reflect,

Therefore, the Court holds that petitioner's due process rights petitioner's actual innocence or any cause for petitioner's

were not violated, and, as such, petitioner's Claim 3 is noncompliance. Thus, this Court see no reason to lift the

dismissed. procedural bar to Claim 4. As such, the Court dismisses

the claim as procedurally barred under the independent and

adequate state ground doctrine.

E. Claim 4: Multiplicitous Counts

Petitioner alleges that his convictions of first- and second-

degree assault arising out of the Bingham shooting rendered F. Claim 5: Prosecutorial Misconduct

the indictment multiplicitous, violating the double jeopardy Petitioner challenges the prosecution's conduct during

clause of the Fifth Amendment. Pet. at 8-9; Trav. at 22-24. the direct examination of Bingham, petitioner's cross-

Respondent counters, stating that the claim is procedurally examination, and the prosecution's summation. Pet. at 9; Dkt.

barred. Resp. at 45-46. No. 17-3 at 57-66. In total, petitioner brings 16 prosecutorial

misconduct claims.

Respondent argues that the adequate and independent state

law ground bars Claim 4. Resp. at 46. As discussed in Section *8 As to the questioning of Bingham, petitioner alleges the

IV.D.1 above, a procedural default in federal habeas cases prosecution:

occurs “if the state court's rejection of a federal claim rests on

a state law ground – such as the operation of a state procedural (1) improperly asked Bingham to speculate about

rule – that is both independent of the federal question and petitioner's state of mind during the shooting, Dkt. No.

adequate to support the judgment.” Jackson v. Conway, 17-3 at 63; and

763 F.3d 115, 133 (2d Cir. 2014) (internal quotation marks

(2) improperly questioned Bingham about his grand

omitted). Respondent contends that the Third Department

jury testimony, including reading leading grand jury

rejected petitioner's multiplicitous claim on an independent

questions into the trial record, id. at 63-64.

and adequate state ground; specifically, the contemporaneous

objection rule. Resp. at 46. Respondent is correct. Petitioner

During the cross-examination of petitioner, petitioner claims

never raised an objection in trial court, and, therefore, the

that the prosecution improperly:

Third Department held the issue unpreserved. Dkt. No.

17-3 at 439, 766. Such a holding constitutes an adequate (3) questioned petitioner's religious faith, Dkt. No. 17-3 at

and independent state law ground for dismissal, and, thus, 58-59;

precludes this Court from habeas review. See Rutigliano,

2022 WL 4348580, at *7 (“The Third Department's holding (4) asked petitioner about his parenting, id.;

that Petitioner's argument was unpreserved, constitutes an

adequate and independent state law ground, which generally (5) asked petitioner if he thought he was “pretty much

precludes habeas review.”). smarter than everyone else[,]” id. at 60;

(6) questioned petitioner about the number of judges who

Accordingly, this Court finds petitioner's multiplicitous claim

previously presided over the case, id.;

procedurally barred and may only review the claim if

petitioner can establish either cause for noncompliance and (7) commented on petitioner's need for assigned counsel,

resulting prejudice or actual innocence. Rutigliano, 2022 id. at 64;

WL 4348580, at *7 (finding a “narrow exception to the

preservation rule” where a petitioner can “demonstrate[ ] Lastly, petitioner alleges that the prosecution erred in its

cause for [ ] procedural default and actual prejudice”); summation when it improperly:

Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (finding

an exception to the preservation rule where a petitioner can (8) referred to statements that had not been admitted into

demonstrate “a fundamental miscarriage of justice, i.e., that evidence or produced to the defense, Dkt. No. 17-3 at 60;

(9) implied that defense counsel thought petitioner guilty precludes habeas review.”).

of shooting Bingham, id. at 61;

*9 Nor can petitioner find an exception to avoid the

(10) stated that petitioner committed the crimes, id. at

procedural bar as petitioner cannot prove, and, in fact, does

61-62;

not contend, that he is actually innocence or has any cause for

(11) described Bingham and his testimony as “candid[,]” his noncompliance. As such, the Court dismisses misconduct

id. at 62; claims 3 and 4 as procedurally barred under the independent

and adequate state ground doctrine.

(12) described two other witnesses as those “who respect

the oath and respect the truth[,]” id. at 62;

(13) described witnesses who testified for the prosecution 2. Meritless Claims

pursuant to plea deals as “candid[,]” id.;

“[P]rosecutorial misconduct cannot give rise to a

(14) stated that the prosecution's cross-examination of constitutional claim unless the prosecutor's acts constitute

petitioner “maybe overdid it[,]” id.; egregious misconduct.” Miranda v. Bennett, 322 F.3d 171,

180 (2d Cir. 2003) (internal quotation marks omitted). To

(15) claimed petitioner's proposed expert witness was a assess if misconduct rises to an egregious level, a reviewing

“hired gun[,]” id. at 62-63; court must assess the alleged misconduct “in the context of

the entire trial.” Donnelly v. DeChristoforo, 416 U.S. 637,

(16) attempted to explain law to the jury, id. at 63. 639 (1974). “The relevant inquiry, therefore, is whether the

prosecutor's conduct ‘so infected the trial with unfairness as

All 16 of petitioner's claims fail. Misconduct claims 3 and 4 to make the resulting conviction a denial of due process.’ ”

are procedurally barred and meritless. Claims 1-2, 5-16 are Sheard v. Lee, No. 1:18-CV-2125, 2019 WL 5847151, at *6

meritless. (S.D.N.Y. Oct. 7, 2019) (quoting Darden v. Wainwright, 477

U.S. 168, 181 (1986)). To amount to a constitutional violation,

a prosecutor's conduct must be more than improper; rather,

1. Procedurally Barred the misconduct must be “so prejudicial that [it] rendered the

trial fundamentally unfair.” Id. (cleaned up).

Misconduct claims 3 and 4 are barred by the adequate and

independent state law ground.9 As discussed in Section The Third Department found all 16 of petitioner's misconduct

IV.D.1 above, a procedural default in a federal habeas case claims meritless, stating “given the overwhelming proof of

occurs “if the state court's rejection of a federal claim rests on defendant's guilt, the cumulative effect of the challenged

a state law ground – such as the operation of a state procedural comments was not so prejudicial as to deny defendant his

rule – that is both independent of the federal question and fundamental right to a fair trial[.]” Dkt. No. 17-3 at 763-64

adequate to support the judgment.” Jackson v. Conway, (internal quotations and citations omitted). Thus, this Court

763 F.3d 115, 133 (2d Cir. 2014) (internal quotation marks owes the Third Department's decision AEDPA deference and

omitted). Respondent contends that the Third Department may only rule for petitioner on Claim 5 if this Court finds

rejected misconduct claims 3 and 4 on an independent and the Third Department's decision “objectively unreasonable.”

adequate state ground; specifically, the contemporaneous Williams, 529 U.S. at 409.

objection rule. Resp. at 51. Respondent is correct. Petitioner

never raised objections on either point during his trial, and, Considering the overwhelming proof of petitioner's guilt, this

therefore, the Third Department held the issues unpreserved. Court cannot find the prosecutor's actions “so prejudicial”

Dkt. No. 17-3 at 763. Such a holding constitutes an adequate as to render petitioner's trial “fundamentally unfair.” Sheard,

and independent state law ground for dismissal, and, thus, 2019 WL 5847151, at *6. First, petitioner admitted to the

precludes this Court from habeas review. See Rutigliano, Hellijas assault in open court. Dkt. No. 17-7 at 1172-73.

2022 WL 4348580, at *7 (“The Third Department's holding Second, Bingham identified petitioner as the man who shot

that Petitioner's argument was unpreserved, constitutes an him, Dkt. No. 17-7 at 639-50, and Bingham's girlfriend,

Ashante Ayala, testified that Bingham called her immediately

No. 17-7 at 983; Dkt. No. 17-3 at 430. A neighborhood request lesser included charges for count 1 (attempted murder

witness also testified that she heard the gunshot and, saw in the second degree) and count 2 of the indictment (assault

a man matching petitioner's description walking away from in the first degree), id. at 67; (3) obtain an expert witness to

the scene. Dkt. No. 17-6 at 844-851. Further, petitioner's testify about the stippling on Bingham's clothing, id. at 67-68;

daughter testified that petitioner sent her an article about (4) communicate and consult with petitioner about the case,

the shooting and insinuated that he was the shooter. Dkt. id. at 68-69; and (5) investigate the case thoroughly and locate

No. 17-3 at 430. Thus, reviewing the prosecution's alleged exculpatory witnesses, id. at 350-51. For the reasons below,

misconduct in context of the entire trial, this Court agrees with the Court finds all five claims meritless.

the Third Department's assessment that the overwhelming

proof of defendant's guilt rendered any alleged prosecutorial

misconduct harmless. Accordingly, petitioner's Claim 5 and

1. Improper Joinder

its 16 subparts are dismissed as meritless.

Petitioner argues that counsel's failure to move to sever Count

6 (the Hellijas assault) from the rest of the indictment was a

G. Claim 6: Ineffective Assistance of Counsel

“miscarriage of justice” that amounts to ineffective assistance

To succeed on a claim of ineffective assistance of counsel,

of counsel. Trav. at 28. The Third Department rejected this

a petitioner must show that: “(1) counsel's performance

exact argument when deciding petitioner's direct appeal,

was objectively deficient, and (2) petitioner was actually

finding that the Hellijas and Bingham incidents were properly

prejudiced as a result.” Harrington v. U.S., 689 F.3d 124, 129

joined and the proof for “each crime was separately presented,

(2d Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668,

uncomplicated, and easily segregable in the jury's mind[.]”

688, 694 (1984)).

Dkt. No. 17-3 at 762 (internal quotation marks and citations

omitted). The Third Department concluded petitioner failed

*10 To satisfy the first Strickland prong, a petitioner must

to “establish that a motion for severance would have been

establish that “counsel made errors so serious that counsel

granted or that he suffered any prejudice from the lack of

was not functioning as the ‘counsel’ guaranteed [to] the

severance[,]” and, therefore, ruled counsel's failure to move to

defendant by the Sixth Amendment.” Strickland, 466 U.S. at

sever amounted to a “strategic ... decision” and did not violate

687. “Such errors include omissions that cannot be explained

the Sixth Amendment. Id.

convincingly as resulting from a sound trial strategy, but

instead arose from oversight, carelessness, ineptitude, or

As the Third Department ruled on the merits of the issue,

laziness.” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009)

this Court can only find for petitioner if it finds the Third

(cleaned up). When reviewing an ineffective assistance claim,

Department's ruling unreasonable. Williams, 529 U.S. at 409.

courts must be “highly deferential” and approach the analysis

The Court refuses to do so. As discussed in Section IV.D.2

with a “strong presumption that counsel's conduct falls within

above, and in the Third Department's opinion, any motion to

the wide range of reasonable professional assistance[.]”

Strickland, 466 U.S. at 689.

sever the indictment would likely have failed.10 “Counsel

cannot ... be deemed ineffective for failing to make an

The second Strickland prong requires a petitioner to “show argument or objection that stood little chance of success.”

that there is a reasonable probability that, but for counsel's Cochran v. Griffin, No. 9:18-CV-0175 (LEK/TWD), 2021

unprofessional errors, the result of the proceeding would have WL 1223848, at *9 (N.D.N.Y. Mar. 31, 2021); Mayo v.

been different.” Strickland, 466 U.S. at 694. Courts must look Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (“[C]ounsel does

to the “cumulative weight of error” to determine whether any not have a duty to advance every nonfrivolous argument

potential prejudice “reache[s] the constitutional threshold.” that could be made.”); United States v. Kirsh, 54 F.3d 1062,

Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). 1071 (2d Cir. 1995) (“[T]he failure to make a meritless

Petitioner must meet both “the performance prong [and] argument does not rise to the level of ineffective assistance”

the prejudice prong[ ]” to demonstrate a Sixth Amendment and “strategic choices made after thorough investigation

violation. Bennett v. U.S., 663 F.3d 71, 85 (2d Cir. 2011). of law and facts relevant to plausible options are virtually

unchallengeable[.]”) (internal quotation marks and citations

Petitioner alleges that trial counsel was ineffective because omitted); Jones v. Spitzer, 1:01-CV-9754, 2003 WL 1563780,

assistance.”). As the severance issue had little chance of below an objective standard of reasonableness. The Court

success, counsel appropriately chose to focus on other issues. refuses to find counsel's performance deficient based only

This Court finds such choice a sound trial decision and refuses on an unsuccessful motion. Accordingly, the Court dismisses

to find counsel ineffective for failing to make a meritless petitioner's expert witness claim.

motion.

*11 Further, petitioner also offers no legitimate argument

4. Communication

on how the combined indictment prejudiced him, and, from

a review of the record, the Court cannot find any prejudice. Petitioner next attempts to satisfy Strickland by arguing that

Therefore, this Court concludes that the Third Department counsel failed to communicate with him. Dkt. No. 17-3 at

acted reasonably in rejecting petitioner's argument, and, thus, 68-69. The Third Department rejected an identical argument,

dismisses petitioner's claim. stating “it is exceedingly clear from the record that counsel

went to great lengths to attempt to effectively communicate

with defendant.” Id. at 763. As the Third Department ruled on

2. Lesser and Included Charges the merits of the issue, this Court can only find for petitioner if

it finds the Third Department's ruling unreasonable. Williams,

Petitioner alleges that counsel's failure to request lesser 529 U.S. at 409. The Court refuses to do so.

included charges for count 1 (attempted murder in the second

degree) and count 2 of the indictment (assault in the first Petitioner argues that counsel continuously failed to meet

degree) amounted to ineffective assistance of counsel. Dkt. with him and such failure rendered counsel's performance

No. 17-3 at 67. However, as the Third Department noted, id. deficient. Dkt. No. 17-3 at 68-69. However, a “failure

at 763, counsel did in fact request lesser and included charges. to communicate, by itself, does not render the attorney's

Id. at 580-84. As counsel did request lesser included charges, performance deficient.” United States v. Amirouche, No.

the Court refuses to find counsel deficient based on inaccurate 1:24-CV-2596, 2024 WL 4181842, at *11 (E.D.N.Y. Sept. 13,

claims. 2024). Further, from an examination of the record, besides

a failure to communicate with petitioner prior to sentencing,

it appears counsel went above and beyond expectations to

communicate with client. For instance, counsel met with

3. Expert Witness

petitioner privately after cross-examining each witness to

Petitioner next claims that counsel's “failure to obtain ensure all of petitioner's questions were asked. Dkt. No. 17-3

a qualified expert on the issue of stippling deprived at 450-51; see e.g. Dkt. No. 17-7 at 280. Considering such

[petitioner] of meaningful representation.” Dkt. No. 17-3 at efforts to communicate with petitioner, and trial counsel's

67. Addressing the same argument, the Third Department otherwise competent representation, the Court cannot find

ruled that “counsel's decision to obtain an expert witness, the Third Department's holding unreasonable. Accordingly,

whom [the trial court] ultimately deemed unqualified to petitioner's communication claim is dismissed.

testify on [the stippling issue], was ... a trial tactic that proved

to be unsuccessful and does not, in and of itself, constitute

ineffective assistance of counsel[.]” Id. at 763. As the Third 5. Failure to Investigate

Department ruled on the merits of the issue, this Court can

only find for petitioner if it finds the Third Department's *12 Lastly, petitioner asserts that counsel's failure to

ruling unreasonable. Williams, 529 U.S. at 409. The Court investigate and locate potential exculpatory witnesses

refuses to do so. amounted to a Sixth Amendment violation. Dkt. No. 17-3

at 350-51; Trav. at 29. A petitioner “ ‘does not show

An adverse ruling is not enough to prove ineffective that he was prejudiced by trial counsel's alleged deficient

assistance of counsel; instead, petitioner must demonstrate performance merely by asserting that certain witnesses might

counsel's “performance fell below an objective standard have supplied relevant testimony; rather, he must state exactly

of reasonableness.” Strickland, 466 U.S. at 688. Petitioner what testimony [the potential witnesses] would have supplied

1527269, at *8 (E.D.N.Y. May 13, 2022) (internal quotation Petitioner failed to demonstrate that trial counsel acted

deficiently, and, therefore, petitioner's Claim 5 is dismissed.

marks omitted). “Courts have viewed claims of ineffective

assistance of counsel skeptically when the only evidence

of the import of a missing witness’ testimony is from [a

V. CONCLUSION

petitioner].” Id. (cleaned up). Petitioner states that Norman

Chavis could have provided exculpatory evidence in the WHEREFORE, it is

Bingham shooting but counsel did not try to locate Chavis. ORDERED that the Petition, Dkt. No. 1, is DENIED AND

Trav. at 29. Petitioner claims that he and Chavis were on DISMISSED in its entirety;

the phone immediately before the Bingham shooting, and,

based on what Chavis heard, Chavis could have testified that ORDERED that the Court declines to issue a Certificate

petitioner accidentally shot Bingham. Id. of Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke,

540 U.S. 668, 705 (2004) (“To obtain a certificate of

Petitioner can establish petitioner was on the phone a few appealability, a prisoner must ‘demonstrat[e] that jurists of

minutes after the incident, see Dkt. No. 17-7 at 1182, but a reason could disagree with the district court's resolution of his

review of the record indicates that petitioner was not on the constitutional claims or that jurists could conclude the issues

phone prior to the Bingham incident nor immediately after presented are adequate to deserve encouragement to proceed

the incident. See Dkt. No. 17-7 at 639-40; Dkt. No. 17-6 further.’ ”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327

at 868-878, 883-84. Viewing petitioner's claim skeptically, (2003)). Any further request for a Certificate of Appealability

as urged by Santana, the Court concludes that there was must be addressed to the Court of Appeals. See FED. R. APP.

no evidence of petitioner being on the phone prior to the P. 22(d); 2d Cir. R. 22.1.

incident, and, therefore, Chavis could not testify about the

nature of the shooting incident. Thus, it seems highly unlikely

petitioner's additional witness “would have changed the IT IS SO ORDERED.

result[,]” Santana, 2022 WL 1527269, at *8 (cleaned up), and,

All Citations

therefore, the Court rejects petitioner's failure to investigate

claim. Slip Copy, 2025 WL 624952

Footnotes

1 For the sake of clarity, citations to parties’ submissions refer to the pagination generated by CM/ECF, the

Court's electronic filing system.

2 A Schenectady County grand jury also filed a charge of animal abuse based on a third separate incident.

Dkt. No. 17-3 at 467. The prosecution dropped the charge before trial.

3 The witness defined stippling as the visible “impact of powder burning or unburnt powder that are going to

show up on a surface around [a] bullet hole.” Dkt. No. 17-8 at 80.

4 After his conviction, petitioner filed a § 330.30 motion to set aside the judgement that the court denied. Dkt.

No. 17-3 at 431.

5 Respondent also argues that the claim is non-cognizable. Resp. at 43. The respondent is correct that

petitioner's Claim 3 includes an argument that the trial court violated C.P.L § 200.20 which is non-cognizable.

However, petitioner also ties his improper joinder claim to his Sixth Amendment right to a fair trial, creating

a federal question properly before this Court. Pet. at 8.

violation of the United States Constitution when he raised [the claim] on appeal.” Resp. at 41. Respondent is

factually incorrect, as petitioner raised the constitutional claim in his appellate brief. See Dkt. No. 17-3 at 37.

7 The Third Department did discuss the merits of the improper joinder issue but in the context of petitioner's

ineffective assistance of counsel claim. Dkt. No. 17-3 at 762.

8 Petitioner does argue that his trial counsel was ineffective for failing to move to separate the Hellijas and

Bingham charges. However, the claim is meritless, see infra Section IV.G.1, and, therefore, cannot be used

to demonstrate “cause” to overcome the procedural bar petitioner faces in Claim 3.

9 Respondent argues that the adequate and independent state law ground bars misconduct claims 3-6 and

9-14. Resp. at 51. However, a closer examination of the Third Department's decision finds that the Third

Department only rejected misconduct claims 3 and 4 as unpreserved. Dkt. No. 17-3 at 763.

10 As discussed in Section IV.D.2, the two crimes joined in the indictment, the Hellijas assault and the Bingham

shooting, were distinct and easily compartmentalized. The incidents were four months apart and involved

different victims; further, one involved a punch, the other involved a gun. Based on the vast differences, the

jury could easily keep the crimes “separate in the[ir] minds.” Burrows, 2009 WL 1514917, at *5. Further, for

both crimes, the evidence was “adequately straightforward.” Chang An-Lo, 851 F.2d at 556. In fact, petitioner

admitted to punching Hellijas at trial, thus negating the risk that the jury relied on any Bingham shooting

evidence when convicting petitioner of the Hellijas assault. Dkt. No. 17-7 at 1172-73.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2008 WL 2357098 and has determined that the Report–Recommendation should

Only the Westlaw citation is currently available. be approved for the reasons stated therein.

United States District Court,

N.D. New York.

II. Motion to Amend

James Trey NELSON, Petitioner, Petitioner's Motion to Amend includes two attachments:

Exhibit A, which is his previously filed Petition, and Exhibit

v.

B, which is a “supplemental proffer” of legal arguments

Joseph SMITH, Warden; New York

in support of his Petition and which requests that an

State Attorney General, Respondents.

unspecified motion be held in abeyance and for leave to

No. 9:04–CV–564 (LEK/RFT). file a memorandum establishing his claims for relief under

| United States v. Gonzalez–Lopez, 548 U.S. 140 (2006). Dkt.

June 4, 2008. No. 21, Exh. B. Construing Exhibit B liberally to constitute,

with Exhibit A, a proposed Amended Petition, the Court will

Attorneys and Law Firms consider the Motion to Amend.

James Trey Nelson, USP Victorville, U.S. Penitentiary, By statute, a writ of habeas corpus “may be amended or

Adelanto, CA, pro se. supplemented as provided in the rules of procedure applicable

to civil actions.” 28 U.S.C. § 2242. Rule 15 of the Federal

Andrew M. Cuomo, Attorney General for the State of

Rules of Civil Procedure governs motions to amend petitions

New York, Michael G. McCartin, Esq., Assistant Attorney

for habeas corpus. See Littlejohn v. Artuz, 271 F.3d 360, 363

General, of Counsel, Albany, N.Y., for Respondents.

(2d Cir.2001); Ching v. United States, 298 F.3d 174, 180–

81 (2d Cir.2002). Even though Rule 15 provides that “leave

shall be freely given when justice so requires,” Fed.R.Civ.P.

DECISION AND ORDER 15(a), the district court may deny that leave on the grounds of

futility. Jones v. N.Y. State Div. of Military & Naval Affairs,

LAWRENCE E. KAHN, District Judge.

166 F.3d 45, 50 (2d Cir.1999).

*1 This matter comes before the Court following a Report–

Recommendation filed on March 26, 2008 by the Honorable Petitioner bases his request to amend his Petition on

Randolph F. Treece, United States Magistrate Judge, pursuant United States v. Gonzalez–Lopez, 548 U.S. 140 (2006). That

to 28 U .S.C. § 636(b) and L.R. 72.3 of the Northern District case, however, was considered and even cited by Judge

of New York. Report–Rec. (Dkt. No. 20). After ten days Treece in the Report and Recommendation. See Report–

from the service thereof, the Clerk has sent the entire file to Recommendation at 4 (“the Supreme Court has held that trial

the undersigned, including the objections by Petitioner James courts retain ‘wide latitude in balancing the right to counsel of

Trey Nelson (“Petitioner”), which were filed on April 11, choice ... against the demands of its calendar.”) (Dkt. No. 20).

2008. Objections (Dkt. No. 22). Petitioner also filed a Motion Unlike the present case, the defendant in Gonzalez–Lopez was

to amend/correct his Petition for Writ of Habeas Corpus. not seeking to replace assigned counsel, and the Government

Dkt. No. 21. This is Petitioner's second Motion to amend in that case conceded that there was an erroneous deprivation

his Petition, as the first was stricken for failure to attach a of the defendant's choice of counsel. 548 U.S. at 141–42,

proposed Amended Petition. See Dkt. No. 19. 144. In contrast, the record in this case indicates that there

was no breakdown of communication or an irreconcilable

conflict between the Petitioner and his counsel, as would be

I. Report and Recommendation needed to substitute new counsel on the eve of trial. United

It is the duty of this Court to “make a de novo determination States v. Schmidt, 105 F.3d 82, 89 (2d Cir.1997). Because the

of those portions of the report or specified proposed findings proposed Amended Petition would not change this Court's

or recommendations to which objection is made.” 28 U.S.C. ruling, Petitioner's Motion to amend is denied.

§ 636(b). “A [district] judge ... may accept, reject, or modify,

in whole or in part, the findings or recommendations made *2 Accordingly, it is hereby

is APPROVED and ADOPTED in its ENTIRETY; and it arm with a razor blade. Correction

is further officers arriving at the scene saw

defendant with his hands in the back

ORDERED, that Petitioner's Motion to Amend (Dkt. No. 21) of his pants. The facility's body orifice

is DENIED; and it is further security system subsequently detected

that defendant had a piece of metal

ORDERED, that the Petition for a Writ of Habeas Corpus in the area of his buttocks and a

(Dkt. No. 1) is DENIED; and it is further strip search revealed grease on his

underwear. After obtaining a search

ORDERED, that no Certificate of Appealability shall issue warrant, police officers transported

with respect to any of Petitioner's claims; and it is further defendant to the hospital, where

X rays were taken revealing that

ORDERED, that the Clerk serve a copy of this Order on all defendant had a razor blade concealed

parties. in his rectum. Defendant eventually

removed the razor blade and turned it

IT IS SO ORDERED. over to authorities.

REPORT–RECOMMENDATION and ORDER People v. Nelson, 1 A.D.3d 796 (N.Y.App. Div.3d Dep't

2003).

RANDOLPH F. TREECE, United States Magistrate Judge.

Upon the commencement of his trial, Petitioner asked the

On August 15, 2001, pro se Petitioner James Trey Nelson was court to adjourn the proceeding so that he could retain a

convicted of assault in the first degree, assault in the second different attorney. Trial Tr. at pp. 6–8. In support of his

degree, criminal possession of a weapon in the third degree, request, Petitioner stated that he was not notified of the

and promoting prison contraband. Trial Tr., Aug. 15, 2001 at trial until a week before it began, and that he had just

pp. 683–85. On October 10, 2001, Petitioner was sentenced received discovery materials. Id. In addition, he stated that

to twenty years incarceration for the first degree assault due to the restrictions imposed at the federal prison in which

conviction and lesser concurrent terms for the remaining he resided, he was not allowed to communicate by phone

convictions. Sentencing Tr., Oct. 10, 2001 at p 13. Petitioner with his appointed trial counsel unless his counsel initiated

now bring a Petition for a Writ of Habeas Corpus pursuant the call. Id. Finally, Petitioner told the trial court that his

to 28 U.S.C. § 2254 on the grounds that he was denied both family was present in the courtroom and was prepared to

the right to counsel of his choice and effective assistance immediately retain an attorney on his behalf. Id. The court

of counsel under the Sixth Amendment to the United States denied Petitioner's request for a postponement and the trial

Constitution. Dkt. No. 1, Pet. at ¶ 12. For the reasons that commenced. Id. at p. 9.

follow, it is recommended that the Petition be denied.

*3 At trial, Sergeant (Sgt.) Gecewiz testified that following

the altercation, he asked Petitioner what the altercation was

I. BACKGROUND about; Petitioner responded that “they went after one of

my dogs.” Id. at pp. 517–18. On cross-examination, Sgt.

The following facts were found by the New York State Gecewiz testified that he made a written report of Petitioner's

appellate court: alleged oral admission and provided it to the investigators

of Albany County Correctional Facility. Id. at pp. 517–18.

Petitioner's trial counsel requested production of Gecewiz's

In January 2001, defendant was written report, but the prosecution stated that they did not have

an inmate at the Albany County the report. Id. at pp. 518–19. After an off the record discussion

Correctional Facility. During an between both attorneys and the judge, the trial continued. Id.

State Appellate Division, Third Department, on the grounds concerning application of this test, noting that:

that, inter alia, he was denied his constitutional right to

the counsel of his choice and he was also denied his

constitutional right to effective representation of counsel *4 [u]nder AEDPA, we ask three

inasmuch as his trial attorney failed to object to the admission questions to determine whether a

of Sgt. Gecewiz's testimony concerning Petitioner's alleged federal court may grant habeas relief:

confession on the grounds that Petitioner was given no 1) Was the principle of Supreme

notice of such evidence as required by New York Criminal Court case law relied upon in the

Procedure Law § 710.30. Def.-App.'s State Ct. Br. & habeas petition “clearly established”

Appendix at pp. 4–10. when the state court ruled? 2) If

so, was the state court's decision

“contrary to” that established Supreme

II. DISCUSSION Court precedent? 3) If not, did the

state court's decision constitute an

“unreasonable application” of that

A. Standard of Review principle?

Under the Antiterrorism and Effective Death Penalty Act

of 1996, Pub.L. No. 104–132, 110 Stat. 1214 (1996)

(“AEDPA”), a federal court may not grant habeas relief to a Williams v. Artuz, 237 F.3d 147, 152 (2d Cir.2001) (citing

state prisoner on a claim unless the state court adjudicated the Williams and Francis S. v. Stone, 221 F.3d 100, 108–09 (2d

merits of the claim and such adjudication either Cir.2000)).

1) resulted in a decision that was contrary to, or involved

an unreasonable application, of, clearly established Federal

B. Right to Counsel of Choice

law, as determined by the Supreme Court of the United

States; or The Constitution guarantees a criminal defendant the right to

retain counsel of his choice. Chandler v. Fretag, 348 U.S. 3,

2) resulted in a decision that was based on an unreasonable

9 (1954). However, that right is not absolute. For example,

determination of the facts in light of the evidence presented

an indigent defendant cannot “insist on representation by an

in the State court proceeding.

attorney he cannot afford[.]” Wheat v. United States, 486

28 U.S.C. § 2254(d); see also DeBerry v. Portuondo, 403 U.S. 153, 159 (1988). Furthermore, the Supreme Court has

F.3d 57, 66 (2d Cir.2005); Miranda v. Bennett, 322 F.3d 171, held that trial courts retain “wide latitude in balancing the

177–78 (2d Cir.2003); Boyette v. Lefevre, 246 F.3d 76, 88 right to counsel of choice ... against the demands of its

(2d Cir.2001). The petitioner bears the burden of proving by calendar.” United States v. Gonzalez–Lopez, 126 S.Ct. 2557,

a preponderance of the evidence that he is “in custody in 2565–66 (2006); see also Morris v. Slappy, 461 U.S. 1, 11

violation of the Constitution or laws or treaties of the United (1983) (stating that “broad discretion must be granted trial

States.” 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, courts on matters of continuances; only an unreasoning and

415 (2d Cir.1997); Rivera v. New York, 2003 WL 22234679, at arbitrary ‘insistence upon expeditiousness in the face of a

*3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that justifiable request for delay’ violates the right to the assistance

“a determination of a factual issue made by a State court shall of counsel.”) (quoting Ungar v. Sarafite, 376 U.S. 575, 598

be presumed to be correct [and t]he applicant shall have the (1964)).

burden of rebutting the presumption of correctness by clear

and convincing evidence.” 28 U .S.C. § 2254(e)(1); see also In the Second Circuit, it is settled law that “[o]n the eve

DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, of trial, just as during trial, a defendant can only substitute

246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations new counsel when unusual circumstances are found to exist,

omitted). such as a complete breakdown of communication or an

irreconcilable conflict.” United States v. Schmidt, 105 F.3d

demonstrate good cause for the substitution of assigned that might have stymied an effective defense.

counsel. However, it is incumbent upon the trial court,

upon receipt of a “seemingly substantial” complaint from a Furthermore, because Petitioner suffered no harm, the trial

defendant about his counsel, to inquire into the reasons for court's failure to make a formal inquiry does not constitute a

the dissatisfaction. McKee v. Harris, 649 F.2d 927, 933 (2d sufficient basis for granting a writ. McKee v. Harris, 649 F.2d

Cir.1981). at 933 (“Where the failure to inquire causes the defendant no

harm, that procedural irregularity cannot of itself be a basis

In favor of his motion to adjourn the proceeding in order for granting the writ.”).

to retain new counsel, Petitioner stated that he had only

received discovery materials a week earlier and he was In sum, since good cause did not exist for the substitution of

not able to maintain meaningful contact with his assigned new counsel, we cannot find that the trial court's rejection of

counsel because he was housed in a federal prison located a Petitioner's request constituted an unreasonable application of

considerable distance from the trial location. Trial Tr. at pp. Federal law. It is therefore recommended that the Petition be

6–8. The trial court did not make any further formal inquiry denied as to this claim.

into Petitioner's complaints. Id. Rather, the trial court asked

appointed counsel if he was ready to proceed, to which he

responded that aside from his inability to locate a certain

C. Ineffective Assistance of Counsel

witness, he was ready to proceed to trial. Id. at p. 8.

To establish ineffective assistance of counsel, a habeas

The record indicates that there was no actual breakdown petitioner must show 1) that counsel's representation fell

of the communication between the appointed attorney and below an objective standard of reasonableness measured

Petitioner. The appointed counsel indicated he consulted with by the prevailing professional norms; and 2) prejudice,

Petitioner about the trial a week before the trial began. Id. i.e., that there is a reasonable probability that, but for

at p. 13. At trial, Petitioner cooperated during his direct counsel's unprofessional performance, the outcome of the

examination and conferred with his counsel on numerous proceeding would have been different. Bell v. Cone, 535

occasions. See, e.g., id. at pp. 11, 15, 35, 36, 38. For his U.S. 685, 695 (2002) (citing Strickland v. Washington, 466

part, the appointed attorney was intimately familiar with both U.S. 668, 688 & 694 (1984)); see also Aeid v. Bennett, 296

the facts and the law of the case. See generally Trial Tr. F.3d 58, 62–63 (2d Cir.2002); Brown v. Artuz, 124 F.3d

In addition, appointed counsel's willingness to continue to 73, 79–80 (2d Cir.1997); Rattray v. Brown, 261 F.Supp.2d

represent Petitioner after his motion to retain new counsel 149, 157 (E.D.N.Y.2003).1 Moreover, to establish that his

was denied undermines any assertion that there was an

counsel's conduct was objectively unreasonable, a petitioner

irreconcilable breakdown in communication. Thus, beyond

must demonstrate that his counsel “omitted significant and

Petitioner's conclusory allegations, there is no evidence of any

obvious issues while pursuing issues that were clearly and

significant breakdown in communication between Petitioner

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

and his counsel.

Cir.2000).

*5 Although the trial court did not inquire further into the

Although the test for ineffective assistance of counsel

reasons for Petitioner's dissatisfaction, when the “reasons [an

contains two prongs, the Supreme Court has held that

accused complains about his counsel] are made known to the

federal district courts need not address both components

court, the court may rule without more.” McKee v. Harris, 649

if a petitioner fails to establish either one. Strickland v.

F.2d at 934 (quoting Brown v. United States, 264 F.2d 363,

Washington, 466 U.S. at 697. In particular, “a court need

369 (2d Cir.1959) (Burger, J. concurring in part)). In this case,

not determine whether counsel's performance was deficient

Petitioner stated plainly why he desired to retain different

before examining the prejudice suffered by the defendant as

counsel, and after consulting Petitioner's counsel, the trial

a result of the alleged deficiencies.” Id.

court rejected his request. We note that beyond the alleged

difficulties in communication caused by his remote location,

In the case at bar, Petitioner claims he was denied effective

Plaintiff did not express any concern about his counsel's

assistance of counsel when his appointed counsel failed to

that such evidence would be proffered. Pet. at ¶ 12. Sgt. been any different. Petitioner's claim must therefore fail under

Gecewiz testified that following the altercation, he asked the second prong of the Strickland test, and for that reason we

Petitioner what the altercation was about, to which Petitioner recommend that his Petition on this claim be denied.

responded, “they went after one of my dogs.” Trial Tr.

at pp. 517–18. Under New York Criminal Procedure Law,

“[w]henever the people intend to offer at a trial [ ] evidence III. CONCLUSION

of a statement made by a defendant to a public servant, which

statement if involuntarily made would render the evidence For the reasons stated herein, it is hereby

thereof suppressible upon motion ... they must serve upon the

defendant a notice of such intention, specifying the evidence RECOMMENDED, that the Petition for a Writ of Habeas

intended to be offered.” N.Y. CRIM. PROC. L. § 710.30(1) Corpus be DENIED; and it is further

(“CPL”). Thus, Petitioner's attorney had a colorable basis on

which to object to the prosecution's failure to give notice as ORDERED, that the Clerk of the Court serve a copy of this

required by CPL § 710.30. Report–Recommendation and Order upon the parties to this

action.

*6 Notwithstanding counsel's failure to object, Petitioner did

not suffer any prejudice as a consequence. At trial, there was Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten

overwhelming evidence presented of Petitioner's guilt. The (10) days within which to file written objections to the

testimony adduced revealed that the victim was severely cut foregoing report. Such objections shall be filed with the

with a razor blade. A correctional officer arriving at the scene Clerk of the Court. FAILURE TO OBJECT TO THIS

of the altercation in the prison library observed Petitioner with REPORT WITHIN TEN (10) DAYS WILL PRECLUDE

his hands in the back of his pants. Trial Tr. at pp. 404–06. After APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

Petitioner was apprehended, a strip search revealed grease (2d Cir.1993) (citing Small v. Sec'y of Health and Human

in his underwear. Id. An x-ray later revealed that Petitioner Servs ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. §

had secreted a razor blade in his anus, which he eventually 636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).

removed himself. Id. at pp. 439–44. Finally, the victim of

the crime positively identified Petitioner as the person who

All Citations

slashed his arm. Id. at pp. 356–57.

Not Reported in F.Supp.2d, 2008 WL 2357098

Even if Petitioner's statement “they went after one of my

dogs” had not been introduced, there is not a reasonable

Footnotes

1 In Williams v. Taylor, the Supreme Court declared that “the rule set forth in Strickland qualifies as ‘clearly

established Federal law [.]’ “ 529 U.S. 362, 391 (2000); see also Sellan v. Kuhlman, 261 F.3d 303, 309 (2d

Cir.2001).

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