# Coley

> District Court, W.D. New York · July 7, 2026

URL: https://www.frixlaw.com/law-library/cases/11385550

## Case

- **Full name:** Terry Coley v. MJ King
- **Court:** District Court, W.D. New York
- **Decided:** July 7, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TERRY COLEY, DECISION AND ORDER

Petitioner,
v. 6:24-CV-06003 EAW

MJ KING,

Respondent.

I. INTRODUCTION
Pro se petitioner Terry Coley (“Petitioner”), a prisoner in the custody of the New
York State Department of Corrections and Community Supervision,1 seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1). Petitioner challenges the constitutionality
of the judgment entered against him on October 16, 2017, in New York State Supreme
Court, Monroe County (Moran, J.). (Id. at 1).2 Petitioner was convicted after a jury trial
of five counts of second-degree robbery (New York Penal Law (“P.L.”) § 160.10(2)(b)).
He is presently serving an aggregate sentence of 20 years in prison, to be followed by five
years of post-release supervision. For the reasons below, the request for a writ of habeas
corpus is denied, and the petition is dismissed.

1 See New York State Department of Corrections and Community Supervision
Incarcerated Lookup, available at https://nysdoccslookup.doccs.ny.gov/ (search results for
DIN 17B3185) (last accessed July 6, 2026).

2 Page citations to pleadings filed by Petitioner and Respondent are to the pagination
automatically generated by the Court’s case management and electronic filing system
(CM/ECF) and located in the header of each page.
II. BACKGROUND
A. Crime and Indictment
The judgment of conviction at issue stems from a series of armed robberies in the

Town of Irondequoit during the months of May, June, August, and September 2016. The
perpetrator—wearing the same all-black outfit and ski mask and wielding the same small
black gun—robbed the Kwik Fill gas station on Hudson Avenue four times and the
Irondequoit branch of the ESL Federal Credit Union (“ESL”) once. Each incident was
captured on surveillance video.

Petitioner was apprehended shortly after the last Kwik Fill robbery on September
14, 2016. Police followed a GPS tracker that had been concealed in stolen money to a
nearby apartment Petitioner shared with his aunt. Petitioner was found in his bedroom with
the stolen money, the disassembled GPS tracker, items of black clothing and footwear, and
two black ski masks.

On March 7, 2017, a Monroe County grand jury returned indictment number 2017-
0225 charging Petitioner with five counts of P.L. § 160.10(2)(b), an armed felony offense
as defined in New York Criminal Procedure Law (“C.P.L.”) § 1.20(41). (SR: 85-90).3

3 Citations to “SR:” refer to the Bates-stamped page numbers of the state court
records, filed at Docket 15-2.
B. Trial
1. The Prosecution’s Case
a. The May 20, 2016 Kwik Fill Robbery

At about 9:20 p.m. on May 20, 2016, a slender man dressed all in black, wearing a
ski mask, and clutching “something shiny in his hands,” ran in front of Natasha Astacio’s
car as she was driving down Hudson Avenue; the man was heading straight towards the
Kwik Fill gas station. (T: 300-03).4
Ashley Robare (“Robare”), who was working as the Kwik Fill clerk, was getting

ready to close for the night. The man ran into the store, held a small black gun to her face,
and told her to give him all the money from the register. (T: 563-64). Robare described
the perpetrator as an African-American man, wearing a black ski mask, black sweatshirt,
black pants, and black gloves. (T: 564-66). Robare, who was “very close” to the robber,
described the mask as having no nose opening, just eye and mouth openings with extra

embroidery around them. (T: 564-65). Robare described the gloves the perpetrator wore
as “all black,” with “a little part of red on it.” (T: 566). She identified the mask and gloves,
People’s Exhibits 46 and 48, respectively, at trial. (T: 565-66). Robare identified People’s
Exhibit 49 as the same gun the perpetrator used during the robbery, describing how he had
pulled the slide back and pointed it at her face. (T: 566-68). Robare testified that the robber

left the store after pocketing approximately $260 from the cash register. (T: 268).

4 Citations to “T:” refer to the original pagination of the trial transcript, filed at pages
27 to 748 of Docket 15-3. Citations to “S:” refer to the original pagination of the sentencing
transcript, filed at pages 749 to 759 of Docket 15-3.
Dezmond Nauden was in his car across the street from the Kwik Fill when a figure
wearing black pants, black shoes, and a black hoodie “darted past” him, heading away from
the Kwik Fill and towards the Hill Court Circle apartments just down the road. (T: 398-

401, 568-70).
b. The June 20, 2016 ESL Robbery
When the ESL Irondequoit branch opened at 9:00 a.m. on June 20, 2016, a man
dressed in a black ski mask, a black hoodie, black pants, black shoes, black gloves, and
brandishing a small black gun pushed past the entering customers and demanded “all the

money in the branch.” (See, e.g., T: 378, 393, 408). The perpetrator went down the line
of bank tellers and pointed the gun at each of them, telling them to put all their drawer
money in a bag and threatening to shoot them if they did not comply, along with any bank
customers who tried to leave. (See, e.g., T: 379, 380-81, T: 411-12). The perpetrator was
described by the tellers and customers as a slender man in his twenties, around six feet tall,

and either Latino or a light-skinned African-American man, based on the skin exposed
around the eye and mouth holes in the mask he was wearing. (See, e.g., T: 380, 384-85
(Michael Torres); T: 396-97 (Cheryl Mercendetti); T: 408-09, 423, 426 (Dianalis Bianchi);
T: 429 (Amber Heintzelman); T: 436-38 (Stephanie Kooijmans); T: 442-44 (Felicia
Bryant), T: 455-56 (Edilberto Rosa-Sosa); T: 461-62 (Alberto Jimenez Zilueta); T: 474

(Palmire Rolle); T: 482-83 (Cynthia Joseph)). The robber repeatedly pulled the slide back
to cock the gun, though nothing ejected from the firearm. (See, e.g., T: 393, 412-13, 427-
28, 445, 475, 550-51).
After holding each teller at gunpoint while they emptied their drawer, the perpetrator
grabbed the bag filled with nearly $20,000 in cash and fled the bank. (T: 394, 411-18).
Several of the tellers had placed dye packs in the bag, which exploded seconds after the

perpetrator stepped outside the bank. (T: 269, 394, 417-18). The robber abandoned the
stained cash in the parking lot and headed eastbound into the nearby Hill Court Circle
apartment complex. (T: 464-65, 495-98).
Numerous witnesses identified People’s Exhibits 46, 47, and 48, respectively, as the
ski mask, hooded sweatshirt, and gloves worn by the robber; and People’s Exhibit 49 as

the gun used during the robbery. (See, e.g., T: 381-82, 409-10, 416, 427, 443-45, 462-63,
47, 494, 500, 550-51).
c. The August 3, 2016 Kwik Fill Robbery
Around 9:30 p.m. on August 3, 2016, Kwik Fill employees LaJames Ivey (“Ivey”)
and Keenan Graves (“Graves”) were preparing to close for the night when a man with a

gun came into the store. (T: 227, 522). Ivey was in the back office; Graves was at the cash
register. (T: 227). The perpetrator had a slender build, appeared to be either Latino or a
light-skinned black man, and wore a black hoodie, black jeans, black shoes, black gloves,
and a black ski mask which he “kept pulling down . . . trying to hide something,” like
“some type of tattoo.” (T: 228-29, 524-25). Each time the perpetrator pulled down on his

mask, he “reveal[ed] a big portion of his face.” (T: 247, 250-51).
The perpetrator walked up to Graves, pointed the gun at him, cocked it, and
demanded all the cash in the drawer. (T: 227, 525). He then appeared to notice Ivey sitting
in the manager’s office, pointed the gun at him, and said to both employees: “Move, you’re
dead.” (T: 228, 235).
Graves handed over all the money from the register, and the man walked out of the

store towards the Hill Court Circle apartments. (T: 228, 527). Ivey identified People’s
Exhibit 46 as the mask worn by the perpetrator and People’s Exhibit 49 as the gun used
during the robbery. (T: 244-46).
d. The August 24, 2016 Kwik Fill Robbery
On August 24, 2016, at approximately 9:30 p.m., Graves was working alone at the

Kwik Fill when a tall, slender man dressed all in black with a ski mask and gloves came
into the store with a gun and demanded money. (T: 530-33). Graves recognized the man
as the perpetrator from the robbery three weeks earlier because he was wearing the same
outfit and holding the same gun. (T: 538-39).
As soon as he entered the store, the perpetrator checked the manager’s office, but

no one was in there. (T: 531). He approached the cash register and pointed the gun at
Graves, saying, “You know the drill.” (T: 532, 537). After Graves handed over all the
money in the register, the perpetrator “jostled at [him] with the gun and said, ‘That’s it?’”
(T: 538). Graves got scared and handed over the cash from the store safe. (T: 537-38).
The robber then left. A driver on Hudson Avenue spotted a man in all dark clothing running

diagonally across the road away from the Kwik Fill, in the direction of the Hill Court Circle
apartments. (T: 584-85).
Following the August 24th robbery, representatives from Kwik Fill met with
Irondequoit Police Department officers to see what else could be done to protect the store.
(T: 173-75). The officers concealed a GPS tracking device within a stack of money and
placed the stack of money in the Kwik Fill register on September 9, 2016. (Id.). The
tracking device had the ability to send its location in real time to the police as soon as the

device was removed from the drawer. (T: 280-82). The officers also placed some $5 bills
on the tracker to help conceal it and recorded the bills’ serial numbers. (T: 283-84).
e. The September 14, 2016 Kwik Fill Robbery
On September 14, 2016, at approximately 8:50 p.m., Ivey was working the late shift
at Kwik Fill with coworker Kieshawna Robinson (“Robinson”). (T: 236). During their

break, Ivey and Robinson were standing outside near the front door when a man dressed in
all black came walking up the street towards the gas station. (T: 190-92, 236-37). Because
the man was not wearing a mask at first, Ivey and Robinson saw his face as he walked
under the gas pump lights. (T: 191-94, 237). Ivey immediately recognized the man as the
same person who had “robbed the store previously when [he] and Keenan was in the store,”

based on his gait, movements, and how he was dressed. (T: 237, 239). The man then
donned his ski mask, pulled a gun on Robinson and Ivey, and forced them back into the
store. Robinson described the perpetrator as either Latino or a light-skinned black man “in
his 20s, 25 maybe.” (T: 192-93). Robinson observed that he kept pulling down the ski
mask as if he “was trying to keep something covered.” (T: 198).

Inside the store, the man ordered Ivey and Robinson to give him all the money from
both the register and the safe. (T: 195-96, 224). While repeatedly cocking the gun back,
the robber instructed them to hurry up or he would shoot them. (Id.). Ivey kept talking to
try to keep the man’s attention focused on him while Robinson filled a bag with money
from the drawer, placing the GPS money tracker inside. (T: 199, 237-38).
Ivey recognized the ski mask and gun from the August 3, 2016 robbery, identifying

them as People’s Exhibits 46 and 49, respectively. (T: 239-40, 245-46). Ivey explained
that he recognized the perpetrator based on multiple factors: the perpetrator’s “real smooth
and ease-like gait”; how he “was pulling this mask down consistently”; “the pants, the way
he laced his pants up”; “the hoodie, how it was tucked”; “the glove, the same glove”; the
“same funny-looking gun”; the mask; the “sound of his voice, talking about how [‘]you’re

done,[’] how he gonna kill people and whatnot.” (T: 239-41). Ivey commented, “It’s all
the same, and I don’t forget a voice.” (T: 241).
Robinson identified People’s Exhibit 46, 48, and 49 as the perpetrator’s mask,
gloves, and gun, respectively. (T: 197, 210, 212, 222). When asked if she recognized the
perpetrator as anyone in the courtroom, Robinson began shaking and crying. (T: 194-95,

669-70). She initially identified Petitioner but moments later said she was “not sure”
because it “was so long ago.” (T: 194-95). Ivey identified Petitioner as the perpetrator
from both the August 3rd and September 14th robberies. (T: 239-41).
As soon as the robber left the Kwik Fill on September 14th with the bag of stolen
cash, the money tracker activated and alerted the police. (T: 262-63, 281, 284). Using the

computer application associated with the GPS tracker, officers watched as the tracker left
the Kwik Fill, crossed Hudson Avenue, traveled south on Rosemont Drive, and stopped at
the Hill Court Circle apartment complex, about a quarter mile away. (T: 263-64, 284-85).
Officers had suspected that the perpetrator resided at Hill Court Circle because he had been
seen coming from and going to that apartment complex before and after the previous Kwik
Fill and ESL robberies. (T: 269-70, 278).
Using a handheld beacon device, officers pinpointed the signal from the money

tracker to apartment 70-D, where Petitioner lived with his aunt, Yvonne Haynes
(“Haynes”). (T: 254-55, 260, 265-266). Shortly after 9 p.m., IPD officers confronted
Haynes in the parking lot as she was taking out the garbage. (T: 258). Irondequoit Police
Department Captain Mark Bean explained the situation to Haynes, who signed a consent
form giving the police permission to enter and search the apartment; she also provided her

key to the apartment. (T: 259, 286; People’s Exhibit 92).
When officers entered the apartment, they requested Petitioner come out multiple
times; he eventually opened his bedroom door and stepped into the hallway. (T: 323).
Once Petitioner opened the door, officers observed a black ski mask on the desk in his
bedroom. (T: 324). Petitioner was taken into custody; as part of his pedigree information,

he said he was six feet tall and weighed 155 pounds. (T: 323). Officers observed “a distinct
tattoo of a wolf on [Petitioner’s] neck.” (T: 267-68).
After obtaining a search warrant for the apartment, the officers returned to search
Petitioner’s bedroom. (T: 324-26). The officers found two black ski masks, black boots,
black sneakers, black pants, a black Champion hooded sweatshirt with diffuse pink staining

on the inner back collar, black gloves in a clothes hamper, and cash wrapped in a money
band stuffed inside a sneaker. (T: 326-31, 342-54, 366-67, 590).
The money found in the sneaker included the same bills as those placed with the
GPS tracker, which had been disassembled and thrown into Petitioner’s garbage bin. (T:
328, 345-46, 352). The officers also found a box of ammunition and a .32-caliber black
semiautomatic handgun with spray paint obscuring the serial numbers. (T: 331-32, 342,
353-54 ). The handgun’s firing pin was missing, so the weapon was not functional. (T:

332, 441). Forensic testing revealed that the major contributor to the DNA profile found
on the black masks matched Petitioner’s DNA profile. (T: 625-27).
2. The Defense Case
The defense rested without calling any witnesses.
3. The Verdict and Sentence

The jury returned a verdict finding Petitioner guilty as charged on all five counts in
the indictment. (T: 717-18).
On October 16, 2017, the trial court sentenced Petitioner to fifteen years’
imprisonment plus five years’ post-release supervision for the ESL robbery, and ten years’
imprisonment plus five years’ post-release supervision for each of the Kwik Fill robberies.

(S: 10). The sentences were set to run consecutively to each other. (Id.).5
The trial court also issued a restitution order in the amount of $1,447.35, stating that
even though “the proof was pretty clear,” it would hold a restitution hearing if requested.
(S: 7, 11). Trial counsel did not request a restitution hearing. (S: 11).
C. Direct Appeal
Represented by new counsel, Petitioner filed a brief in the Appellate Division,

Fourth Department, of New York State Supreme Court (“Appellate Division”), urging

5 Petitioner’s aggregate sentence of 55 years in prison was reduced by operation of
law pursuant to P.L. § 70.30(1)(c), (e)(i) (eff. until Sept. 1, 2027).
reversal of his conviction on the grounds that: (1) the verdict was not supported by the
weight of the evidence; (2) trial counsel was ineffective because he: (a) failed to include
relevant facts in support of the suppression motion, (b) failed to file a motion to sever, (c)

was unaware of the statutory cap on the potential sentences for the crimes charged, (d)
explained the basis for an objection in a manner that prejudiced the defense, (e) failed to
object to questioning the victims about the impact of the robberies on their lives, and (f)
failed to request a restitution hearing; (3) the trial court failed to properly instruct the jury
about the notations on the verdict sheet; (4) the trial court erroneously entered the

restitution order without holding a hearing; and (5) the sentence was unduly harsh and
severe. (SR: 1-76).
The Appellate Division unanimously affirmed the judgment of conviction. People
v. Coley, 210 A.D.3d 1505 (4th Dep’t 2022). (SR: 255-57). The Appellate Division
rejected Petitioner’s argument that the verdict was against the weight of the evidence,

concluding that based on its independent review of the evidence, a different verdict would
have been unreasonable. Id. at 1506. The Appellate Division held that the sentence was
not unduly harsh or severe. Id. The Appellate Division further held that the complaint
against trial counsel based on the failure to challenge the restitution order was based on
facts outside the record and had to be raised in a motion under C.P.L. § 440.10. The

Appellate Division did not address specifically any of Petitioner’s other allegations of
ineffectiveness or any of his other issues raised in his opening appellate brief. The
Appellate Division concluded by stating it “ha[d] reviewed defendant’s remaining
contentions and . . . they do not warrant reversal or modification of the judgment.” Id.
Appellate counsel filed an application for leave to appeal to the New York Court of
Appeals, raising “all issues presented by this appeal,” and specifically any violations of
Petitioner’s right to the effective assistance of counsel. (SR: 252-54). On December 27,

2022, appellate counsel filed a supplemental leave application emphasizing the following
issues: trial counsel made an incriminating comment at trial, trial counsel failed to make
an adequate motion to suppress physical evidence, and the Appellate Division applied the
incorrect standard of review in determining the weight of the evidence claim. (SR: 259-
65). On February 2, 2023, the New York Court of Appeals denied leave to appeal. (SR:

270).
D. Federal Habeas Proceeding
Petitioner timely filed his pro se petition. (Dkt. 1). He asserts that trial counsel was
ineffective due to his failure to litigate suppression issues adequately (ground one), the trial
court failed to comply with C.P.L. § 310.20(2) when explaining the notations on the verdict

sheet to the jurors (ground two), and trial counsel was ineffective due to his failure to object
to the inadequate jury instruction regarding the verdict sheet (ground two). Respondent
filed a response (Dkt. 15), memorandum of law in opposition (Dkt. 15-1), and the state
court records (Dkt. 15-2) and transcripts (Dkt. 15-3).
III. DISCUSSION
A. Ineffective Assistance of Trial Counsel (Ground One and Part of
Ground Two)
Under the heading for ground one, Petitioner asserts that trial counsel “did not
provide him with the effective assistance to which he was entitled.” (Dkt. 1 at 6). First,
trial counsel “did not allege facts in his motion papers” that the police violated Petitioner’s

Fourth Amendment rights, “which would have put” Haynes’ “consent to warrantless entry
at issue.” (Id.). Second, although trial counsel “seemed to make motions seeking
suppression of tangible property,” the suppression court did not address trial counsel’s
attempts to suppress People’s Exhibit 50 (the $20-bill packet with GPS tracker battery, T:
291, 359) and People’s Exhibit 51 (cash that was stuffed in one of Petitioner’s sneakers in

the closet, T: 362-63) as the fruit of the poisonous tree. (Dkt. 1 at 6). According to
Petitioner, this evidence allowed an “infer[ence] only [of] . . . guilt of possession of stolen
property not a guilt of robbery.” (Id.). Petitioner argues that because there was no probable
cause to arrest, the “lack thereof would permit moving to suppress [his] illegal arrest.”
(Id.). Under the heading for ground two, Petitioner faults trial counsel for failing to object
when the trial court did not provide the instruction required under C.P.L. § 310.20(2)

regarding the verdict sheet notations. (Id. at 8).
Respondent argues that the allegations of ineffectiveness in ground one are
unexhausted because they were not raised in the proper procedural vehicle in state court
(i.e., a C.P.L. § 440.10 motion) and that the allegations in ground two are fully unexhausted
because they were never raised in any application in state court. (Dkt. 15-1 at 17-18, 28
n.3).
1. Exhaustion

“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see
also 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies available in the courts of the

State.”). “[S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” Id. at 845 (citing 28 U.S.C. § 2254(b)(1)). “To provide the State with
the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate
state court (including a state supreme court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995); O’Sullivan, 526 U.S. at
845).
“In order to have fairly presented his federal claim to the state courts the petitioner
must have informed the state court of both the factual and the legal premises of the claim

he asserts in federal court.” Daye v. Att’y Gen. of State of N.Y., 696 F.2d 186, 191-92 (2d
Cir. 1982) (citing Picard v. Connor, 404 U.S. 270, 276-77 (1971)). “Specifically, he must
have set forth in state court all of the essential factual allegations asserted in his federal
petition; if material factual allegations were omitted, the state court has not had a fair
opportunity to rule on the claim.” Id. (citing Picard, 404 U.S. at 276).
A Sixth Amendment claim of ineffective assistance of counsel “can turn on the

cumulative effect of all of counsel’s actions.” Rodriguez v. Hoke, 928 F.2d 534, 538 (2d
Cir. 1991) (citing Strickland v. Washington, 466 U.S. 668, 695-96 (1984) (“Some errors
[by defense counsel] will have had a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and some will have had an isolated,
trivial effect.”)). For this reason, the Second Circuit has required all of the factual

allegations supporting an ineffectiveness claim to be presented together so that the state
court may examine all the circumstances and the cumulative effect of counsel’s alleged
error. See id. (holding that the petitioner’s “claim of ineffective assistance of counsel ha[d]
not received full consideration in the state courts” where it was based on “six enumerated
allegations,” but “[o]nly the first two of [them] were raised before the state court; the

remaining five appear[ed] for the first time in th[e] habeas petition”). To have exhausted
his Sixth Amendment ineffective assistance claim, Petitioner must have presented all of
trial counsel’s alleged errors, as set forth in grounds one and two of the petition, together
in one application so that the state court was “given the opportunity to consider all the
circumstances and the cumulative effect of all the claims as a whole.” Grady v. LeFevre,

846 F.2d 862, 865 (2d Cir. 1988); accord Caballero v. Keane, 42 F.3d 738, 740-41 (2d Cir.
1994).
Respondent contends that the ineffectiveness allegations in ground one are
unexhausted because, despite being instructed by the Appellate Division that they were
inappropriate for direct appeal and must be raised in a C.P.L. § 440.10 motion, Petitioner
did not file a C.P.L. § 440.10 motion asserting them. Respondent’s assertion that the
Appellate Division instructed Petitioner to raise trial counsel’s suppression-related errors

in a C.P.L. § 440.10 motion is not reflected in the actual wording of the Appellate
Division’s decision. As noted above, appellate counsel presented multiple alleged errors
by trial counsel, including the failure to challenge the restitution order—an allegation not
reasserted in this petition. The only alleged error raised by appellate counsel and
specifically addressed by the Appellate Division was trial counsel’s failure to challenge the

restitution order, which the Appellate Division said could not be resolved without reference
to facts outside the record and must be raised in a C.P.L. § 440.10 motion.6 Coley, 210
A.D.3d at 1506. The other alleged errors by trial counsel, including his failure to litigate
certain suppression issues, were among the “remaining contentions” that the Appellate

6 “New York courts uniformly hold that where . . . an ineffective assistance of counsel
claim turns on facts that are outside of the trial-court record, the claim must be brought in
collateral proceedings, not on direct appeal.” Pierotti v. Walsh, 834 F.3d 171, 178 (2d Cir.
2016) (emphasis in original) (citing People v. Brown, 45 N.Y.2d 852, 853-54 (1978)). In
October 2021, the New York State legislature amended C.P.L. § 440.10(2)(c) to allow
review of record-based ineffective assistance of trial counsel claims that could have been
brought on direct appeal. Ocasio v. Noeth, No. 19-CV-06894 EAW, 2022 WL 4007633,
at *5 (W.D.N.Y. Sept. 2, 2022) (citing 2021 N.Y. Assembly Bill No. 2653, N.Y. Two
Hundred Forty-Fourth Legislative Session (Oct. 25, 2021)). Even before the 2021
amendment, New York State courts regularly held that when “an ineffective assistance of
counsel claim involves . . . ‘mixed claims’ relating to both record-based and nonrecord-
based issues,” such a “claim may be brought in a collateral proceeding, whether or not the
[defendant] could have raised the claim on direct appeal.” People v. Evans, 16 N.Y.3d
571, 575 n.2 (2011). That is because “each alleged shortcoming or failure by defense
counsel should not be viewed as a separate ‘ground or issue raised upon the motion.’”
People v. Wilson, 162 A.D.3d 1591, 1592 (4th Dep’t 2018) (quoting People v. Taylor, 156
A.D.3d 86, 91-92 (3d Dep’t 2017)).
Division concluded did “not warrant reversal or modification of the judgment.” Id. The
fact that the trial-level errors by counsel were properly raised on direct appeal is supported
by appellate counsel’s inclusion of them in her initial leave letter to the New York Court

of Appeals. (SR: 262-63). And, in her supplemental leave letter, appellate counsel further
argued trial counsel’s suppression-related errors.
With regard to the allegation in ground two regarding trial counsel’s failure to object
to the trial court’s alleged violation of C.P.L. § 310.20(2), the Court agrees with
Respondent that it was not presented in any challenges to Petitioner’s conviction in state

court.
Thus, even though the allegations of counsel’s ineffectiveness in ground one were
raised on direct appeal and rejected, the petition has added a new factual premise for finding
counsel’s representation to have been deficient and prejudicial; namely, the allegation in
ground two that trial counsel failed to object when the trial court did not provide the jury

instruction required under C.P.L. § 310.20(2). This new factual allegation “may change
the claims that were presented at the state level and render the claim unexhausted” since
“the state courts would not have been apprised of ‘both the factual and legal premises’ of
the federal claim.” Tirado v. Strange, No. 3:09CV743 (VLB), 2010 WL 3025540, at *1
(D. Conn. Aug. 2, 2010) (quoting Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997)). Thus,

it appears that under the controlling law in the Second Circuit, Petitioner’s claim of
ineffective assistance of trial counsel, as currently framed in grounds one and two of the
petition, is unexhausted.
That said, further examination of this thorny exhaustion issue is unnecessary. The
Court concurs with Respondent that the petition should be dismissed on the merits pursuant
to the authority of 28 U.S.C. § 2254(b)(2) (stating that a petition “may be denied on the

merits, notwithstanding the failure . . . to exhaust” available state remedies).
2. Dismissal of the Petition Without Prejudice and Granting a Stay-
and-Abeyance Are Both Inappropriate
In response to Respondent’s assertion of the defense of non-exhaustion, Petitioner
initially requested that the Court dismiss the petition without prejudice so that he could
return to state court and file a C.P.L. § 440.10 motion to exhaust the ineffective assistance
claim. (Dkt. 16). Respondent filed a letter correctly explaining that if Petitioner voluntarily
dismissed the petition without prejudice and attempted to refile the petition after litigating

a C.P.L. § 440.10 motion, the refiled petition would be untimely under 28 U.S.C.
§ 2244(d)(1). (Dkt. 17 at 1-2).7
Petitioner then filed two letters (Dkt. 18; Dkt. 19) requesting a stay-and-abeyance
under Rhines v. Weber, 544 U.S. 269 (2005). Because “granting a stay effectively excuses
a petitioner’s failure to present his claims first to the state courts,” the Supreme Court held
that granting a stay “is only appropriate when the district court determines there was good

cause for the petitioner’s failure to exhaust his claims first in state court,” and the

7 Petitioner’s conviction became final on May 3, 2023, 90 days after the New York
Court of Appeals denied leave to appeal. Using the default start-date in 28 U.S.C.
§ 2244(d)(1)(A), the one-year statute of limitations elapsed on May 3, 2024. The present
habeas petition is not signed or dated; the only evidence as to when it was mailed is the
December 29, 2023 post-mark. (Dkt. 1-2 at 2). The petition was timely filed, but it has
not tolled the statute of limitations under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533
U.S. 167, 181-82 (2001).
unexhausted claims are not “plainly meritless.” Id. at 277-78. Respondent argues that
Petitioner has not fulfilled the stringent standards in Rhines for obtaining a stay. (Dkt. 15-
1 at 21-22, Dkt. 17 at 2-3).

Without reaching the good cause issue, the Court concludes that it would be an
abuse of discretion to grant a stay in this matter because, as discussed in the following
section, Petitioner’s claim of ineffective assistance of trial counsel is “plainly meritless.”
See Rhines, 544 U.S. at 277 (“[E]ven if a petitioner had good cause for th[e] failure [to
exhaust his claims first in state court], the district court would abuse its discretion if it were

to grant him a stay when his unexhausted claims are plainly meritless.”).
3. Merits
Federal courts now have the authority to deny a petition containing unexhausted
claims on the merits. See 28 U.S.C. § 2254(b)(2). “The rationale behind § 2254(b)(2) has
been described as ‘spar[ing] state courts from needlessly wasting their judicial resources

on addressing meritless claims solely for the sake of exhaustion.’” West v. Coueny, No.
1:19-CV-01353 EAW, 2024 WL 1469822, at *11 (W.D.N.Y. Apr. 4, 2024) (quoting
Keating v. New York, 708 F. Supp. 2d 292, 299 n.11 (E.D.N.Y. 2010)). “In this Circuit,
the various formulations for the proper standard to be used when relying on § 2254(b)(2)
share ‘the common thread of disposing of unexhausted claims that are unquestionably

meritless.’” Id. (quoting Keating, 708 F. Supp. 2d at 299 n.11 (collecting cases)); see also
Rhines, 544 U.S. at 277 (stating that it would be an abuse of discretion to grant a stay when
a petitioner has demonstrated “good cause” but his unexhausted claims are “plainly
meritless”). When evaluated de novo under the two-part test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), Petitioner’s unexhausted claim is plainly without merit.
“[T]he Sixth Amendment right to counsel exists ‘in order to protect the fundamental

right to a fair trial.’” Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland,
466 U.S. at 684). There are “two components to any ineffective assistance claim: (1)
deficient performance and (2) prejudice.” Fretwell, 506 U.S. at 369. A defendant must
show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687 (emphasis supplied). “It is not

enough for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Rather, “[t]he essence of an ineffective-assistance
claim is that counsel’s unprofessional errors so upset the adversarial balance between
defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).

a. Failure to Litigate Suppression Issues Adequately
Because questions regarding the admissibility of relevant evidence seldom touch
upon the “basic justice,” Stone v. Powell, 428 U.S. 465, 492 n.31 (1976), of a conviction,
the Supreme Court has determined that Fourth Amendment claims are precluded from
habeas review, Kuhlmann v. Wilson, 477 U.S. 436, 446-47 (1986) (reiterating that “any

‘advance of the legitimate goal of furthering Fourth Amendment rights’ through
application of the judicially created exclusionary rule on federal habeas was ‘outweighed
by the acknowledged costs to other values vital to a rational system of criminal justice’”
(quoting Stone, 428 U.S. at 494-95)).
However, a habeas petitioner may assert a Sixth Amendment claim based on trial
counsel’s failure to move for the suppression of evidence under the Fourth Amendment.
Kimmelman, 477 U.S. at 382-83. The Supreme Court has stated that:

[w]here defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the defendant must
also prove that his Fourth Amendment claim is meritorious and that there is
a reasonable probability that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice.

Id. at 375 (emphasis supplied). “Although a meritorious Fourth Amendment issue is
necessary to the success of a Sixth Amendment claim . . . , a good Fourth Amendment
claim alone will not earn a prisoner federal habeas relief.” Id. at 382.
Here, the factual record shows that Petitioner did not have a meritorious Fourth
Amendment issue that trial counsel unjustifiably failed to pursue. On April 18, 2017, trial
counsel filed an omnibus motion that included, among other things, a motion to suppress
tangible evidence seized from Petitioner at his apartment along with a request for an
evidentiary hearing on that issue. (SR: 91). The motion, made prior to discovery, did not
plead any facts specific to Petitioner’s case but did request the ability to renew the motion
“if . . . the People divulge information which was not previously known to [trial counsel]
and which information, in turn, necessitates further hearings and requests.” (SR: 113; see
also SR: 133 (reserving right to bring further motions “such as suppression of evidence or
statements if[,] through discovery, . . . such becomes necessary or appropriate”)).
In opposition, the prosecutor submitted an affirmation detailing the circumstances
of the search and seizure at Petitioner’s apartment, based on the prosecutor’s review of the
reports prepared in the case as well as her conversations with relevant witnesses:
On September 14, 2016[,] at approximately 8:51pm[,] members of the
Irondequoit Police Department were notified via text message that the [GPS]
money tracker had been moved and was in motion. Simultaneously, they
were advised by 911 dispatch that a call for a gun point robbery had just
occurred at the same location with a suspect description of a light skinned
black male in his early 20’s wearing all black clothing. Via a handheld GPS
tracking device, IPD was able to follow and pinpoint the signal precisely at
70 Hill Court Circle, Apartment D. There they met with the tenant, Yvonne
Haynes, who informed officers that her nephew, Terry Coley, who lives with
her had “left the apartment sometime around 8pm and returned around 9pm.”
Ms. Haynes also provided the officer with a physical description of Terry
Coley that matched that of the suspect. Haynes then provided consent to
search the apartment. Once inside, the officers went to the door of Terry
Coley’s bedroom and knocked. Coley voluntarily opened the door and exited
into the hallway. Once the door was open, in plain view in the bedroom was
a black ski mask matching the description of the mask used by the suspect in
all previous robberies. At this point the defendant was taken into custody
and his bedroom was secured pending a Search Warrant. Upon execution of
the Search Warrant, the following items were located: a black ski mask, black
hoody, black face mask, black boots, a bundle of US Currency with a pink
$250 band, two boxes of ammunition, a black .32 caliber handgun, the [GPS]
money tracker and bills bearing serial numbers matching those planted with
the tracker.
(SR: 154-55). The prosecution argued that based on the facts outlined above, the police
had probable cause to arrest Petitioner. (SR: 155).
At a hearing on pre-trial motions held on May 10, 2017, Monroe County Supreme
Court Justice Alex Renzi (“motion court”) noted that trial counsel had made a “boilerplate
request” for a suppression hearing but had not included any facts to challenge the
prosecutor’s detailed explanation of the factual circumstances surrounding the search.
(Transcript of May 10, 2017 Motion Hearing (“05/10/17 Tr.”) at 2).8 The motion court
observed:

8 The May 10, 2017 transcript is located at pages 6 to 10 of Docket 15-3.
What [the prosecution] spell[s] out in the papers is that [the police] have their
chip inside the money pack, went into the house with permission from
somebody who lives there, get to the bedroom door, knock on it. [Petitioner]
answers the door, they look in and see a mask, they bring him out, arrest him,
get a search warrant, search the bedroom, and it turns up the mask, and I
don’t know what else is recovered.

(Id.). The motion court noted that Petitioner’s omnibus motion did not refute those facts;
for example, Petitioner did not assert that “he didn’t answer the door, [or] they kicked the
door in, or something to that effect.” (Id. at 2-3). The motion court denied the suppression
request in the omnibus motion but offered trial counsel the opportunity to file a
supplemental suppression motion with additional facts. Trial counsel declined to do so.
(Id. at 3).
Petitioner has never offered any basis to rebut the accuracy of the prosecution’s
factual representations regarding the search and seizure. Thus, he has not demonstrated
the existence of a colorable suppression issue, much less a clearly meritorious one. The
record establishes that trial counsel made an objectively reasonable decision not to renew
the suppression motion. Because Petitioner has not established deficient performance or
prejudice, his Strickland claim based on the failure to renew the suppression motion fails.
Petitioner’s claim that trial counsel was ineffective for failing to argue that the police
exceeded the scope of the consent granted by his aunt is not supported by the record.
According to Petitioner, the consent form signed by Haynes “contained language that
police were to ‘only attempt to get Terry Coley to exit apartment willingly.’” (Dkt. 1 at 7
(citation omitted in original)). While the consent form stated, under the heading “Other,”

that Haynes was allowing the police “[t]o attempt to get Terry Coley to come out” (Dkt.
15-4 at 1 (People’s Exhibit 92)), it clearly permitted the police officers to enter and search
the shared apartment (id. (allowing the police to search “[a]ny and all areas, both inside
and outside of” the apartment)).

The police may enter or search a location without a warrant where, as here,
“permission to search was obtained from a third party who possessed common authority
over or other sufficient relationship to the premises or effects sought to be inspected.”
United States v. Matlock, 415 U.S. 164, 171 (1974). However, the police did not search
the apartment based on the consent form signed by Haynes. Instead, the police merely

entered the apartment. Once Petitioner voluntarily opened his bedroom door, the police
observed, in plain view, a black ski mask on Petitioner’s desk.
“Under the plain-view exception, ‘if police are lawfully in a position from which
they view an object, if its incriminating character is immediately apparent, and if the
officers have a lawful right of access to the object, they may seize it without a warrant.’”

United States v. Delva, 858 F.3d 135, 149 (2d Cir. 2017) (quoting Minnesota v. Dickerson,
508 U.S. 366, 375 (1993)). The police did not seize the black ski mask at the time they
initially entered Haynes’ apartment, although they lawfully could have done so. Instead,
they relied on this incriminating item, which they saw in “plain view,” for purposes of
obtaining a search warrant. Petitioner did not have a meritorious argument based on

alleged limitations on the scope of the consent authorized by his aunt. It was objectively
reasonable for trial counsel to decide not to pursue any suppression motion based on the
police officers’ alleged violation of the consent form. Even if trial counsel had brought
such a motion, it would not have succeeded.
Moreover, Petitioner has not shown that there was any reasonable possibility of an
acquittal if trial counsel had performed as desired and had succeeded in suppressing the
results of the search. As Respondent argues, there was compelling evidence of Petitioner’s

guilt that was wholly independent of the evidence seized in the search. (Dkt. 15-1 at 27-
28). Ivey, the Kwik-Fill employee present during the August 3rd and September 14th
robberies, definitively identified Petitioner in court. Witnesses from the Kwik-Fill
robberies and the ESL robbery all provided a similar description of the perpetrator—a tall,
slim Latino or light-complected African-American man carrying a small, black gun, and

wearing a black ski mask, black gloves, a black hooded sweatshirt, and black pants. This
description of the perpetrator’s appearance was confirmed by video footage from the
surveillance cameras at Kwik-Fill and ESL. Multiple witnesses saw the perpetrator in each
of the robberies coming from or running to the Hill Court Circle apartments where
Petitioner lived with his aunt. On the night of Petitioner’s arrest, the police followed the

GPS money-tracker signal from the Kwik-Fill to the specific apartment where Petitioner
lived.
As a matter of New York State law, similarities between crimes may be considered
as circumstantial evidence of guilt where the crimes share enough distinctive aspects to
establish a pattern that is probative of the defendant’s identification. See, e.g., People v.

Hyatt, 38 A.D.3d 233, 153 (1st Dep’t 2007) (finding that an instruction against
“commingling” of evidence would have been erroneous since “[t]he evidence as to each
robbery tended to prove the other, because the two robberies shared a pattern that was
sufficiently distinctive so as to warrant an inference that they were committed by the same
person” (citing People v. Beam, 57 N.Y.2d 241, 253 (1982) (finding that “the pattern [of
attack] used by the defendant in these cases was sufficiently unusual to establish a specific
modus operandi, making the evidence of the other attacks highly probative of the

assailant’s identity”))); People v. Garcia, 120 A.D.3d 406, 407 (1st Dep’t 2014) (finding
that two burglaries, committed over two days, “shared many features that formed a pattern
when viewed collectively” and that while they were “not identical, ‘[i]t is not necessary
that the pattern be ritualistic for it to be considered unique; it is sufficient that it be a pattern
which is distinctive’” (alteration in original) (quoting Beam, 57 N.Y.2d at 253)).

Here, the evidence, viewed collectively, showed that each robbery shared enough
distinctive features to support the conclusion they were part of a pattern and were
committed by Petitioner. For example, Petitioner matched the physical description of the
robber; wore the same all black attire and accessories; used the same small, black gun;
performed the same behaviors during the robberies, such as cocking the gun repeatedly and

making similar threats toward the employees and customers; had a distinctive walk; and
was seen coming from or going to the same location before and after the robberies. See
Porter v. Martuscello, No. 16CIV1417WHPHBP, 2018 WL 8895807, at *16 (S.D.N.Y.
Aug. 10, 2018) (finding that testimony from three officers who observed the petitioner and
an accomplice was “more than sufficient to prove” that the petitioner and his accomplice

stole a third party’s property, appropriated it for their own use and benefit, and had no
intent to return it; when arrested for pickpocketing a woman, the petitioner was found in
possession of the third party’s school ID; the petitioner acted as a lookout for his
accomplice while she attempted to use a credit card similar in appearance to the third
party’s credit card; and the petitioner was in close proximity to the accomplice as she
disposed of the third party’s credit card shortly after it was declined at a different store),
adopted, No. 16CV1417, 2019 WL 2537415 (S.D.N.Y. June 20, 2019). On the record

before this Court, Petitioner has failed to show that trial counsel’s failure to pursue a
suppression motion deprived him of a fundamentally fair trial or rendered the verdict
suspect in any way.
b. Failure to Object to the Trial Court’s Instructions
Regarding the Verdict Sheet (Ground Two)

Petitioner contends that trial counsel was ineffective for failing to object to the trial
court’s inadequate explanation to the jury regarding the purposes of the notations to the
verdict sheet. On direct appeal, the Appellate Division summarily rejected Petitioner’s
contention that the trial court’s instruction to the jury regarding the verdict sheet was
deficient. Coley, 210 A.D. at 1506. Because the Appellate Division rejected the underlying
claim—the adequacy of the trial court’s explanation—as meritless, trial counsel did not
perform deficiently by declining to object on that basis. In other words, because the
Appellate Division reviewed the merits of this claim notwithstanding the lack of timely

objection, Petitioner cannot demonstrate that he was prejudiced due to trial counsel’s
failure to object. See, e.g., Walker v. Bennett, 262 F. Supp. 2d 25, 40 (W.D.N.Y. 2003)
(finding that the petitioner was “unable to establish prejudice based on counsel’s failure to
object to the prosecutor’s remarks” where “the Appellate Division reviewed the
prosecutorial misconduct claim and found that the prosecutor’s summation constituted fair

response to the defense summation”).
B. Trial Court’s Failure to Provide Adequate Instruction Regarding the
Notations to the Verdict Sheet (Ground Two)

In his second ground for relief, Petitioner claims that the trial court’s jury instruction
on the annotated verdict sheet (SR: 173) did not satisfy C.P.L. § 310.20(2). (Dkt. 1 at 8).
As noted above, the jury was asked to consider five separate counts of second-degree
robbery. To assist the jury in understanding which count related to which robbery, the
verdict sheet had two columns. (SR: 173). On the left side, the verdict sheet listed each of
the five counts with a parenthetical identifying the location and date of the alleged offense
charged in that count (e.g., “Kwik Fill – 5/20,” “ESL – 6/20”). (Id.). On the right side,
next to each count, the verdict sheet left a space for the jury to indicate its verdict for that
specific count (i.e., “guilty” or “not guilty”). (Id.). The jury indicated its guilty verdicts

on all five counts by marking the verdict sheet with an “X” beside each of the five counts.
(Id.).
While instructing the jury, the trial court stated:
You’re going to be given a verdict sheet, and it will list the five counts. And
in parentheses, like the first count, it says Kwik Fill on May 20. So the first
count deals with Kwik Fill, May 20; second count is ESL, 6/20. And that’s
all listed on the verdict sheet, okay, to help you follow through.

(T: 709). On direct appeal, Petitioner argued that the trial court’s instruction violated
C.P.L. § 310.20(2) because it did not strictly adhere to the wording of the pattern Criminal
Jury Instructions. (SR: 67-69 (citing CJI2 (NY) Verdict Sheet Explained)). The Appellate
Division rejected this argument without comment. Coley, 210 A.D.3d at 1506.
As a matter of New York State statute, “deliberating jurors may be provided with
‘[a] written list prepared by the court containing the offenses submitted to the jury by the
court in its charge and the possible verdicts thereon.’” People v. Williams, 101 A.D.3d
1728, 1728 (4th Dep’t 2012) (quoting C.P.L. § 310.20(2)). When the state court “submits
two or more counts charging offenses set forth in the same article of the law,” id., the

verdict sheet “may set forth the dates, names of complainants or specific statutory
language, without defining the terms, by which the counts may be distinguished, id.
“[H]owever, . . . the court shall instruct the jury in its charge that the sole purpose of the
notations is to distinguish between the counts.” Id. Petitioner argues that the trial court
violated C.P.L. § 310.20(2) because it “did not explain that the notations were solely to

distinguish the counts.” (SR: 67).
As the Supreme Court has emphasized repeatedly, it is “not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas review is “is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Id.

at 68 (citing 28 U.S.C. § 2254(a)). Because the allegations in ground two assert only that
the Appellate Division erroneously applied state precedent in resolving a question of state
law, they do not set forth a question of federal constitutional magnitude. Therefore, the
portion of ground two asserting a violation of C.P.L. § 310.20(2) is dismissed as not
cognizable on habeas review.

IV. CONCLUSION
For the reasons above, Petitioner’s request for a stay-and-abeyance (Dkt. 18, Dkt.
19) is denied, the request for a writ of habeas corpus is denied, and the petition (Dkt. 1) is
dismissed. The Court declines to issue a certificate of appealability under 28 U.S.C.
§ 2253(c)(1) because Petitioner has failed to make “a substantial showing of the denial of
a constitutional right.” Jd. § 2253(c)(2). The Clerk of Court is further directed to close
this case.
SO ORDERED.
abBA pe
Zn Re
ELIZABEYH AMVOLTPOQRD~
ret _—ludge
United States District Court
Dated: July 7, 2026
Rochester, New York

-30-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11385550. Public record. Not legal advice.