Petition for Writ of Certiorari — Hisan Lee, Petitioner v. United States

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S.D.N;Y.—'N.Y-.C.

' 07-cr-000.3

17-cv-8567

Preska, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 20th day of March, two thousand twenty-five.

Present:

Guido Calabresi,

Susan L. Carney,

Maria Arauj o Kahn,

Circuit Judges.

Hisan Lee,

Petitioner-Appellant,

22-1117 (L),

24-2338 (Con)

United States of America,

Respondent-Appellee.

Appellant, pro se, moves for a certificate of appealability. Upon due consideration, it is hereby

ORDERED that the motion is DENIED, and the appeals are DISMISSED because Appellant has

not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c); see

also Miller-El v. Cockrell, 537 U.S. 322, 330 (2003) (internal citations and quotation marks

omitted).

;

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

4epcMt>ix a

Respondenl

R'CT °F NEVV Y0RK

07 e °A’K S‘ D'St LEX,S 48087

2022, Decided

^^17,2022, Filed

ion

Appeal terminated, 08/03/2022^

‘'"’‘T

Vitoria! Information: Prior History

Umted States v. Diaz, 2009 U.S Dist LEXK m

‘2455 (S.D.N.Y., Dec. 3, 2009)

Counsel

se, Pollock, LA.

12 US‘

LEXIS 1}HisanLee Plaintiff

--------- ^■P'a-nliff(1:17-cv-08567-LAP),Pro

fudges: LO^^^^es(1:17-cv-08567.LAP);

Opinion

Opinion by:

l°RETTA A. PRESKA

Opinion

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BetoX

ProsecutXm^oXu £

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Government opposes the motion

§ SOS

§ 2255- to vacate set

f°rth be,°W' Petitioners Xfc

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On February 20 2008 a n

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a JU, 32.)robbery

Count{2022

c n- . . oeW3n charged

Mr L'

pp Lee

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e ,mP"s°nmW plus

ye“- * T)! °n March 25.201,. Ju^

y ars suPervised release.

C-TheJefendanfs App^nf

On January 16 2013 M

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also Pet. Mem.) On July 8 201R m

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"°40m ,7-“«67) Accordi^ Sre "hr-V . Lee's "*>“«

9 before lfle Court are Petitioner’s

wiring habeas claimsT

Under 28 U.S.C. §2255 nfen

iifeRlile

,he sm““

attacx- 26 U.S.C. 5 22^" or ia« of .q, United S,a,es\^’3

Generally, however, a § 2255 mnf

160^65 ^d'STooetu

collateral

deCided on ^rect

50. 53 (2d Cir. 20 W) The maida^

aS the mandate rule M^

expressly decided by the aon^

® prevents re-litigation in

614 F-3d

issues impliedly resoled bWhe ann°»

bUt a,so<2022 U.S. Dist. LEXIS ' COUrt,not on'y of matters

242 F-3d 89, 95 (2d Cir. 2001) in th’f 3 ® court's mandate." (d/ see also I

C*Udes re-Htigation of

litigation, the Second Circuit

h®.sPecific context of § 2255

United Sfa>ps v, Ben Zvi

while not explicitly raised on h- app led the mandate rule "when tha r */e ass,stance of counsel

b. Ineffective

120-124 (2d,Cir.

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?'3™^’’°de^"S cieX^TTbfaS8lslance ,ram

^^P^g^esr^ffe’h in6^ Sbl668' 687- 104 S. Q 2052 80 I

the result unreliable "

fell below an objective Xniar¥S^' a Pet,fioner

674

To satisfy

688, 693. Assessment of preiudiZ feasonab!e"ess" and that he suf ered n C°U"se,’s representation

u s- 01.1 lexis 7)

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unnecessary. Id. at 691.

To satisfy the second

easonable judgment would render partic

arrorsjhe result of the Rore«',nV“T™el7,''1‘!''"'tatSr

" assessing prejudice is Sher S , mVe

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'"effectiveness claim on the

Of,ackofsufficient prejudice Z2027 c n1

to both tri'aTa^appelte 0^^°^

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C' S^secutorLal Misconduct

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Pursuant to 28 U S C S 225S n

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(cleaned up).

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^ta.tha1 may‘support

514 U.S.

evidence.: (1) "where previou^31™

praseajtorial misconduct’for aliened™6 C°Urt has found three

testimony that it knew or ch , undisc!osed evidence revealed that th& supPression of material

accede to a defense request for d^T kn°Wn Was perJurad"; (2) "XreECUtiOn introduced trial

where the Governmen?S|lj m ?°!Ufe of some sP™fic kind^f"ern™ent tailed to

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exculpatory evidence never reoueX^

in a general{2022 U.S Dism

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d. Discovery Regnoc^

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regarding the pos^biiit^’of th U‘S'

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9°8’09 leaned up) However "L J de.monstrate that he is . .

Sepp. 2d a, 17VS“*>' °*,he ~ o' —?F

HI- Discussion

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a- Patrick Taylor Incident

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W. and the murder of Mr Tavlnr in f m,

M?Sas thep^Stor oi'th '°

ISuaS cS“ y

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be was named as a susp^h^L-7’ ~-^Q-i£ at Ex. D.) Second pLft ind,vidoal naming Mr.

whether she could identify the Pernpfr

?USt have shown Ms Clark htenh T3r9UeS that because

Provided ineffective assistant f Pr atOr'at 20 ) In sum PetTt Zn J V

9raph in determining

Photograph of Mr. Lee, but that Ms C a"? !°-?eVe,Op the ^ct ihat invest qa Ssh^’

Sporn

^ perpetrator. (See

at 20.)

k fai,ed<2°22 U.S. Dist. LExIs 12} toidentify M^0'^ 3

suggests.

Petitioner was named as a n^n°'

sPom Decl. 114.) It is not t r?U a l0n’ not fact’ as he

tbose in the investigators' database° 'nter®?f in the incident that Mr Lee's ntt3* mere,y because

P°tnl f the viewer recog„i2es<anPy™"‘d by !ne«Is ’kindot'a sJot'Sh^rkS!6?

* ai tna*

Contrary to Mr Lee's

of the individual she{2022 u ^DisfTpX^ M* Clark ^ages based^nT § k5°° mataria(s>

Mr Sporn then raised the possibiL witivHn S*3} SaW comm'tting the robberv

PhQS,Ca' descr'Ption )

was among that sample, (see Trial Tr t! on C°Urt and the Government tha?r/^ ~ P°rP. Deel, fl 4J_7

was no way to confirm whether

18°^6-1806:6), upon whilh it

Lee S phot°graph

Decl. fl4; Trial Tr. at 1805 i«n«M Le®s Pho^r.aph was in factshnln ?me evident that there

trial, it is theVove^StS8: §§^o Opp-n Mem at 9 S ° °Wn to Ms' Clark. (See Sporn

todark.-).) 9 er"me"'S“"te«9Min0reC0^

While it is not a

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maa®ofwhICh photographs were shown

jury was presented withM™ Clark's'te

SUffered Prejudice because of Mr Sn

apartment on the day of the Patrie ®St'monythat she had not identified1

! actions- The

Sporn argued{2022 U.S DisfSKr 'nC'dent

Trial Tr- at 1708 22 24°J entered her

those shown to Ms Clark

S • In clos’ng that Mr Lee's

’22’24^ ln addition, Mr.

Further to the Patrick To 1

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that following the robberv a Ja’

n Mam. at 16 ) According

®VrOrn ^r- Taylor to later

from New York to

1 murder or

Taylor, Mr Lee and h 9 ^’ he Gover™ent proffered

regarding Mr. Wellington^’ ronfels^’

WaS ,ater arrested. (siS Jto' MM aS?Ociates traveled

thereby "casting doubt on who The T ^QU,d have undermined the Govamm LT S View’ testimony

ISee Pet. Mem. at 24 )

Fe u,t,rPale responsibility” for the druns w

S factual narrative,

While not

ineorugs discovered in Virginia.

Coffey.” (Sporn Decl ? 6m ki .Inte,rv,ews inconsistent with fhisl o S h

er COU,d not be found

within the "wide raniL }

°n'y does Mr- 3P°m's deciston net?°rted s(a(ernents to Defective

Elates v, Carev Ncfog creLSi°?nnenesS" ^9ainst which counsel's c° fu.rther Pursue this lead fall

O^e coffey w a

Further, while Petitioner claims h, ♦

the trial court described this

Pport an ineffectiveness claim

°rder’ aatei? March 24 2011 fdkt

16J Cuts gainst

flngerPrtnts found

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rirst, Petitioner's argument that fh» „

expiated above. faT°22 US' °'st-

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suspect in mind. foe TrJ'lr ™t m'n? S,ateE Alwmey. implied thatlhanh Sh0*"ns °f Prejudice,

implicating PetittoSri™’• 806:14.1807:3), a.repod dX'S“»

»•» not have a

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about PIMS."

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have Proffered^/idence suoon? MVe Smith was Suited Zeis nn

Sn‘‘ knowa"y^g

the prosecutor's conduct caused m?

Sporn's speculations. As such PeSUn^6 ‘hat he wou,d

as a result.

-used Mr. Sporn to not unreasonabivoSS^S

b- QtMJohnsonjncident

In or about July 2003 o

Presence

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Petitioner's § 2255 motion MrS^^ at 25'2ti)' ln re,ation thh^Fi^cjdent be murder of Mr. Johnson

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Petitioner asserts that Mr S

investigate the DD-5 reports aitdnr S° S"e9'n9' Petitioner claims

9°vernment

case, namely that S nf P

adefense concerning

P°m fa"ed to

not in the apartmendn quest^n Z?

that G°vemmentXsShe Gove™ent's

Dowling the firet mor, question at the time of the murder tha ™ Wl‘ness Shanikwah Hurke was

that

,hal * S," on 7n StT

and

'nen

shot hi"''p,M a

crimes. tS ,d

T* al ,he

theaterZ11°'Ma* Gab« and Ms

was apartite apanmS*22 ™al Tr; al 23«:3-9, 2797S,

“»*""me°<,ha

Petitioner's da™ that Mr Scorn dn „ , •

Potentially crucial information. JgS 1

2" j MnsZ^the

inconsistencies

Gabne,'15eeji at 4742-43)iat 1101’4738-39). Ms

4751

*•* in“nsis,eS“^^^^

,r°m ,ha alla^ Party iacks

iriai that (2 X“ part.

S,a,temente * wholly LSX"^ d"na™d “’'nesses Jre

4709.) "[R]easonably di£coLn i3"7 t0°k P'ace‘

Opp’n Mem e G°vern?ent stipulated at

investigation would be a Sl-p

may draw a ,ine when they have' aann’ §§&a!§2Trial- Tr. at

2d 360 (2005), and here TvX S7Dfife-@^’ 545 U.S 374 383 T£t0 think further

a waste.",5 (Opp'n Mem. at 2^ U""a«d »-«. -rom a non-existen^'y 2

In light of the foregoino Mr *,nr>r

grounded{2?22 U.V dIsJ

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niaterials, fails

^’^Siv^lss!^

did not

- Mr. SpOm's a,le3ed tenure to*(SSXeavaitehte

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Petitioner claims that Mr Son '

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Levar Gayle confessed . med r°bbery which Hisan Lee shot and killed ’ ' ■ partlclPa,,ng in a

38-39) The confeccin °/n wnt,n9 to Meral agents " (Trial Tr at rrq 7^^ V|ctim, a murder that

SS1 s,atem«

"the guy." (See Pet Mp»

object to the comment th

S ; tX™ Tv

read to the jury reolacinn Mr ! ,n\0,vementthe Oneil

3 2428-6’8’ 4728:18-4729'6 ) Alternative)

6 S confession- (See Pet.

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s“"ered pr*di“ al“ <*

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entered a stipulation that Petition

medical examiner-which noted that ?®r°se ?ut of the testimony of Dr. Smiddy the^oJ8 eft‘handed’

the shooter's beino left h, 2 u , 1 he ,ocat|on of Mr. Johnson's n.mcho/

y \he Govemment's

supports his claim as fdlows^fes?'

3t 1761''>1-20.){2022 U.S. dZTeXIS 26?p h”*

»ne record undermines

Dr. Smiddy,

sPute the Government's ass^^s

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objectively reasonable.

stipulation. As the’XemmTntfSu s’ Distil^8 Prejudiced because of Mr Sporn's '

2- MectiveAssistance of Appellate

and

r Sporn s stipulation fails.

TLe*’8 7^^’

‘naf counse! faits.

Seid(er did

same reasons his ineffective assistance^egarding

c- Bunn^Campbell Incident

SSsgJisssssssssrt

In relation to that incident and pursuant to Prrr

. .

’ CampbelL (SeejdJ

pr»secutorial misconduct. a„d

°,P“' XVe oS?6?' Mr Lee

<*>™ °<(>)

I PffiSeMorialM^nnd,^

“ °f both (nal and appellate counsel.

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records and the other e’^SS'in^

^15:2,-231

evidence

M charged with Campbell’s murder,

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effi^-hcuttblsmossa^

**! ,hlrd

Pnvolvedplto 122,™ Tmpte'

Tn at 4^,^

assertions that were "not based on record

47° S™6"' "’*** sla“ that PetllSr «s

Generally, it is "unprofessional conduct for the prosecutor to express his or her personal belief or

opinion as to . . . the guilt of the defendant." Young, 470 U.S. at 8 (cleaned up). However, even if the

prosecutor's comments were improper, Petitioner has not sufficiently alleged that he suffered

prejudice because purported misconduct must be analyzed in the context of the trial as a whole to

determine whether the proceeding was "so ir footed with unfairness as to make the resulting

conviction a denial of due process." Elias. 285 F.3d at 190 (cleaned up). The jury was already aware

that Mr. Lee was{2022 U.S. Dist. LEXIS 30} charged with the murders of Patrick Taylor and Oneil

Johnson,(see dkt. no. 93), and was presented with substantial evidence supporting those charges,

(see Opp'n Mem. at 31). These circumstances alone could have "painted him as a killer", and thus

"[a]ny suggestion that Lee was in the room when Bunny Campbell was killed does not amount to any

new suggestion that would have unfairly prejudiced the proceedinqs."(See id. at 31-32.) Moreover,

the Government took steps to avoid miscondu..‘ by reminding the jury that Petitioner was not

charged with Mr. Campbell's murder.20(See T ?l Tr. at 4713:13-19.)

Finally, Petitioner's assertion regarding phone Jis not in evidence fails because the call records

themselves were introduced in evidence; the only information not introduced was a summary of the

calls showing the caller and recipient. (See id at 4718:13-18.) And the Government explicitly

informed the jury that it did not know what was being said in such calls. (See id. at 4721:2-9.)

Accordingly, because Mr. Lee has not, at a minimum, sufficiently alleged prejudice, this claim fails.

2. Ineffective Assistance of Trial and Appellate Counsel

Regarding the prosecutorial misconduct claim described{2022 U.S. Dist. LEXIS 31} above,

Petitioner claims trial counsel provided ineffective assistance for not objecting to the Government's

comments and that appellate counsel provided ineffective assistance for not raising a prosecutorial

misconduct claim on appeal, despite Mr. Lee's requests for Mr. Seidler to do so. (See Pet. Mem. at

42-43.) Petitioner relies on the same arguments explained above. However, because Mr. Lee's

prosecutorial misconduct claims regarding the Bunny Campbell incident fail, his ineffective

assistance claims also fail.

d. 3770 Decatur Avenue Robbery

To support the various conspiracy charges against Petitioner, the Government introduced evidence

regarding an attempted robbery at 3370 Decatur Avenue. (See Opp'n Mem. at 27; see also Trial Tr.

at 4667-69.) In relation to that incident and pursuant to Petitioner's § 2255 motion, Mr. Lee asserts

that he received ineffective assistance of appellate counsel, grounded in appellate counsel. Alan

Seidler's decision not to raise claims Petitioner believes were vital to his case. (See Pet. Mem. at

9-15.)

First, Petitioner alleges that Mr. Seidler "ignored strong issues in favor of weaker ones,"

notwithstanding Petitioner's requests to Mr. Seiuier to raise certain{2022 U.S. Dist. LEXIS 32} issues

on appeal. (See id. at 11: see also id. at Ex. B.1

Second petitioner claims that, despite his requests, Mr. Seidler did not raise a Brady violation in

response to the Government's alleged suppression of Hanania Nicholas's statements regarding the

3370 Decatur Avenue robbery, which were introduced at trial to support the conspiracy charge

against Mr. Lee.21 (See id. at 11-15; see also id. at Ex. C.) (n so alleging, Petitioner relies on the

Government's representation during trial that Petitioner, Mr. Nicholas, Hibah Lee, and Levar Gayle

were involved in the 3370 Decatur Avenue robbery, about which the Court heard extensive

testimony. (See Trial Tr. at 4667-70; see also Pot. Mem. at 11-13.) However, at Mr. Gayle's

sentencing, the Government allegedly "changeo [its] entire theory of what happened," claiming

instead that only Mr. Gayle and Mr. Nicholas were involved. (See Pet. Mem. at 12.) Mr. Nicholas had

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•

told detectives he was with a "John" and a "Pctar"

accurate, and Detective Murrav confirmed ti • r

W3S unc,ear as to which name was

been with a "Kevin " whom he also referred ItTa^i’i3

Nicholas further claimed to have

Dist LEXIS

r \ oT, ♦

referfed ° aS Lloyd/ {Seg-id-; see also id. at Ex.{2022 U S

omissfontfMr^

Seidler should have contested the Governments

case since "so much of the 404/b) PvidpnrT56 d,sclosur® would have been sufficiently vital" to his

so mucn or the 404(b) evidence was uncorroborated and uncontested." (See id at 13 )

i9no,ed a,on9er

because he

ignored the stronger issues for weaker ones " relvinasolP^rT

StateS that "fa]ppellate counsel

SS™*9 ,Ur,her e*plana,'onlosuPporlk claim.

^a'^^^>freasonaabler|lessn"e466i?sWatl688OUri^th (ePreSentat'On'fellbeI"'*^"°^®^^

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that someone else was involved ” had no imoact a« tn F*' C’Acc°rd'n9,y’ Nlcho|as's statements

Avenue robbery was offered oniy in suppo. ofThe conspiracy

(S7Ca^H/baath4668 7^aC JC ab°U‘

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not a "reasonable probability- that the outcome ol^hecora tod

h®1 'hd 'SSUe

appeal ,here is

See Strickland. 466 U.S. at 669. As such Mr I pp ha= n P'racy diar?e would have been different,

of Mr.{2022 U.S Dist LEXIS 351 Spidlnr'c do " •

shown that he suffered prejudice because

fails.

5} Se'dlerS decsion not <0 raise a Brady violation, and thus his claim

e- 2041 Strang Avenue Robbery

From approximately March through May 2003, Mr. Lee his co-defendantc and

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oe or the faces he saw. {Seejd, at 2758-61.)

sPecif|cally as to whether Mr. Lee's

nott0qS,toM “uLPZ9S

466 U.S at 687 22First M «

Mr. Nunes did not nJ

established

1154:21-11K"

® f rther was reasonable given that Mr

Gab"« «> Mr

’ Mr SP°rn’s decision

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“Ptanmg that the apartment and the -Cort Ed account- linked to the apartment were both In Ms

whXrM?^^

aty45:1-14: Pet- Mem52.) It is not apparent from the record

need not be petectX?T .

C°ntents of Ms' Rose’s affidavit, but trial counsel’s performance

!W only:requires assistance to be objectively reasonable. See

SS h’ f6 UhS'

Moreove.r- Mr sP°rn's cross-examination of Agent ZeppieriTne of

IvMa^aS8 Wm s.®arcbed the residence, established that the search did not uncover any

evidence linking Mr. Lee to the residence. {See Trial Tr. at 4305-4312.) Accordingly Mr Sporn’s

hie HSt"011°hqUfest'°" Ms- Rose was objectively reasonable because it was mate for the benefit of

residence

Steps f° eStabliSh the speculation that existed as to the drugs found at the

BrS?2 U'S' DlSt LEX'S 40}Pa"'' nVP "-"Ony Dia2' Bobby Saunders- Neuron Christie, and Ava

Next, Mr. Lee claims Mr. Sporn should have called Paul Love, Anthony Diaz, Bobby Saunders

Neuron Christie, and Ava Bright as witne:i5>es.24(See Pet. Mem. at 55-58.) This claim is premised on

ore|eCssmthaan all o these e'3'

tO Ca" these individua,s’ "ot

"whether one or another

or less tnan all of these errors would suffice. (Id. at 57.)

PeminPet'-tlOner rla'mS Mr L°Ve "Was Willipg t0 testifythat the cooperators were going to lie [about

D^z s^n^eteo'testifv "fln

* 3et °Ut °f jail’"

at 5*

a‘ Ex. I) and that Mr.

deceot^e means d to axPOse the cooperators conspiracy to secure a 5K1 agreement by

attemnXd^

;

!55;

at Ex‘

These claims fail- however, because Mr Sporn

soeS to him n?enCf b P '"dlVlduals throuqh case investigator Ron Dwyer, but neither was willing to

speak to him or confirm Petitioner s assertions that they were willing to testify leadina tn Mr Snnm'e

Sp°m DecL 11°PP'n ^em- 28 29.) Because

these atempteC''dWnnot"v °ldPl,rSUe ?

these attempts did not yield any information that Sporn{2022 U.S. Dist. LEXIS 41) could have

presented to the jury," the outcome of the proceeding likely would have remained the same

undermining a claim of prejudice. (See Opp'n Mem. at 29.)

remainea me same,

Next, Petitioner claims Mr. Sporn was ineffective for failing to question Mr Saunders implying that

h|s testmtony wou'd have cleared up Keith Harry’s testimony "that he heard Bobby say 2 Mark

Xon^ot mlda,?Me"rhOhn,SOn ’

Pe!

at 56> Pa™°™ '“XcortSiZ

narcotics found atth Jp^"? t

eSS “6CaUSe ChriStie'S iden,ification was found in the bag of

J^c°t,c® f

‘ h P tnck Taylor cnme scene' (See 'd- at 57.) Finally, Petitioner argues that Mr

RrinM rh0U H bav® quest,oned Ava Bright due to Keith Harry’s allegedlyfalse testimon? that Ms M ’

Vteinia (See ^atTl P^T* her b°dVfter which she disPosed * them upon her arrest in

lying " (idSh^ivi^pLrt

®r ass“m®s ner testimony may have indicated "that Keith Harry was

lying- (Id.) However, Petitioner has not shown that Mr. Saunders Mr Christie or M<? Rrinht Juda

have been willing to testify or that their testimony, bad they provMed it S?hXe be!n faXbte

2002 WL 3,852e27'at

support a sToX o^Sdice

"’m indiVidUalS ** * a

’

“•

g- Discovery Reguests

Petitioner requests discovery of information the Government or Mr. Sporn allegedly "has or had in

their possession. [S$e Disc. Req.) Petitioner seeks disclosure of: (1) "any and all"information about

n eractlo.ns ™th Maxine Clark "concerning the identification of the perpetrators of

>>>

( ) Suzette Rose s affidavit reqardind what the

5 'i

y and

”all invo ft’

♦

, ~

{see Disc. Req. at 2-3; see also Pet. Mem at

51-54), and (3) all mvestigative steps taken [by,Mr. Sporn] regarding [Duane Nunes] to identify the

the

lybcases

and terms and conditions of the Matthew Bender Master Agreement.

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NunpTnlrt^’.i' n<J] anyand a" consideration or promise of consideration given to or on behalf of

Pe Mem at 50511

Wltnesses that testified against Petitioner," (see Disc. Req. at 3-4; see also

•

IVICIII. Cl I wv"O II.

LhsVaTPX™ ™’th the Govarnmeflthat W tee same reasons that Petitioner's ineffective

at 12 15

HCerno9 .Max,ne Clark- Suzette Rose, and Duane Nunes lack merit," (see supra

°.neuS re<”JeSt f°r disCOvery'" <2022 U.S, Dist LEXIS 43}(see Opp'n

Mem

reasontohAlfava hl

ih kS n0 f,h°wn S^d cause because his allegations are insufficient to give

reason to believe he would be entitled to relief if the facts were "fully developed." See Bracy, 520

denied 9°8’09 (quotin9

394 Us- aS 300). Accordingly, Mr. Lee's request foTdiscovenr is

uciiivu,

IV. Conclusion

^7he«S°in? Fea!OnDS’ Defendant's firo.se § 2255 petition (Mot. Vacate; dkt. no. 1 in

rlllti'ri ri5.67 ,IS ?f"ied' Be/cause Mr Lee bas not "made a substantial showing of a denial of a

constitutional right, a certificate of appealability will not issue. See 28 U.S C § 2253(c)(2) The

QC°U;aendUth erf28 U SfC' § 1915(a,(3) that any appeal fr°^his order would

ba taken in

good faith, and therefore in forma pauperis status is denied for purpose of an anneal Cf Onnort™

yJMelSlata 369 U.S. 438, 444-45, 82 S. Ct. 917. 8 L Ed

appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

C0U?oiS “ t0 close t!TO open motions (dkt. no. 686 in 07-cr-0003; dkt no 1 in

^67’d L n°’ 13 'n 17’cv-8567) and close case number 17-cv-8567. The Clerk of the Court is

further directed to mail a copy of this order to Mr. Lee.

SO ORDERED.

Dated: March 17, 2022

New York, New York

/s/ Loretta A. Preska

LORETTA A. PRESKA

Senior United States District Judge

Footnotes

iM7 8567tC2?Sn(pMr°’' YfCate?-dated October 27- 2017 [dkt. no. 686 in 07-cr-0003]; dkt. no. 1

nn1fi~85i7

,S Mem- In Supp- of Mot- Vacate ("pet. Mem."), dated Nov. 29 2017 fdkt

07 c6r nnni'CV"8567 U" eSS otherwise specified, all citations to docket entries herein refer to

vi’UUvO.

(SrMpo f°r Appointment of Counsel, Disc, and Evidentiary Hr'g in Furtherance of Mot. for § 2255

( Disc. Requ. ), dated July 3, 2018 [dkt. no. 13 in 17-cv-8567].)

(See Mem. in Opp'n to Mot. Vacate ("Opp'n Mem."), dated Sept. 18, 2018 [dkt. no. 764].)

lybcases

aL2teZand ™

&r1° m T '"n’

and terms and conditions of the Matthew Bender Master Agreement

Gr°UP' A"

°f

£>- i s

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to the restrictions

(See Reply to Opp'n ("Pet. Reply"), dated Oct. 23, 2018 [dkt. no. 774].)

Zn^er’ drtTd Nov' 81 2016

no- 649L at 22') Mr- Lee a,s° disP^ed whether the

dr 3PP? to..nar(;otlcs robb£?nes because the victims do not have a lawful property right

rejected as XuImeS fi)

Pr°CeedS’" an argument

the Court of Appeals

This Court will not address Petitioner's ineffective assistance claim regarding appellate counsel's

failure to petition for a rehearing before the Second Circuit, (see Pet. Mem. at 9-11) becauselhat

no°PP 'i Mem' ” 1' "°'e 2;

17-C'"8567' <**

“■ "°- 7

oichas: H- Spom’ C01,"sel ap>rol"te‘i pursua"<10 «» Criminal

Justice Act. (See Decl. of Michael H. Sporn (’Sporn Decl."), dated July 19, 2018 [dkt. no. 751].)

Maxine Clark, Patrick Taylor's girlfriend, owned the apartment in which the robbery and murder of

Mr. Taylor occurred. (See Trial Tr. at 4757:11-12 )

Petitioner alleges that Mr. Sporn was alerted, through discovery, to the fact that Mr Lee was a

suspect in the robbery and homicide of Patrick Taylor. (See Pet. Mem. at 19.)

S°?!ro.P7Vi0Usly raised this claim, but the trial judge rejected it primarily based on the testimony

of Mr. Lees former girlfriend. (See dkt. no. 491, at 5.) Such testimony is further explained below. ,

g^Strickland’ 466 U-S- at 681 ("[W]hen counsel's assumptions are reasonable given the totality of

the circumstances and when counsel's strategy represents a reasonable choice based upon those

assumptions, counsel need not investigate lines of defense that he has chosen not to employ at

'12

gg Strickland 466 U.S. at 690-91 ("Strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; and strategic.choices made after

Hdnm antCOmplete 'nvestigation are reasonable precisely to the extent that reasonable professional

judgments support the.limitations on investigation.”).

Mark Gabriel was involved in the robbery and murder of Oneil Johnson, which he conceded in his

estimony during trial (See Trial Tr. at 2313-21.) He explained that he, along with Petitioner Hibah

Lee Jasmine Parra Shanikwah Burke, and Petitioner's "baby mother" planned the robbery and that

and kuSriM h.e50bbery’^th Petitioner, Hibah Lee, and Levar Gayle, during which Petitioner shot

and killed Mr. Johnson. (See id )

‘^Podantly.

Sporn also ''pushed the theory" that Mark Gabriel was responsible for murdering Mr

Johnson by highlighting Gabriel s numerous connections to the incident, his motive to kill Johnson

., and Johnson s dying declaration to EMS officers naming ’Mark."' (See Opp'n Mem. at 21-22; see

lybcases

and terms and conditions of the Matthew Bender Master Agreement.

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;

Trial Tr. at 2196:2-4, 4736-37, 4751:22-4752:3.)

([AJrguing.now in hindsight that Sporn should have cross examined witnesses on a few additional

topics is a kind of strategic decisionQ left to the discretion of the trial counsel.'" (Opp'n Mem at 22

(quoting United States v. Walker. 24 F. App'x.57, 60 (2d Cir. 2001)).)

See U.S. Const, art. VI ("In all criminal prosecutions, the accused shall enjoy the right;.. to be

confronted with the witnesses against him . . .

Bowen v. Phillips. 572 F. Supp, 2d, 412, 418 ("In

Bruton v. United States, the Supreme Court interpreted [the right to confrontation] to prohibit the

introduction of a defendants confession that tends to incriminate a co-defendant when the party

incriminated by the statement cannot cross-examine the declarant." (citing 391 U.S. 123, 88 S. Ct.

.1620, 20 L. Ed. 2d 476 (1998))). However, admission of "statements that [do] not refer directly to the

defendant himself, but [become] incriminating only when linked with evidence introduced later at

trial do not amount to a Bruton violation. Gray v. Maryland. 523 11 S 1R5 196 118 S. Ct. 1151 140

L. Ed. 2d 294 (1998) (cleaned up).

.17

Petitioner relies on Gray, 523 U.S. 185, to assert that "redacting a codefendant's statement by simply

replacing references to the defendant may not be enough ..." (Pet. Mem. at 40 ) However, this

argument is misguided because the facts here are distinguished from those in Gray. See id. There,

the redaction merely replaced the defendant's name with "deleted" or with "a blank space set off by

commas/' Id, at 192. Here, Petitioner's name was replaced with neutral pronouns and no descriptive

terms. (See Trial Tr. at 2673:24-2674:8)

Such evidence included Shinikwah Burke's testimony that Petitioner told her he was the shooter

(see Trial Tr. at 4703:24-4704:2), Mr. Gabriel's testimony that he was involved in planning the

robbery with Hisan and Hibah Lee and that Hisan Lee shot Mr. Johnson, (see id. at 4702:3-6,

4702:22-4703:5), and Dr. Smiddy's testimony that the shooter was likely left-handed, which was

consistent with the video introduced showing Mr. Lee throwing a ball with his left hand (see id at

1761:11-16,4704:18-4705:4)

--------19

See Bowen, 572 F. Supp. 2d; see also supra note 23 (describing the essence of a Bruton violation).

See Thomas. 377 F.3d at 245

See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).("[Suppression by

the prosecution of evidence favorable to an accused . . . violates due process where the evidence is

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

prosecution.").

See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) ("Decisions whether to engage

in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature.").

This evidence included witness testimony by Shanikwah Burke, (see Trial Tr. at 2811-13), and Mark

Gabriel, (see id. at 2603:21-23), both evidencing,Petitioner's involvement in the robbery, as well as

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Keith Harry's testimony that Petitioner wag involved in planning the robbery, (see id. at 865-66).

Petitioner previously raised these claims, but the trial judge rejected them when denying his motion

for relief pursuant to Federal Rules of Criminal Procedure 29 and 33. (See dkt. no 491 at 4-5- see

also Opp'n Mem, at 28 )

’

’----25

"Petitioner has failed to establish good cause, and his request for discovery should be denied as

nothing more than a fishing expedition." (Opp'n Mem; at 32-33.)

lybcases

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UNITED STATER COURT OF APPEALS

F0R THE

SECOND CIRCUIT

AJ a stated term °f the United States Gourt of Appeals for the Second Circuit, held at the

Thurgood MarshaH United States Courthouse> 40 Foley Square, in the City of New York, on the

13 day of June, two thousand twenty-five.

ti,

Hi san Lee,

Petitioner - Appellant,

ORDER

United States of America,

Docket Nos: 22-1117 (Lead)

24-2338 (Con)

Respondent - Appellee.

Appellant, Hisan Lee, filed a motion fpr panel reconsideration, or, in the alternative for

reconsideration en banc. The panel that determined the appeal has considered the request for

reconsideration, and the active members of the Court have considered the request for

reconsideration en banc.

IT IS HEREBY ORDERED that the motion is denied.

FOR THE COUR'I:

Catherine O'Hagan Wolfe, Clerk

SECOND AJ

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.