Gordon v. Bradt et al

Filing 28

MEMORANDUM & ORDER: Gordon's habeas petition is DENIED. Because Gordon has not made a substantial showing that he was denied a constitutional right, no certificate of appealability shall issue. C/M. Forwarded for judgment. Ordered by Judge Raymond J. Dearie on 3/25/2014. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JAMES ALLEN GORDON,
Petitioner,
MEMORANDUM & ORDER

-against09 CV 4383 (RJD)
SUPERINTENDENT MARC L. BRADT, et al.,
Respondents.

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DEARIE, District Judge
James Allen Gordon petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This case begins with a grisly series of attacks on five women in a Queens home in the early
morning hours of July 10, 1996. Three of the women were killed. Of those three, two were
sexually assaulted. One of the survivors was beaten in the head with a hammer. The other
survivor, who was twice choked to unconsciousness, alerted the police after leaping, naked, from
a second-floor window and fleeing to the safety of a neighbor's house.
Gordon was tried and convicted in January 1999. The subsequent proceedings-like the
pretrial proceedings and the trial itself-have been tortuous and protracted, in part due to
Gordon's own actions. The state appellate process lasted over a decade. Gordon's habeas
petition, which asserts claims of unreasonable delay in the appellate process and ineffective
assistance of appellate counsel, has been pending in the federal system for an additional four
years. For the reasons set forth below, the petition is denied on its merits.

BACKGROUND
Within hours of the attacks, Gordon fled to Memphis, Tennessee. He was quickly
identified as a suspect. On August 20, 1996, he was arrested in Memphis on a New York parole
violation warrant related to a previous conviction. At the police station in Memphis, Gordon
waived his Miranda rights and confessed to an NYPD detective. In his confession, he claimed
that he was provoked because earlier in the night the victims, accompanied by two masked male
accomplices, snubbed out a cigarette on his chest and forced him to have sex with several of the
female victims at gunpoint. Because Gordon had signed a waiver of extradition as one of the
conditions of his parole, he was flown back to New York the next day.
Gordon was the first capital defendant in Queens County following the reinstatement of
the death penalty in New York in 1995. He was represented for two years by a team from the
Capital Defenders Office. Through counsel, he moved to suppress his statements to the police,
some of the physical evidence, and the eyewitness identifications. The trial court denied the
motions. People v. Gordon, 176 Misc. 2d 46, 56 (N.Y. Sup. Ct. 1998). In April 1998,just as the
case was ready for trial, the trial court granted Gordon's application to appoint new counsel.
Two private attorneys, Christopher Renfroe and Russell Morea, were appointed and the trial was
adjourned for five months to allow them time to prepare. On the eve of jury selection, Gordon
moved to proceed prose. The court reluctantly granted the motion, but appointed Refroe and
Morea to serve as advisors and to support Gordon as necessary during trial. People v. Gordon,
179 Misc. 2d 940, 941-45 (N.Y. Sup. Ct. Jan. 29, 1999).
The evidence introduced against Gordon was diverse and voluminous. The two surviving
victims identified Gordon as their attacker. This identification was particularly probative
because the victims had known him for several months before the attacks-a fact to which

2

Gordon himself alluded as he cross-examined one of the victims. Gordon's confession was read
aloud to the jury, although he later took the stand and testified that it was fabricated by the
police. Gordon's cousin testified that Gordon had told him several weeks prior to the crimes that
he planned to rob the women. A bag of bloody clothes was found in Gordon's backyard. One of
Gordon's neighbors identified a hammer that was used as weapon during the attacks and testified
that he had loaned the hammer to Gordon earlier in the evening. Finally, semen recovered from
one of the dead women matched Gordon's DNA profile. In response, Gordon's then-girlfriend
(his wife at the time of the trial) took the stand and testified that Gordon had called her twice
from his home during the early morning hours of July 10. Whether or not the jury credited this
testimony, it did not establish a strong alibi because Gordon lived across the street from the
scene of the crime.
Gordon was convicted of seven counts of first degree murder, two counts of attempted
murder in the first degree, rape in the first degree, sodomy in the first degree, and attempted
sexual abuse in the first degree. The first degree murder counts were death eligible. At the
sentencing phase, the jury unanimously sentenced Gordon to life witl,lout parole on three of the
death-eligible counts. The jury deadlocked on the appropriate sentence for the four remaining
death-eligible counts. The judge then sentenced Gordon to consecutive indeterminate sentences
of twenty-five years to life on each of the deadlocked counts, as set forth in C.P.L. § 400.27[10].
In March 1999, the Appellate Division appointed Appellate Advocates to represent
Gordon. The 8,000 page record became available in January 2000. Given the weight of
evidence against Gordon, the Appellate Advocates lawyer was concerned that a successful
appeal would lead to retrial and that, at the conclusion of trial, Gordon might again face the death
penalty on the four deadlocked counts. Although it was an open question in New York whether

3

a capital defendant was death eligible at resentencing for counts on which the jury had
previously deadlocked, the Supreme Court of Pennsylvania had twice ruled that capital
defendants could face the death penalty for a second time under similar circumstances. See
Commonwealth v. Sattazahn, 563 Pa. 533, 545-51 (2000); Commonwealth v. Martoramo, 535
Pa. 178, 190-200 (1993). Accordingly, before honing the issues that he planned to present on
appeal, the Appellate Advocates lawyer asked Gordon to provide a notarized statement
indicating that he understood the risks of proceeding.
Correspondence ensued. In a series of letters, the lawyer insisted upon the notarized
acceptance of risk. Gordon refused. Instead, he insisted on a full description of the issues that
Appellate Advocates intended to advance on his behalf. The Appellate Advocates lawyer
explained that he could not provide a full issues list without spending a significant amount of
time reviewing the voluminous record and would not undertake that task if Gordon did not
intend to proceed.
The matter came to a head in December 2000 when the Appellate Advocates lawyer
informed Gordon that he would file an abandonment motion if Gordon failed to provide the
notarized acceptance ofrisk by late January 2001. Gordon acted first. In early January, he
moved to relieve Appellate Advocates. The Appellate Division denied Gordon's motion in
February. In mid-March, the Appellate Advocates lawyer informed Gordon that he would file an
abandonment motion if Gordon did not provide the authorization by April 10. Gordon did not
respond. In mid-April, Appellate Advocates moved to abandon. After several rounds of
briefing, in October 2001 the Appellate Division removed Appellate Advocates and appointed
Legal Aid to pursue Gordon's appeal.

4

The record does not indicate what, if anything, occurred over the course of the next fourand-a-half years. In June 2004, however, in an unrelated case, the New York Court of Appeals
found New York's death penalty statute unconstitutional. See People v. Lavalle, 3 N.Y.3d 88,
116-32 (2004). The rationale that Appellate Advocate had advanced for not proceeding with the
appeal absent authorization was mooted.
Two years later, in May 2006, Legal Aid filed a brief in the Appellate Division on
Gordon's behalf. The brief made three arguments: (1) the trial court's decision to allow Gordon
to represent himself was inappropriate; (2) the trial court erroneously denied the application,
made by Gordon's counsel, for a competency examination; and (3) the trial court improperly
declined to charge the jury with the affirmative defense of extreme emotional disturbance, as
Gordon's legal advisors had requested at the end of trial. Gordon contends that he did not
become aware of Legal Aid's appellate brief until nearly one year later, in April 2007, when the
state served him with its response.
Shortly thereafter, Gordon sought permission from the Appellate Division to file a
supplemental brief. His Legal Aid attorney filed a motion in support, explaining that he had
raised all viable issues, but that he believed a supplemental brief was appropriate given that
Gordon was serving a life sentence without parole. The motion was denied. Gordon again
moved to file a supplemental brief, explaining that his attorneys had not informed him that they
had filed a brief on his behalf. This time, the Appellate Division granted the motion and
permitted Gordon to file a supplemental brief.
Gordon, however, did not file the supplemental brief. Instead, he sought a series of
extensions of time to respond. The Appellate Division granted five extensions totaling nearly
two years. The final extension set a deadline of June 9, 2009. Gordon missed the deadline.

5

Three days later, on June 12, Gordon filed a sixth request for an extension. The Appellate
Division denied the motion and vacated its earlier decision granting him permission to file a
supplemental brief. Gordon nonetheless filed papers opposing the Legal Aid brief in late
August. Oral argument was held on September 14, 2009.
On October 2, 2009, after oral argument but before the Appellate Division issued its
ruling, Gordon filed this habeas petition in federal court, seeking relief based on (1) appellate
delay and (2) ineffective assistance of appellate counsel. The Appellate Division denied
Gordon's direct appeal several weeks later, on October 20. People v. Gordon, 66 A.D.3d 920,
921 (2d Dep't 2009). In its decision, the Appellate Division did not mention Gordon's brief or
discuss any of the arguments raised therein. Id. The Court of Appeals denied leave to appeal on
December 30, 2009. People v. Gordon, 13 N.Y.3d 907 (2009).
In February 2010, the state moved to dismiss Gordon's federal habeas petition on the
grounds that his claims had not properly been exhausted. Gordon filed his traverse in March
2010. He also moved to expand the record and sought a default judgment on the basis that the
state's response was untimely. This Court denied Gordon's motions in March 2011. See ECF
Nos. 14, 17.
In March 2012, Gordon sought a writ of mandamus from the Second Circuit directing
this Court to rule on his habeas petition. The Second Circuit denied Gordon's request for a writ
of mandamus and issued the mandate on August 23, 2012. See ECF No. 21. On September 21,
2012, this Court held that Gordon had failed to exhaust his claims for habeas relief, but noted
that Second Circuit precedent suggested that the appellate delay claim did not require exhaustion.
Based on Rhines v. Weber, 544 U.S. 269 (2005), and invoking concerns of comity and
federalism, the Court gave Gordon two options: either (1) drop his ineffective assistance of

6

appellate counsel claim and proceed solely on the appellate delay ground, or (2) exhaust the
ineffective assistance of appellate counsel claim by way of a coram no bis petition in the state
courts, during which time the habeas petition would be stayed. Sept. 21, 2012 Mem. at 8-9, ECF
No. 22.
Gordon chose neither. Instead, he asked this Court to reconsider its September 21, 2012
decision. Out of an abundance of caution, this Court certified the issue for appeal to the Second
Circuit on November 21, 2012 and stayed the case. See Nov. 21, 2012 Mem., ECF No. 25.
Gordon had ten days to bring his appeal. See 28 U.S.C. § 1292(b). Several days after the
expiration of that deadline, on December 7, 2012, he filed a "Request For Extension Of Time" in
the Second Circuit. The first five pages of that motion set forth the extensive procedural
background of the case. The motion did not reference the certificate of appealability issued by
this Court until page six.
Given the nature of the papers, the court clerk apparently-and understandably-did not
discern that Gordon's "Request For Extension Of Time" related to a new and separate appeal
rather than his previous petition for mandamus. Because the mandate back to this Court had
already been issued in Gordon's first appeal, the clerk issued a notice of non-jurisdiction and
returned Gordon's papers unfiled. On January 9, 2013, Gordon filed a motion to reconsider in
the Second Circuit. Once again the court clerk treated Gordon's motion as related to his
previous mandamus petition, rather than a new and separate appeal, and issued a second notice
of non-jurisdiction. This Court was unaware of the activity in the Second Circuit until October
11, 2013, when Gordon inquired, by letter, whether this Court had reached a final decision on his
petition. See ECF No. 26. Gordon again inquired about the status of the case in a letter dated
January 19, 2014. See ECF No. 27.

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Given the time that has passed without any progress on Gordon's petition, and mindful
that one of grounds for that petition is delay, the Court will not prolong these proceedings by reissuing a certificate of appealability or reinstating its September 21, 2012 order. In September
2012, the Court invoked "concerns of comity and federalism" to justify providing Gordon with
the opportunity to exhaust his ineffective assistance of appellate counsel claim in state court.
Those concerns are now outweighed by the interest of finality. The Court accordingly rules onand denies-Gordon's petition.
ANALYSIS
A.

Exhaustion

Habeas petitioners generally must exhaust their claims in state court prior to seeking
federal relief. 28 U.S.C. § 2254(b). Gordon has not done so. He did not raise his appellate
delay claim with the state courts in any form. While he expressed his disagreement with both his
Appellate Advocates and Legal Aid attorneys in several filings in the Appellate Division, these
filings were not sufficient to exhaust his ineffective assistance of appellate counsel claim. That
is because in New York "the coram nobis petition is the only way to exhaust this type of claim
for habeas purposes." Daley v. Lee, No. 10-cv-6065, 2012 WL 2577472, at *7 (E.D.N.Y. July 3,
2012) (Garaufis, J.). These failures would typically require dismissal of Gordon's habeas
petition.
However, as the Court explained in its September 21, 2012 decision, "a failure to exhaust
may be excused ... where there has been 'substantial delay in the state criminal appeal
process."' Roberites v. Colly, No. 12-4228, 2013 WL 5663231, at *1 (2d Cir. Oct. 18, 2013)
(quoting Cody v. Henderson, 936 F.2d 715, 718 (2d Cir. 1991)); see also Williams v. Hoke, No.
92-cv-2650, 1993 WL 37300, at *2 (E.D.N.Y. Feb. 5, 1993) (Sifton, J.), affd, 999 F.2d 537 (2d

8

Cir. 1993) ("the usual requirement of exhaustion of state remedies is relaxed when the habeas
petitioner claims an unconstitutional delay in the appellate process"). The fact that the Appellate
Division and the Court of Appeals resolved Gordon's appeal during the pendency of the habeas
petition does not moot his appellate delay claim. See Vasguez v. Bennett, No. OO-cv-3070, 2002
WL 619282, at *2 (S.D.N.Y. Apr. 17, 2002) (Hellerstein, J.). As the Court explained in
September 2012, given the relaxation of the exhaustion requirement for claims of appellate
delay, this petition is more properly treated as a mixed petition presenting both an exhausted
claim (appellate delay) and an unexhausted claim (ineffective assistance of appellate counsel).
See Sept. 21, 2013 Mem. at 3.
Courts presented with mixed petitions have three options. They may (1) dismiss the
petition as unexhausted, (2) deny the petition on its merits, or (3) stay the petition and allow the
petitioner to return to state court to exhaust his claims. Rhines, 544 U.S. at 273-78; Schouenborg
v. Superintendent, Auburn Corr. Facility, No. 08-cv-2865, 2013 WL 5502832, at *5 (E.D.N.Y.
Sept. 30, 2013) (Seybert, J.). In order to warrant the stay and abeyance procedure, the petitioner
must show that his unexhausted claim is not "plainly meritless" and that his failure to exhaust
was justified by "good cause." 1 Sept. 21, 2013 Mem. at 3; see also Rhines, 544 U.S. at 277-78.
In September 2012, the Court concluded that the stay and abeyance procedure was
appropriate under the circumstances. Sept. 21, 2013 Mem. at 3-6. The Court did not review
Gordon's unexhausted ineffective assistance claim in depth, but rather noted that "its dimensions
are considerable." Id. at 4. Without specifically analyzing whether Gordon's claim was "plainly

"[I]t likely would be an abuse of discretion for a district court to deny a stay and to
dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics. In such circumstances, the district court
should stay, rather than dismiss, the mixed petition." Rhines, 544 U.S. at 278.
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meritless," the Court explained that, because this case is of "obvious importance to the State of
New York, concerns of comity and federalism carry great weight and indeed are dispositive." Id.
at 6.
More than a year later, however, those concerns of comity and federalism are outweighed
by the shared interest of the petitioner and the federal courts "in finality and speedy resolution of
federal petitions." Rhines, 544 U.S. at 278. Gordon's letters of October 11, 2013 and January
19, 2014, in which he inquires whether this Court has reached a final decision on his petition,
underscore this point. Moreover, having more closely reviewed Gordon's claims, the Court is
persuaded that they lack merit. Accordingly, the Court now denies Gordon's petition on its
merits. See 28 U.S.C. § 2254(b)(2).
B.

Appellate Delay

With respect to Gordon's appellate delay claim, substantial delays can, under certain
circumstances, violate due process. See Richard-Antonio v. O'Meara, No. 12-cv-5174, 2013
WL 5019395, at *5 (S.D.N.Y. May 21, 2013) (Netburn, Mag. J.) (citing Cody, 936 F.2d at 71819). In order to determine whether a delay violates due process, courts assess the four criteria
articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972): the length of the
delay, the reason for the delay and the party responsible, whether the petitioner asserted his right
to a decision, and any ensuing prejudice. Elcock v. Henderson, 947 F.2d 1004, 1007 (2d Cir.
1991) ("Elcock I"); see also Roberites, 2013 WL 5663231, at *3.
Nearly eleven years elapsed between Gordon's notice of appeal in February 1999 and the
final resolution of his case by the Court of Appeals in December 2009. This was certainly an
unusual and significant amount of time. Several courts have held that appellate delays of this
duration violated due process. See Elcock I, 947 F.2d at 1007 (citing cases); Brown v. Castello,

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No. OO-cv-6421, 2004 WL 1837356, at *2-4 (S.D.N.Y. Aug. 17, 2004) (Casey, J.) (citing cases).
In this case, however, much of the delay stemmed from Gordon's own actions, including his
admitted refusal to provide Appellate Advocates with the notarized acceptance of risk that they
requested and the two years of extensions that he sought (and received) from the Appellate
Division in connection with his proposed supplemental brief.
Ultimately, the Court need not decide whether the prolonged appellate proceedings
amounted to a violation of due process. The typical remedy for an appellate delay claim, as the
Court noted in September 2012, is a conditional writ directing the state appellate courts to
resolve the appeal within a defined period of time. Sept. 21, 2012 Mem. at 6 n.4; see also
Roberites, 2013 WL 5663231, at *2-3. In this case, because the state courts have already
affirmed Gordon's conviction, "the remedy of a conditional writ would serve no purpose."
Vasguez v. Reynolds, 58 F. App'x 533, 535 (2d Cir. Mar. 7, 2003).
The termination of a petitioner's state court appeal does not moot his habeas claim for
appellate delay. Simmons v. Reynolds, 898 F.2d 865, 867 (2d Cir. 1990). Before the petitioner
can obtain "additional habeas relief beyond the grant of a conditional writ," however, he must
show "actual prejudice to [his] appeal." 2 Vasguez, 58 F. App'x at 534. In other words, in order
to prevail, Gordon must show that his "appeal would have had a different result absent the
delay." Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir. 1990); see also Elcock v. Henderson, 28
F.3d 276, 279 (2d Cir. 1994); Richard-Antonio, 2013 WL 5019395, at *9.

The fact that a petitioner has suffered "prejudice" for purposes of the Barker due process
analysis does not mean that he meets the "actual prejudice to the appeal" standard required for
relief beyond a conditional writ. See, e.g., Elcock I, 947 F.2d at 1008 (petitioner was prejudiced
by the "unnecessary anxiety and concern" caused by an eight-year appellate delay, but the delay
did not have "a detrimental effect on the outcome" of the appeal and thus did not warrant release
or a new appeal).
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There is nothing in the record or the pleadings, however, that suggests that the result of
Gordon's appeal would have been different if his appeal had been resolved promptly. Gordon
does not allege "that the delay limited his counsel's ability to advance an argument that might
allow [him] to prevail on appeal, [or] that the delay denied [him] effective assistance of appellate
counsel by giving rise to a conflict of interest[.]" Brown, 2004 WL 1837356, at *4 (citing Cody,
936 F.2d at 719-20 and Elcock I, 947 F.2d at 1009-11). Nor does he allege that he would suffer
the "inherent impairment of a defense upon retrial caused by the passage of time, namely the loss
of memory by the witnesses and the staling of evidence." Richard-Antonio, 2013 WL 5019395,
at *9 (citing Barker, 407 U.S. at 532). Indeed, given the nature of the eyewitness testimony and
physical evidence introduced against Gordon at trial, any "loss of memory" or deterioration of
evidence would more likely strengthen, rather than impair, Gordon's defense ifthe case was
retried. Because Gordon has not suffered actual prejudice to his appeal, he is not entitled to
habeas relief.
C.

Ineffective Assistance of Appellate Counsel

The Court now addresses Gordon's ineffective assistance of appellate counsel claim.
This claim is not neatly or precisely alleged, but because Gordon is prose, the Court construes
his petition generously. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.
2006). Gordon's ineffective assistance claims can be distilled into three categories. He asserts
that his appellate lawyers were ineffective because they (1) ignored potentially meritorious
arguments, (2) prejudiced his appeal by making statements and arguments to the appellate courts
that suggested that he was guilty, and (3) failed to appropriately communicate with him and
delayed the appellate process.

12

"[T]he Sixth Amendment standard for ineffective assistance of counsel dictates deference
to the strategic decisions of ... appellate counsel, unless [the petitioner] can show that (1)
counsel's performance was objectively deficient, and (2) that he was prejudiced by that deficient
performance." Blalock v. Fisher, 480 F. App'x 39, 40-41 (2d Cir. 2012) (citing Strickland v.
Washington, 466 U.S. 668, 688 (1984)). "With respect to the deficiency prong, we indulge a
strong presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Id. at 41 (internal quotations omitted). "Further, we will identify prejudice only if
[the petitioner] establishes that, but for his appellate counsel's deficient performance, there is a
reasonable probability that the result of the proceeding would have been different." Id. (internal
quotations and punctuation omitted). "A reasonable probability is a probability sufficient to
undermine confidence in the result." Strickland, 466 U.S. at 694. In other words, "[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment." Id. at 691.
The Court begins with Gordon's contention that his appellate counsel failed to assert
meritorious arguments. 3 "[A]ppellate counsel who file[] a merits brief need not (and should not)
raise every nonfrivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). This doctrine is
premised, in part, on the truism that "legal contentions, like the currency, depreciate through over
use." Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (quoting Jackson, Advocacy Before the
Supreme Court, 25 Temple L.Q. 115, 119 (1951 )). In order to succeed on an ineffective
3

"[I]neffective assistance of counsel in violation of the Sixth Amendment is not limited to
failures to raise meritorious federal claims. Failure to raise a valid state law claim on appeal may
also constitute ineffective assistance, so long as the relevant standards under Strickland are met."
Mosby v. Senkowski, 470 F.3d 515, 521 (2d Cir. 2006) (citing Claudio v. Scully, 982 F.2d 798,
803 n.5 (2d Cir. 1992)).
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assistance of appellate counsel claim, the petitioner must therefore show that "counsel omitted
significant and obvious issues while pursuing issues that were clearly and significantly weaker."
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Gordon advances a plethora of omitted arguments, none of which are significant,
obvious, or stronger than the arguments that Legal Aid raised on his behalf. Several of these
arguments involve his arrest and confession in Tennesee and his extradition back to New York.
Gordon posits that appellate counsel should have argued that the arrest and extradition were
improper because the New York parole violation warrant was pretextual, because the New York
warrant was invalid in Tennessee, and because Tennessee law required that Gordon appear
before a Tennessee magistrate prior to extradition. Even if these contentions were accurate, they
would neither require New York courts to divest themselves of jurisdiction over Gordon nor
justify the suppression of the statement that he gave in Memphis. See People v. Sampson, 73
N.Y.2d 908, 909-10 (1989) (refusing to suppress statement by defendant arrested in Vermont by
New York police in violation of Vermont law); People v. Walls, 35 N.Y.2d 419, 424 (1974)
(arrest in New Jersey and transfer to New York, in violation of New Jersey law, did not deprive
New York courts of jurisdiction over the defendant) 4 ; People v. Clarke, 5 A.D.3d. 807, 810 (3d
Dep't 2004) (failure to challenge purportedly pretextual parole violation warrant did not amount
to ineffective assistance of counsel).
Moreover, given the weight of evidence against Gordon, including the eyewitness
identifications and the DNA match, even if his confession had been excluded, its admission was
4

In New York, egregious police misconduct might, under certain circumstances, deprive
state courts of jurisdiction. Walls, 35 N.Y.2d at 424. The conduct alleged here does not come
close to that level. See id.; cf. United States v. Umeh, 762 F. Supp. 2d 658, 661-64 (S.D.N.Y.
2011) (Rakoff, J.) (questioning whether government misconduct, no matter how depraved, could
ever require divestiture of jurisdiction over a defendant).
14

almost certainly harmless error. See People v. Lopez, 16 N.Y.3d 375, 386-88 (2011) (admission
of statement obtained in violation of defendant's right to counsel was harmless error); see also
U.S. v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006) ("the strength of the government's case is
probably the single most critical factor" in the harmless error analysis). This point is fatal to
both Strickland prongs. Because the Appellate Division would probably have concluded that the
admission of the confession was harmless error, counsel's decision not to challenge the
confession on appeal was well within the bounds of reasonable representation. In any case,
given the strength of the remaining evidence, Gordon cannot show that he was prejudiced by his
appellate counsel's failure to challenge the confession.
Gordon also claims that his appellate counsel failed to raise several arguments related to
the multiple counts with which he was charged. According to Gordon, the counts were both
mulitiplicitous (that is, there were multiple counts for the same offense) and duplicitous (that is,
certain counts charged more than one offense). See People v. Alonzo, 16 N.Y.3d 267, 269
(2011). These arguments have been rejected in a similar context. See People v. Lebron, 305
A.D.2d 799, 800-01 (3d Dep't 2003) (multiple first-degree murder convictions for each murder
were neither duplicitous nor multiplicitous). In addition, Gordon claims that his appellate
counsel failed to argue that Gordon had been prejudiced by the dismissal, on the prosecution's
motion, of fifteen counts immediately prior to trial. This argument is also meritless.
Finally, Gordon posits that his appellate counsel should have argued that he was deprived
of effective assistance at the pre-trial stage by the Capital Defenders Office and by Renfroe and
Morea. In New York, defendants have a right to testify before the grand jury prior to indictment.
C.P.L § 190.50(5). Gordon argues that his appellate counsel should have brought an ineffective
assistance claim based on the fact that his Capital Defenders Office lawyer "violated [his] right

15

to testify before the grand jury[.]" Pet. at 53. Gordon does not describe the circumstances
surrounding his non-appearance before the grand jury, and they are not readily discernable from
the record before the Court. Nonetheless, even assuming that his lawyer somehow acted
inappropriately, "the failure of defense counsel to facilitate [the] defendant's testimony before
the grand jury does not, per se, amount to the denial of effective assistance of counsel." People
v. Simmons, 10 N.Y.3d 946, 948-49 (2008); see also People v. Wiggins, 89 N.Y.2d 872, 873-74
(1996). Here, there is no plausible argument that the evidence at trial was insufficient to sustain
the conviction or that Gordon's failure to testify before the grand jury prejudiced him in any
way. Indeed, it is hard to imagine that Gordon would have gained any benefit from testifying.
Gordon also contends that Legal Aid should have argued that he was prejudiced when a
member of his second team of legal advisors, Renfroe, "went on the record, despite counsel's
motion request [to allow Gordon to assist Renfroe and Morea at trial], that [sic] hybrid
representation would place trial counsel in violation of the ethics code." Pet. at 53. Gordon
seems to imply that Renfroe was suggesting to the trial judge that Gordon had confessed to him
or to an attorney from the Capital Defenders Office. See id. at 53-54. Despite having reviewed
the transcript of Gordon's application to represent himself pro se and of his waiver of counsel,
the Court is unable to find the episode to which Gordon refers. Gordon acknowledges, however,
that Renfroe never precisely explained what he meant. Id. And he does not allege that
Renfroe's comment was made in the presence of the jury or explain why it prejudiced him or
cast any doubt on his conviction. Gordon therefore cannot make out an ineffective assistance of
trial counsel claim on that ground, much less an ineffective assistance of appellate counsel claim
based on Legal Aid's decision not to raise the issue on appeal.

16

In sum, none of the arguments that Gordon believes that his appellate counsel should
have raised is obvious or "clearly and significantly" stronger than the arguments that appellate
counsel did raise. Gordon can neither demonstrate that Legal Aid's decision to omit those
arguments from its appellate brief was objectively deficient nor show that he suffered any
prejudice from their omission.
The Court now addresses Gordon's contention that his appellate attorneys violated his
right to effective counsel by disparaging him in the Appellate Division. Gordon takes issue with
Appellate Advocates' April 2001 abandonment motion, arguing that the characterization of the
evidence against him "present[ed] information of the case that insinuated overwhelming guilt."
Pet. at 9. Having reviewed the motion and the trial transcript, the Court is satisfied that the
motion fairly characterizes the evidence introduced against Gordon.
Gordon also takes issue with Legal Aid's May 2006 brief to the Appellate Division. In
particular, he claims that his alibi defense and claim of innocence were contradicted by Legal
Aid's argument that the trial court should have charged the jury with the mitigating defense of
extreme emotional disturbance. Pet. at 17-18. While the Legal Aid brief states that the victims
"readily" identified Gordon at trial, it does not affirmatively state that Gordon committed the
murders. An attorney's decision to advance a legal argument that is inconsistent with actual
innocence "in no way suggests that counsel believed that [the defendant] was a participant in the
charged crimes, but rather represents counsel's attempt to raise every alternative argument on her
client's behalf." Moore v. Scully, 956 F. Supp. 1139, 1151-52 (S.D.N.Y. 1997) (Edelstein, J.).
And while Gordon may have preferred that his appellate counsel argue his innocence,
"[ d]ecisions concerning which legal issues will be urged on appeal are uniquely within the
lawyer's skill and competence, and their resolution is ultimately left to his [or her] judgment."

17

Avent v. Napoli, No. 08-cv-932, 2013 WL 1788626, at* 17 (S.D.N.Y. Feb. 7, 2013) (Smith,
Mag. J.) (quoting Ennis v. LeFevre, 560 F.2d 1072, 1075 (2d Cir. 1977)). The Legal Aid
lawyer's decision to focus on other issues was more than reasonable. Gordon's claim that his
attorneys improperly disparaged him before the Appellate Division is thus meritless.
Finally, the Court turns to Gordon's claim that his attorneys delayed his appeal and failed
to properly communicate with him. Gordon contends that Appellate Advocates' interpretation
of New York's death penalty statute was clearly erroneous and resulted in a nearly two-year
delay until Appellate Advocates were removed from the case. The Appellate Advocates stance,
however, was not unreasonable and their caution falls well within the range of reasonable
professional judgment. Indeed, it was almost certainly the prudent course of action. The record
reflects that the Appellate Advocates lawyer informed Gordon of his concerns and advised him
as to the importance of the notarized acceptance of risk. The delay that ensued resulted from
Gordon's refusal to provide that acceptance of risk, not from any deficient conduct by Appellate
Advocates.
With regard to the Legal Aid attorneys, Gordon contends that they did not make any
filings on his behalf until nearly five years after their appointment and that, when they finally did
prepare the appellate brief, they neither consulted with him as to the arguments it contained nor
informed him of its filing. Some of that delay, running from Legal Aid's appointment in October
2001 to the June 2004 Court of Appeals decision in Lavalle, might be attributable to a reluctance
to proceed based on the same death penalty concerns identified by Appellate Advocates. Some
of the delay is almost certainly attributable to counsel's need to digest the voluminous record.
And the failure to consult with a client on appellate briefing does not, without more, amount to
ineffective assistance of counsel. See Williams v. Comm'r, N.Y. State Dep't of Corr., No. 07-

18

cv-5496, 2011 WL 5301766, at *21 (S.D.N.Y. Oct. 31, 2011) (Maas, Mag. J.) (citing cases).
Nonetheless, the record does not contradict Gordon's assertions or contain any explanation for
the alleged inactivity and absence of communication. 5 Assuming that Gordon's representations
are true, the lack of communication and the extent of the delay are somewhat troubling. If there
was any indication that Gordon was prejudiced by either, the Court would require a more
fulsome record to properly evaluate his claim. But given Legal Aid's competent appellate
briefing and the heft of the evidence introduced against Gordon at trial, the delay and alleged
lack of communication do not undermine confidence in the appeal or the conviction. Because
Gordon cannot show that he was prejudiced, as Strickland requires, he cannot prevail on his
ineffective assistance of appellate counsel claim.
CONCLUSION
For the reasons stated above, Gordon's habeas petition is DENIED. Because Gordon has
not made a substantial showing that he was denied a constitutional right, no certificate of
appealability shall issue. See 28 U.S.C. § 2253(c).

SO ORDERED.
Dated: Brooklyn,j>Jew York
March !::iL 2014

/s/ Judge Raymond J. Dearie

~o@.EARIE
U'fi'ited States District Judge

5

The record does contain a letter dated July 27, 2009, in which a Legal Aid attorney
informs Gordon that he "sent you a timely copy of our brief, but for some reason, you did not
receive it." ECF No. 1-6, at 48.
19