Waters v. Martuscello

Filing 32

ORDER DENYING PETITION OF WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the Petition made pursuant to 28 U.S.C. § 2254 is dismissed in its entirety. Petitio ner is further denied a certificate of appealability, as he has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see FED. R. APP. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the ATTACHED WRITTEN MEMORANDUM AND ORDER to pro se Petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/27/2014. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KEITH WATERS, pro se,
:
:
Petitioner,
:
:
-against:
:
DANIEL MARTUSCELLO, Superintendent,
:
Coxsackie Correctional Facility
:
:
Respondent.
:
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DORA L. IRIZARRY, United States District Judge:

MEMORANDUM AND ORDER
10-CV-5700(DLI)

Pro se Petitioner Keith Waters seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (See generally Petition (“Pet.”), Dkt. Entry No. 1.) The Kings County District Attorney,
as counsel for Respondent, opposes each claim alleged in the Petition. (See generally Affidavit
of Victor Barall in Opposition to Petition (“Barall Aff.”), Dkt. Entry No. 17.) For the reasons set
forth below, the Petition is dismissed in its entirety.
BACKGROUND
I.

The Case against Petitioner
The evidence presented at trial indicates that, on the evening of September 15, 2005,

Katherine Pritchard was walking home on Lexington Avenue in Brooklyn.

(Transcript of

Petitioner’s 4/26/06 & 5/1/06 Jury Trial (“Tr.”) 44-45; Dkt. Entry No. 19.) When she reached
her home, located at 33 Lexington Avenue, a man she identified at trial as the Petitioner,
suddenly approached her, pointed a knife at her, took her white purse, and absconded with it.
(Tr. 45-49, 60-61.) At approximately the same time that evening, Pritchard’s neighbor, Neal
Wilkinson, was returning home. (Tr. 102-04.) Wilkinson testified that he saw a man, whom he
identified as Petitioner, lunge at Pritchard and take her white purse. (Tr. 103-04.) Wilkinson

ordered Petitioner to drop Pritchard’s purse. (Tr. 105.) Petitioner ran away and Wilkinson
chased him for several blocks. (Tr. 105-09.)
During this chase, Petitioner ran past a parked, unmarked car, occupied by Parole Officer
Brian Mahoney and three fellow parole officers. (Tr. 109-10, 207-10.) They observed Petitioner
running down the street carrying a white purse and a knife. (Tr. 206-09.) Moments later,
Wilkinson approached the unmarked car and told the parole officers that he witnessed a robbery
and was chasing the suspect. (Tr. 109-10, 209-10.) Officer Mahoney and his colleagues drove
in the unmarked car towards Cambridge Place, which is the street that Wilkinson said Petitioner
ran down. (Tr. 210-12.) Within a few minutes of speaking with Wilkinson, Officer Mahoney
and his colleagues located Petitioner. (Tr. 212.) He was crouching by a tree, rummaging
through a white purse, with a knife on the ground next to him. (Id.) A few minutes later,
Wilkinson caught up with the unmarked car, and identified Petitioner as the robber and the white
purse as the purse taken from Pritchard. (Tr. 110-14, 210-13, 230, 237.) Another eyewitness
identified Petitioner at the scene of the arrest, but did not testify at trial. 1 Shortly thereafter,
Police Officer Darien Quash arrived and processed Petitioner’s arrest. (Tr. 172-78, 207, 212-13.)
Unlike Wilkinson, Pritchard did not go to the site of the arrest, 106 Cambridge Place, and
did not participate in any identification procedures of the Petitioner. (Tr. 90, 93, 97, 191.) 2 Later
that evening, she went to the police station to identify her purse. (Tr. 53-55.) After confirming it

1

According to the prosecution, Keith Downs, a homeless man who frequented the area, witnessed the
robbery, gave the police a description of the suspect, and identified Petitioner as the robber when Downs arrived at
the scene of Petitioner’s arrest. (Barall Aff. at 4 n.2.) At the time of the trial, Downs was hospitalized and unable to
testify. (Id.)
2
During cross-examination, Pritchard stated that shortly after her attack, an officer took her to “106
Cambridge.” (Tr. 93.) She immediately clarified that she meant that she was taken to the police station, which she
thought was located at 106 Cambridge. (Tr. 93, 97.) The police station was located on a different street and
Pritchard indicated that she never visited the site of the arrest. (Tr. 97.) Furthermore, she never participated in any
identification procedures of the suspect at the police station (or elsewhere). (Tr. 90, 93.) She only identified her
purse and the knife. (Tr. 20-55, 92.)

2

was hers, Officer Quash took a photograph of it and returned it to her. (Tr. 50-59, 179-80, 18486, 205-06.)
Petitioner did not present any witnesses at trial.
The jury convicted Petitioner of Robbery in the First Degree (N.Y. Penal Law §
160.15[3]). (Tr. 316-22.) On May 16, 2006, the trial judge sentenced Petitioner to a determinate
term of imprisonment of fifteen years, to be followed by five years of post-release supervision.
II.

Post-Conviction Litigation
On May 26, 2006, Petitioner moved, pro se, under New York Criminal Procedure Law §

440.10, to vacate his conviction on the grounds that: (1) his trial counsel deliberately avoided
filing Petitioner’s pretrial pro se motion seeking reassignment of new trial counsel (or,
alternatively, the right to represent himself); and (2) the trial court erred by failing to conduct an
inquiry into whether his assigned counsel should have been replaced. (See Petitioner’s 5/26/06
Pro se 440.10 Motion (“First 440 Motion”), Dkt. Entry No. 17-2.) The trial court denied his
motion, acknowledging that the motion seeking reassigned counsel should have been filed by his
attorney before trial, but explaining that: (1) Petitioner’s motion for reassignment of counsel did
not contain any assertion whatsoever of the right to represent himself at trial; (2) Petitioner did
not complain about counsel’s trial performance; (3) trial counsel provided meaningful
representation; (4) Petitioner was not entitled to successive counsel unless there was good cause
for reassignment; (5) Petitioner’s “boilerplate” motion did not establish good cause; and (5) the
court would have denied the motion had it been filed before trial. (See Decision & Order, People
v. Waters, Indict. No. 6919/05 (Sup. Ct. Kings Co. Oct. 13. 2006); Dkt. Entry No. 17-2.) On
January 18, 2007, the New York State Supreme Court, Appellate Division, Second Department

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(“Appellate Division”) denied Petitioner’s application for leave to appeal from the October 13,
2006 order denying the First 440 Motion. (Barall Aff. ¶ 11.)
On November 6, 2008, Petitioner moved, pro se, for the second time under New York
Criminal Procedure Law § 440.10, to vacate his conviction. (See generally Petitioner’s 11/6/08
Motion to Vacate (“Second 440 Motion”), Dkt. Entry No. 17-1.) Petitioner asserted the same
argument contained in his First 440 Motion, and added the argument that, because his trial
counsel failed to inform the court of Petitioner’s pro se motion for reassignment of counsel,
Petitioner was deprived of his due process right of access to the courts. (See id.) On April 20,
2009, the trial court denied Petitioner’s Second 440 Motion, concluding that it was procedurally
barred under New York Criminal Procedure Law § 440.10(3)(b) and (3)(c) and also holding that
the motion lacked merit. (See Decision & Order, People v. Waters, Indict. No. 6919/05 (Sup. Ct.
Kings Co. April 20, 2009); Dkt. Entry No. 17-3.) On June 18, 2009, the Appellate Division
denied Petitioner leave to appeal. (See Barall Aff. ¶ 14.)
On March 31, 2009, Petitioner moved, pro se, for the third time under New York
Criminal Procedure Law § 440.10, to vacate his conviction. (See generally Petitioner’s 3/31/09
Motion to Vacate (“Third 440 Motion”), Dkt. Entry No. 17-2.) Petitioner argued that: (1) the
prosecution failed to disclose exculpatory evidence and witness statements to defense counsel as
required under New York Criminal Procedure Law § 240.45[1][a]; and (2) members of the New
York City Police Department (“NYPD”) falsified evidence.
Petitioner asserted that:

(Id. at 81-88.)

In particular,

(1) the prosecution withheld information related to an alleged

identification procedure by Katherine Pritchard at which she was unable to identify Petitioner as
the robber; (2) the prosecution withheld NYPD memo book entries; (3) the prosecution withheld
notes regarding a statement allegedly made by Pritchard; (4) the State withheld 911 tapes and

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“Sprint reports” regarding the alleged identification procedure involving Pritchard; and (5)
members of the NYPD falsified evidence regarding identification procedures involving two
eyewitnesses, Neal Wilkinson and Keith Downs. (Id.) On February 2, 2010, the trial court
denied Petitioner’s Third 440 Motion, concluding that Petitioner’s allegations regarding the
withholding of exculpatory evidence and the falsification of evidence were unfounded. (See
Decision & Order, People v. Waters, Indict. No. 6919/05 (Sup. Ct. Kings Co. Feb. 10, 2010);
Dkt. Entry No. 17-3.) On April 2, 2010, the Appellate Division denied Petitioner’s request for
leave to appeal the denial of the Third 440 Motion. (See Barall Aff. ¶ 18.)
In June 2010, Petitioner, through assigned counsel, filed his direct appeal challenging his
conviction on the sole ground that the prosecutor’s peremptory challenge to three AfricanAmerican female prospective jurors based on their race and sex violated Batson v. Kentucky, 476
U.S. 79 (1986). (See Petitioner’s Direct Appeal (“Pet’r’s App.”), Dkt. Entry No 17-3.) On
February 1, 2011, the Appellate Division affirmed Petitioner’s conviction, concluding that the
record supported the trial court’s finding that the prosecutor’s reasons for her challenges of the
three prospective jurors at issue were non-pretextual. See People v. Waters, 81 A.D. 3d 673 (2d
Dep’t 2011). On June 6, 2011, the New York State Court of Appeals denied leave to appeal the
order of the Appellate Division affirming his conviction. (See Barall Aff. ¶ 21.)
On November 24, 2010, amid filing his various 440 Motions, and before receiving a final
decision on his direct appeal, Petitioner filed the instant Petition. Currently, Petitioner remains
incarcerated pursuant to the judgment and conviction.

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LEGAL STANDARDS
I.

Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which

governs the review of petitions challenging state convictions entered after 1996, federal courts
may grant habeas relief only if the state court’s adjudication on the merits:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A decision is “contrary to” federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state
court decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An “unreasonable
application” is one in which “the state court identifie[d] the correct governing legal principle
from [the Supreme Court’s] decisions but unreasonably applie[d] that principle to the facts of the
prisoner’s case.” Id. at 413. A federal court may not grant relief “simply because that court
concludes in its independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” Id. at 411. Rather, the state court’s
application must have been “objectively unreasonable.” Id. at 409. Finally, “a determination of a
factual issue made by a State court shall be presumed to be correct,” and “[t]he applicant shall
have the burden of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
Notably, pro se pleadings are held “to less stringent standards than formal pleadings
drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should

6

“interpret [such papers] to raise the strongest arguments that they suggest.” Forsyth v. Fed’n
Emp’t & Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005) (citation and quotation marks
omitted). Though a court need not act as an advocate for pro se litigants, in such cases “there is
a greater burden and a correlative greater responsibility upon the district court to insure that
constitutional deprivations are redressed and that justice is done.” Davis v. Kelly, 160 F. 3d 917,
922 (2d Cir. 1998) (citation omitted).
II.

Procedural Default
District courts cannot review a state prisoner’s federal claims, if they are barred from

federal review by an independent and adequate state ground, “unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). When a state court
concludes that a claim is unpreserved for appellate review, this is “an independent and adequate
state ground that bars a federal court from granting habeas relief.” Butler v. Cunningham, 313 F.
App’x 400, 401 (2d Cir. 2009) (citing Coleman, 501 U.S. at 750); see also Reid v. Senkowski,
961 F. 2d 374, 377 (2d Cir. 1992). Therefore, if a state court’s holding contains a statement that
a claim is procedurally barred based on a state rule, the federal court may not review it, even if
the state court also rejected the claim on the merits “in any event.” Fama v. Comm. of Corr.
Servs., 235 F. 3d 804, 810 n.4 (2d Cir. 2000); see also Harris v. Reed, 489 U.S. 255, 264 n.10
(1989).
If a claim has been procedurally defaulted in state court, a federal court may address its
merits only if the petitioner demonstrates cause for the default and prejudice to the petitioner or
that a fundamental miscarriage of justice will occur if the court does not review the claim. See

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Murray v. Carrier, 477 U.S. 478, 485, 492 (1986); Wainright v. Sykes, 433 U.S. 72, 87 (1977);
Bossett v. Walker, 41 F. 3d 825, 829 (2d Cir. 1994). “[T]he existence of cause for a procedural
default must ordinarily turn on whether the prisoner can show that some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray,
477 U.S. at 488; see also Clark v. Perez, 510 F. 3d 382, 393 (2d Cir. 2008). To establish
prejudice, the petitioner must show that the alleged violation “worked to his actual and
substantial disadvantage, infecting the entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982).
III.

Exhaustion
Under 28 U.S.C. § 2254(b) and (c) a petitioner must exhaust his or her state court

remedies before a federal court may grant habeas relief to a petitioner in state custody.
Galdamez v. Keane, 394 F. 3d 68, 72 (2d Cir. 2005).

The exhaustion of state remedies

requirement means that a petitioner must present his or her claim to the highest court of the state.
Harris v. Fischer, 438 F. App’x 11, 13 (2d Cir. 2011) (citing Galdamez, 394 F. 3d at 73). A
claim is properly exhausted when the state court has been “fairly apprised” of the factual and
legal premises of the constitutional claim. Id. (citing Grey v. Hoke, 933 F. 2d 117, 119 (2d Cir.
1991)).
DISCUSSION
I.

Alleged Falsification of Evidence or Nondisclosure of Records
Petitioner asserts that members of the NYPD falsified evidence and withheld exculpatory

evidence to conceal the fact that: (1) the NYPD did not recover Katherine Pritchard’s purse from
Petitioner; (2) Pritchard viewed Petitioner at the location of his arrest, and (3) Pritchard did not
identify him as the suspect. (Pet. at 2-7.) Petitioner raised this claim in his Third 440 Motion,

8

which was denied on the merits in a thorough decision in which the trial court concluded that
Petitioner’s theories of falsified and suppressed evidence were “unfounded.”

Petitioner

exhausted this claim and, thus, it is properly before the Court. Accordingly, under the AEDPA
deferential standard of review, the Court must deny Petitioner’s claim unless the trial court’s
conclusion was an “unreasonable determination of the facts.”
A review of the record in this case reveals there was nothing unreasonable about the trial
court’s conclusion that Petitioner’s claims were “unfounded” because Petitioner’s unsupported
assertions are contradicted by other evidence in the record. First, there is no support for the
contention that the prosecution withheld a tape of a 911 call made around the time of the
robbery, and the corresponding “Sprint report.” The record clearly shows that defense counsel
possessed this evidence and used it during the trial to impeach Pritchard. (Compare Pet. 3, 6-7
with Tr. 86.) Second, the evidence presented at the pretrial suppression hearing and at trial
refutes Petitioner’s self-serving and unsupported claim of Pritchard’s identification of him at the
scene of his arrest. (See Tr. 90-93.) For example, Police Officer Quash testified that Pritchard
did not visit the arrest site. (See Tr. 177, 191.) Additionally, documents prepared by the NYPD
and the District Attorneys’ office shortly after Petitioner’s arrest indicate that only two civilians
were present at the scene of Petitioner’s arrest, Wilkinson and Downs, and they identified
Petitioner as the perpetrator. (See Tr. 177, 197-98.) Petitioner’s support for his claim, a stray
comment in a “Sprint report,” does not counter the evidence presented by the prosecution.
Finally, Pritchard testified at trial that she never participated in any identification procedure. (Tr.
90, 93.) Thus, the trial court’s denial of Petitioner’s Third 440 Motion is not an “unreasonable
determination of the facts.” Accordingly, the Petitioner’s claim is denied.

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II.

Ineffective Assistance of Counsel
Petitioner also contends that he was denied effective assistance of trial counsel in

violation of the Sixth Amendment. Specifically, Petitioner asserts that trial counsel failed to: (1)
request various records from the police, cellular telephone records, and Petitioner’s Metrocard,
all of which Petitioner alleges were exculpatory; (2) inform the trial judge that Petitioner wanted
new assigned counsel; and (3) investigate the alleged identification procedure involving
Katherine Pritchard, at which she allegedly was unable to identify Petitioner as the suspect. (Pet.
at 7-11.) Notably, the only portion of this claim that Petitioner exhausted is the failure of his trial
counsel to inform the trial judge that Petitioner wanted new assigned counsel. Petitioner raised
this claim in his First 440 Motion, which the trial court denied on the merits. Thus, under the
AEDPA deferential standard of review, the Court must deny Petitioner’s claim unless the trial
court’s conclusion “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law” or was an “unreasonable determination of the
facts.”
The other portions of Petitioner’s Sixth Amendment claim are unexhausted as Petitioner
never raised them in his direct or collateral appeals. Nonetheless, the Court may “deny a petition
on the merits as a matter of discretion, even if the petitioner pressed some unexhausted claims in
his or her habeas petition.” Galdamez v. Keane, 394 F. 3d 68, 71 (2d Cir. 2005); see also 28
U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
state.”). Thus, the Court will review Petitioner’s entire Sixth Amendment claim on the merits.
Under the Sixth Amendment, criminal defendants “shall enjoy the right . . . to have the
Assistance of Counsel for [their] defense.” U.S. Const. amend. VI. “[T]he right to counsel is the

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right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate
that counsel’s representation “fell below an objective standard of reasonableness” measured by
“prevailing professional norms,” and that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). A “reasonable probability” of a different result is a
“probability sufficient to undermine confidence in the outcome.” Id.
“The burden of establishing both constitutionally deficient performance and prejudice is
on the defendant.” U.S. v. Birkin, 366 F. 3d 95, 100 (2d Cir. 2004) (citing Strickland, 466 U.S. at
687).

Counsel is “strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Strickland , 466 U.S.
at 690. Generally, “strategic choices made by counsel after a thorough investigation of the facts
and law are ‘virtually unchallengeable,’ though strategic choices ‘made after less than complete
investigation are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.’”

Thomas v. Kuhlman, 255 F. Supp. 2d 99, 107

(E.D.N.Y. 2003) (quoting Strickland, 466 U.S. at 690-91).
With respect to the portion of Petitioner’s Sixth Amendment claim that faults trial
counsel for failing to file his motion for new assigned counsel, the trial court’s denial of his
claim on the merits did not “result[] in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law.” The trial court acknowledged that
counsel should have filed the motion before trial, but explained that: (1) Petitioner did not
complain to the trial court about counsel’s performance; (2) trial counsel provided meaningful
representation; (3) Petitioner was not entitled to successive counsel unless there was good cause

11

for reassignment; (4) Petitioner’s “boilerplate” motion did not establish good cause; and (5) the
court would have denied the motion if it had been filed before trial. (See Decision & Order,
People v. Waters, Indict. No. 6919/05 (Sup. Ct. Kings Co. Oct. 13. 2006); Dkt. Entry No. 17-2.)
In denying Petitioner’s Sixth Amendment claim, the trial court did not unreasonably
apply federal law. First, a review of the record indicates that trial counsel provided Petitioner
meaningful representation by moving for pre-trial suppression of witness identifications of
Petitioner, impeaching the prosecution’s witnesses at trial, and arguing for a lower sentence.
Moreover, even if trial counsel had submitted Petitioner’s pro se motion for reassigned counsel,
the trial court would have denied it as Petitioner’s motion consisted of “boilerplate” language
and Petitioner failed to demonstrate good cause for reassignment. Second, Petitioner was not
prejudiced by counsel’s omission. The evidence of Petitioner’s guilt was overwhelming. The
victim identified him in court as her assailant. A witness to the robbery, who chased Petitioner,
identified Petitioner as the assailant. Several parole officers saw Petitioner fleeing the scene of
the crime carrying the victim’s white purse and a knife in his hands. Petitioner was arrested in
possession of the knife he wielded and the stolen purse. Later that evening, the victim identified
the purse as hers and the knife found on the ground next to Petitioner as the knife used to
perpetrate the crime. Under these circumstances, the trial court did not unreasonably apply
federal law in rejecting Petitioner’s Sixth Amendment claim as Petitioner failed to establish both
the performance and prejudice prongs for such claims.
Finally, Petitioner’s unexhausted Sixth Amendment claims are denied as well. These
claims fault trial counsel for failing to pursue Petitioner’s unsupported theory of Pritchard’s
failed identification of him, as well as Petitioner’s unsupported theory that the NYPD did not
recover Pritchard’s purse from Petitioner and falsified evidence to conceal that error. As set

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forth above, see supra DISCUSSION Part I, the evidence in the record squarely contradicts
Petitioner’s unsupported theories.

Thus, counsel was not ineffective for failing to present

Petitioner’s unsupported theories at trial.
III.

Denial of Right to Access to Courts
Petitioner alleges that he was denied access to the courts as the court ignored his pro se

pretrial motion for reassignment of counsel. (Pet. 11-12.) Specifically, Petitioner contends that:
(1) he submitted his pro se motion to the trial court, which forwarded it to his counsel to review;
(2) counsel never submitted the motion to the court; and (3) the court should have a procedure to
ensure that counsel timely submits such motions. (Id.) Petitioner raised this claim in his Second
440 Motion, which was rejected both as procedurally barred under New York Criminal
Procedure Law § 440.10(3)(b) and (3)(c) and on the merits. See Decision & Order, People v.
Waters, Indict. No. 6919/05 (Sup. Ct. Kings Co. April 20, 2009).
As set forth under New York Criminal Procedure Law § 440.10(3):
[T]he court may deny a motion to vacate a judgment when . . .
(b)

The ground or issue raised upon the motion was previously determined on
the merits upon a prior motion or proceeding in a court of this state . . .
[or]

(c)

Upon a previous motion made pursuant to this section, the defendant was
in a position adequately to raise the ground or issue underlying the present
motion but did not do so.

N.Y. Crim. Proc. Law § 440.10(3)(b) & (c). Courts have routinely recognized that a petitioner’s
failure to comply with these statutory procedural requirements in litigating a claim operates as an
independent and adequate state law ground barring subsequent federal habeas review of such a
claim. See, e.g., Warren v. Goord, 2013 WL 1310465, at *16 (E.D.N.Y. Mar. 28, 2013) (holding
that the petitioner’s claim was procedurally barred and unreviewable by the court because the
13

state court rejected his claim under N.Y. Crim. Proc. Law § 440.10(3)(b) which is an
independent and adequate state law ground for dismissal); Powell v. Graham, 2013 WL 37565,
at *9 (E.D.N.Y. Jan. 3, 2013) (explaining that the court was barred from reviewing petitioner’s
claim as the state court properly rejected his claim under N.Y. Crim. Proc. Law § 440.10(3)(c)
because petitioner should have raised the claim at an earlier proceeding). Finally, Petitioner has
made no showing of “cause for the default and prejudice to the petitioner or that a fundamental
miscarriage of justice will occur if the court does not review the claim.” Accordingly, this claim
is procedurally barred from review by this court.
IV.

Speedy Trial
Petitioner alleges that the delay in the filing and resolution of his direct appeal of the

judgment of conviction constitutes a violation of his due process speedy trial rights. (Pet. at 1213.) As a preliminary matter, this claim is unexhausted as Petitioner did not raise this claim in
his prior direct and collateral appeals in state court. Nonetheless, the claim has no merit.

See

Ferguson v. Walsh, 2011 WL 1527973, at *4-5 (E.D.N.Y. Apr. 20, 2011) (holding that the
petitioner’s right to a speedy trial was not violated by the nearly ten-year delay in adjudication of
his direct appeal as petitioner was primarily responsible for the delay and was not prejudiced by
the delay). Petitioner was sentenced on May 16, 2006. Petitioner perfected his direct appeal in
June 2010. Notably, the Appellate Division resolved Petitioner’s direct appeal, affirming his
conviction on February 1, 2011. See People v. Waters, 81 A.D. 3d 673 (2d Dep’t 2011). On
June 6, 2011, the New York State Court of Appeals denied Petitioner leave to appeal. (See
Barall Aff. ¶ 21.)

Although the Second Circuit is critical of long appellate delays, see

Muwwakkil v. Hoke, 968 F. 2d 284 (2d Cir. 1992) (concluding that a fifteen-year delay was
excessive), the four and a half-year delay in Petitioner’s case was not excessive and was due

14

primarily to Petitioner’s failure to perfect the appeal speedily. Moreover, the delay caused no
prejudice to Petitioner as the result of his direct appeal would have been the same even if there
had been no delay. See Charleston v. Gonyea, 2013 WL 1156085, at *5 (S.D.N.Y. Mar. 20,
2013) (“As the Second Circuit has recognized, prejudice does not ensue if the appeal would have
had the same result absent the delay.” (citing Diaz v. Henderson, 905 F. 2d 652, 653 (2d Cir.
1990)). Thus, Petitioner’s claim for undue appellate delay is dismissed.
CONCLUSION
For the reasons set forth above, the Petition made pursuant to 28 U.S.C. § 2254 is
dismissed in its entirety. Petitioner is further denied a certificate of appealability, as he has failed
to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
see FED. R. APP. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York
State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in
forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).

SO ORDERED.
DATED: Brooklyn, New York
March 27, 2014
_________________/s/_______________
DORA L. IRIZARRY
United States District Judge

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