Thomas v. State of New York Department of Corrections et al

Filing 40

MEMORANDUM DECISION AND ORDER: The petition for writ of habeas corpus is denied in its entirety. The case is dismissed. A certificate of appealability will not be issued. Ordered by Judge Ann M. Donnelly on 11/28/2017. (Greene, Donna)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
X

SHELDON THOMAS
MEIVIGRANDUM DECISION AND

Petitioner,

ORDER

- againstll-cv-01119(AMD)

STATE OF NEW YORK DEPARTMENT OF

CORRECTIONS,et al.

FILED
Respondents.
X

NOV 28 20I7 ^
ANN M.DONNELLY,District Judge.

BROOKLYN OFF/ce

The petitioner, Sheldon Thomas, seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254. The petitioner was convicted in Kings County Supreme Court of Murder in the Second
Degree and related crimes, and was sentenced to a total prison sentence of 25 years to life. The
petitioner challenges his conviction under the Fourth, Sixth, and Fourteenth Amendments.

Specifically, he asserts that the state court should have suppressed the witnesses' identifications of

him, and that he was denied the effective assistance of counsel.' For the reasons that follow, the
petition is denied.
FACTUAL BACKGROUND

1. Overview

The petitioner's conviction arose out of a gang related shooting. On December 24, 2004,
fourteen-year-old Anderson Bercy and a group of friends were walking south on East 52nd Street

'Discerning the precise nature of the petitioner's claims is no easy task. The petition, although filed by counsel, is
48 pages long and single spaced. It does not separate the evidence at the various legal proceedings from the arguments.
Instead, the arguments are interspersed with statements about what is alleged to have transpired in state court.
Nevertheless, I have undertaken a thorough review of all submissions, including the voluminous state court record.
1

in Brooklyn; ail were members of an East Flatbush street gang. A white car pulled up alongside
the group, and two shooters opened fire from the passenger side. Bercy was shot in the upper chest
and died soon after. Another person in the group, Kadeem Drummond,also was shot but survived.
2. Investigation

On December 24, 2004, Detective Robert Reedy of the 67th Precinct and Detective

Michael Martin of the Brooklyn South Homicide Squad were assigned to investigate Anderson
Bercy's murder. (ECF 35-1 at 7.) As part of the investigation, the detectives attempted to
interview the people who were with the victims at the time of the shooting. They interviewed
Kadeem Drummond, who told them that the shooting might be related to an altercation he had two
days earlier with someone nicknamed "Yellow." (ECF 35-31 at 1.) Another detective interviewed

Aliyah Charles, the girlfriend of Kirk Lapaix, who was with Bercy and Drummond at the time of
the shooting. Charles was in Lapaix's apartment at the time ofthe shooting, and told the detective
that she went to the window after hearing shots, and saw a white car drive away. (ECF 35-32 at

2.) Charles claimed not to have seen anything else, and that the only thing she knew about the car
was that it had tinted windows. {Id.)
On December 26,2004,detectives interviewed Daymeon Smith. (ECF 35-35 at 1.) Smith
said that at least four people were in the white car, and said that one of the shooters was a "dark-

skinned black male" wearing a dark blue "muffin" hat(a winter hat with earflaps), who fired a gun
out of the right rear window. {Id.) Smith said that he would recognize the man if he saw him
again. {Id.)

The same day, Aliyah Charles went to the 67th Precinct and gave an audiotaped statement
to an assistant district attorney. She also gave Detectives Martin and Reedy a list of seven people
who "might have been" in the white car. (ECF. 35 at 4.) The list included the following names:

Yellow, Smokey,Shelly, Kem,Has, O'Neil, and Chris. {Id.) Detective Martin learned from other
officers that "Yellow" was Dalton Walters, a member of the Outlaws gang,"Shelly" was Sheldon
Thomas, a member of the Crips, and "Kem" was Emesto Sergeant, who was not affiliated with a
gang. {Id.)
3. The Photographic Arrays. Arrest, and Line-ups

Detective Martin assembled two photographic arrays. One array included Dalton Walters'
photograph. The second array included a photograph of someone named Sheldon Thomas, but it
was not the petitioner. (ECF 36-2 at 84-85.) This photograph was in the fifth position of the six
photograph array. {Id.) Aliyah Charles looked at the array and identified photograph number
five—the other Sheldon Thomas—as "one of the guys in the white car." {Id. at 86-87.) She said
that she was "ninety percent sure" about her identification, but needed to see him in person to be
certain. {Id.) Thinking that she had identified the petitioner, detectives arrested him at his home.
(Mat 90-91.)
After advising the petitioner of his constitutional rights, Detective Martin told him that a
witness had identified his photograph in connection with the murder, and showed him the array.

{Id. at 92.) When the petitioner responded that he was not the person in the photograph, Martin
realized that the array contained the photograph of a different Sheldon Thomas.

{Id.)

Nevertheless, the detectives placed the petitioner in a line-up on December 28, 2004. {Id. at 9398.) Three witnesses separately viewed the line-up: Aliyah Charles, Daymeon Smith, and Freddy

Patrice. {Id. at 97; ECF 35-37 at I; ECF 35-38 at 1.) Charles identified the petitioner as one of
the people in the white car, while Smith and Patrice identified the petitioner as one ofthe shooters.
(ECF 36-2 at 97; ECF 35-37 at 1; ECF 35-38 at 1.) Smith and Patrice refused to sign the line-up
forms. (ECF 35-37 at 1; ECF 35-38 at 1.)

The police arranged another line-up with Dalton Walters as the subject. (ECF 36-2 at 9697.) Charles and Patrice identified Walters as one of the shooters from the white car; Smith

identified him as someone from the neighborhood, but said that he was not in the car. {Id. at 9697.)

On May 13,2005,the police conducted a third line-up with Ernesto Sergeant as the subject.
{Id. at 98-99.) Smith identified Sergeant; Charles did not. {Id. at 98-99.)
4. Pre-Trial Hearings

Prior to trial, the petitioner and his co-defendant, Dalton Walters, moved to suppress the
photographic and line-up identifications. Pretrial hearings began on June 5, 2006 before the
Honorable Vincent Del Guidice.
a.

The Prosecution's Case

Detective Robert Reedy testified on direct examination that that both Aliyah Charles and
Daymeon Smith identified the petitioner's photograph from an array as one of the people in the

white car. ^ (ECF 35-2 at 14.) Reedy also identified the petitioner in court as the person in the
array. On cross-examination, however, the petitioner's attorney established that the person in the
array was not the petitioner, but another man whose name was also Sheldon Thomas, a fact that

the prosecutor acknowledged.^ {Id. at 35-39.) The petitioner's counsel then argued that because
no witness had actually identified the petitioner in the photo array, the police did not have probable
cause for the arrest, and the line-up identifications should be suppressed. {Id. at 67-68.) In
response to the court's questions. Reedy admitted that his statements on the stand were false when

^ Pursuant to a protective order, the parties referred to Charles and Smith as Confidential Witnesses #1 and #2.
^ It appears from the record that the prosecutor conducting the hearing was not aware, until counsel's cross
examination, that the petitioner's photograph was not in the array.
4

he made them. {Id. at 76-77.) The court adjourned the hearing so that Reedy could consult a
lawyer. He also directed Reedy not to talk to anyone else about his testimony. {Id.)
When the hearing resumed the following week,Reedy testified that he had "mixed up" the
details of the photographic array and the line-ups, that Smith did not identify anyone from the
photographic array, and in fact refused to look at the array. (ECF 35-4 at 4-12.) Reedy also
testified that Aliyah Charles identified the photograph of the other Sheldon Thomas—not the
petitioner. {Id. at 11.) Two days after Reedy showed the photo array to Smith and Charles,

Detective Martin told him that the Sheldon Thomas in the array was not actually the petitioner, a
fact that Reedy did not remember until the petitioner's counsel refreshed his recollection. {Id. at
23-28.)
Reedy admitted that he conferred with Detective Martin and other detectives during the
intervening weekend; they "refreshed his memory" that an anonymous caller gave them the name
"Sheldon Thomas," a series of nicknames ("Shellie, Lock, Smoke"), and an address on East 48th
Street. {Id. at 16.)

The petitioner's counsel and Walters' lawyer filed a joint motion to strike Reedy's
testimony about the anonymous call, because Reedy violated the court's order by conferring with

Detective Martin, who was also going to be a witness. {Id. at 44-45.) Judge Del Guidice denied
the motion, ruling that the issue was one of credibility, and that he would give the testimony "as

much weight as it deserves.'"* {Id. at 46.)
Detective Martin also testified about the identifications. Aliyah Charles told him that she
overheard other witnesses to the shooting say that "Sheldon" or "Shelly" and "Yellow," "Hoz",
and "Kern" were involved. (ECF 35-7 at 58.) In addition, an anonymous caller to the precinct

^ Counsels' motion for a special prosecutor was denied.
5

reported that one ofthe perpetrators lived at 384 East 48th Street. (ECF35-5at 17-18.) This caller
mentioned "Sheldon Thomas," and gave "very detailed information," including an address and the
nicknames Shelly, Loke, and Smoke or Smokey. {Id. at 17-23.) Like Charles, the anonymous

caller identified Sheldon Thomas as a known associate of someone named "Yellow."^ {Id. at 24.)
Martin entered the information into a computer and located a photograph of someone

named Sheldon Thomas, who lived in the

Precinct, where the shooting occurred. He put

together a photographic array and put that photograph in the fifth position. He made a second
array with Dalton Walters' photograph. On December 27, 2004, Martin and Reedy went to Kirk
LaPaix's apartment, and showed the arrays, separately, to Charles and Smith. Charles identified

the Sheldon Thomas in the array as one of the shooters; she clarified that she was "ninety percent
sure," and that she would have to "see him in person" to be 100 percent sure. {Id. at 33-35). She
identified Walters' photograph from the second array. Smith refused to look at the arrays. {Id. at
36.)

After the petitioner's arrest, Martin advised him of his constitutional rights, which the
petitioner waived. {Id. at 43-45.) The petitioner said that on the day of the shooting, he and a
friend went to Queens at 11:30 p.m. {Id. at 47.) When the detective said that the shooting occurred

at 9:30 p.m.,the petitioner "appeared nervous," and said that he meant to say that he was in Queens
at 11:30 a.m., and did not return to Brooklyn until 3:00 a.m. on Christmas. The petitioner knew
Walters as "Yellow," but claimed that he had never been in a white Nissan "ever in his life." {Id.
at 48.)
As a "bluff to "spur more information out of him," Martin said that "numerous witnesses"

had identified him.{Id. at 49-50.) The petitioner did not think that was possible, so Martin showed

^ There was more than one anonymous call, but Martin did not personally receive or document any of the calls.
(ECF35-7 at 71.)

him the array with the photograph of the other Sheldon Thomas, and said, "There you are in
position number five." {Id.) The petitioner replied, "That's not me." Martin looked at the
photograph again, and realized that although there were "similarities," the person in the photograph
was not the petitioner. {Id. at 51.) Nevertheless, Martin's "gut feeling" was that he had arrested
"the right Sheldon Thomas," based on his investigation and on the petitioner's "answers and

evasiveness." (ECF 35-7 at 65).^
Sergeant Michael Murphy testified about the circumstances of the petitioner's arrest. At
around 3:30 a.m. on December 28, 2004, Murphy went to the front door ofthe petitioner's home,

and saw someone, who looked like the petitioner, freeze like "a deer in headlights," and then turn
around toward the back door. (ECF 35-9 at 35.) Murphy also heard screaming and "commotion"
from the back room of the house. {Id. at 37.) Fearing for the people inside. Murphy ordered an
officer to kick open the door and arrest the petitioner. {Id. at 37-39.)
b. The Defense Case

The petitioner's mother, Pauline Williams, testified about the circumstances of the
petitioner's arrest. The police knocked on her door at 3:30 a.m. and asked to speak to Sheldon
Thomas. (ECF 35-10 at 7.) When Williams and her fiance did not open the door, the police

banged on the door and yelled at them to "open the door." {Id. at 8.) Williams then woke the
petitioner, who came downstairs, but refused to open the door. Williams, her mother, a couple of
children, and the petitioner sat in the kitchen, while Williams' fiance called the precinct to ask why
the officers were at his home. {Id. at 23.) The children were crying, but the adults never raised
their voices. {Id. at 36-37.) Eventually, an officer kicked the door open, and at least six officers

^ Martin did not at that point advise anyone in the District Attorney's Office that a witness had identified a different
Sheldon Thomas, nor did he prepare any reports or notes to that effect.(ECF 35-7 at 64). When he brought witnesses
to testify before the grand jury, he told an assistant district attorney what had happened, but he did not remember who
that person was. {Id. at 65).
7

came in, and arrested the petitioner. {Id. at 10.)
c.

The Court's Decision

In a written decision, Judge Del Guidice denied the motion to suppress the identifications
and the petitioner's statements. (ECF 35-45.) He credited the testimony of the prosecution's
witnesses. As for Detective Reedy, the court accepted his explanation that he had confused the

details of the photographic array with the circumstances of the line-ups. {Id. at 10.) The judge
also found that there was probable cause to arrest the petitioner, based on the information from the

witnesses, including Aliyah Charles, and from the anonymous callers. {Id. at 13.) The judge
concluded that it was "of no legal consequence" that Charles identified the photograph of a
different Sheldon Thomas, because he resembled the petitioner, had the same name,and the police

believed in "good faith" that the person in the photograph was the petitioner. ^ {Id. at 13.)
The court held that the line-up procedures were not unduly suggestive, that "all fillers were
sufficiently similar in appearance," and that "[a]ny differences in height and hairstyle were
minimized by having all subjects seated and wearing shower caps." {Id.)
5. The Trial

a. The Prosecution's case^
i. Davmeon Smith

Daymeon Smith, a member of the Bloods, had a criminal record that included an assault
and attempted robbery, stealing motorcycles, threatening a police officer, and a parole violation.
He knew the petitioner from the neighborhood, and saw him about twice a week during the year

before the shooting. (ECF 35-14 at 3.) The petitioner was a member of the Gangsta Killa Crips,

^ Judge Del Guidice agreed with the petitioner's lawyer that the "forceful entry" into the petitioner's house violated
Payton v. New York, 445 U.S. 573(1980), but found that the violation did not require suppression because the police
had probable cause to arrest the petitioner.(ECF 35-45 at 15-16.)
® The charges against Ernesto Sergeant were dismissed after the hearing.

a sub group of the Crips gang. Dalton Walters, known as "Yellow," was an Outlaw. {Id. at 4-6.)
Walters and Freddy Patrice, also a Blood, "had beef and "didn't like each other." {Id.)

Approximately two months before the shooting, Walters approached Smith, who was then sixteen,
his best friend, fourteen-year-old Anderson Bercy, and some other Bloods, and warned them to
stay away from Patrice. {Id. at 6-7.)

At about 8:30 p.m. on Christmas Eve, Smith was with a group of other Bloods, heading
back to Kirk Lapaix's house; the group included Anderson Bercy, Kirk Lapaix, Freddy Patrice,
Michael Bamwell, and Kadeem Drummond. {Id. at 20.) A white car with tinted windows pulled

up next to the group about five feet from Smith, the front passenger window was lowered, and the

petitioner, wearing a "muffin" style hat, pointed a gun through the window and started firing. {Id.
at 21.) Smith, who heard at least ten shots from two different guns, ran, as did the rest ofthe group.

When he reached Anderson Bercy's building, about two blocks from the shooting, Freddy Patrice

was dragging Bercy into the building. Bercy was holding his chest and said that he had been shot.
Kadeem Drummond was also shot. Smith ran into a deli, screaming for help. He learned later that
Anderson Bercy had died from his wounds. Smith quit the Bloods two weeks after the murder.
(ECF35-15at7.)

After the shooting, detectives tried to show Smith two photographic arrays, but he refused
to look at them. On December 28th, Smith made a line-up identification of the petitioner as the

person he saw shooting from the white car. In a separate line-up, he identified Walters as someone
he knew from around the neighborhood. {Id. at 35-38.)

On cross-examination, the petitioner's lawyer confronted Smith with his statements to the
police that the shooter fired out of the right rear window, not the front passenger window. (ECF
35-15 at 22-25.) He also cross-examined Smith about his statements to the police and his grand

jury testimony that the shooter was dark-skinned. Smith said that he did not know whether the
shooter had light skin, dark skin, or something in between, but agreed that the petitioner did not

have dark skin.^ (ECF 35-16 at 3.)
ii. Alivah Charles

At the time of the shooting, Aliyah Charles was Kirk Lapaix's "on and off girlfriend.
Lapaix was a Blood, as were his friends, including Daymeon Smith, Kadeem Drummond, and
Michael Barnwell. Anderson Bercy "was like a little brother" to her. (ECF 35-18 at 8-10.) She
recognized the petitioner and Walters from around the neighborhood. She had seen Walters once
or twice a week for the previous four to five years, and knew him as "Yellow." {Id. at 10-12.)
She did not know if Walters was in a gang, but knew that he associated with members of the
Outlaws. {Id. at 12-13.) She did not know the petitioner, but had seen him in the neighborhood
during the previous two years, and knew that he was a Crip. {Id. at 14.)
Before December of2004,Charles saw the petitioner driving a white car, which she noticed
because it had "scratches in the back." {Id. at 16-17.) She also saw the petitioner and Walters one

time during the summer, which "caught [her] attention" because she had never seen a Crip and an
Outlaw together. {Id.)
On December 24, 2004, as Charles left her job at Subway and walked to Kirk Lapaix's
apartment at 52nd Street and Snyder Avenue, she saw Ernesto Sergeant, whom she knew as
"Kern," driving the same white car that the petitioner had previously driven. {Id. at 19-20.) When
she reached the apartment, Kirk Lapaix, Freddy Patrice, Daymeon Smith, and Anderson Bercy
were there. Charles went with them to a sneaker store where they met up with Michael Barnwell.
{Id. at 21-22.) Charles noticed the same white car drive past the sneaker store, but did not see who

^ Members ofthe audience made threatening gestures during Smith's testimony, and were ejected from the courtroom.
10

was driving. {Id. at 22-23.) At one point, Lapaix and Patrice were "pointing and whispering," and
Charles saw the white car again. {Id. at 24.) Lapaix then told Charles to go to his apartment
because he wanted "to make sure [she was] safe." {Id. at 25.)
While Charles was watching television inside the apartment, she looked out the window
and noticed that the white car was now parked in front of the building. She claimed that she was
able to see, from the second floor, not only that the car had scratches on the back, but that the
petitioner was driving, that Walters was in the back seat on the passenger side, that "Kern" was in
the front seat, and that a fourth person was behind the petitioner. She left the window, and when

she returned,saw the white car on the other side ofthe street. A few minutes later, she saw Lapaix,
Drummond, Bercy, and the rest of the group walking toward the building. {Id. at 31 -32.) As they
neared the comer,"shots started coming from the white car;" Charles could tell that two guns were
being fired from the front and rear passenger windows. {Id. at 33.) When Charles went downstairs,
Lapaix was there but the rest of the group had fled. {Id. at 34-35.)
The police arrived within a half hour, and asked what happened. Charles told them that
she did not see anything, and that the only thing she noticed ahout the car was that it had tinted
windows; she did not want to talk to anyone because she could not believe that Anderson Bercy
was dead.{Id. at 35-36.) On December 26, 2004,she went to the precinct and made an audiotaped
statement, under oath, to an assistant district attorney, in which she said that she had only seen
Walters "like once or twice" before the shooting, and that she did not see the face of the driver.
{Id. at 67.)
On December 27, 2004, Detectives Reedy and Martin showed her a photographic array;

she selected photograph number five, and said that she was ninety percent sure the person in the
photograph was involved in the shooting, but needed to see him in person. {Id. at 37.) She looked

11

at separate line-ups on December 28, 2004. In the first one, she identified Walters as one of the
shooters. {Id. at 38-39.) In the second line-up, she identified the petitioner as the driver.

{Id. at

41-43.)

Both defense lawyers cross-examined Charles extensively about her ability to see what she
claimed to have seen. When the co-defendant's lawyer challenged her, Charles said for the first
time that the apartment window was open, even though it was cold, and that she put her head out
of the window. Co-counsel then showed her a photograph of the window, which showed that it
was covered by window guards; Charles replied that those were added after the shooting. {Id. at
16-11.) When confronted with her earlier statement that the car had tinted windows, she said that
it did not have "really tinted, tinted windows. You could see inside the car." {Id.). She also said

that the car's interior lights were on, and that the windows were down."(1096, 1098).'^
The petitioner's attorney focused on Charles' identification of the other Sheldon Thomas,

and the circumstances surrounding the photographic array and the line-ups. As part of that line of
questioning, he cross-examined her about the apparent contradiction that she claimed to have
known who the petitioner was, yet identified a different man from the array, saying that she was
90 percent sure that he was the person driving the car. (1139-1154.) Counsel then questioned
Charles about her prior encounters with the petitioner. Charles said she was more afraid of the
petitioner than anyone in the car, and claimed that he and another woman had beaten and shot
people "for fun." When counsel pressed her for details about these claims, she responded,"I don't
think I have to tell you that." After being admonished by the court, Charles gave dates and times

In September of 2006, one of Dalton Walters' friends warned Charles that "snitches get stiches." (EOF 35-20 at
19.) During Charles' testimony, that same person made a threatening gesture to her in the courtroom; he put his hands
together as though he was praying, and mouthed, "It's a done deal." {Id. at 19.) A detective testified, outside the
presence ofthe jury, that he saw the petitioner make the same gesture during Daymeon Smith's testimony.
"Daymeon Smith testified that the car interior lights were not on. (ECF 35-15 at 26.)
The petitioner did not file pages 1093 through 1180 ofthe transcript on ECF, but sent the Court a courtesy copy of
the transcript that included these pages. The petitioner is instructed to file these pages on ECF.
12

that she claimed to have seen these events, but admitted that she did not call the police either time.
Counsel finished this area of questioning by confirming that even though she was "very familiar"
with the petitioner, she identified another man, and was ninety percent sure of her identification.
(/£/.atll68.)
In addition to Charles' mistaken identification, counsel also focused on the coincidence

that the photograph she selected was of a man whose name was also Sheldon Thomas, which

counsel suggested was evidence that the police had told her which photograph to select. He also
established that prosecutors told Charles, before her testimony, that the person that she identified

in the photographic array was not the petitioner.^^
hi. Kadeem Drummond

Drummond, who was sixteen years-old at the time ofthe shooting,knew both the petitioner
and the co-defendant. He had known the co-defendant, a member of the Outlaws, "all his life,"

and had a good relationship with him.(ECF 35-20 at 45-46, 60.)''' He had known the petitioner
for about four years; they worked together and "got along." (Id. at 64.) Two days before the
shooting, while Drummond was with Bercy, Patrice, Lapaix, and others, Walters told him that he
was "chilling with the wrong crowd," and "mushed" him in the face. (Id. at 49-52.) Drummond
did not feel threatened; rather, he thought Walters' was giving him advice, like "a big brother."
(Id. at 60-62.) On December 24, 2004, Drummond was with the group when the shooting broke
out. He was struck in the shoulder by one of the bullets, but did not see the shooter. (Id. at 5759.)
iv. Kirk Lavaix

Twenty-three-year-old Kirk Lapaix had been a member of the Bloods for nine years at the

The court denied counsel's request for a sanction.
Drummond said that he was not a Blood, but that his friends were.
13

time of the trial, and dated Aliyah Charles on and off beginning in 2003. (ECF 35-22 at 28-29.)
He had a conviction for attempted assault. He did not know the petitioner, and had never seen him

before the trial. He did know Walters, whom he identified in court. {Id. at 31, 59.)
On December 24,2004, not long before the shooting, Lapaix was walking with his friends,
and saw Walters walking toward him. They exchanged greetings. {Id. at 37-38.) Shortly
thereafter, Lapaix had a telephone conversation with Walters; he could hear the sound of a crowd
in the background. {Id. at 55-58.) The call ended as Lapaix and his friends approached the comer

of 52nd Street and Snyder Avenue, and gunshots rang out. {Id. at 42-44.) Lapaix ran and hid
behind some bushes. {Id.) He did not know the direction from which the shots came or how many
shots were fired, and did not see any of the shooters. {Id.)
V. Freddy Patrice

At the time of the trial, Freddy Patrice was incarcerated on a pending robbery charge.'^
Although he had a tattoo on his neck that read "Outlaw," Patrice denied that he was a member of
that or any gang, and claimed not to know the gang affiliations of any of his friends.(ECF 35-23

at 24-27.) Dalton Walters was "very much" a friend of his, and they had never had "beef." {Id. at
26-30.) On December 24, 2004, Patrice was with his friends when he heard shots; he ran with
Anderson Bercy. When they reached the comer, Bercy said that he had been hit, and collapsed.

Patrice picked him up,and continued running. {Id. at 28-32.) He called 911, but left the area when

Bercy's family arrived.'^ Patrice said that he "never" viewed any line-ups, and had never identified
anyone involved in the shooting. {Id. at 33, 41.)'^

Patrice's lawyer was in court when Patrice testified.
Although neither the recording of the 911 call nor the transcript ofthe call is part of the record, both defense lawyers
argued on summation that Patrice told the 911 operator that he could not describe the shooters.(ECF 35-27 at 45.)
The court declared Patrice a "hostile witness." Patrice denied that he had conditioned his cooperation on being
released from prison. Outside the presence of the jury, the prosecutor told the court that Patrice had previously told
prosecutors that unless they arranged for his release from prison, he would say that he did not remember anything.{Id.
at 40.) Martin Goldberg, Patrice's lawyer, advised the court that at one point, prosecutors promised Patrice that if he
14

vi. Additional Evidence

Detectives and police officers testified about the identification of Anderson Bercy's body,
the crime scene processing,and the collection and analysis of ballistics evidence from two different

guns—five shell casings from a nine-millimeter gun and seven shell casings from a twenty-two
caliber gun. (ECF 35-21 at 29.) Another detective, Kenneth Fung, testified that the petitioner and
Walters were "whispering together" while they were being transported to Central Booking. {Id. at
30.) A doctor from the Office of Chief Medical Examiner testified that Anderson Bercy died from

a gunshot wound that perforated his heart and lung. Another doctor testified about treating
Kadeem Drummond's injury, a gunshot wound to the shoulder.
Over counsel's objection, court permitted the prosecutors to introduce a partially redacted

copy of the petitioner's visitor log from prison, on the theory that it demonstrated his connection
to the neighborhood and that other gang members visited him.(ECF 35-20 at 2-5.)
b. Defense Case
i. Ann Marie Candillo

Ann Marie Candillo, Kirk Lapaix's mother, had lived on the second floor of 5122 Snyder
Avenue for over 20 years. (ECF 35-24 at 38.) Aliyah Charles lived with her at the time of the

shooting. {Id. at 40.) Candillo testified that there were bars on her bedroom window, which had
been there for twenty years. (7^/. at41.) There were no bars on her son's bedroom windows. {Id.
at 43.)

cooperated, his case would be "chucked." The prosecutor responded that there was no agreement with Patrice, but

also said that she promised Patrice that if he testified truthfully,"we may be in a position to make him an offer that
would get him out ofjail shortly."(ECF 35-24 at 6.) The petitioner's lawyer objected that the defense had not been
provided with this information.
15

ii. Anthonv Andrews

Anthony Andrews knew Dalton Walters as "Yellow." {Id. at 46.) At 8:00 p.m. on
December 24, 2004, Andrews and Walters were playing video games in a laundromat on Church
Avenue. (7J.) At one point, Walters left and walked across the street, but returned after three
minutes. {Id. at 50.) Between 9:00 p.m. and 9:30 p.m., while Walters was in the laundromat,
someone came in and told them that there had been a shooting on 51 st Street. {Id. at 51.) Andrews,
Walters, and others went to 51st Street, and saw police officers and ambulances. They saw Kirk
Lapaix and asked him what had happened. They then went back to the laundromat after about
fifteen minutes. (Mat 53.)
iii. Detective Michael Martin

The petitioner's attorney claimed that he was entitled to argue as part of his defense that

"the other Sheldon Thomas,"—whose name and nickname was given to the police, who lived in
the precinct where the shooting took place, and whom a witness had identified with 90 percent
certainty—was the real killer, and that the police's failure to investigate him was relevant.(EOF

35-25 at 18, 27.) The court ruled that if counsel asked why the police did not pursue this
investigative angle, the prosecutors would be permitted to elicit evidence that Freddy Patrice
identified the petitioner in a line-up. {Id. at 28-30.)
The petitioner's counsel decided to pursue the strategy that the police should have
investigated the other Sheldon Thomas. Detective Martin conceded that Aliyah Charles identified
the other Sheldon Thomas with 90 percent certainty, that the other Sheldon Thomas lived in the

67th Precinct, that he was a suspect, and that the police had issued a "wanted" card for him, but
that detectives had never gone to his address. {Id. at 23, 41.) In addition, Martin testified that

when he entered information about the suspect into the computer, the petitioner's photograph did

16

not come up. Because of the court's ruling, counsel opted to bring out the fact ofPatrice's line-up
identification on his direct examination rather than letting the prosecutor do so, but also established
that both Smith and Patrice refused to sign the line-up forms. {Id. at 34-35.)
The petitioner's counsel moved to call Detective Reedy to testify about what Aliyah
Charles said when she looked at the photographic array. (EOF 35-27 at 14.) Reedy had testified
at one point in the suppression hearing that Charles' identification of"the other Sheldon Thomas"
was "pretty quick," which conflicted with Detective Martin's testimony that she said she was 90

percent sure of her identification. After a hearing held out of the presence of the jury, at which
Reedy testified, the court denied the application. {Id. at 26-28.)
c.

The Summations

Both defense counsel agreed that the central issue in the case was identification, and both

focused on the inconsistencies in the various witnesses' accounts. Dalton Walters' attorney
stressed that the none of the intended victims of the shooting placed Walters at the scene, and that
at least two of them—Kadeem Drummond and Kirk Lapaix—were friendly with Walters;
Drummond described him as a "brother," and Lapaix saw Walters shortly before the shooting, and

even spoke to him on the telephone minutes before the shots were fired. The only witness who
placed Walters in the car was Aliyah Charles, whom counsel attacked as a liar whose testimony
was inconsistent with all of the other witnesses.

He underscored the inconsistencies in her

testimony about the identity of the shooter, whether the shooter wore a hat, whether the lights
inside the car were on, and whether she could actually see what she claimed to have seen at night,

from a second floor window with bars on it. He argued that Walters' alibi was convincing, and
that the prosecutors had failed to establish guilt beyond a reasonable doubt. {Id. at 40-65.)

The petitioner's attorney adopted co-counsel's arguments, and emphasized that

17

identification was the critical issue in the case. He argued that even if the prosecutors established
that the petitioner was in the car, they could not prove that he shared the intent of the shooter.

Counsel also addressed the gang membership question, arguing that the prosecution had relied on
innuendo rather than evidence of gang affiliation, but that, in any event, gang affiliation was not a
crime. He also stressed the witnesses who did not identify the petitioner. Unlike the co-defendant,

however,there were two witnesses that placed the petitioner at the scene of the shooting, and one
of them, Daymeon Smith, testified that the petitioner was the shooter and that he saw him from

five feet away; counsel pointed out his prior inconsistent description of the shooter as a darkskinned man,his initial refusal to speak to the police, and the poor lighting conditions at the scene.
(EOF 35-28 at 4-29.)

As for Aliyah Charles, counsel described her testimony as "so tailored, so convenient," and
detailed the numerous inconsistencies—both internal and with other witnesses—in her testimony:

her varying accounts of the events, including her statement to the police that the only thing she
noticed about the car was its tinted windows, her trial testimony that the windows were only lightly
tinted, her claim on cross examination that the car windows were actually open, and her claim that
the car was parked in front of the building for a substantial period before the shooting. {Id. at 31.)
Most significant, counsel argued, was her identification of the other Sheldon Thomas from the
photographic array. He pointed out that she signed the back of the array, which was evidence of
an identification, and argued that "90 percent is a positive id." {Id. at 34.) Counsel belittled her
testimony that she saw the petitioner assault and shoot people as unworthy of belief. He also

addressed Freddy Patrice's testimony, and pointed out that it did not make sense that Patrice, a
Blood, would cover for the petitioner, a Crip, especially if the petitioner had shot Bercy, whom
Patrice carried for a block, and for whom Patrice called 911. Counsel argued that ifPatrice thought

18

Walters and the petitioner had shot his friend, he would have said so—that ifhe "could have tagged
these guys in court he would have." {Id. at 42.) Counsel reminded the jury that Patrice told the
911 operator that he could not identify the shooters,

d. Verdict and Sentencing
The jury found the petitioner guilty on all counts, and acquitted Walters. The petitioner
was sentenced to serve an indeterminate prison term of from 25 years to life for the murder, and
concurrent, determinate sentences for attempted murder, assault, and weapons possession. (EOF
35-57 at 9-12.)
PROCEDURAL HISTORY

1. Direct Appeal
The petitioner appealed his conviction to the Appellate Division, Second Department.
(ECF 36-2 at 1.) He argued that he was arrested without probable cause and that the admission of

the Rikers Island visitor log was unfairly prejudicial. {Id. at 41 -42; 66-67.) The Appellate Division
affirmed the petitioner's conviction on September 15, 2009. People v. Thomas,65 A.D. 3d 1170
(2d Dep't 2009). The court rejected the petitioner's probable cause claim, ruling that the "citizen
informant was reliable and had some basis of knowledge for the information given to the police."
Id.

The fact that the informant identified someone else as one of the shooters was not

determinative, since "the person so identified had the same name as the defendant, looked like the
defendant, and lived in the same general area as the defendant." Id. The court concluded "that the

arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer(a)
has probable cause to arrest the person sought, and(b) mistakenly believed the person arrested was
the person sought." Id.

The court agreed with the petitioner's arguments about the visitor log, but found that the

19

error was harmless in light of the "overwhelming" evidence of the petitioner's guilt, which

included the "identification of the [petitioner] by an eyewitness other than [Aliyah Charles] who
had seen the [petitioner] in the neighborhood on various occasions" before the shooting. Id. at
1171-72. The Court of Appeals denied the petitioner's application for leave to appeal on January
6,2010. People v. Thomas, 13 N.Y.3d 942(2010).
2. Coram Nobis Petition

The petitioner, acting pro se, applied for a writ oferror coram nobis on September 1,2010,
claiming that his appellate counsel was ineffective because he did not argue that the line-up was
unduly suggestive, and because counsel did not include "exculpatory information" about the
"citizen informant" in his probable cause argument. (ECF 36-3 at 12.) Appellate counsel

submitted an affirmation in which he explained why he did not advance the arguments that formed
the basis ofthe petitioner's claim ofineffectiveness. He did not argue that the line-up was unfairly
suggestive because he concluded, based on his examination of the photograph of the line-up, that

the line-up was not suggestive; the so-called "exculpatory" information that the petitioner cited—
Aliyah Charles'"prior recognition ofhim"and her"numerous opportunities to name and implicate

[the petitioner] since she knows him so well"—did not make the line-up suggestive, and was in
fact evidence that the line-up was "only confirmatory." {Id. at 4-5.)

The Appellate Division denied the petitioner's application on December 28, 2010, ruling
that he had failed to establish that he was denied the effective assistance of appellate counsel.

People V. Thomas, 79 A.D. 3d 1153 (2d Dep't 2010). Leave to appeal was denied on June 29,
2011. People V. Thomas, 17 N.Y.3d 802(2011).
3. 440.10 Motion

On March 7, 2011, the petitioner petitioned this Court for a writ of habeas corpus. (ECF.

20

1.) Shortly thereafter, he requested and was granted a stay in order to exhaust some of his claims
in state court. (ECF 6.)

On December 7, 2011, the petitioner moved before Judge Del Guidice to vacate his
conviction pursuant to New York Criminal Procedure Law Section 440.10. (ECF 36-4 at 1.) The

petitioner attacked the line-up and the identification evidence, accused the prosecutor of
misconduct, claimed that the his trial lawyer was ineffective, and argued that he had newly

discovered evidence in the form of a study commissioned by the defense, in which participants

were able to distinguish between the petitioner and "the other Shelton Thomas."^^ (ECF 36-4.)
Included with the motion was the petitioner's affidavit, in which he claimed that he had told his
trial lawyer that he had an alibi for the time of the murder, and that he knew Detective Reedy from

prior encounters, but that counsel failed to investigate the alibi or cross-examine Detective Reedy
about his prior encounters with the petitioner. {Id. at 153-159.) He also claimed that counsel did
not review the discovery materials, including the photographic array. {Id.)
Steven Chaikin, the petitioner's trial lawyer, submitted an affirmation in which he recalled
"working diligently" on the petitioner's case. He said that he hired an investigator, and was

"certain" that he followed his "usual practices" of visiting the scene, speaking to witnesses,
reviewing the discovery, and doing legal research. {Id. at 348.) He spoke "extensively" with the
petitioner and conferred with him about trial strategy. According to Mr. Chaikin, the petitioner
"at no time" mentioned an alibi, never told him that he knew Detective Reedy, or that his
photograph was not in the array that detectives showed to Aliyah Charles. {Id. at 348-350.) Mr.

Chaikin explained that while he had been provided a "grainy black and white Xerox copy" of the

In this study, which was not peer reviewed, a group oflaw students was asked to compare the petitioner's photograph
with the photographic array including the other Sheldon Thomas's picture, and to decide whether the petitioner's

photograph was in the array. According to the study, "a vast majority" concluded that the petitioner was not in the
array.

21

array as part of the discovery materials, he did not see the color copy of the array until the
suppression hearing. {Id.)

Counsel affirmed that he told the petitioner that "we had a great issue to raise that would
question both the reliability of the witness' identification as well as the credibility of the police
tactics." Counsel "pursued and argued this strategy vigorously" at the pre-trial hearings and the
trial. Counsel specified that his strategy was "never to imply" that the other Sheldon Thomas was
one ofthe shooters. {Id. at 350.) Instead, counsel's "sole purpose" in discussing the other Sheldon

Thomas and the police failure to investigate him was to "contend that because the police had been
insistent" that the petitioner was one ofthe shooters,they were "willing to influence the eyewitness
identifications to that effect." The best evidence of this theory-, counsel explained, was Aliyah

Charles' identification of someone that the police believed was the petitioner. {Id. at 350-52.)
On June 5,2012, Judge Del Guidice denied the petitioner's motion. (ECF 35-54 at 1.) The

court ruled that the petitioner's claims about the identification evidence were procedurally barred
by 440.10(2)(a), since the Appellate Division rejected these claims on direct appeal. The court
also ruled that the petitioner could have made his claims of prosecutorial misconduct on direct

appeal, and thus they were procedurally barred by 440.10(2)(b). Judge Del Guidice concluded
that trial counsel provided "meaningful representation" and "employed a trial strategy that might
well have been pursued by a reasonably competent attorney." {Id. at 8-10.) Finally, the court
found that the study submitted by the defense was not newly discovered evidence but merely
"newly created evidence." {Id. at 11-13.)

The Appellate Division affirmed the denial of the petitioner's motion to vacate his
conviction. People v. Thomas, 131 A.D.3d 551 (2d Dep't 2015). The Appellate Division agreed
with the trial court's decision that the petitioner's complaints about the eyewitness testimony were

22

procedurally barred, and that the defense study was not newly discovered evidence. The court also

rejected the petitioner's ineffective assistance of counsel claims. In particular, the court held that
counsel was not ineffective for failing to argue that the police should have employed a blind line
up procedure; according to the court, that argument "lacked merit," since neither the New York

Court of Appeals nor the state legislature required the use of any specific procedure. Id. at 552.
As for counsel's overall performance, the court held that the petitioner "failed to demonstrate the
absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct,"
and that "the evidence, the law, and the circumstances ofthe case, viewed in totality as ofthe time
of the case, reveal that counsel provided meaningful representation." Id.

The Court of Appeals denied leave to appeal on January 15, 2016. People v. Thomas, 26
N.Y.3d 1112(2016). The petitioner filed this amended petition on February 18, 2016.
DISCUSSION

1. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), requires that a
federal court reviewing a state prisoner's habeas petition give deference to a state court's decision
on the merits. 28 U.S.C.§ 2254(a). The federal court may not issue a writ of habeas corpus unless

the state court's decision was "contrary to, or involved an unreasonable application of, clearly
established Federal law" or 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); see also Johnson v.
Williams, 568 U.S. 289,292(2013); Chrysler v. Guiney, 806 F.3d 104, 116-17(2015).

For the purposes of federal habeas review,"clearly established law" means "the holdings,
as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant statecourt decision." Williams V.

529 U.S. 362,412(2000). A state court decision is "contrary

23

to" or an "unreasonable application of clearly established law if the decision:(1) is contrary to
Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that

reached by the Supreme Court on "materially indistinguishable" facts; or(3)identifies the correct
governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 412-13.
The state court's factual determinations are presumed to be correct, and the petitioner bears the

burden ofrebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(l).'^
2. Analvsis

The petitioner raises two claims in his petition, both of which New York's courts resolved

against him: that the line-up and in-court identifications violated the Fourth Amendment violation,
and that his trial counsel was ineffective. For the reasons that follow, I reject both arguments,
a. Fourth Amendment Claim

Federal habeas relief is not available on a Fourth Amendment claim "where the State has

provided an opportunity for full and fair litigation of[the] claim." Stone v. Powell,428 U.S. 465,
482(1976); see also Capellan v. Riley, 975 F.2d 67, 70(2d Cir. 1992). Under this standard, there
are only two circumstances in which a habeas court will review a Fourth Amendment claim:(1)

"if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment
violations" or (2) "if the state has provided a corrective mechanism, but the defendant was

precluded from using that mechanism because of an unconscionable breakdown in the underlying

process." Capellan, 975 F.2d at 70. Neither circumstances are present in this case.^®

Moreover, a petitioner can seek federal habeas corpus relief only after he exhausts state court remedies, giving the
state courts a fair and full opportunity to review the merits of the claim. 28 U.S.C. § 2254(b)(1); O'Siillivan v.
Boerckel, 526 U.S. 838,842(1999). In other words, a petitioner must present "the essential factual and legal premises
of his federal constitutional claim to the highest state court capable of reviewing it." Jackson v. Conway, 763 F.3d
115, 133(2d Cir. 2014)(quoting/?05a v. McCray,396 F.3d 210,217(2d Cir. 2005)).
The petitioner's citation to Young v. Conway, 698 F.3d 69 (2d Cir. 2012), for the proposition that his Fourth
Amendment claim is cognizable, is unavailing. In Young, the Second Circuit held that Stone v. Powells limitation on
federal habeas relief is non-jurisdictional and can be waived by the government. Id. at 85. The state did not waive its
Stone V. Powell defense, so Young is inapplicable.
24

New York Criminal Procedure Law Section 710.60 is the "corrective procedure" that
entitles a criminal defendant to move to suppress evidence on the grounds that it was illegally
obtained. It is well established that New York's procedures for evaluating Fourth Amendment

claims are constitutionally sound. See Capellan,975 F. 2d at 70 n.1; Lopez v. Lee No. 11-cv-2706,
2011 WL 6068119, at *9(E.D.N.Y. Dec. 7, 2011); Kelly v. Conway, No. lO-cv-3053, 2011 WL
3555823, at *3(E.D.N.Y. Aug. 11, 2011).
In this case, the state court held a lengthy pretrial suppression hearing at which the

petitioner fully litigated his Fourth Amendment claims. Based on the evidence at the hearing, the

court concluded that the police had probable cause to arrest the petitioner and that the identification
procedures were not unduly suggestive. The petitioner has not demonstrated that there was any
"breakdown" in the process that would give rise to a cognizable habeas claim, nor have I found
any in my review ofthe hearing transcript.

In any event, the petitioner's principal argument—that the process was deficient because

the police did not employ a blind line-up procedure—is unpersuasive.^' As the Appellate Division
observed, New York does not mandate a specific identification procedure, as long as the procedure
employed is not unduly suggestive. Thomas^ 131 A.D.3d at 552; see also People v. Robinson, 8
A.D.3d 95(1st Dep't 2004)
(New York state courts do not require blind line-ups); People v. Fort,
146 A.D.3d 1017(3d Dep't 2017)(same). Nor is there any federal authority for the proposition
that the police must use a blind line-up. See Johnson v. LaValley, No. ll-cv-3863, 2014 WL

285089,at *16(S.D.N.Y. Jan. 24,2014)(claim that a criminal defendant is entitled to a blind line
up "is not supported by any federal legal authority."). Rather, a "traditional line-up" is sufficient

A blind line-up is one in which "the officer conducting the line-up has no knowledge of the facts ofthe investigation
and does not know whether any suspect is present in the line-up." Thompson v. City ofNew York, 603 F. Supp. 2d
650,655 (S.D.N.Y. 2009).
25

so long as it is not "unduly (or unnecessarily) suggestive." Id. at *14.
An identification procedure is unduly suggestive when "under all the circumstances of the

case there is a very substantial likelihood of irreparable misidentification." LaValley, 2014 WL
285089, at *16. Moreover,"if the court finds that the identification was independently reliable,
then the identification testimony may be admitted notwithstanding the defects in the pretrial
procedures." Id. Here, the trial court noted that the line-up participants were reasonably similar

in appearance, and that the police took steps to minimize any differences, including having the
participants seated and using shower caps cover the participants' hair. Thus, the trial court's

conclusions that the line-up was proper and that the officers had probable cause to arrest the

petitioner are supported by the evidence.^^ The petitioner's challenge to the state court's
suppression decision is nothing more than a disagreement with the outcome ofthe hearing, which
does not establish an "unconscionable breakdown" of process. See Orliz v. Ercole, No. 07-cv-

4667, 2010 WL 1688444, at *1 (E.D.N.Y. Apr. 26, 2010). Accordingly, his Fourth Amendment
claims are denied.

b. Ineffective Assistance ofCounsel

The petitioner's second challenge is to his trial lawyer's performance, both at the
suppression hearing and at the trial. The petitioner says that his lawyer was ineffective for failing
to argue that the police should have conducted a blind line-up, and that certain strategic decisions
at the trial amounted to deficient representation. New York's courts rejected these claims on the
merits. In affirming the trial court's 440.10 decision, the Appellate Division held that the attorney

could not have been ineffective for failing to argue that the line-up should have been blind, since

-- The petitioner's state appellate counsel, in his affirmation in connection with the petitioner's state claim of
ineffective assistance of appellate counsel, pointed out that since Charles had seen the petitioner before the shooting,
the identification was confirmatory.
26

New York has no such requirement. Thomas, 131 A.D.3dat552.

The court also ruled that the petitioner had not established an "absence of strategic or
legitimate explanations"for counsel's decisions, and that counsel had in fact "provided meaningful
representation." AEDPA precludes relitigation of a claim that a state court has adjudicated on the
merits except in two very limited circumstances: when the decision was "contrary to, or involved
an unreasonable application of, clearly established federal law" or "was based on an unreasonable

detennination of the facts in light of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d).
In the context of this case, the relevant inquiry is whether the Appellate Division's
determination that counsel rendered effective assistance was an unreasonable application ofclearly
established law, in particular, Strickland v. Washington,466 U.S.668(1984). The Supreme Court
has advised that this inquiry is "different from asking whether defense counsel's performance fell

below Strickland's standard." Harrington v. Richter, 562 U.S. 86, 101 (2011). Rather, a state
court must be granted a "deference and latitude that are not in operation when the case involves a
review under the Strickland standard itself." Id. A federal court"must determine what arguments
or theories supported, or . . . could have supported, the state court's decision," and must then
determine "whether it is possible fair-minded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. at 102.
The standard was "meant" to be an exacting one; a state habeas petitioner must demonstrate that

the state court's decision was "so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fair-minded disagreement." Id. at
102-03.

27

Of course, the Strickland standard is itself an exacting one, and requires that a petitioner

challenging his attorney's performance overcome the "strong presumption" that counsel's
performance fell within "the wide range of reasonable professional assistance." Strickland, 466

U.S. at 689. Because a claim of ineffective assistance "can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial ... the Strickland standard must be

applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very
adversary process the right to counsel was meant to serve." Id.(citations omitted).

Moreover, the trial lawyer has the unique advantage, unlike a reviewing court, of seeing
the witnesses and evaluating their demeanor, and observing the jurors and their reactions to
witnesses. The lawyer has access to information that is not on the record, and interacts with his

client, his adversary, and the court. "It is 'all too tempting' to 'second-guess counsel's assistance
after a conviction of adverse sentence." Harrington, 562 U.S. at 105 (citations omitted).
Thus, an evaluation of counsel's performance is "highly deferential," and the court "must
indulge a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 689. The relevant inquiry focuses "on the fundamental fairness of

the proceeding whose results are being challenged." Id. at 696. The "central concern is not with
grading counsel's performance but with discerning whether despite the strong presumption of
reliability, the result of the particular proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results." United States v.
Aguirre, 912 F.2d 555, 560(2d Cir. 1990)(internal quotations omitted).

Viewed by these standards, the state court's decision was not an unreasonable application
of clearly established federal law.

28

i. The Pre-Trial Hearins

The petitioner argues that his trial lawyer was ineffective at the suppression hearing, and
"incompetently litigated" the Fourth Amendment claims at the suppression hearing. The record
soundly refutes this claim. It was defense counsel who discovered that Aliyah Charles did not

identify the petitioner's photograph in the array, and that she identified with 90 percent certainty
the photograph of another person, whose name also happened to be Sheldon Thomas. In addition,
counsel's cross examination of Detectives Martin and Reedy was thorough and effective, one
consequence of which was that Detective Reedy had to consult a lawyer. Counsel also established

that once Detective Martin realized that the wrong person was in the photographic array—^which
happened only after he showed the array to the petitioner—^the detective made no notes ofthe error

nor alerted the assistant district attorney on the night of the petitioner's arrest.
Based on the testimony that he elicited, counsel was able to argue that because no witness

identified the petitioner, the police did not have probable cause to arrest him and place him in a
line-up, and that the line-up identification should be suppressed as the fruit of an unlawful arrest.
Counsel also argued that the police witnesses were generally incredible. While these arguments
did not persuade the trial judge, the decision to pursue them was eminently reasonable, as was

Judge Del Guidice's decision to deny the ineffective assistance claim on this ground.^^ See Gatto
V. Hoke, 809 F. Supp. 1030, 1039 (E.D.N.Y.), affd, 986 F.2d 500 (2d Cir. 1992)("An attorney
who presents a well-grounded, but ultimately unsuccessful defense, will not later be held to have
provided ineffective assistance of counsel."),
ii.

The Trial

The petitioner argues that "counsel elicited damaging, prejudicial, otherwise inadmissible,

As explained above, since there is no right to a blind line-up, counsel was not ineffective for failing to challenge the
identification procedures on that basis.
29

and unreliable evidence against his own client" during the course of the trial. He focuses
principally on two decisions that counsel made: to question Aliyah Charles about her prior
encounters with the petitioner, which led to her testimony that she saw him and a girlfriend "shoot
people and beat them up," and his decision to call one ofthe investigating detectives, which led to

testimony that Freddy Patrice identified the petitioner in a line-up. However, courts afford
"significant deference . . . to a trial counsel's decision [regarding] how to conduct cross

examination" and have "refus[ed] to use perfect hindsight to criticize unsuccessful trial strategies."
Eze V. Senkowski, 321 F.3d 110, 132(2d Cir. 2003); see, e.g. Nowicki v. Cunningham,No. 09-cv8476, 2011 WL 12522139, at *6-7 (S.D.N.Y., Mar. 30, 2011) (report and recommendation)
(defense counsel's decisions to elicit and not to object to testimony that recounted victims'

description of attacks was trial strategy and not ineffective assistance); Charles, 516 F. Supp. 2d
at 219-220 (defense counsel was not ineffective in eliciting testimony about a prior photographic

array identification, as it was consistent with the defense theory of misidentification).^'^
The record as a whole demonstrates that counsel pursued a reasonable strategy—

undercutting the identification evidence and casting doubt on the police investigation—a strategy

Wilson V. Mazzuca, 570 F.3d 490,503(2d Cir. 2009) does not compel a different result. Wilson's attorney elicited
damaging evidence, did not object to obviously inadmissible evidence, and called a character witness, opening the
door for the prosecutor to question her about all of Wilson's prior bad acts, tactics that the Second Circuit characterized
as "incomprehensible." Id. at 504. There was no discernible strategy for any of counsel's actions, and he did not
seem to know what was in damaging reports that he introduced or to understand the legal ramifications ofsome ofthe
things that he did; even when called to explain his tactics in the district court, counsel did not articulate any meaningful
strategy, and said at one point that he did not object to obviously prejudicial evidence because he "wanted to get on
with the case." Id. The trial judge expressed his concerns with the quality ofcounsel's representation throughout the
trial. Near the end of the trial, the judge took the extraordinary step of raising the issue of ineffective assistance on
his own,saying that he was "becoming increasingly disturbed and I'm going to put it right on the record, that some of
the decisions apparently made by the defense in this case ... The alarm bells are ringing in my head and I'm going
right on the record. And the question concerns the representation ofthe defendant." Id. at 506. Counsel's decisions
in this case, on the other hand, were part of a reasonable, if ultimately unsuccessful strategy. And the trial judge
expressed no concerns about counsel's competence or the choices he made. On the contrary, he praised counsel as a
"skilled litigator" and "a good lawyer," and remarked that it was "a pleasure to watch such a tactician as yourself."
(EOF 35-24, at 8, 11).
30

that he laid out at various points during the trial and in his affidavit in connection with the
petitioner's 440.10 motion. To that end, the petitioner's trial counsel focused on the evidence that
Aliyah Charles identified another person, with 90 percent certainty, and the coincidence that the

person she selected was also named Sheldon Thomas, which counsel argued suggested police
misconduct. And,the cross-examinations by both the petitioner's attorney and the co-defendant's

attorney centered on Charles' overall credibility, including her claims that she could see details
from a second floor window,the internal contradictions in her testimony, her statements to police,

and the inconsistencies between her testimony and that of other witnesses.^^
The petitioner's counsel also attacked the police investigation as incomplete and unreliable.
However, because the prosecution did not call either ofthe investigating detectives to testify, there

was no evidence about the investigation or the circumstances surrounding the line-up. Counsel's
decision that the jury should hear about the investigation—including the botched photographic
array and the details about the other Sheldon Thomas—was reasonable. An examination of
Detective Martin's testimony shows that counsel succeeded in raising questions about the

investigation; he established that the other Sheldon Thomas also lived near the shooting, that the
detectives considered him a suspect, and that they did no investigation of him at all.

It is of course true that in pursuing these strategies, counsel elicited testimony that was
objectively unfavorable, including Charles' claim that she had seen the petitioner engage in violent
acts and Martin's testimony that Patrice identified the petitioner in a line-up. But counsel
considered these risks when he made the strategic decision to attack the identification evidence

and the police conduct, and counsel decided that the downside of attacking the identification

Because there were two defense attorneys in this case, I consider co-counsel's tactics "in assessing the

reasonableness of [the petitioner's] counsel's performance;" the petitioner's counsel could have decided not to
duplicate what his co-counsel had already done, or to leave areas of cross-examination to him. Eze, 321 F.3d at 126.
31

evidence and the police investigation was outweighed by the benefits. The petitioner's attorney,
who had the advantage of observing the witnesses and the jury's reaction to them, could rationally
have decided that the jury might reject Aliyah Charles' testimony because of its inconsistencies or
her demeanor,and Detective Martin's testimony about Freddy Patrice, since Patrice himselfdenied

making an identification, and had told the 911 operator that he did not see the shooter. These
decisions were not irrational. Attacking the police investigation and identification testimony are
fairly standard defense tactics. Indeed, had counsel not pursued the evidence that a witness made

a positive identification of a different person, or explored the deficiencies in the investigation, he
might well have been attacked for ineffective assistance.
The fact that Dalton Walters was acquitted does not support the petitioner's claim that his
lawyer was ineffective. The case against Walters was far weaker. Aliyah Charles, whose
credibility was tested by both attorneys, was the only witness to identify Walters as the shooter or

place him at the scene. The other witnesses testified either that they did not see the shooting, or

provided testimony that was helpful to Walters. Another target of the shooting, Kadeem
Drummond,testified that he considered Walters as "a big brother." (EOF 35-22, at 60-62.) And,

Kirk Lapaix testified that right before the shooting, Walters called him on the phone and he heard
noise in the background. {Id. at 55-58.) Walters also called an alibi witness who said Walters was
playing video games at a laundromat at the time of the shooting, testimony that tended to
corroborate Lapaix's testimony that he overheard voices in the background when Walters called
him moments before the shooting. The evidence against the petitioner, by contrast, was more

compelling. Indeed, the witness who gave the most damning testimony against the petitioner was
not Aliyah Charles, but Daymeon Smith; he was only five feet from the shooting and identified
the petitioner, whom he knew, as one of the gunmen.

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Viewed in context, counsers actions were part of a consistent—albeit unsuccessful—
strategy, and his representation did not fall below the objective standard of reasonableness. Even
if counsel had been ineffective—and he was not—the petitioner must also establish that "there is

a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland,466 U.S. at 669. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. Counsel's actions are evaluated within

the context of the evidence supporting conviction and the strength of the petitioner's case. See
Lindstadt v. Keane,239 F.3d 191, 204(2d Cir. 2001).

The Appellate Division characterized the evidence of the petitioner's guilt as
"overwhelming." Thomas,65 A.D.3d at 1172. This decision was not an unreasonable application
of clearly established federal law or an unreasonable determination of the facts in light of the
evidence. Two eyewitnesses testified that the petitioner was in the car from which two shots were
fired, and one ofthose witnesses—Daymeon Smith—was only five feet from the shooter and knew

the petitioner. Defense counsel challenged the prosecution's case and the credibility of the
witnesses, but was unsuccessful. Even if the petitioner had shown that counsel was ineffective,

the state court's conclusion that there is no reasonable probability that the outcome would have
been different had counsel pursued a different strategy was not unreasonable.
In sum,the petitioner failed to show that his lawyer's performance fell below an objective
standard of reasonableness or that there is a reasonable probability that the alleged errors affected
the outcome of the trial. The decisions of the trial court and the Appellate Division were neither

contrary to nor an unreasonable application of Strickland.

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CONCLUSION

The petition for writ of habeas corpus is denied in its entirety. The case is dismissed. A
certificate of appealability will not be issued. See 28 U.S.C. § 2253(c).

SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge
Brooklyn, New York
November 28, 2017

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