Bogan v. Bradt

Filing 20

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION: The Court adopts the 10 Report & Recommendation and denies the 8 Petition for a Writ of Habeas Corpus. The Court will not issue a Certificate of Appealability. It is further certified pursuant to 28 U.S.C. § 1915(a) that any appeal would not be taken in good faith. The Clerk of Court is directed to close the case. SO ORDERED by Judge Margo K. Brodie, on 7/6/2017. (Copy of this Order and the attached copies of all unpublished cases cited herein sent to pro se Willie Bogan at Fishkill Correctional Facility, 271 Matteawan Road, P.O. Box 1245, Beacon, NY 12508.) Forwarded for Judgment. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------WILLIE BOGAN,
Petitioner,

MEMORANDUM & ORDER
11-CV-1550 (MKB) (LB)

v.
MARK BRADT, Superintendent of Attica
Correctional Facility,
Respondent.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Petitioner Willie Bogan, proceeding pro se, brings the above-captioned petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his confinement in state custody
violates the United States Constitution. (Am. Pet., Docket Entry No. 8.)1 Petitioner’s claims
arise from a judgment of conviction after a jury trial in New York Supreme Court, Kings County,
for robbery in the first degree. (Id.) On May 1, 2014, the Court referred the petition to
Magistrate Judge Lois Bloom for a report and recommendation. (Order dated May 1, 2014.) By
report and recommendation dated November 12, 2014 (“the R&R”), Judge Bloom recommended
that the Court deny the petition. (R&R 1, Docket Entry No. 10.) On November 29, 2014,
Petitioner objected to the R&R. (Pet’r Obj. to R&R (“Pet’r Obj.”), Docket Entry No. 12.)
For the reasons discussed below, the Court adopts Judge Bloom’s R&R and denies the petition.

1

Before Respondent answered the petition, (Docket Entry No. 1), Petitioner filed the
amended petition, (Docket Entry No. 8). Because the amended petition is not consecutively
paginated, all citations to pages of the amended petition refer to the electronic document filing
system (ECF) pagination.

I.

Background
The Court assumes familiarity with the facts of the case as set forth in detail in the R&R.

On March 31, 2007, two men knocked at the door of Ernesto Luciano’s apartment. (T. 44:17–
45:13).2 After Luciano opened the door, the two men pushed him down and entered the
apartment. (T. 45:13–16.) One of the men restrained Luciano at gun point, while the other rifled
through the apartment and searched Luciano’s person. (T. 47:1–8; 49:13–51:14.) The men
escaped with Luciano’s wallet and some cash. (T. 52:4–10.) Luciano subsequently called 911.
(T. 53:7–13.)
Luciano told Officer Gabriel Dobles, a responding officer, that one of the men was named
“Willie” and lived in the building, and that he also knew the second man. (H. 7:4–9:18). The
same day, Luciano was brought to the police station, where he was shown photographs of
potential suspects in the New York Police Department (“NYPD”) Photo Manager System.
(H. 22:9–25.) Luciano identified one suspect as Willie Bogan. (H. 23:12–14.) The following
day, Luciano returned to the police station and, using the NYPD Photo Manager System,
identified the second suspect as Torrell Brown. (H. 12:15–15:7.) Luciano also identified Brown
in a lineup two days later. (H. 15:23–17:17.) Both men were arrested and charged with robbery.
(T. 238:1–240:25.)
a.

Trial

Brown and Petitioner were tried jointly. (T. 230:9–14.) Before the trial, Brown’s counsel
requested a suppression hearing, seeking to challenge the procedures the NYPD used when

2

“T.” refers to the transcript of Petitioner’s jury trial held in New York Supreme Court,
Kings County from April 7, 2008 to April 10, 2008. (Docket Entry Nos. 4-6–4-7). “H.” refers to
the transcript of the pretrial hearing held on April 2, 2008, including Petitioner’s co-defendant’s
suppression hearing and motions in limine. (Docket Entry No. 4-4). “V.” refers to the transcript
of the April 7, 2008 jury voir dire. (Docket Entry No. 4-5.) The Court refers to the original page
numbers, not the ECF page numbers, in the trial transcript and other state court documents.
2

Luciano identified Brown. (H. 2:17–22, 31:2–32:8.) At the conclusion of the hearing, the trial
judge denied the motion. (H. 34:4–35:23.) Petitioner was not at the hearing, but his counsel was
present. (H. 35:24–36:17.)
Luciano was the only witness presented at trial who identified Brown and Petitioner as
the assailants. Luciano testified that he recognized Brown and Petitioner as the assailants
because they were his neighbors and he had known them since childhood. (T. 46:7–48:18.)
Luciano explained that Brown and Petitioner had pulled their jackets over the bottom portion of
their faces in an attempt to conceal their identities. (T. 47:17–48:14.) However, Luciano was
able to identify them because they were in close proximity during the event, and his apartment
was brightly lit. (T. 55:2–56:23.)
Officer Isaias Aleica testified that he was dispatched to respond to an incident that
occurred at Luciano’s apartment. (T. 85:9–10, 86:21–87:14.) When he arrived at the apartment,
he spoke with Luciano, who provided him with information of the incident and the identity of the
assailants. (T. 87:15–25.) Luciano stated that during the incident, the assailants wore “jackets
[that] were zipped up as high as they can go, covering the bottom portion of their faces”; they
were not wearing masks. (T. 88:1–25.) After taking Luciano’s statement, Officer Aleica
returned to the police station and completed a preliminary handwritten report detailing the
information he received from Luciano (the “scratch report”). (T. 92:21–94:3, 97:12–99:4.)
Officer Aleica’s supervisor directed him to complete a typewritten report, and, contrary to
Luciano’s statement at the scene, to specify that the assailants wore masks instead of wearing
their jackets over the bottom portion of their faces. (T. 99:19–101:4, 104:8–106:12, 119:2–10.)
Officer Aleica followed his supervisor’s orders. (T. 118:12–24.) The typewritten report was
filed and the scratch report was discarded. (T. 118:12–24.)

3

b.

Jury instructions and deliberation

At the close of the evidence and arguments, the trial judge instructed the jury that it was
the State’s burden to prove both defendants’ guilt beyond a reasonable doubt. (T. 227:15–242:4.)
The trial judge instructed the jury that the State was required to prove that a crime occurred and
that the defendants were correctly identified as the assailants. (T. 230:1–235:6.) As to the
identification testimony, the trial judge explained that “[u]nder our law, the testimony of even
one witness is sufficient to support a guilty verdict if you believe it beyond a reasonable doubt.”
(T. 230:1–17.)
During deliberations, the jury sent a note to the trial judge asking if it was “allowed to
reach a decision based solely on the testimony of one witness.” (T. 248:3–8.) The trial judge
discussed the jury’s note with the lawyers for both parties. (T. 248:9–251:22.) The trial judge
informed the parties that he intended to reply to the jury’s note by restating his earlier instruction,
which read:
it makes no difference the number of witnesses who testify for one
side or the other. It’s not the quantity of testimony that counts, it’s
the quality. Under our law the testimony of one witness is sufficient
to support a guilty verdict if you believe it beyond a reasonable
doubt.
(T. 248:9–16.) Petitioner’s trial counsel requested that the trial judge also instruct the jury that
“each juror should hold to their verdict if they feel that there is a doubt. . . . It’s their right to hold
to their verdict if they feel it is a reasonable verdict.” (T. 248:21–249:12.) Petitioner’s trial
counsel explained that he wanted the additional instruction because he was concerned that holdout jurors may improperly change their decision. (T. 249:4–12.) The trial judge declined the
suggestion by Petitioner’s trial counsel and reread the earlier instruction regarding one-witness
testimony to the jury. (T. 249:13–251:22.) The jury subsequently returned a guilty verdict.
(T. 253.)
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c.

Post-conviction challenges

Petitioner timely appealed his conviction to the New York Supreme Court, Appellate
Division, Second Department (the “Appellate Division”). See People v. Bogan, 78 A.D.3d 855
(N.Y. App. Div. 2010). Petitioner raised claims of ineffective assistance of counsel, improper
jury instructions, and a failure to preserve evidence. See id. at 855–56. The Appellate Division
held that Petitioner’s claims regarding the jury instructions were “unpreserved for appellate
review” because Petitioner’s trial counsel failed to object to the instructions before the trial court.
See id. at 855. Alternatively, the Appellate Division held that the jury instructions correctly
stated the law. See id. at 856. The Appellate Division denied Petitioner’s remaining claims on
the merits and affirmed his conviction. See id. Petitioner sought leave to appeal to the New
York Court of Appeals, which was denied. See People v. Bogan, 16 N.Y.3d 742 (2011).
Petitioner filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
raising the same claims he raised before the Appellate Division. (Am. Pet. 2–20.) On November
12, 2014, Judge Bloom issued the R&R, recommending that the Court deny the petition. (R&R
1.) Petitioner timely objected to the R&R. (Pet’r Obj. 1.)
II. Discussion
a.

Standard of review
i.

Report and recommendation

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
5

timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections, or simply reiterates its original arguments. Chime v. Peak Sec.
Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (“General or conclusory objections, or
objections which merely recite the same arguments presented to the magistrate judge, are
reviewed for clear error.” (citation omitted)); see also DePrima v. N.Y.C. Dep’t of Educ., No.
12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).
ii.

Habeas

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), an application for a writ of habeas corpus by a person in custody
pursuant to a state court judgment may only be brought on the grounds that his or her custody is
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A petitioner is required to show that the state court decision, having been adjudicated on the
merits, is either “contrary to, or involved an unreasonable application of, clearly established
Federal law” or “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 Kernan v. Hinojosa, 578
U.S. ---, ---, 136 S. Ct. 1603, 1604 (May 16, 2016) (per curiam); Hittson v. Chatman, 576
U.S. ---, ---, 135 S. Ct. 2126, 2126 (Jun. 15, 2015); Johnson v. Williams, 568 U.S. ---, ---, 133
S. Ct. 1088, 1091 (Feb. 20, 2013). “An ‘adjudication on the merits’ is one that ‘(1) disposes of
the claim on the merits, and (2) reduces its disposition to judgment.’” Bell v. Miller, 500 F.3d
149, 155 (2d Cir. 2007) (quoting Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001)); see also
Kernan, 578 U.S. at ---, 136 S. Ct. at 1606; Harrington v. Richter, 562 U.S. 86, 98 (2011).
Under the section 2254(d) standards, a state court’s decision must stand as long as “fairminded
6

jurists could disagree on the correctness of the . . . decision.” Richter, 562 U.S. at 101 (2011)
(citation and internal quotation marks omitted).
For the purposes of federal habeas review, “clearly established law” is defined as the “the
holdings, as opposed to dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is
“contrary 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. In order to establish that a state court decision is an unreasonable application, the
state court decision must be “more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003). The decision must be “objectively unreasonable.” Id. In addition, factual
determinations made by the state court are presumed to be correct, and the petitioner bears the
burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
b.

Unopposed recommendations

Judge Bloom recommended that the Court deny Petitioner’s challenges to his sentencing,
his trial counsel’s failure to request a suppression hearing, the jury instruction concerning the
assessment of the basis of a witness’s knowledge, and his absence from the courtroom when the
trial judge read the jury note. (R&R 9–13, 15–18.) Petitioner has not objected to those
recommendations. (See Pet’r Obj. 1–12.) The Court has reviewed the unopposed portions of the
R&R, and, finding no clear error, the Court adopts Judge Bloom’s recommendations as to these
issues pursuant to 28 U.S.C. § 636(b)(1)(C).

7

c.

Petitioner’s objections

Petitioner objects to Judge Bloom’s recommendation that the Court deny the petition as
to three of his claims. First, Petitioner asserts that Judge Bloom erred in finding that Petitioner’s
claim regarding the failure to preserve evidence was not a basis for habeas relief on the grounds
that he failed to allege a violation of a federal right. (Pet’r Obj. 2–6.) Second, Petitioner argues
that Judge Bloom erred in finding that Petitioner received constitutionally effective counsel.
(See id. at 10–12.) Petitioner argues that his trial counsel was ineffective because his counsel
failed to object to Petitioner’s absence from his co-defendant’s suppression hearing and failed to
object to the jury instructions. (See id.) Finally, Petitioner contends that Judge Bloom erred in
finding that the trial judge accurately stated the law in giving the supplemental jury instruction
regarding one-witness identification. (See id. at 7–10.) The Court addresses each of Petitioner’s
objections below.
i.

Failure to preserve evidence

Petitioner asserts that Officer Aleica’s destruction of the scratch report violated his
Fourteenth Amendment right to procedural due process and his Sixth Amendment right to
confrontation. (Pet’r Obj. 2.) Petitioner argues that his constitutional rights were violated
because he could not impeach witnesses with the contents of the scratch report and could not use
the scratch report to undermine the State witnesses’ credibility. (See id. at 2–6.) Petitioner also
argues that the trial judge failed to remedy the violations by refusing to issue an adverse
inference instruction regarding the missing report. (See id. at 2.) In arguing his appeal before
the Appellate Division, Petitioner relied on New York state law, People v. Rosario, 9 N.Y.2d 286
(1961), and the Fourteenth Amendment to support his scratch-report claim. (Pet’r App. Div. Br.
16, Docket Entry No. 4-2.) The Appellate Division held that Petitioner “failed to establish that

8

he was prejudiced by the loss of certain Rosario material.” Bogan, 78 A.D.3d at 856 (citation
omitted).
When a petitioner raises a claim before a state court that is grounded in both state and
federal law but the state court does not explicitly address the federal claim in its decision, there is
a rebuttable presumption that the federal claim was adjudicated on the merits. See Johnson, 568
U.S. at ---, 133 S. Ct. at 1096. Federal courts then “must determine what arguments or
theories . . . could have supported the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of th[e] [Supreme] Court.” Richter, 562 U.S. at 102; see also
Johnson, 568 U.S. at ---, 133 S. Ct. at 1094 (“[W]e see no reason why the Richter presumption
should not also apply when a state-court opinion addresses some but not all of a defendant’s
claims.”).
The Court presumes that Petitioner’s Fourteenth Amendment claim was adjudicated on
the merits, even though the Appellate Division failed to discuss the Fourteenth Amendment in its
decision. See Johnson, 568 U.S. at ---, 133 S. Ct. at 1094 (holding that there is “no reason why
the Richter presumption should not also apply when a state-court opinion addresses some but not
all of a defendant’s claims,” where the state court only addressed the state law grounds and not
the federal grounds of the petitioner’s claims). In addition, although Petitioner’s Fourteenth
Amendment arguments have not been articulated clearly, because he is proceeding pro se, the
Court liberally construes his arguments. See Wiley v. Kirkpatrick, 801 F.3d 51, 62, 70 (2d Cir.
2015). Accordingly, the Court will first discuss Petitioner’s Rosario claim and then review
Petitioner’s Fourteenth Amendment claim as an assertion that the State’s failure to preserve the

9

scratch report violated the rule established by Arizona v. Youngblood, 488 U.S. 51, 57 (1988),3
but nevertheless finds his arguments unavailing. Finally, the Court will discuss Petitioner’s
claim that the missing scratch report violated the Sixth Amendment’s Confrontation Clause,
which was not presented to the Appellate Division, (Pet’r App. Div. Br. 16–29), and is therefore
unexhausted and procedurally defaulted.
1.

The Rosario claim is non-cognizable in habeas

Petitioner argues that the State violated Rosario when it discarded and failed to disclose
the scratch report. (Pet’r Obj. 2–6.) The Rosario rule requires the State to turn over any material
that contains statements made by one of the State’s witnesses and is related to the subject matter
of the witness’s testimony. See 9 N.Y.2d at 289–91. Construing Petitioner’s arguments to make
the strongest claim possible, Petitioner’s claim may be grounded in the federal analog to the
Rosario rule — Jencks v. United States, 353 U.S. 657 (1957). The Jencks rule requires that the
government provide a defendant with all statements related to the subject matter of government
witnesses’ testimony. See id. at 672.
Federal courts may only provide habeas relief when a petitioner is confined in violation
of federal law or the United States Constitution as interpreted by the United States Supreme
Court. See § 2254(d); see also Richter, 562 U.S. at 98, 100. “[F]ederal habeas corpus does not
lie for errors of state law . . . . In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (citations omitted). In determining whether the state court’s
decision to imprison a petitioner is unconstitutional, federal courts “need only apply the

3

To establish a Youngblood violation, a petitioner must show that the government lost or
destroyed evidence that was relevant to the petitioner’s prosecution and did so in bad faith.
Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
10

constitutional standards that prevailed at the time the original proceedings took place.” Teague v.
Lane, 489 U.S. 288, 306 (1989) (citation omitted); see also Williams, 529 U.S. at 412.
The Court may not grant habeas relief on the basis of an alleged violation of New York
state law as articulated in Rosario. See Estelle, 502 U.S. at 67; Landy v. Costello, 141 F.3d 1151,
No. 97-CV-2433, 1998 WL 105768, at *1 (2d Cir. Mar. 9, 1998) (“To the extent that this claim is
based on a Rosario violation, it must fail, because a habeas petition can only be granted to
remedy some violation of federal law; the obligation to turn over Rosario material arises under
state law.”); Curry v. Bennett, No. 02-CV-3655, 2003 WL 22956980, at *12 (E.D.N.Y. Oct. 17,
2003) (“Petitioner’s claim that the State prosecutor failed to disclose Rosario material does not
present an issue of federal dimension and, accordingly, must be denied.”). Nor may the Court
grant habeas relief on an alleged violation of the Jencks rule, given that the Jencks rule is only an
evidentiary rule and not a constitutional one. See Valentin v. Mazzuca, No. 05-CV-298, 2011 WL
65759, at *7 n.2 (W.D.N.Y. Jan. 10, 2011) (finding that a petitioner cannot obtain habeas relief
on a Jencks claim because “the Jencks rule has not been construed as constitutional in nature”
(citation omitted)); Herrera v. Artus, No. 06-CV-1715, 2007 WL 29392, at *2 (E.D.N.Y. Jan. 4,
2007) (denying a Jencks claim raised in a habeas petition because the Jencks rule “does not form
a ground for federal habeas corpus relief”); Boyd v. Hawk, No. 94-CV-7121, 1996 WL 406680,
at *7 (S.D.N.Y. May 31, 1996) (denying a habeas petition because “Jencks was decided under
the Supreme Court’s rule-making powers for the administration of justice in the federal courts
rather than as a matter of federal constitutional law”) (adopting report and recommendation);
Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995) (denying a Jencks claim raised
in a petition for a writ of habeas corpus because the state’s failure to turn over prior statements
by its witnesses does not constitute a constitutional violation (citing Palermo v. United States,

11

360 U.S. 343, 345 (1959))); see also Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987) (holding
that habeas relief cannot be afforded on the basis of a Jencks claim because “[t]he Supreme
Court’s decision in Jencks and the Jencks Act state evidentiary rules governing federal trials, and
do not invoke constitutional considerations”); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir.
1975) (holding that habeas relief cannot be afforded when a petitioner asserts “only an error of
law (an asserted violation of the Jencks Act), rather than a constitutional defect”). Accordingly,
Petitioner’s arguments relying on Rosario and Jencks are non-cognizable in habeas because
those arguments fail to allege the violation of a constitutional right.
2.

Petitioner failed to allege facts sufficient to support a
Youngblood claim

Petitioner argues that the State violated his right to due process because it failed to
preserve the scratch report completed by Officer Aleica. (Pet’r Obj. 2–3.) Petitioner explains
that his defense theory was “based on the victim’s misidentification of his attackers.” (Id. at 3.)
Petitioner contends that Luciano’s statements in the scratch report identifying Petitioner were
inconsistent with the statements in the final typewritten report submitted by Officer Aleica. (Id.
at 4–5.) Petitioner argues that the missing scratch report, paired with the lack of an adverse
inference instruction, prevented Petitioner from effectively attacking Luciano’s testimony. (Id. at
6.) Because the Appellate Division failed to discuss the Fourteenth Amendment claim, the Court
“must determine what arguments or theories . . . could have supported the state court’s decision;
and then it must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of th[e] [Supreme] Court.”
Richter, 562 U.S. at 102; Johnson, 568 U.S. at ---, 133 S. Ct. at 1094.
The Due Process Clause of the Fourteenth Amendment requires a prosecutor to turn over
all material evidence. See Youngblood, 488 U.S. at 55. Due process also mandates that the

12

government preserve any evidence relevant to the prosecution of the case. See id. at 57. The
government’s failure to preserve relevant evidence violates due process when the evidence is lost
or destroyed in bad faith. See id. (“Our decisions in related areas have stressed the importance
for constitutional purposes of good or bad faith on the part of the Government when the claim is
based on loss of evidence attributable to the Government.”). To establish bad faith, a petitioner
must show that the unpreserved evidence “possessed exculpatory value that was apparent before
it was destroyed and that it was of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S.
479, 489 (1984); United States v. Greenberg, 835 F.3d 295, 303 (2d Cir. 2016) (quoting
Trombetta, 467 U.S. at 489). Therefore, when none of the information contained in the
unpreserved evidence was concealed from a petitioner at his trial, the petitioner fails to show bad
faith on the part of the government and the conduct at issue “can at worst be described as
negligent.” Youngblood, 488 U.S. at 58; see also United States v. Barnes, 411 F. App’x 365, 368
(2d Cir. 2011) (holding that the police did not act in bad faith when they destroyed DNA
evidence because the government tested the DNA and the defendant “could have challenged the
DNA expert’s results by way of cross-examination”); United States v. Rastelli, 870 F.2d 822, 833
(2d Cir. 1989) (holding that the police did not act in bad faith when they destroyed tapes of the
defendant’s conversations with a confidential informant because the defendant had access to the
police summaries of the recorded conversations and “could have called as a witness [the police
officer] who monitored the taped conversations”). A petitioner’s “[f]ailure to satisfy any of these
requirements, including a failure to show the Government’s bad faith, is fatal to a . . . spoliation
[claim].” Greenberg, 835 F.3d at 303 (citations omitted).

13

The Appellate Division could have reasonably concluded that Petitioner’s Fourteenth
Amendment claim fails because Petitioner cannot establish that the Officer Aleica discarded the
scratch report in an attempt to cover up or conceal relevant evidence. Officer Aleica discarded
the scratch report at the behest of his supervisor after his supervisor instructed him to include
information different from the information Luciano reported — that the assailants wore masks
instead of covering the bottom portion of their faces with their jackets. (T. 99:19–101:4, 104:8–
106:12, 118:12–24, 119:2–10.) At trial, Officer Aleica testified to those facts. (Id.) Luciano
also testified that he never told any officers that the assailants wore masks. (T. 47:17–48:10;
79:1–7, 81:23–82:1.) In addition, Petitioner’s trial counsel questioned Officer Aleica about the
information contained in the scratch report, indicating that he was aware of the information
contained in the scratch report. (T. 97:12–106:12.) Because Officer Aleica testified to
differences in the information contained in the scratch report and the final typewritten report and
it appears that Petitioner’s trial counsel was aware of the information in the scratch report,
neither Officer Aleica’s actions nor the actions of his supervisor show that the scratch report was
discarded in bad faith. See Youngblood, 488 U.S. at 58 (holding that a defendant failed to show
that the state acted in bad faith when it failed to preserve evidence because the police conduct
“can at worst be described as negligent [since] [n]one of th[e] information was concealed from
respondent at trial”); Rastelli 870 F.2d at 833 (holding that a defendant failed to show that the
police acted in bad faith when they destroyed tapes of the defendant’s conversations with a
confidential informant because the defendant had access to the police summaries of the recorded
conversations and “could have called as a witness [the police officer] who monitored the taped
conversations”); see also Barnes, 411 F. App’x at 368 (holding that a defendant failed to show
that the police acted in bad faith when they destroyed DNA evidence because the government

14

tested the DNA and the defendant “could have challenged the DNA expert’s results by way of
cross-examination”). Nor has Petitioner shown that the scratch report possessed “exculpatory
value that was apparent before it was destroyed.” Trombetta, 467 U.S. at 489. Indeed, the
typewritten report likely undermined Luciano’s identification more than the scratch report, since
it is probably more difficult to identify individuals who wore masks than individuals who
covered only the bottom portion of their faces with their clothing. Accordingly, the Appellate
Division’s decision denying Petitioner’s failure-to-preserve-evidence claim was not “beyond the
possibility of fairminded disagreement.”4 Richter, 562 U.S. at 102.
3.

Petitioner’s Confrontation Clause claim is unexhausted and
procedurally defaulted

Petitioner argues that the unavailability of the scratch report violated the Sixth
Amendment’s Confrontation Clause. (Pet’r Obj. 2–6.) However, because this claim is
unexhausted and procedurally defaulted, the Court cannot review the claim.
A state prisoner seeking federal habeas review must first exhaust available state court
remedies. 28 U.S.C. § 2254(b)(1)(A); Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (“Section
2254(b) requires that prisoners must ordinarily exhaust state remedies before filing for federal
habeas relief.”). “This requires that the prisoner fairly present his constitutional claim to the
state court, which he accomplishes by presenting the essential factual and legal premises of his

4

Liberally construing Petitioner’s Fourteenth Amendment arguments as an assertion that
the State committed a Brady violation by failing to disclose the scratch report, the Court cannot
grant Petitioner’s requested relief based on a due process violation under Brady v. Maryland, 373
U.S. 83 (1963). A Brady claim requires a showing that a prosecutor withheld material evidence.
See United States v. Hsu, 669 F.3d 112, 117 & n.2 (2d Cir. 2012) (“Evidence is not suppressed
within the meaning of Brady if the defendant or his attorney . . . knew . . . of the essential facts
permitting him to take advantage of that evidence.” (citation omitted)). Here, the record reflects
that the Petitioner’s trial counsel “knew of the essential facts permitting him to take advantage”
of the information contained in the scratch report as he questioned Officer Aleica about the
information contained in the scratch report. (T. 97:12–106:12.)
15

federal constitutional claim to the highest state court capable of reviewing it.” Jackson v.
Conway, 763 F.3d 115, 133 (2d Cir. 2014) (citation and internal quotation marks omitted).
“While a state prisoner is not required to cite chapter and verse of the Constitution in order to
satisfy this requirement, he must tender his claim in terms that are likely to alert the state courts
to the claim’s federal nature.” Id. (citation and internal quotation marks omitted). If a prisoner
returned to the state courts to file the unexhausted claims and the state courts would refuse to
hear those claims due to a state procedural rule, the claims are procedurally defaulted and not
subject to federal review. Id.
Petitioner argued to the Appellate Division that “the court denied [him] his right to a fair
trial when it refused to give an adverse inference charge against the people based on the
destruction of the original complaint report, which was clearly Rosario material. U.S. Const.,
Amend. XIV; N.Y. Const., Art. 1, § 6.” (Pet’r App. Div. Br. 16.) In the petition to the Court and
the objections to the R&R, Petitioner asserts that the destruction of the scratch report violated the
Sixth Amendment Confrontation Clause. (Am. Pet. 15; Pet’r Obj. 3.) Thus, because Petitioner
did not raise the Confrontation Clause claim based on the destruction of the scratch report to the
Appellate Division, the Confrontation Clause claim is unexhausted. Petitioner’s briefing to the
Appellate Division failed to “tender his claim in terms that are likely to alert the state court[] of
the claims[’] federal nature,” notwithstanding Petitioner’s Fourteenth Amendment claims.
Jackson, 763 F.3d at 133.
The Confrontation Clause claim is also procedurally defaulted because the New York
State courts would decline to hear the merits of the claim. While New York State law provides
for collateral review of a conviction under Criminal Procedure Law section 440.10, such review
is not available if the claim could have been raised on direct review. See N.Y. Crim. Proc. Law

16

§ 440.10(2)(a), (c); see also Jackson, 763 F.3d at 143–44 (holding that a petitioner’s claim was
unexhausted and procedurally defaulted because the claim could have been raised on direct
appeal (citing § 440.10(2))). Petitioner can overcome this procedural bar only if he demonstrates
“cause for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrates that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Gueits v. Kilpatrick, 612
F.3d 118, 127 (2d Cir. 2010) (outlining the standards for overcoming procedural default).
Petitioner has not alleged any facts to show cause for the default, actual prejudice or a
fundamental miscarriage of justice. (See Pet’r Obj. 2–6.) Therefore, Petitioner’s Confrontation
Clause claim is procedurally barred and beyond the scope of federal habeas review.
ii.

Ineffective assistance of counsel

Petitioner advances two arguments in support of his ineffective assistance of counsel
claim: (1) Petitioner’s trial counsel failed to object to Petitioner’s absence at his co-defendant’s
suppression hearing; and (2) Petitioner’s trial counsel failed to object to the jury instructions.
(Pet’r Obj. 10–12.)
“The Sixth Amendment right to counsel is the right to effective assistance of counsel.”
Buck v. Davis, 580 U.S. ---, ---, 137 S. Ct. 759, 775 (Feb. 22, 2017) (quoting Strickland v.
Washington, 466 U.S. 668, 686 (1984)); see also Premo v. Moore, 562 U.S. 115, 121 (2011).
“A defendant who claims to have been denied effective assistance must show both that counsel
performed deficiently and that counsel’s deficient performance caused him prejudice.” Buck,
580 U.S. at ---, 137 S. Ct. at 775 (citing Strickland, 466 U.S. at 687). “Recognizing the
‘tempt[ation] for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence,’ . . . counsel should be ‘strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.’” Cullen, 563
17

U.S. at 189 (alteration in original) (quoting Strickland, 466 U.S. at 689–90); see also Bierenbaum
v. Graham, 607 F.3d 36, 50–51 (2d Cir. 2010) (stating that the Strickland standard is “highly
deferential” to eliminate the “distorting effects of hindsight”). The “highly deferential”
Strickland standard is made “doubly so” on habeas review, as AEDPA requires deference to the
state court’s ruling. Premo, 562 U.S. at 122; accord Santone v. Fischer, 689 F.3d 138, 154 (2d
Cir. 2012). Thus, on habeas review, “the question is not whether counsel’s actions were
reasonable . . . [but] whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 562 U.S. at 105. “Surmounting Strickland’s high bar is never an
easy task.” Id. (citing Padilla v. Kentucky, 559 U.S. 356, 371, (2010)).
As discussed further below, neither of Petitioner’s arguments demonstrate that the
Appellate Division’s decision denying the ineffective assistance of counsel claims was “contrary
to, or involved an unreasonable application of, clearly established Federal law as determined by
the Supreme Court.” Richter, 562 U.S. at 98.
1.

Petitioner’s ineffective assistance of counsel claims were
adjudicated on the merits

As a threshold matter, the Court must determine whether AEDPA deference applies to the
Appellate Division’s decision regarding Petitioner’s ineffective assistance of counsel claims. See
Berghuis v. Thompkins, 560 U.S 370, 390 (2010) (“Courts cannot grant writs of habeas corpus
under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference
applies. In those situations, courts must resolve whether AEDPA deference applies, because if it
does, a habeas petitioner may not be entitled to a writ of habeas corpus under § 2254(d).”
(citation omitted)). Petitioner raised his ineffective assistance of counsel claims before the
Appellate Division, alleging a violation of his Sixth Amendment rights. (Pet’r. Suppl. App. Div.
Br. 10–20, Docket Entry No. 4-3.) While the Appellate Division discussed the New York

18

standard for ineffective assistance of counsel, see Bogan, 78 A.D.3d at 856, the use of the phrase
“meaningful representation,” along with the absence of any discussion of a procedural bar on this
claim, constitutes an adjudication on the merits of Petitioner’s ineffective assistance of counsel
claims. See Gersten v. Senkowski, 426 F.3d 588, 606 (2d Cir. 2005) (holding that the state court
decided the petitioner’s ineffective assistance of counsel claim on the merits where the court
determined that the defendant received meaningful representation); see also Eze v. Senkowski,
321 F.3d 110, 123–24 (2d Cir. 2003); Lolisco v. Goord, 263 F.3d 178, 193 (2d Cir. 2001);
Ascencio v. McKinney, No. 05-CV-1026, 2007 WL 2116253, at *14 (E.D.N.Y. July 20, 2007).
Therefore, the Appellate Division’s decisions on the ineffective assistance of counsel claims are
afforded deference under AEDPA, and Petitioner must establish that the Appellate Division’s
decision was “an unreasonable application of clearly established federal law.” See Tavarez v.
Larkin, 814 F.3d 644, 648–49 (2d Cir. 2016); see also Kernan, 578 U.S. ---, 136 S. Ct. at 1606
(holding that the Ninth Circuit should have viewed the decision of the Supreme Court of
California “through AEDPA’s deferential lens” where the Supreme Court of California was found
to have adjudicated the case on the merits).
2.

Petitioner’s trial counsel was not constitutionally ineffective for
failing to object to Petitioner’s absence from his co-defendant’s
suppression hearing

Petitioner contends that his trial counsel was ineffective because he failed to object to
Petitioner’s absence from his co-defendant’s suppression hearing. (Pet’r Obj. 10–11.) Petitioner
asserts that the ineffective assistance of counsel claim is viable because “there is no Supreme
Court case holding that a co-defendant’s [suppression] hearing is not a critical stage.” (Id. at 10.)
Petitioner argues that “it was critical for him and his counsel to be present in order to evaluate
the witness or witnesses.” (Id.)

19

An ineffective assistance of counsel claim may only lie where a defendant had a Sixth
Amendment right to counsel. See Coleman, 501 U.S. at 752. The Sixth Amendment right to
counsel attaches at all “critical stage[s]” of the criminal proceedings. Marshall v. Rogers, 569
U.S. ---, ---, 133 S. Ct. 1446, 1449 (Apr. 1, 2013); Mckethan v. Mantello, 522 F.3d 234, 239 (2d
Cir. 2008) (holding that the right to counsel “extends only to critical stages of the proceedings.”
(citing Iowa v. Tovar, 541 U.S. 77, 80–81 (2004)). If a proceeding is not a “critical stage” of the
criminal case, then the defendant does not have a Sixth Amendment right to counsel or a Sixth
Amendment right to be present at the proceeding to assist his counsel. Mckethan, 522 F.3d at
238–39 (first citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987); and then citing Tovar, 541
U.S. at 80–81 (2004)). “[A] critical stage [i]s one that held significant consequences for the
accused.” Woods v. Donald, 575 U.S. ---, ---, 135 S. Ct. 1372, 1375–76 (Mar. 30, 2015). Critical
stages include a defendant’s trial, United States v. Cronic, 466 U.S. 648, 653–54 (1984), as well
as the defendant’s “arraignment [], post-indictment interrogations, post-indictment lineups, []
entry of a guilty plea, . . . plea negotiations,” Missouri v. Frye, 566 U.S. 133, 140–41 (2012),
sentencing, Gardner v. Florida, 430 U.S. 348, 358 (1977), and post-trial motion practice, Rogers,
569 U.S. at ---, 133 S. Ct at 1449. “[C]ourts may presume that a defendant has suffered
unconstitutional prejudice if he was denied counsel at a critical stage of his trial.” Woods, 575
U.S. at ---, 135 S. Ct. at 1377 (quoting Cronic, 466 U.S. at 658–59).
The Appellate Division’s decision regarding the ineffective assistance of counsel claim
was not contrary to, or an unreasonable application of, clearly established Supreme Court
precedent. The Appellate Division held that Petitioner “did not have a constitutional right to
counsel at his codefendant’s [suppression] hearing because that proceeding was not a critical
stage of his trial.” Bogan, 78 A.D.3d at 855 (citations and internal quotation marks omitted). As

20

Petitioner points out, the Supreme Court has never held that a co-defendant’s suppression hearing
constitutes a critical stage of a defendant’s criminal proceedings. (See Pet’r Obj. 10.) Therefore,
the Appellate Division’s decision cannot be contrary to, or an unreasonable application of,
clearly established Supreme Court precedent. See Woods, 575 U.S. at ---, 135 S. Ct. at 1377
(reversing the court of appeals’ decision granting habeas relief because the Supreme Court has
never held that a hearing where the “prosecution [presented] testimony about other defendants”
was a critical stage and therefore “the state court’s decision could not be contrary to any holding
from [the Supreme] Court” (citation and internal quotation marks omitted)); Wright v. Van
Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear answer to the question
presented . . . it cannot be said that the state court unreasonably applied clearly established
Federal law.” (alterations, citations and internal quotation marks omitted)); Smith v. Wenderlich,
826 F.3d 641, 649 (2d Cir. 2016) (“When there is no Supreme Court holding on a given issue, it
cannot be said that the state court unreasonably applied clearly established Federal Law within
the meaning of AEDPA.” (alterations, citations and internal quotation marks omitted)).5

5

Liberally construing Petitioner’s arguments, Petitioner also appears to claim that his
absence from his co-defendant’s suppression hearing violated his right to due process. (See Pet’r
Obj. 10 (“Petitioner’s presence at this critical stage of the criminal proceedings would constitute
the fairness of the procedure.”).) A defendant has “a due process right to be present in [] person
whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (citation and internal
quotation marks omitted). At the suppression hearing, Petitioner’s co-defendant sought to
suppress Luciano’s identification of himself, not Luciano’s identification of Petitioner. (H. 31–
35.) Therefore, Petitioner’s claim lacks merit because his presence at his co-defendant’s
suppression hearing had no “relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge.” Stincer, 482 U.S. at 745; see also Monroe v. Kulman, 433 F.3d 236,
246–47 (2d Cir. 2006) (affirming dismissal of a habeas petition because the benefit of
petitioner’s presence during an uncritical part of the proceedings was “speculative and likely to
be minimal”).
21

3.

Petitioner’s trial counsel was not constitutionally ineffective for
failing to object to the supplemental jury instructions

Petitioner contends that his trial counsel was ineffective for failing to object to the
supplemental jury instructions and for failing to request instructions that were more accurate and
complete. (Pet’r Obj. 11.) During deliberations, the jury sent a note to the trial judge asking if it
was “allowed to reach a decision based solely on the testimony of one witness.” (T. 248:3–8.)
The trial judge discussed the jury’s note with the State and Petitioner’s trial counsel. (T. 248:9–
252:22.) The trial judge informed the parties that he intended to reply to the jury’s note by
restating his earlier instruction on one-witness identification testimony. (T. 248:9–16.)
Petitioner’s trial counsel requested that the trial judge also instruct the jury that “each juror
should hold to their verdict if they feel that there is a doubt. . . . It’s their right to hold to their
verdict if they feel it is a reasonable verdict.” (T. 248:21–249:12.) The trial judge declined the
suggestion by Petitioner’s counsel and reread the earlier instruction regarding one-witness
testimony to the jury. (T. 249:12–252:22.) Petitioner, citing to the New York Model Criminal
Jury Instructions (CJI) for support, asserts that the instructions were erroneous because they
“allowed the jury to convict based on [a] finding that the victim truthfully believed [P]etitioner
and his codefendant were the perpetrators, without concomitantly finding his identification was
accurate.” (Pet’r Obj. 7–8 (citation omitted).)
To succeed on an ineffective assistance of counsel claim based on a trial counsel’s failure
to object to jury instructions, a petitioner must show that the trial counsel’s failure to object “fell
below an objective standard of reasonableness” and show prejudice — that the outcome of the
trial would have been different absent the allegedly deficient representation. Brown v. Greene,
577 F.3d 107, 110 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 688–89). A petitioner faces an
“especially heavy burden” in attempting to prove prejudice on the basis of an allegedly erroneous

22

jury instruction. Waddington v. Sarasud, 555 U.S. 179, 190–91 (2009) (internal quotation marks
omitted); accord DelValle v. Armstrong, 306 F.3d 1197, 1200–01 (2d Cir. 2002). A petitioner
must show that the instruction was erroneous and must also show that there was “a reasonable
likelihood that the jury applied the instruction in a way that relieved the State of its burden of
proving every element of the crime beyond a reasonable doubt.” Waddington, 555 U.S. at 191
(citation and internal quotation marks omitted). “[T]he pertinent question is whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process.”
Id. (citation and internal quotation marks omitted). In answering that question, the allegedly
erroneous instruction must not be judged in isolation, “but must be considered in the context of
the instructions as a whole.” Id. (citation and internal quotation marks omitted). A trial
counsel’s failure to object to legally correct jury instructions does not constitute ineffective
assistance. United States v. D’Agostino, 638 F. App’x 51, 54–55 (2d Cir. 2016); Hernandez v.
Bennett, 129 F. App’x 642, 644 (2d Cir. 2005).
Petitioner has failed to show that his trial counsel’s failure to object “fell below an
objective standard of reasonableness,” Brown, 577 F.3d at 110 (quoting Strickland, 466 U.S. at
688–89), because: (1) the instructions were not erroneous, and (2) Petitioner’s trial counsel
requested a broader supplemental instruction than the one the trial judge ultimately issued.
First, the jury instructions were not erroneous because, viewed as a whole, the
instructions adequately informed the jury of the relevant law. The CJI one-witness identification
instruction provides:
The defendant denies that [he/she] is the person who committed the
crime of [name of offense] on the [date of occurrence], when the
alleged crime(s) occurred. [He/She] is thus raising the issue of
mistaken identity.
Identification is a question of fact for you to decide, taking into
consideration all the evidence which you have seen and heard in the
23

course of the trial. Here, too, the People have the burden of proving
beyond a reasonable doubt that the defendant, [name of defendant],
was the perpetrator of the crime.
Under our law, the identification of an accused by a single witness
as the one involved in the commission of a crime is, in and of itself,
sufficient to justify a conviction of such a person, provided, of
course, that you are satisfied beyond a reasonable doubt of the
identity of the accused as the one who committed the crime. If, on
the other hand, you are not convinced beyond a reasonable doubt
that the defendant, [name of defendant], was the person who
committed the crime, then you must find [him/her] not guilty. . . .
1 Charges to Jury & Requests to Charge in Crim. Case in N.Y. § 4:48 (2016). Contrary to
Petitioner’s assertions, the language of the instructions given by the trial judge tracked the
language of the CJI one-witness identification instruction and informed the jury that they had to
find, beyond a reasonable doubt, that Luciano correctly identified Petitioner. The instructions
given by the trial judge stated, in relevant part:
Keep in mind that under our law it is not the quantity of the
testimony that matters, it’s not the number of witnesses who testify
for one side or the other that makes any difference; it’s the quality
of the testimony that counts.
Under our law, the testimony of even one witness is sufficient to
support a guilty verdict if you believe it beyond a reasonable
doubt. . . .
Now, as you have become aware, the chief issue at this trial is the
identification of these defendants as the perpetrators. As I just told
you, the burden is on the prosecution to prove the defendant’s guilt
beyond a reasonable doubt.
Even if you are convinced that a serious crime has taken place here,
this does not end your deliberations. You must also be satisfied,
beyond a reasonable doubt, that these defendants are the persons
who committed the crime. . . .
You must consider with great care all of the evidence on the issue of
identity and you must be convinced beyond a reasonable doubt that
each of these defendants is the right person.

24

(T. 230:1–8, 233:1–16.) In response to the jury’s note concerning one-witness identification, the
trial judge issued a supplemental instruction, repeating a portion of the initial instruction and
stating that:
As I told you before, it makes no difference the number of witnesses
who testify for one side or the other. It’s not the quantity of
testimony that counts; it’s the quality. Under our law, the testimony
of one witness is sufficient to support a guilty verdict if you believe
it beyond a reasonable doubt.
(T. 251: 9–20.) Viewing the instructions as a whole, Petitioner has therefore failed to meet the
“especially heavy burden” of showing that the instructions were erroneous. Waddington, 555
U.S. at 191 (holding that the state court’s instructions were not erroneous because the
“instruction parroted the language of the statute”); see also DelValle, 306 F.3d at 1201 (“Where a
trial court repeatedly emphasizes the state’s burden of proof, a single instruction taken in
isolation . . . does not constitute grounds for habeas relief.” (citation omitted)). Petitioner’s trial
counsel did not render constitutionally ineffective representation by failing to object to jury
instructions that were legally correct. See D’Agostino, 638 F. App’x at 54–55; Hernandez, 129
F. App’x at 644.
Second, the performance by Petitioner’s trial counsel did not “f[a]ll below an objective
standard of reasonableness.” Brown, 577 F.3d at 110 (quoting Strickland, 466 U.S. at 688–89).
Under Strickland, there is “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Brown, 577 F.3d at 110 (quoting Strickland, 466
U.S. at 688–89). Petitioner’s trial counsel requested that the trial judge give a broader instruction
in response to the jury’s note. (T. 248:21–249:12.) Petitioner contends that his trial counsel’s
request for a broader instruction was “meaningless” and “could not benefit [P]etitioner.” (Pet’r
Obj. 11.) Petitioner’s trial counsel could have raised a formal objection to the supplemental jury
instruction instead of requesting a broader instruction, but his trial counsel’s decision did not
25

“amount to incompetence under prevailing professional norms,” Richter, 562 U.S. at 105,
because Petitioner’s trial “counsel’s failure to object . . . and request a curative instruction”
constitutes “a reasonable tactical decision,” United States v Spruill, 808 F.3d 585, 600 (2d Cir.
2015).
For the reasons stated above, the Appellate Division’s decision denying Petitioner’s
ineffective assistance of counsel claim was not contrary to, or an unreasonable of, Supreme
Court precedent.
iii. Petitioner’s challenge to the supplemental jury instruction is
procedurally barred.
As previously discussed, Petitioner contends that the jury instructions were erroneous
because the supplemental instruction failed to state that Luciano’s identification of Petitioner as
one of the assailants had to be accurate beyond a reasonable doubt. (Pet’r Obj. 7–10.) The
Appellate Division held that Petitioner’s claim challenging the jury instructions was
“unpreserved for the appellate review.” Bogan, 78 A.D.3d at 855 (citing N.Y. Crim. Proc. Law
§ 470.05(2)). Alternatively, the Appellate Division dismissed the claim on the merits because “in
any event, . . . [t]he charge, taken as a whole, adequately instructed the jury as to the burden of
proof, was a correct statement of the law, and sufficiently apprised the jury on weighing the
credibility of witnesses.” Id. at 855–56 (citations omitted).
Federal courts are generally not permitted to “review questions of federal law presented
in a habeas petition when the state court’s decision rests upon a state-law ground that ‘is
independent of the federal question and adequate to support the judgment.’” Cone v. Bell, 556
U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). A state law ground is deemed
“adequate” if the rule “is firmly established and regularly followed by the state in question.”

26

Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Garcia v. Lewis, 188 F.3d 71, 77 (2d
Cir. 1999)).
It is well-settled that New York’s contemporaneous objection rule is an adequate and
independent ground that bars federal habeas review.6 Downs v. Lape, 657 F.3d 97, 104 (2d Cir.
2011) (“[W]e have held repeatedly that the contemporaneous objection rule is a firmly
established and regularly followed New York procedural rule.”); Garcia, 188 F.3d at 79 (“[W]e
have observed and deferred to New York’s consistent application of its contemporaneous
objection rules.”); see also Kozlowski v. Hulihan, 511 F. App’x 21, 25 (2d Cir. 2013) (“[T]he
contemporaneous objection rule provides an independent state-law ground for barring federal
habeas review.”); Wright v. Lee, No. 12-CV-6140, 2013 WL 1668266, at *2 (E.D.N.Y. Apr. 17,
2013) (“It is well settled that New York’s contemporaneous objection rule . . . is an independent
and adequate state law ground that ordinarily precludes federal habeas corpus review.”).

6

New York’s contemporaneous objection rule provides:
For purposes of appeal, a question of law with respect to a ruling or
instruction of a criminal court during a trial or proceeding is
presented when a protest thereto was registered, by the party
claiming error, at the time of such ruling or instruction or at any
subsequent time when the court had an opportunity of effectively
changing the same. Such protest need not be in the form of an
“exception” but is sufficient if the party made his position with
respect to the ruling or instruction known to the court, or if in
reponse [sic] to a protest by a party, the court expressly decided the
question raised on appeal. In addition, a party who without success
has either expressly or impliedly sought or requested a particular
ruling or instruction, is deemed to have thereby protested the court's
ultimate disposition of the matter or failure to rule or instruct
accordingly sufficiently to raise a question of law with respect to
such disposition or failure regardless of whether any actual protest
thereto was registered.
N.Y. Crim. Proc. Law § 470.05(2).
27

“[W]hen a state court says that a claim is ‘not preserved for appellate review’ but then
rules ‘in any event’ on the merits, such a claim is procedurally defaulted.” Green v. Travis, 414
F.3d 288, 294 (2d Cir. 2005) (quoting Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. 1996)); Young
v. New York, No. 11-CV-0110, 2012 WL 6644993, at *12 (E.D.N.Y. Dec. 20, 2012) (“When a
state court relies on an independent and adequate state law ground — such as, in this case, failure
to preserve the issue for appeal — federal habeas review is foreclosed. This is true even if the
state court rules in the alternative on the merits of petitioner’s claims.” (citations omitted)).
A federal court may review a claim that is procedurally barred by an independent and
adequate state ground if “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, 501 U.S. at 750; see also
House v. Bell, 547 U.S. 518, 536 (2006) (“As a general rule, claims forfeited under state law may
support federal habeas relief only if the prisoner demonstrates cause for the default and prejudice
from the asserted error . . . . The bar is not, however, unqualified . . . . [T]he Court has
recognized a miscarriage-of-justice exception.” (citations omitted)); Rush v. Lempke, 500
F. App’x 12, 15 (2d Cir. 2012) (“When a petitioner ‘has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the
claims is barred 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.’” (quoting Coleman, 501 U.S. at 750)).
“The cause requirement is met if some objective factor, external to [the] [p]etitioner’s
defense, interfered with his ability to comply with the state’s procedural rule.” Gutierrez v.
Smith, 702 F.3d 103, 111 (2d Cir. 2012); see also Maples v. Thomas, 565 U.S. ---, ---, 132 S. Ct.

28

912, 922 (Jan. 18, 2012); Lawson v. McGinnis, No. 04-CV-2345, 2013 WL 789173, at *9
(E.D.N.Y. Mar. 1, 2013). “There is no doubt that ineffective assistance of counsel can serve a
cause to excuse procedural default.” Tavarez, 814 F.3d at 650 (citing Edwards v. Carpenter, 529
U.S. 446, 450–51 (2000)). But a petitioner is still required to prove that “he suffered actual
prejudice as a result of the alleged violation of federal law.” Id. (citing Coleman, 501 U.S. at
750). Prejudice is established when a petitioner is able to show that the alleged errors at trial
resulted in “substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Gutierrez, 702 F.3d at 112 (quoting United States v. Frady, 456 U.S. 152, 170
(1982)); see also Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003).
A fundamental miscarriage of justice arises when a petitioner “is actually innocent of the
crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2003)
(quoting Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002)); see also McQuiggin v. Perkins,
569 U.S. ---, ---, 133 S. Ct. 1924, 1927 (May 28, 2013) (“[The] fundamental miscarriage of
justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal
constitutional errors do not result in the incarceration of innocent persons.” (quoting Herrera v.
Collins, 506 U.S. 390, 404 (1993))).
Petitioner’s claim regarding the supplemental jury instruction is procedurally defaulted,
and Petitioner has failed to show cause and actual prejudice or a fundamental miscarriage of
justice that would allow the Court to excuse the default. Petitioner’s claim is procedurally
defaulted because Petitioner’s trial counsel failed to object to the instructions and the Appellate
Division accordingly held that the claim was “unpreserved for appellate review.” See Bogan, 78
A.D.3d at 855 (citing N.Y. Crim. Proc. Law § 470.05(2)); see also Kozlowski, 511 F. App’x at 25
(“[T]he contemporaneous objection rule provides an independent state-law ground for barring

29

federal habeas review.”). Construing Petitioner’s arguments to make the strongest arguments
possible, Petitioner appears to argue that the default should be excused because his trial counsel
was ineffective for failing to object to the supplemental jury instruction. (See Pet’r Obj. 11.) An
ineffective assistance of counsel claim provides cause for procedural default, but nevertheless,
the Court may not excuse Petitioner’s default because he has failed to show actual prejudice. See
Tavarez, 814 F.3d at 649–51 (holding that ineffective assistance of counsel provides cause to
excuse a procedural default but affirming the denial of a petition because the petitioner failed to
show actual prejudice). As explained above, taken as a whole, the jury instructions correctly
stated the law concerning one-witness identification. Consequently, Petitioner’s actual prejudice
argument fails because Petitioner’s trial was not “infect[ed] . . . with error of constitutional
dimensions.” Gutierrez, 702 F.3d at 112.
Even though the Appellate Division alternatively decided Petitioner’s claim on the merits,
the Court may not review that determination because “when a state court says that a claim is ‘not
preserved for appellate review’ but then rules ‘in any event’ on the merits, such a claim is
procedurally defaulted.” Green, 414 F.3d at 294 (citation omitted).
III. Conclusion
For the foregoing reasons, the Court adopts the R&R and denies the petition for a writ of
habeas corpus. The Court will not issue a certificate of appealability. See 28 U.S.C. § 2253. It is
further certified pursuant to 28 U.S.C. § 1915(a) that any appeal would not be taken in good

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faith. Coppedge v. United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is directed
to close the case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: July 6, 2017
Brooklyn, New York

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