Beckford v. United States of America

Filing 12

ORDER DENYING PETITION MADE PURSUANT TO 28 U.S.C. § 2255 --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the Petition made pursuant to 28 U.S.C. § 2255, is denied in its entirety, and Petitioner's request fo r an evidentiary hearing is denied as unnecessary. Petitioner's motion for leave to amend his Petition also is denied as futile. Petitioner further is denied a certificate of appealability as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that a ny appeal from this Memorandum and Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro sePetitioner and to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/26/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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COURTNEY BECKFORD, pro se,
:
:
Petitioner,
:
:
MEMORANDUM & ORDER
-against:
13-cv-2208 (DLI)
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
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DORA L. IRIZARRY, Chief United States District Judge:
Pro se 1 petitioner Courtney Beckford (“Petitioner”) filed this petition for a writ of habeas
corpus, challenging his sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”). See generally
Dkt. Entry No. 1 (“Petition”). On January 10, 2012, Petitioner pled guilty to one count of
conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. § 1349 and one count of
mail fraud in violation of 18 U.S.C. § 1341. See generally Dkt. 09-CR-525, Entry Nos. 185, 355.
On July 16, 2012, this Court sentenced Petitioner to thirty-seven months of imprisonment followed
by three years of supervised release and repayment of restitution in the amount of $779,900.42.
See generally Dkt. 09-CR-525, Entry No. 548. Petitioner challenges his sentence on the ground
that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution. Petition at 2. Pursuant to Section 2255, Petitioner also requests an evidentiary
hearing to further develop the record regarding the merits of his claim. Id. at 5. For the reasons
set forth below, the Petition and Petitioner’s demand for an evidentiary hearing are denied.

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In reviewing Petitioner’s motion, the Court is mindful that, “[a] document filed pro se is to be liberally
construed . . . and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation
omitted). Accordingly, the Court interprets the Petition “to raise the strongest arguments that [it] suggest[s].”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis, citations, and internal quotation
marks omitted).

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BACKGROUND
On January 10, 2012, immediately prior to the commencement of trial by the swearing-in
of the jury, Petitioner pled guilty, without a plea agreement, to counts one and twelve of the
superseding indictment, which respectively charged Petitioner with conspiracy to commit mail and
wire fraud and mail fraud. See generally Dkt. 09-CR-525, Entry Nos. 185, 355. On July 16, 2012,
this Court sentenced Petitioner to thirty-seven months of imprisonment, to be followed by three
years of supervised release, and ordered that Petitioner pay restitution in the amount of
$779,900.42. See generally Dkt. 09-CR-525, Entry No. 548. At the sentencing hearing, the Court
advised Petitioner of his right to appeal, stating as follows: “You are advised, Mr. Beckford, that
you have a right to appeal from the sentence and judgment that has been imposed by the Court. If
you do wish to so appeal, you must do so within ten days of the final entry of judgment in this
case.” Tr. of July 16, 2012 Sentencing Hr’g, Dkt. Entry No. 9-2, at 36:4-8. Petitioner did not
appeal his conviction to the Second Circuit Court of Appeals.
On April 8, 2013, Petitioner filed the instant motion, pursuant to Section 2255, on the
grounds that he received ineffective assistance of counsel in violation of his Sixth Amendment
rights because he requested that his counsel file an appeal of his conviction and his counsel failed
to do so. See Petition at 2. Petitioner claims that “after being sentence[d], counsel consulted with
petitioner regarding his right to appeal the sentence.” Id. at 3; See also Affidavit of Courtney
Beckford (“Beckford Aff.”), Dkt. Entry No. 1 at ¶ 3. He further claims that “in no uncertain terms,
[Petitioner] did inform counsel that he wishe[d] to take an appeal of the sentence and conviction,”
and “[c]ounsel assured petitioner that he would file [a] notice of appeal.” Id.
On April 17, 2013, the Court requested that the government show cause why Petitioner’s
motion should not be granted. See Order to Show Cause, Dkt. Entry No. 2. In response to the

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order to show cause, the government requested that the Court issue an order, pursuant to
Campusano v. United States, 442 F.3d 770 (2d Cir. 2006), compelling Petitioner’s counsel, Mr.
Gary S. Villanueva, to submit a declaration responding to Petitioner’s claim that he requested Mr.
Villanueva file a notice of appeal and Mr. Villanueva failed to do so. See Response to Order to
Show Cause (“Gov’t Opp’n”), Dkt. Entry No. 5, at 1. On May 13, 2013, the Court issued an order
compelling Mr. Villanueva to respond to Petitioner’s claim, and further ordered the government
to supplement its response to Petitioner’s claim following receipt of Mr. Villanueva’s declaration.
On May 6, 2013, the government submitted a letter to the Court indicating that “[d]espite multiple
efforts to reach out to Mr. Villanueva since [the Court’s April 17, 2013 Order] to obtain his
recollection of the events in question, the government ha[d] not yet been able to speak with Mr.
Villanueva.” See Gov’t Ltr. dated May 6, 2013, Dkt. Entry No. 4. The Court granted the
government additional time to obtain a declaration from Mr. Villanueva. On June 14, 2013, the
government filed a supplemental response to the Petition, which included a declaration from Mr.
Villanueva. See generally Response to Order to Show Cause (“Gov’t Supp. Opp’n”), Dkt. Entry
No. 9; Declaration of Gary S. Villanueva (“Villanueva Decl.”), Dkt. Entry No. 9-1.
According to Mr. Villanueva’s declaration, “at no point did [Petitioner] request that I file
a notice of appeal on his behalf.” Villanueva Decl. at ¶ 4. Therefore, Mr. Villanueva “did not file
a notice of appeal on [Petitioner’s] behalf.” Id. at ¶ 5. On July 8, 2013, Petitioner filed a reply to
the government’s response. See Petitioner’s Reply (“Reply”), Dkt. Entry No. 10. In the Reply,
Petitioner renewed his request for an evidentiary hearing, arguing that Mr. Villanueva’s
“credibility is debatable” given his delays in responding to the government’s request for a
declaration and Petitioner’s request for documents related to his case. See generally Reply.

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On November 25, 2014, Petitioner filed a letter with the Court requesting an update on his
Petition, and asserting for the first time that his Section 2255 claim was premised on his counsel’s
“failure to conduct an adequate investigation into potential defenses or to research case law that
may result in a lower sentence” and that “had [he] known that [he] would be sentenced for longer
than a year, [he] never would have taken the guilty plea.” Petitioner’s Ltr. dated Nov. 25, 2014
(“Petitioner’s Ltr.”), Dkt. Entry No. 11 at 2-3. 2 The government did not respond to Petitioner’s
November 25, 2014 letter. On June 10, 2015, Petitioner was released from custody.
DISCUSSION
I.

Ineffective Assistance of Counsel for Failure to File an Appeal
Petitioner contends that he requested that his counsel file a notice of appeal following his

conviction and that his counsel’s failure to do so violated his Sixth Amendment right to counsel.
Petition 2-5. To succeed on a claim of ineffective assistance of counsel, a petitioner must show
that (1) his “counsel’s representation fell below an objective standard of reasonableness,” and
(2) there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
When a defendant asks his lawyer to file an appeal and the lawyer fails to do so, the lawyer has
been per se constitutionally ineffective. See Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999)
(quoting Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994) (internal quotations marks
omitted and emphasis original)) (“[I]f the defendant told his lawyer to appeal from the conviction,
and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance
of counsel, but of any assistance of counsel on appeal. Abandonment is a per se violation of the
sixth amendment.”). This of course is only true when the court finds that trial counsel in fact failed

2

As Petitioner’s November 25, 2014 letter is not paginated, the pages used herein are those assigned by the
ECF system.

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to file a requested notice of appeal. See United States v. Moreno-Rivera, 472 F.3d 49, 52 (2d Cir.
2006) (quoting Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002)) (“What matters for
purposes of that claim is whether [petitioner’s] trial counsel ‘fail[ed] to file a requested appeal.’”)
(emphasis original); United States v. Rosario, 2015 WL 4629453, at *5 (S.D.N.Y. Aug. 4, 2015)
(citations omitted) (“[T]he district court must determine whether the defendant in fact requested
that his attorney file an appeal.”).
As a threshold matter, Petitioner requests that the Court hold an evidentiary hearing to
develop the record on his counsel’s allegedly ineffective assistance for failing to file an appeal.
Petition at 5. “‘[T]he district court is required to engage in fact-finding to determine if an appeal
was requested.’” Kapelioujnyi v. United States, 779 F. Supp.2d 250, 253 (E.D.N.Y. 2009) aff’d,
422 F. App’x 25 (2d Cir. 2011) (quoting Campusano, 442 F.3d at 776). However, Campusano
recognizes that the “district court has discretion to determine if a testimonial hearing will be
conducted.” Campusano, 442 F.3d at 776; see also Chang v. United States, 250 F.3d 79, 85 (2d
Cir. 2001) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)) (noting that “although
a hearing may be warranted, that conclusion does not ‘imply that a movant must always be allowed
to appear in district court for a full hearing’”).
“‘The district court is permitted to expand the record to include affidavits or other written
submissions in order to decide disputed facts.’” Roberts v. United States, 2014 WL 4199691, at
*4 (E.D.N.Y. Aug. 22, 2014) (quoting Kapelioujnyi, 779 F. Supp.2d at 254 (citing Chang, 250
F.3d at 86)). “The decision whether to hold an evidentiary hearing on a 2255 motion is generally
left to the discretion of the district court.” Swerbilov v. United States, 2005 WL 1177938, at *2
(E.D.N.Y. May 18, 2005) (citing Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977)).
Where, as here, the court has familiarity with the case, it can rely on such familiarity in dismissing

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a petition without a hearing. See Stokes v. United States, 2001 WL 29997, at *2 (S.D.N.Y. Jan. 9,
2001) (citing United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990)) (“A district court may rely
on its own familiarity with the case and deny the motion without a hearing . . . .”).
Here, Petitioner’s trial attorney has submitted a declaration addressing Petitioner’s claim.
See generally Villanueva Decl. Additionally, Petitioner filed a response to Mr. Villanueva’s
declaration. See generally Reply. Given that both parties have supplemented the record, and the
Court’s familiarity with the case, the Court finds that an evidentiary hearing would “add little or
nothing to the written submissions” and, therefore, is not required. See Chang, 250 F.3d at 86.
Accordingly, Petitioner’s request for a hearing is denied.
Turning to the substance of Petitioner’s claim, the Petition contains a sworn affidavit from
the Petitioner that includes two sentences describing the circumstances in which he requested that
his counsel file an appeal. The affidavit states: “I did make it clear to counsel that, ‘yes’ I wanted
to appeal the sentence and the amount of money ‘they said I owe,’” and that “[c]ounsel did assure
me that he would file the notice of appeal on my behalf.” Beckford Aff. at ¶¶ 4-5. Petitioner’s
affidavit does not include any other details surrounding his request that Mr. Villanueva file a notice
of appeal.
Mr. Villanueva’s one page declaration states that, “[a]t no point did [Petitioner] request
that I file a notice of appeal on his behalf.” Villanueva Decl. at ¶ 4. In response to Mr. Villanueva’s
declaration, Petitioner argues that the record is clear that no appeal was filed as requested since
“there is no record entry regarding an appeal notice filed by counsel.” Reply at 1. Mr. Villanueva
admits as much in his declaration, stating that he “did not file a notice of appeal on [Petitioner’s]
behalf” because he was never asked to do so. Villanueva Decl. at ¶¶ 4-5. Petitioner’s Reply does
not add further detail regarding his request that Mr. Villanueva file a notice of appeal. Instead,

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Petitioner contends that Mr. Villanueva’s “credibility is debatable” because of his delays in
responding to the government and the Petitioner. See Reply at 4. These delays to not warrant such
a finding.
The totality of the evidence in the record supports a finding that Petitioner did not request
an appeal. Petitioner provides only the conclusory assertion that he “[made] it clear to counsel
that ‘yes’ [he] wanted to appeal.” Beckford Aff. at ¶ 4. “Such bare assertions, offered without
detail or supporting documentation, have been found inadequate to support a claim of ineffective
assistance in the face of a credible and contradictory affidavit by counsel.” See Rosario, 2015 WL
4629453, at *6 (citing Garcia v. United States, 2008 WL 683661, at *5 (S.D.N.Y. Mar. 14, 2008),
report and recommendation adopted, 2008 WL 2446840 (S.D.N.Y. June 17, 2008) (“Garcia has
said only in the most conclusory terms that he instructed his counsel to file a notice of appeal. He
does not . . . detail the content or nature of such conversations . . . . He does not explain on what
grounds he would have expected his attorney to have appealed. He does not provide any
contemporaneous documents making the request or documents after the deadline for filing an
appeal that reflect his complaints about [counsel’s] failure to file the notice.”)); Lejhanec v. United
States, 1999 WL 1487594, at *9 (E.D.N.Y. Nov. 29, 1999) (denying Section 2255 claim where
“the Court is faced with nothing more to support [petitioner’s] claim . . . than [petitioner’s] ‘bare,
unsubstantiated, thoroughly self-serving, and none too plausible statement’ . . . [a]gainst an
affirmation made under penalty of perjury by an officer of the Court that no such request was
made”).
Even if Petitioner’s sworn and unsworn statements could be construed as describing the
content and nature of his conversations with his counsel regarding appeal—which is doubtful—
Petitioner provides no contemporaneous evidence of his request, or any communications regarding

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appeal in the many months that followed his counsel’s alleged failure to file a notice of appeal, or
an explanation of the grounds on which he would have expected his counsel to appeal. Petitioner’s
conclusory assertion is insufficient to support a Section 2255 claim for ineffective assistance of
counsel.
Additionally, Petitioner’s delay filing his Petition undermines his claim that he requested
that his counsel file a notice of appeal. Petitioner contends that the same day as his sentencing he
informed his counsel that he wanted to appeal. Beckford Aff. at ¶¶ 3-4. Yet he did not bring the
instant motion claiming ineffective assistance of counsel until more than eight months after he was
sentenced. Similar delays have been found to weigh against a finding that a request for counsel to
file a notice of appeal was actually made. See, e.g., Roberts, 2014 WL 4199691, at *5 (rejecting
ineffective assistance claim filed thirteen months after sentencing hearing); Cruz-Santos v. United
States, 2010 WL 1372682, at *3 (S.D.N.Y. Mar. 30, 2010) (rejecting ineffective assistance claim
filed eight months after he allegedly requested that his counsel file an appeal); Nicholson v. United
States, 566 F. Supp.2d 300, 305 (S.D.N.Y. 2008) (“[T]o wait eight months to complain for the first
time—in a § 2255 petition—that counsel had failed to file a notice of appeal, is more consistent
with a fair inference that no request for such appeal was ever communicated to counsel.”).
While Petitioner claims for the first time in his Reply that he attempted (on unspecified
dates and times) to contact Mr. Villanueva during the more than sixty days between sentencing
and surrendering to serve his sentence, and that Mr. Villanueva neither contacted Petitioner nor
answered his calls during that period, Petitioner provides no further explanation for the remaining
six months of delay. Reply at 3. First, Petitioner’s Reply is not sworn testimony, and Petitioner’s

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unsworn statements are insufficient to refute Mr. Villanueva’s contrary sworn testimony. 3 See
Cruz-Santos, 2010 WL 1372682, at *3 (“Petitioner’s failure to put forth any evidence supporting
his unsworn allegation, in the face of his attorney’s sworn statement that no request was made,
supports a finding that Petitioner made no such request from his counsel.”). Second, even
assuming that Petitioner attempted to follow up with Mr. Villanueva during the approximately
sixty days between his sentencing and surrender, Petitioner does not allege that any of his calls to
Mr. Villanueva during the sixty days pertained to his appeal. See Reply at 3. It appears that
Petitioner’s sole substantiated contact with his counsel was a December 5, 2012 “request” to Mr.
Villanueva for a “full copy of [his] file.” See Exhibit E to Reply. 4 This letter does not reference
Petitioner’s appeal, and Petitioner does not offer any further evidence of any efforts made to
inquire about the status of his appeal. “It would be reasonable to infer that [with respect] to a
matter of such great import governed by such a short deadline, a person who has instructed counsel
to file an appeal would, at minimum, want to know whether the request was carried out and make
some reasonably prompt effort to obtain information about its status.” Nicholson, 566 F. Supp.2d
at 305. 5
Furthermore, the Court also considers the unlikelihood that a petitioner who faced a
potentially lengthy sentence at trial and received a significant reduction by pleading guilty would

3

While Petitioner’s certificate of service filed with his Reply was submitted under the penalty of perjury of 28
U.S.C. § 1746, Petitioner’s Reply was not. Reply at 6.

4

Indeed, Petitioner’s subsequent letter to the New York Supreme Court ethics board does not mention that
Petitioner had requested an appeal, only that he requested a “full copy of [his] file . . . so that [he would] not be
precluded from[] filing [a] [Section] 2255.” See Exhibit F-1 to Reply.

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The Court notes that Petitioner argues in his Reply that any contention that he waited in bringing his Petition
is irrelevant since the statute of limitations for Section 2255 claims is one year and his Section 2255 claim is timely.
Reply at 3. While Petitioner is correct that his Petition is timely, where the claim is based on a failure to file an appeal,
courts routinely look at the timing between when counsel allegedly rendered ineffective assistance of counsel and
when a petitioner claims ineffective assistance of counsel to determine the merits of such a claim. See, e.g., Roberts,
2014 WL 4199691, at *5 (rejecting ineffective assistance claim based on the failure to file an appeal brought thirteen
months after sentencing).

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pursue an appeal. Here, Petitioner faced a maximum sentence of twenty years on each count, see
18 U.S.C. §§ 1349, 1341, and, as a result of his plea, he was sentenced to thirty-seven months. See
Dkt. 09-CR-525, Entry No. 548. Similarly reduced sentences in the face of potentially significant
imprisonment have weighed against a finding that Petitioner would have wanted to pursue an
appeal. See Davila-Bajana v. United States, 2002 WL 2022646, at *4 (E.D.N.Y. June 26, 2002)
(declining to hold an evidentiary hearing considering the “extreme unlikelihood that a defendant
would wish to appeal a conviction that reduced a 151-188 month sentence to 60 months”); See
also Roberts, 2014 WL 4199691, at *5 (citing Davila-Bajana, 2002 WL 2022646, at *4))
(considering the “extreme unlikelihood that petitioner, who faced a maximum of forty (40) years
. . . would wish to appeal his conviction that resulted in a one hundred five (105) month sentence”).
Given that Petitioner received a significantly reduced sentence by pleading guilty rather than
proceeding to trial, the Court finds it unlikely that Petitioner would have wanted to appeal his
conviction.
Accordingly, Petitioner’s ineffective assistance of counsel claim for failure to file an appeal
is rejected as without merit.
II.

Ineffective Assistance of Counsel Regarding Advice on Pleading Guilty
Since Petitioner is proceeding pro se, the Court must liberally construe his November 25,

2014 letter to raise the strongest possible arguments. See Erickson, 551 U.S. at 94; Triestman, 470
F.3d at 474. While the letter requests an update on Petitioner’s motion, the Court also construes it
as a motion to amend the Petition to add additional grounds for Petitioner’s ineffective assistance
of counsel claim. See United States v. Sesssa, 2011 WL 256330, at *20 (E.D.N.Y. Jan. 25, 2011)
(citing Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002) (“[W]hen a § 2255 motion is filed
before adjudication of an initial § 2255 motion is complete, the district court should construe the

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second § 2255 motion as a motion to amend the pending § 2255 motion.”)). In addition to
Petitioner’s counsel being ineffective for failing to file an appeal, Petitioner also asserts in his letter
that his counsel failed to “conduct an adequate investigation into potential defenses,” and failed
adequately to advise Petitioner in accepting a plea, since had Petitioner known the sentence he
would receive would be more than one year, “[he] would not have taken the guilty plea in the first
place.” Petitioner’s Ltr. at 2-3.
Habeas petitions “may be amended or supplemented as provided in the rules of procedure
applicable to civil actions.” 28 U.S.C. § 2242. However, the Court may deny leave to amend if
amendment would be futile. Jones v. N.Y.S. Div. of Military & Naval Affairs, 166 F.3d 45, 50 (2d
Cir. 2009) (“[A] district court may properly deny leave when amendment would be futile.”).
Section 2255 claims have a one-year statute of limitations, and, therefore, any new claims would
be time-barred unless Petitioner can show that they relate back to his original timely filing. See
28 U.S.C. § 2255; Payne v. United States, 2014 WL 4385853, at *2 (E.D.N.Y. Sept. 4, 2014)
(citing Fed. R. Civ. P. 15(c)(1)(B)) (“[Petitioner] must show that the new claims arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.”).
Rule 15 of the Federal Rules of Civil Procedure (“FRCP”) permits an amendment that relates back
to the original filing where “the amendment asserts a claim or defense that arose out of the conduct,
transaction or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. P. 15(c)(1)(B).
The Supreme Court analyzed the relation back doctrine in the context of habeas petitions
in Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the Supreme Court held that a new claim “does
not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground
for relief supported by facts that differ in both time and type of those the original pleading set

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forth.” Id. at 650. The petitioner in Mayle timely filed a habeas petition challenging, on Sixth
Amendment grounds, the introduction at trial of a videotape of a witness. Id. at 651. After the
statute of limitations had run, petitioner sought leave to amend his petition to assert a claim that
his own statements introduced at trial were inadmissible under the Fifth Amendment. Id. at 65152. The Supreme Court rejected the petitioner’s argument that the same “conduct, transaction, or
occurrence” meant the same “trial, conviction, or sentence,” and held that the amendment did not
relate back because it and the original claim were not tied to “a common core of operative facts.”
Id. at 664 (citation and internal quotation marks omitted).
Here, Petitioner cannot satisfy the requirements of Mayle. The original Petition timely
asserted a claim for ineffective assistance of counsel for failure to file an allegedly requested
appeal. See generally Petition. However, Petitioner’s letter asserts new and factually distinct
grounds for relief that differ in both time and type from his original petition that was filed more
than two years earlier. Notably, Petitioner does not provide any reason why his additional claims
could not have been asserted at the time of his original Petition. While the Petition is based on
alleged conversations and conduct by Petitioner’s counsel after his conviction, relating to a request
for Petitioner’s counsel to file an appeal, Petitioner’s amendment relates to alleged conduct and
conversations with Petitioner’s counsel before Petitioner was convicted, regarding advice given to
Petitioner about a guilty plea. Accordingly, the new claims “rely on evidence independent from
the factual bases for the ineffective assistance of counsel claims contained in [the original]
petition,” and, as the claims do not relate back, they are untimely. See Payne, 2014 WL 4385853,
at * 2. Accordingly, to the extent Petitioner’s November 25, 2014 letter seeks leave to amend the
Petition, Petitioner’s motion is denied as futile.

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CONCLUSION
For the reasons set forth above, the Petition is denied in its entirety, and Petitioner’s request
for an evidentiary hearing is denied as unnecessary. Petitioner’s motion for leave to amend his
Petition also is denied as futile. Petitioner further is denied a certificate of appealability as he fails
to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
see Fed. R. App. P. 22(b); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir.
2000).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

Memorandum and Order would not be taken in good faith, and therefore in forma pauperis status
is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
September 26, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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