Rios v. Bradt

Filing 16

MEMORANDUM AND ORDER. The Court adopts the R&R and denies the amended petition for a writ of habeas corpus. The Court will not issue a certificate of appealability. Ordered by Judge Margo K. Brodie on 9/24/2020. (Valentin, Winnethka)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JOHNNY RIOS,
Petitioner,
v.

MEMORANDUM & ORDER
13-CV-4442 (MKB) (LB)

MARK L. BRADT, Superintendent of Attica
Correctional Facility
Respondent.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Petitioner Johnny Rios, proceeding pro se, and currently incarcerated at Great Meadows 1
Correctional Facility brings the above-captioned petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his
federal constitutional rights. (Pet. for Writ of Habeas Corpus (“Pet.”), Docket Entry No. 1; Let.
Notifying Court of New Address for Petitioner, Docket Entry No. 9.) Petitioner’s claims arise
from a judgment of conviction after a jury trial in the Supreme Court of the State of New York,
Kings County (the “Trial Court”), for murder in the second degree. (Tr. of Proceedings before
the Hon. Joel M. Goldberg, dated July 29, 2010 (“Tr.”), 611:19–24, annexed to Resp. to Order to
Show Cause as Ex. C, Docket Entry Nos. 5-2–4.) The Trial Court sentenced Petitioner to a term
of twenty-five years to life imprisonment and imposed the sentence to run consecutively to the
unexpired sentence of a prior conviction. (Tr. of Sentencing before the Hon. Joel M. Goldberg,
dated Aug. 26, 2010 (“Sen’g Tr.”), annexed to Resp. to Order to Show Cause as Ex. D, Docket

1

At the time Petitioner filed the petition he was incarcerated at Attica Correctional
Facility. (Pet. 1.)

Entry No. 5-4.) Petitioner appealed his conviction to the New York Supreme Court Appellate
Division, Second Department (the “Appellate Division”), on the grounds that his trial counsel
was ineffective, the Trial Court violated his due process rights when it admitted evidence of
uncharged crimes against him, and that the Trial Court misunderstood the law when it sentenced
him to a consecutive term of imprisonment. (Pet’r’s App. Div. Br. (“Pet’r’s App. Br.”), annexed
to Resp. to Order to Show Cause as Ex. E, Docket Entry No. 5–4.) The Appellate Division
denied his due process and ineffective assistance of counsel claims but remanded the case for
resentencing, having found that the Trial Court was mistaken in its understanding that it was
required to sentence Petitioner to a term of imprisonment consecutively to the prior undischarged
sentence. (App. Div’s Decision & Order dated June 20, 2012 (“App. Div. Decision”), annexed
to Resp. to Order to Show Cause as Ex. G, Docket Entry No. 5-4.)
On November 4, 2014, the Court referred the petition to Magistrate Judge Lois Bloom for
a report and recommendation. (Order dated Nov. 4, 2014.) By report and recommendation dated
March 19, 2015, Judge Bloom recommended that the Court deny the petition and deny a
certificate of appealability (the “R&R”). (R&R, Docket Entry No. 11.)
Petitioner objected to the R&R “on the grounds of actual innocence.” (Pet’r’s Obj. to
R&R (“Pet’r’s Obj.”), Docket Entry No. 12.) In addition to objecting to the R&R, Petitioner also
submitted several new claims in a separate petition. (See 28:2254 Pet. 2–3 (“Obj. Pet.”),
annexed to Pet’r’s Obj. as Ex. 2, Docket Entry No. 12.) Petitioner’s new claims raised in
opposition to the R&R are: (1) ineffective assistance of trial counsel based on trial counsel’s: (i)
failure to object to the introduction of deoxyribonucleic acid (“DNA”) evidence, (ii) failure to
present critical DNA evidence, (iii) failure to object to the admission of two knives into
evidence, (iv) failure to investigate and to object to prosecutorial misconduct during the Assistant

2

District Attorney’s (the “ADA”) summation, and (v) failure to call an expert witness; (2) the
Trial Court’s denial of his motion pursuant to New York Criminal Procedure Law § 440.10
(“Section 440.10”) requesting DNA testing; (3) ineffective assistance of appellate counsel; and
(4) fundamental miscarriage of justice. (Id.) Petitioner also requests discovery. (Id.)
For the reasons discussed below, the Court adopts the R&R and, having considered
Petitioner’s new claims and construing them as an amendment to the petition, denies the petition
and declines to grant a certificate of appealability.
I.

Background
a.

Factual background

The Court assumes familiarity with the facts of the case as set forth in detail in the R&R
and provides only a summary.
i.

Trial

Petitioner’s jury trial began on July 29, 2010. (Tr. 1.) He was represented by attorney
Jesse Young, Esq. (“Trial Counsel”). (Id.) The evidence presented at trial established that on
November 15, 2008, Petitioner, along with Ernest Seaberry and Joel Mendoza, went to Rockime
Williams’ apartment at 573 Wyona Street, Brooklyn, New York. (Id. at 138:3–5, 144:23–145:5).
The four men played dominos while drinking alcohol. (Id. at 146:1–15.) Williams played music
from his game system and discussed giving Mendoza one of his games. (Id. at 147:5–25.) When
the music suddenly stopped, Williams got up to investigate. (Id. at 147:22–148:5.) At that point,
Williams, together with Seaberry, who was still watching from his seat at the table, noticed
Petitioner and Mendoza engaged in what they thought to be play fighting. (Id. at 148:1–5,
323:21–324:11.) Williams told the pair to stop playing in his house, (id. at 149:7–11), but then
noticed blood and heard Mendoza scream for help, (id. at 149:24–150:14). Williams saw
Petitioner stabbing Mendoza in the stomach and chest and tried to push him off of Mendoza. (Id.
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at 151:19–152:4.) He noticed that Petitioner was using a knife from his kitchen to stab Mendoza.
(Id. at 152:7–11.) Petitioner cut Mendoza’s throat, and kissed two of his fingers and put them to
Mendoza’s cheek. (Id. at 153:19–22, 324:23–24.) He then instructed Williams to get the mop
and clean up and threw the knife in the sink. (Id. at 154:1–11.)
Seaberry then left the apartment and Petitioner followed him. (Id. at 326:16–19.)
Petitioner instructed Seaberry to get into Mendoza’s car with him, which he did. (Id. at 18–22.)
Seaberry testified that Petitioner drove the pair to a remote area where he stopped to get gas and
torched the vehicle. (Id. at 330:6–19.) Trial Counsel did not object to this testimony. (Id.)
When the prosecutor asked Seaberry why he neglected to tell the detectives about the arson, Trial
Counsel objected. (Id. at 332:4–8.) The Trial Court overruled the objection, (id. at 332:9), and
Seaberry responded that he had not done so because he was afraid of Petitioner, who was still at
large, (id. at 332:10–13). The Trial Court offered to strike the testimony about not telling the
detectives about the fire, (id. at 332:8–19), but Trial Counsel declined the offer to strike, (id. at
332:20–24).
After Petitioner and Seaberry left the apartment, Williams called his attorney from his
cellular telephone and reported the murder to his landlady, directing her to call the police. (Id. at
163:24–164:8.) Emergency Medical Technician Lyonel Rosemond responded to the call and,
upon arriving, pronounced Mendoza dead. (Id. at 94:1–16, 99:1–20.) Responding police
officers found Williams in his landlady’s apartment and described him as visibly intoxicated and
very nervous. (Id. at 112:11–113:14.) In addition to photographing the scene, officers collected
beer cans, a liquor bottle, an ashtray, cigarette butts, a coffee mug, and two knives. (Id. at 50:16–
57:2.)
Analyses of the items collected from Williams’ apartment revealed Petitioner’s

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fingerprints on the liquor bottle, Petitioner’s DNA on several of the beer cans and a cigarette
butt, a mixture of Petitioner’s and Mendoza’s DNA on the handle of one of the kitchen knives,
and Mendoza’s blood on the blades of both knives. (Id. at 282:15–17, 288:24–290:25, 296:25–
297:7, 390:1–24, 447:3–12.) Doctor Beverly Leffers conducted an autopsy of Mendoza and
determined that he had thirty-three stab wounds, most of which could have been made by an
instrument with one sharp edge and one blunted edge, like the knives recovered from Williams’
sink. (Id at 481:2–5, 484:2–3, 491:1–5, 496:18–22.) Dr. Leffers concluded that stab wounds to
the head, body, and extremities injured the lungs, heart, aorta, and liver and caused Mendoza’s
death. (Id. at 487:24–488:5.)
In his closing argument, Trial Counsel argued that Seaberry’s omission –– failing to tell
the police that Petitioner had burned Mendoza’s vehicle –– undermined his credibility. (524:2–
525:4.) In the jury charge, the Trial Court instructed the jury that Seaberry’s testimony about
Petitioner burning the car “must not be considered for the purpose of proving that [Petitioner]
had a propensity to or predisposition to commit the murder charged in this case.” (Id. at 581:20–
582:2.)
After the jury found Petitioner guilty but before sentencing, Trial Counsel moved for a
mistrial on the basis that the car-torching testimony constituted inadmissible evidence of
uncharged crimes. (Sen’g Tr. 6:5–7:19.) The Trial Court found that it was too late to seek a
mistrial but considered the argument as part of the motion to set aside a verdict. (Id. at 8:21–24.)
In considering the argument on a motion to set aside the verdict, the Trial Court determined that
while the prosecution did not proceed by way of a Molineux hearing, 2 the testimony would have

2

Pursuant to People v. Molineux, 168 N.Y. 264 (1901), a Molineux hearing is conducted
to determine whether evidence of past crimes, wrongs, or other acts committed by a defendant
are admissible against the defendant at trial.
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been admitted because it “completes the narrative.” (Id. at 9:1–11.) The Trial Court also found
that since Trial Counsel was given an opportunity to strike the testimony and chose not to, and
because it was admissible anyway, Seaberry’s testimony did not provide an adequate ground to
set aside the verdict. (Id. at 9:1–11.)
The Trial Court sentenced Petitioner to twenty-five years to life imprisonment and
decided that, as a matter of law, his sentence “must” run consecutively to the undischarged
sentence on a prior conviction. (Id. at 18:25–19:6.)
ii.

Direct appeal

Petitioner filed a direct appeal arguing that: (1) the Trial Court violated his right to due
process by admitting evidence of an uncharged crime he allegedly committed, (2) Trial Counsel
was ineffective for failing to preserve that due process argument, and (3) the Trial Court erred
when it imposed Petitioner’s sentence consecutively to a prior undischarged sentence imposed by
a Pennsylvania Court due to a misapprehension that the penal law mandated consecutive
sentencing. (Pet’r’s App. Br.)
On June 20, 2012, the Appellate Division held that Petitioner’s “contention that he was
deprived of his due process right to a fair trial by the admission of certain uncharged crime
evidence is unpreserved for appellate review and, in any event, without merit.” (App. Div.
Decision.) (citations omitted). In the same decision, the Appellate Division determined that the
Trial Court sentenced Petitioner based on an incorrect belief that it was required to impose
Petitioner’s sentence consecutively to an undischarged sentence. (Id.) The Appellate Division
remitted the matter to the Trial Court for resentencing. (Id.)
Petitioner sought leave to appeal the dismissal of his due process claim, but not his
ineffective assistance of counsel claim, to the New York Court of Appeals. (Appl. for Permission
to Appeal to the Court of Appeals (“Leave Appl.”), annexed to Resp. to Order to Show Cause as
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Ex. H, Docket Entry No. 5-4.) The Court of Appeals denied leave to appeal on August 21, 2012.
(N.Y. Ct. of Appeals Order Den. Leave dated Aug. 21, 2012 (“Order Den. Leave Appl.”),
annexed to Resp. to Order to Show Cause as Ex. J, Docket Entry No. 5-4.)
iii. The habeas petition
On July 31, 2013, Petitioner applied pro se for a writ of habeas corpus on the same
grounds as raised on Direct Appeal. (Pet.) In opposing the petition, Respondent argues that
(1) Petitioner’s due process claim is procedurally barred by the independent and adequate state
ground doctrine; (2) Petitioner’s ineffective assistance of counsel claim is unexhausted since it
was not raised in his leave application to the New York Court of Appeals; and (3) any claim
based on the Trial Court’s error in sentencing Petitioner is moot, has been abandoned, and is not
cognizable in federal habeas. (Resp. to Order to Show Cause (“Resp. Opp’n”), Docket Entry No.
5.)
On April 24, 2014, Petitioner moved to vacate his conviction pursuant to C.P.L. § 440.10
alleging: (1) ineffective assistance of trial counsel, (2) a Brady violation, 3 (3) knowing use of
false testimony by the prosecutor, (4) prosecutorial misconduct, (5) fraud upon the Trial Court
committed by the prosecutor, and (6) his innocence. 4 (Mot. to Stay, Docket Entry No. 6;
Decision and Order dated Sept. 9, 2014 (“Section 440 Decision”), annexed to Resp. in Opp’n to
3

“The basic rule of Brady is that “[t]he Government has a constitutional duty to disclose
evidence favorable to an accused when such evidence is ‘material’ to guilt or punishment.”
United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001) (citing Brady v. Maryland, 373 U.S.
83, 87 (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)).
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By letter filed on March 31, 2014, Petitioner moved for a stay while he pursued CPL §
440.10 motion to vacate the judgment and coram nobis motions. (Mot. to Stay, Docket Entry
No. 6.) On February 2, 2015, the Court denied Petitioner’s motion for a stay. (Order dated May
2, 2015, Docket Entry No. 10.)
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Mot. to Stay as Ex. 1, Docket Entry No. 8.) Petitioner also sought an order directing DNA
testing and retesting of certain evidence. (Section 440 Decision 1.) On September 9, 2014, the
court denied Petitioner’s motion in all respects without a hearing (the “Section 440 Decision”).
(Section 440 Decision 24.) On September 24, 2014, Petitioner filed for leave to appeal the
Section 440 Decision to the Appellate Division. (440 Leave Appl., annexed to Pet’r’s Obj. as
Ex. 6, Docket Entry No. 12.) On February 25, 2015, the Appellate Division denied leave to
appeal the Section 440 Decision. People v. Rios, 2015 N.Y. Slip Op. 64966, 2015 WL 777350
(App. Div. Feb. 25, 2015).
On March 3, 2015, Petitioner filed for a writ of error coram nobis. (Error Coram Nobis
Appl., annexed to Pet’r’s Obj. as Ex. F, Docket Entry No. 12-8.) On October 14, 2015, the
Appellate Division concluded that Petitioner “failed to establish that he was denied the effective
assistance of appellate counsel” and denied his petition for a writ of error coram nobis. People v.
Rios, 17 N.Y.S.3d 659, 659 (App. Div. 2015)
b.

The R&R

Judge Bloom recommended that the Court deny the petition because Petitioner’s due
process claim, regarding the admission of the testimony about Petitioner setting Mendoza’s car
on fire, and his ineffective assistance of Trial Counsel claims are procedurally barred and the
findings of the Appellate Division were not contrary to or an unreasonable application of clearly
established federal law, (R&R 12, 14–15), and because his sentencing claim is not cognizable
under federal habeas law. (R&R 15.)
i.

Due process claim

In the petition, Petitioner alleged that the Trial Court violated his due process right to a
fair trial by admitting evidence of uncharged crimes — specifically, Seaberry’s trial testimony
that Petitioner took Seaberry to a remote area of Brooklyn and set Mendoza’s car on fire. (Pet. 6,
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18; Tr. 330:6–19.)
Judge Bloom found that the “independent and adequate” state law grounds doctrine bars
federal habeas review of Petitioner’s due process claim. (R&R 9–10.) Judge Bloom explained
that “the Appellate Division explicitly relied upon [s]ection 470.05(2) of the New York Criminal
Procedure Law, the contemporaneous objection rule” and that “it is well established that the
application of [s]ection 470.05(2) is an independent and adequate state procedural ground that
prohibits federal habeas review.” (Id. at 10 (first citing Mullings v. Laffin, No. 13-CV-139, 2014
WL 3897566 at *4 (E.D.N.Y. Aug. 8, 2014); and then citing Garcia v. Lewis, 188 F.3d 71, 79 (2d
Cir. 1999)).)
Judge Bloom also noted that, although a petitioner may obtain federal habeas review of a
procedurally defaulted claim upon a showing of cause and prejudice or some fundamental
miscarriage of justice, “Petitioner has not satisfied the cause and prejudice standard.” (Id. at 11
(citing Edwards v. Carpenter, 529 U.S. 446, 453 (2000)).) She concluded that Petitioner’s claim,
that he was denied his due process right to a fair trial, was therefore procedurally barred. (Id.)
In the alternative, Judge Bloom considered the claim and determined that it was without
merit. (Id. at 11–12.) The Appellate Division determined that the admission of Seaberry’s
testimony about setting Mendoza’s car on fire did not rise to the level of a due process violation.
(App. Div. Decision.) Judge Bloom explained that a habeas petitioner must show not only that
evidence of uncharged crimes was erroneously admitted under New York evidentiary law but
must also show that the admission violated a constitutional right. (R&R 11 (quoting Augugliaro
v. Bradt, No. 08-CV-01548, 2014 2014 WL 5093849, at *9 (E.D.N.Y. Oct. 6, 2014).)) In
applying the relevant standard, that
[t]o amount to a deprivation of due process, the admission of
evidence in question, when evaluated in the context of the record as

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a whole, must be ‘sufficiently material to provide the basis for
conviction or to remove a reasonable doubt that would otherwise
have existed on the record without it,
(R&R 11 (quoting McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69,
73 (2d Cir. 2011))), Judge Bloom concluded that the record contains sufficient independent
evidence to convict Petitioner of second-degree murder and therefore the admission of
Seaberry’s testimony about setting Mendoza’s car on fire did not result in a violation of
constitutional law. 5 (R&R 12.) Accordingly, Judge Bloom recommended that the Court deny
Petitioner’s due process claim. (Id.)
ii.

Ineffective assistance of Trial Counsel claim

Petitioner also reasserted his claim of ineffective assistance of Trial Counsel in his
petition. (Pet. 6, 16.) Petitioner argued to the Appellate Division that Trial Counsel provided
ineffective assistance. (Pet’r’s App. Br.) Judge Bloom explained that although the Appellate
Division did not specifically address whether trial counsel was ineffective, the Appellate
Division is presumed to have denied the claim on the merits since it affirmed the Trial Court’s
decision. (R&R 12–13 (first citing Journet v. Coombe, 567 F. Supp. 503, 505 (S.D.N.Y. 1983);
and then citing Quintero v. Heath, No. 10-CV-8709, 2012 WL 4747181, at *8 (S.D.N.Y. Aug. 20,
2012).))
Judge Bloom determined that this claim is procedurally defaulted because Petitioner did
not argue ineffective assistance of Trial Counsel in his letter seeking leave to the New York Court
of Appeals. (R&R 13; Leave Appl.) She explained that under New York law, a party is deemed
to have abandoned a claim when it is not raised in the letter seeking leave to the Court of
Appeals. (R&R 13 (citing N.Y. Ct. App. R. 500.11(f)).) Judge Bloom also noted that “[i]f
5

Judge Bloom also noted that the Trial Court gave a limiting jury instruction regarding
the testimony in question. (R&R 12.)
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Petitioner attempted to exhaust his ineffective assistance claim, the state court would dismiss it
as procedurally defaulted.” (R&R 13 (citing N.Y. Crim. Proc. Law § 440.10(2)(a), (c)).)
Judge Bloom also considered whether there was a showing of cause and prejudice or
actual innocence that would permit review of the procedurally defaulted claim, but found that
Petitioner had neither demonstrated the requisite cause and prejudice to overcome the procedural
default nor shown that the Court’s failure to consider the ineffective assistance claim would
result in a miscarriage of justice. (R&R 13–14.)
In the alternative, Judge Bloom addressed the merits of the claim and concluded that
Petitioner could not meet the two-part test for establishing an ineffective assistance of a counsel
claim. (R&R 14.) Recognizing that “a petitioner ‘must (1) demonstrate that his counsel’s
performance fell below an objective standard of reasonableness in light of prevailing
professional norms, and (2) affirmatively prove prejudice arising from counsel’s allegedly
deficient representation,” (id. (citing United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005)
(quoting Strickland v. Washington, 466 U.S. 668, 688, 693 (1984)))), Judge Bloom found that
Petitioner had not established that he was prejudiced by Trial Counsel’s failure to timely object
to the prosecutor’s introduction of an uncharged crime through Seaberry’s testimony. (R&R 14.)
Judge Bloom concluded that because Petitioner failed to establish prejudice, even addressing the
merits of the claim, “Petitioner’s claim that his counsel provided ineffective assistance by failing
to contemporaneously object to the introduction of uncharged crime evidence should be denied
because the Appellate Division’s decision denying that claim was not contrary to or an
unreasonable application of clearly established federal law.” (Id. at 14–15.)
iii. Sentencing claim
Petitioner also reasserted his claim that the Trial Court improperly sentenced him by
mistakenly believing that the court did not have discretion and was required to impose
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Petitioner’s sentence consecutively to an undischarged sentence. (Pet. 6, 17.) Petitioner raised
this claim before the Appellate Division and was granted the relief sought. The Appellate
Division agreed that the Trial Court erred in imposing Petitioner’s sentence since the Trial Court
had discretion to determine whether to impose his sentence concurrently with or consecutively to
the undischarged sentence. (App. Div. Decision.) On remand, exercising its discretion, the Trial
Court chose to nevertheless impose Petitioner’s sentence consecutively to the undischarged
sentence. (R&R 16.) Although he did not receive the outcome he might have hoped for, Judge
Bloom determined that Petitioner’s sentencing claim was moot as he had already obtained the
relief sought. (Id. at 15.)
Judge Bloom further explained that even if the claim was not moot, it is not cognizable
under federal habeas law as “[h]abeas relief is available only when a sentence imposed falls
outside the range prescribed by law,” and Petitioner’s sentence did not. (R&R 15 (first citing
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); then citing United States v. McLean, 287
F.3d 127, 136 (2d Cir. 2002); and then citing Ashby v. Senkowski, 269 F. Supp. 2d 109, 115
(E.D.N.Y. 2003)).) Judge Bloom also noted that “there is no constitutionally cognizable right to
concurrent, rather than consecutive sentences,” (R&R 15 (first citing McLean, 287 F.3d at 136;
and then citing Ashby v. Senkowski, 269 F. Supp. 2d at 115)), and further noted that New York
State law allows a Supreme Court Judge the discretion to determine whether a sentence should
run concurrently with or consecutively to an undischarged sentence. (R&R 15 (citing N.Y. Penal
Law § 70.25(4)).) Accordingly, Judge Bloom found that the sentence imposed was within the
range prescribed by law, and therefore Petitioner’s sentencing claim is not cognizable on federal
habeas review. (R&R 15.)

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II.

Discussion
a.

Standards 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
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. Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)
(holding that “general objection[s] [are] insufficient to obtain de novo review by [a] district
court” (citations omitted)); see Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific
written objections to the [magistrate judge’s] proposed findings and recommendations.”); see
also Colvin v. Berryhill, 734 F. App’x 756, 758 (2d Cir. 2018) (“Merely referring the court to
previously filed papers or arguments does not constitute an adequate objection under . . . Fed. R.
Civ. P. 72(b).” (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002))).
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).
13

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 Shoop v. Hill, 586 U.S. --, ---, 139 S. Ct. 504, 406 (Jan. 7, 2019) (per curiam) (“[H]abeas relief may be granted only if
the state court’s adjudication ‘resulted in a decision that was contrary to, or involved an
unreasonable application of,’ Supreme Court precedent that was clearly established at the time of
the adjudication.” (citations omitted)); Kernan v. Hinojosa, 578 U.S. ---, ---, 136 S. Ct. 1603,
1604 (May 16, 2016) (per curiam); Hittson v. Chatman, 576 U.S. 1028, 1028 (2015); Woods v.
Donald, 575 U.S. 312, 313 (2015) (per curiam); Johnson v. Williams, 568 U.S. 289, 292 (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 jurists could disagree’ on the
correctness of the . . . decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
For the purposes of federal habeas review, “clearly established law” is defined as “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); see also Glebe v. Frost, 574
U.S. 21, 24 (2014) (per curiam) (“As we have repeatedly emphasized, however, circuit precedent
does not constitute clearly established [f]ederal law, as determined by the Supreme Court [under]
§ 2254(d)(1).”); Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam) (“The Sixth Circuit

14

also erred by consulting its own precedents, rather than those of this Court, in assessing the
reasonableness of the Kentucky Supreme Court’s decision.”). 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.
Williams, 529 U.S. at 412–13. In order to establish that a state court decision is an unreasonable
application of federal law, 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.
A court may also grant habeas relief if the state court adjudication “resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). “[S]tate-court factual determinations [are
not] unreasonable ‘merely because [a federal post-conviction court] would have reached a
different conclusion in the first instance.’” Brumfield v. Cain, 576 U.S. 305, 313–14 (2015)
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Rather, 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). Even if
“‘[r]easonable minds reviewing the record might disagree’ about the finding in question, ‘on
habeas review that does not suffice to’” overturn a state court factual determination. Wood, 558
U.S. at 301 (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)). A court may overturn a state
court’s factual determination only if the record cannot “plausibly be viewed” as consistent with
the state court’s fact-finding or if “a reasonable factfinder must conclude” that the state court’s

15

decision was inconsistent with the record evidence. Rice, 546 U.S. at 340–41.
b.

Claims addressed in the R&R

Petitioner objects to the R&R recommendation that the Court reject his due process,
ineffective assistance of Trial Counsel, and sentencing claims “on the grounds of actual
innocence.” (Pet’r’s Obj.) Specifically, in his objection Petitioner states “[m]y whole case
involves DNA, and before coming to [f]ederal [c]ourt, I wanted to exhaust all my issues in [s]tate
[c]ourt.” (Id. at 1.) Petitioner then explains the attachments to his objection including the new
claims in a separately attached petition. 6 (Id. at 2.) Because Petitioner’s objections to the R&R
are conclusory, the Court reviews them for clear error.
An objection is conclusory when it simply states that the magistrate judge’s
recommendations are “wrong and unjust” or “simply restates the relief sought.” Scholfield v.
Dep’t of Corr., No. 91-CV-1691, 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994). Objections
by a pro se litigant are held to “less stringent standards than [those] drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 521 (1972).
Petitioner’s objection is general and conclusory, and fails to make any argument as to
why Judge Bloom’s recommendations are faulty. See Jackson v. Graham, No. 16-CV-9595,
2019 WL 3817196, at *1 (S.D.N.Y. Aug. 14, 2019) (explaining that a court must liberally
construe a pro se litigants “papers ‘to raise the strongest arguments they suggest’” while not
exempting them “from compliance with relevant rules of procedural and substantive law.”
(quoting Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)) (citing Carrasco v. United
States, 190 F. Supp. 3d 351, 352 (S.D.N.Y. 2016)). As such, the Court reviews the objection for

6

As noted above, the Court separately addresses the new claims raised by Petitioner in
the attachment to his objections.

16

clear error. See 28 U.S.C. § 636(b)(1)(C); Benitez v. Parmer, 654 F. App’x 502, 504 (2d Cir.
2016) (“[The petitioner’s] general objection was insufficient to obtain de novo review by the
district court”); Sibley v. Choice Hotels Int’l, Inc., 304 F.R.D. 125, 129 (E.D.N.Y. 2015) (“[I]f a
party ‘makes only conclusory or general objections. . . the [c]ourt reviews the [r]eport and
[r]ecommendation only for clear error.’” (citations omitted)).
Having reviewed the R&R, the Court finds no clear error and adopts the R&R in its
entirety pursuant to 28 U.S.C. § 636(b)(1). The Court therefore considers only the new claims
raised by Petitioner in his objections to the R&R. 7
c.

Ineffective assistance of Trial Counsel claim

Petitioner’s ineffective assistance of Trial Counsel claim asserted in opposition to the
R&R is based on four separate grounds: that Trial Counsel failed (i) to object to the introduction
of deoxyribonucleic acid (“DNA”) evidence, (ii) to present critical DNA evidence, (iii) to object
to the admission of two knives into evidence, (iv) to investigate and to object to prosecutorial
misconduct during the Assistant District Attorney’s (“ADA”) summation, and (v) to call an
expert witness. (Obj. Pet.)
“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, 466 U.S.
at 686); 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

7

As the Court noted above, Petitioner raised in a separate petition several new claims in
objecting to the R&R. Although Respondent argues that the Court should treat these new claims
as an attempt by Petitioner to file a successive petition, (Letter dated Apr. 15, 2019., Docket
Entry No. 13), because the new claims were filed prior to the Court deciding the petition, the
Court rejects Respondent’s successive petition argument and construes the new claims as an
amendment to the petition.

17

counsel’s deficient performance caused him prejudice.” Buck, 580 U.S. at ---, 137 S. Ct. at 775
(citing Strickland, 466 U.S. at 687); see also Sexton v. Beaudreaux, 585 U.S. ---, ---, 138 S. Ct.
2555, 2558 (June 28, 2018) (per curiam) (“To prove ineffective assistance of counsel, a petitioner
must demonstrate both deficient performance and prejudice.”). “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 v. Pinholster,
563 U.S. 170, 189 (2011) (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” (quoting
Strickland, 466 U.S. at 689)). 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. (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)).
i.

Failure of counsel to object to DNA evidence presented by the
prosecution

Petitioner’s claim that Trial Counsel was ineffective for failing to object to the testimony
of Cindy Rodriguez, the prosecution’s expert witness in forensic biology and DNA training, (Tr.
379:21–22; Obj. Pet. 28), is procedurally defaulted.
“[A] state prisoner must exhaust available state remedies before presenting his claim to a
federal habeas court.” Davila v. Davis, 582 U.S. ---, ---, 137 S. Ct. 2058, 2064 (June 26, 2017);

18

Cullen, 563 U.S. at182 (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 federal constitutional claim to the highest state court
capable of reviewing it.’” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v.
McCray, 396 F.3d 210, 217 (2d Cir. 2015)); DiSimone v. Phillips, 461 F.3d 181, 188 (2d Cir.
2006) (noting that a federal habeas petitioner must give the state courts “one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)); see also
Harris v. Fischer, 438 F. App’x 11, 13 (2d Cir. 2011) (“[E]ach argument advanced in a federal
habeas petition must first have been exhausted through state remedies — that is, presented to the
state’s highest court.” (citing 28 U.S.C. § 2254(b)–(c))). To prevent a habeas petitioner from
exhausting his claims by simply letting the time run on state remedies, the Supreme Court
“crafted a separate waiver rule — or as it is now commonly known — the procedural default
doctrine.” Jimenez v. Walker, 458 F.3d 130, 148 (2d Cir. 2006) (quoting O’Sullivan, 526 U.S. at
853 (Stevens, J., dissenting)). Under the procedural-default doctrine, “when a prisoner has
exhausted his state remedies but has not given the state courts a fair opportunity to pass on his
federal claims,” the prisoner has procedurally defaulted his claims and is ineligible for habeas
relief “absent a showing of ‘cause and prejudice’ or ‘a fundamental miscarriage of justice.’” Id.
(quoting O’Sullivan, 526 U.S. at 854).
Petitioner did not fairly present his claim to the state courts as required by the Supreme
Court and the Second Circuit and no longer has a state court avenue through which to pursue this

19

claim as he has already used the one direct appeal to which he is entitled under New York law.
See New York Ct. Rules § 500.20; Harris v. Fischer, 438 F. App’x at 13.
Nor can Petitioner seek collateral review by bringing a second section 440.10 motion, as
his ineffective assistance of Trial Counsel claim is a matter of record that could have been raised
on direct appeal. While New York State law provides for collateral review of a conviction under
Criminal Procedure Law § 440.10, such review is not available if the claim could have been
raised on direct review. See N.Y. Crim. Proc. Law § 440.10(2)(c) (providing that the court must
deny a motion to vacate a judgment when sufficient facts appear on the record to have permitted
adequate review of the issue on appeal and the petitioner unjustifiably failed to raise the issue on
direct review); 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))); Grey v. Hoke, 933 F.2d 117, 120–21 (2d Cir. 1991) (holding claim
to be procedurally defaulted where petitioner no longer had “remedies available” in the New
York state courts).
Because this claim is procedurally defaulted and Petitioner has not shown cause and
prejudice or a fundamental miscarriage of justice, Petitioner is not entitled to relief on this claim.
ii.

Trial Counsel’s failure to present DNA evidence critical to the defense

Petitioner claims that Trial Counsel’s failure to investigate and test the hair found in
Mendoza’s hand, which Petitioner argues would have directly implicated either Williams or
Seaberry, and Trial Counsel’s failure to present this evidence at trial prejudiced him by depriving
him of a fair trial. (Obj. Pet. 16.) In the Section 440 Decision, the Trial Court found that
Petitioner did not demonstrate “an absence of strategy or other legitimate explanation for

20

counsel’s failure to test the hair.”8 (Section 440 Decision 6.) Because the state court’s decision
neither contradicts nor unreasonably applies clearly established Supreme Court precedent, the
Court denies habeas relief as to this claim.
In order to prevail on an ineffective assistance claim based on a trial counsel’s failure to
present DNA evidence, a petitioner “must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, 466
U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101(1955)). The decision of whether or not
to obtain DNA testing is a matter of strategic choice to be made by trial counsel depending on
the circumstances. See Dearstyne v. Mazzuca, 48 F. Supp. 3d 222, 268 (N.D.N.Y. 2011)
(“Under the circumstances of this case, the [c]ourt concludes that trial counsel’s strategic choice
not to obtain DNA testing did not constitute a professionally unreasonable decision so as to
satisfy the first prong of the Strickland test for ineffective assistance of counsel.”).
In the Section 440 Decision, the court noted that as argued by the prosecution, Trial
Counsel could have legitimately determined that by having the hair tested, “a DNA match of the
hair to [Petitioner] would have further incriminated [Petitioner] while a non-match would not
have exonerated [Petitioner].” (Section 440 Decision 7); see also Manino v. Artus, No. 06-CV3078, 2009 WL 1117301, at *18 (E.D.N.Y. Apr. 24, 2009) (finding that the petitioner failed to
demonstrate ineffective assistance of counsel because trial counsel’s decision not to test evidence
for “DNA was reasonable in light of the other evidence tending to identify [the petitioner] as [the
victim’s] assailant” since “the results may have further incriminated [the petitioner]”). Thus,

8

On September 24, 2014, Petitioner filed for leave to appeal the 440 Decision to the
Appellate Division. (Section 440 Leave Appl.) On February 25, 2015, the Appellate Division
denied leave to appeal the Section 440 Decision. People v. Rios, 2015 N.Y. slip op. 64966, 2015
WL 777350.

21

Petitioner has not presented evidence or argument to demonstrate that Trial Counsel did not act
strategically.
Nor has he demonstrated that the failure to introduce this DNA evidence was prejudicial
in light of the other evidence presented at trial. In addition to the evidence of Petitioner’s DNA
on the handle of a knife with the victim’s blood, the prosecution presented two eyewitnesses who
identified Petitioner as the perpetrator. (440 Decision 7; Tr. at 153:19–22, 324:23–24); see Perez
v. Warden, No. 16-CV-08251, 2018 WL 3421383, at *8 (S.D.N.Y. Jan. 8, 2018) (“[E]ven
supposing that trial counsel’s strategic decision not to introduce the available DNA evidence fell
below an objective standard of reasonableness, the [c]ourt is not persuaded that the failure would
have prejudiced [petitioner] given the totality of the evidence introduced at trial.”).
Accordingly, Petitioner is not entitled to habeas relief on this ground.
iii. Trial Counsel’s failure to object to the admission of two knives into
evidence
Petitioner claims that Trial Counsel was ineffective for failing to object to the admission
of two knives found at the scene and for challenging the chain of custody because the lead
detective testified to seeing a knife with a broken handle and neither of the two knives admitted
into evidence had a broken handle. (Obj. Pet. 18.)
In his 440 Motion, Petitioner argued that the chain of custody was broken because Officer
Christian Rosado, who was identified as the person to voucher the knives, never testified. (440
Mot. 7, annexed to Pet’r’s Obj. as Ex. 4, Docket Entry No. 12.) Petitioner explains that
Detective Markoski testified that he gave the knives to Officer Rosado to voucher and to obtain
fingerprint testing and DNA testing, but that the record does not explain or clarify Officer
Rosado’s role in collecting the evidence. (Id.) In the 440 Decision, the court explained that
Petitioner “failed to establish that there was a legal basis for a successful objection to have been

22

made.” (440 Decision 8 (citing People v. Caban, 5 N.Y.3d 143, 152 (2005) (explaining that there
can be no denial of effective assistance for failure to make a motion or argument that has little to
no chance of success)).) The court explained that Detective Markoski took photographs of the
knives inside the sink and, when the knives were being introduced into evidence, testified that he
recognized the knives as those he recovered from the kitchen sink. (Section 440 Decision 8.
(citing People v. Matos, 908 N.Y.S.2d 672 (App. Div. 2010)) (finding sufficient foundation for
admission of a knife into evidence based on testimony of the officer that the knife was the same
knife he recovered from the defendant and was in the same condition as when he recovered it).)
The court further held that Petitioner’s claim that the knives should not have been admitted into
evidence because of chain of custody issues was precluded because he failed to raise the issue on
appeal. (Section 440 Decision 9 (citing C.P.L. 44.10 (2)(c)).)
1.

Chain of custody

Petitioner’s chain of custody claim is procedurally barred because the 440 Decision
declined to address Petitioner’s claims based on his failure to meet a state procedural
requirement, and the decision rests on an independent and adequate state procedural ground. The
440 Decision explains that the absence of the testimony of “the police officer who vouchered the
two sealed boxes containing the knives . . . was on the record and . . . could have been raised on
appeal.” (440 Decision 9.) As Judge Bloom explained in the R&R, an independent and adequate
state procedural bar precludes federal habeas review of a claim. 9 (R&R 11.) The state court

9

“A procedural default occurs in one of two ways. First, if the state prisoner fails to
exhaust his state remedies in a manner in which, were he to return to the state courts with his
unexhausted claim, those courts would find the claim barred by the application of a state
procedural rule . . . [a]lternatively, a procedural default occurs if the state court’s rejection of a
federal claim rests on a state law ground.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir.
2014); see also Walker v. Martin, 562 U.S. 307, 316 (2011) (“[F]ederal habeas relief will be

23

found that Petitioner’s claim was barred from review pursuant to C.P.L. § 440.10(2)(c), an
adequate state procedural rule, because he should have but unjustifiably failed to raise the claim
on direct appeal. See C.P.L. § 440.10(2)(c) (providing that the court must deny a motion to
vacate a judgment when sufficient facts appear on the record to have permitted adequate review
of the issue on appeal and the petitioner unjustifiably failed to raise the issue on direct review);
see also Jackson, 763 F.3d at 143–44 (holding that a petitioner’s claim was procedurally
defaulted because the claim could have been raised on direct appeal (citing § 440.10(2))); Sweet
v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (holding that a petitioner’s ineffective assistance of
counsel claim procedurally defaulted where appellate counsel failed to argue it on direct appeal
despite a sufficient record, therefore waiving the claim under § 440.10(2)(c)); Grey, 933 F.2d at
120–21 (holding claim to be procedurally defaulted where petitioner no longer had “remedies
available” in the New York state courts). Accordingly, the Court finds the chain of custody claim
procedurally barred.
2.

Ineffective assistance of Trial Counsel

Petitioner also fails to demonstrate that the state court erred in its application of federal
law in determining that Trial Counsel was not ineffective for failing to object to the admission of
the two knives in evidence.

unavailable when (1) a state court has declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement and (2) the state judgment rests on
independent and adequate state procedural grounds.”) (alteration and citations omitted); Davila
v. Davis, --- U.S. ---, ---, 137 S. Ct. 2058, 2064 (June 26, 2017) (“[A] federal court may not
review federal claims that were procedurally defaulted in state court.”). “State rules count as
‘adequate’ if they are ‘firmly established and regularly followed.’” Johnson v. Lee, 578 U.S. ---,
---, 136 S. Ct. 1802, 1803 (May 31, 2016) (per curiam) (quoting Walker v. Martin, 562 U.S. at
316); see also Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (A state law ground is deemed
“adequate” if the rule “is firmly established and regularly followed by the state in question.”
(quoting Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999))).

24

A lawyer’s tactical decisions are given great deference in the face of an ineffective
assistance of counsel claim. See Strickland, 466 U.S. at 690 (“Counsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgement.”); see also Woods v. Etherton, 578 U.S. ---, ---, 136 S. Ct.
1149, 1151 (Apr. 4, 2016) (per curiam) (“[F]ederal courts are to afford ‘both the state court and
the defense attorney the benefit of the doubt.’” (quoting Burt v. Titlow, 571 U.S. ---, ---, 134 S.Ct.
10, 17 (2013)).
Trial Counsel chose not to object to the admission of evidence where such an objection
would likely have been deemed frivolous under the circumstances, given that Detective
Markowski identified the knives as those depicted in crime scene photographs and as being in
the same or substantially the same condition as when he recovered them from the scene —
satisfying the foundational requirements for admission under New York Law. (Tr. 63:11–67:7;
440 Decision 8.) Based on these facts, which fail to demonstrate that Trial Counsel performed
deficiently, Petitioner has not met the first prong of Strickland, 466 U.S. at 687, and therefore
Trial Counsel’s action does not constitute ineffective assistance of counsel. See Adams v. Keyser
No. 16-CV-129, 2018 WL 2089337, at *6 (S.D.N.Y. May 3, 2018) (finding that trial counsel was
not ineffective for failing to challenge expert testimony and forensic evidence because the
decision not to pursue a meritless motion does not make counsel ineffective and “any alleged
defects in the [evidence’s] chain of custody went to the weight of the evidence rather than its
admissibility”)
Accordingly, the Court declines to grant habeas relief on this claim.

25

iv. Trial Counsel’s failure to object to prosecutorial misconduct during
the ADA’s summation
Petitioner argues that Trial Counsel was ineffective for failing to object to the
prosecution’s summation when the ADA improperly vouched for the credibility of prosecution
witnesses and played on the juror’s sympathy. (Obj. Pet. 24–25.) Because Petitioner failed to
raise this claim on direct appeal and because, in issuing the 440 Decision, the court found that he
should have done so, the Court finds that this claim is procedurally barred.
In the 440 Decision, the court found that “[s]ufficient facts appear on the record to have
permitted adequate review of this claim on direct appeal but no such appellate review occurred
owing to [Petitioner’s] unjustifiable failure to raise the claim on direct appeal.” (Section 440
Decision 12 (citing C.P.L. 440.10 (2)(c)).) In the alternative, the court addressed the claim on
the merits, finding that “the prosecutor’s summation was not improper and therefore, Trial
Counsel’s failure to object did not constitute ineffective assistance of counsel.” (Id.)
For the reasons discussed above, the Court finds that C.P.L. 440.10 (2)(c) is an
independent and adequate state rule. Even though the 440 Decision addressed the merits in the
alternative, the claim is nevertheless procedurally barred. See Velasquez v. Leonardo, 898 F.2d 7,
9 (2d Cir. 1990) (noting that even “when a state court has expressly relied on a procedural default
as an independent and adequate state ground” the federal court is barred from reaching the merits
of the claim “even where the state court has also ruled in the alternative on the merits of the
federal claim”).
The Court therefore denies habeas relief on this claim.
v.

Trial Counsel’s failure to call an expert witness

Petitioner argues that while Trial Counsel cross examined prosecution expert witnesses,
he was ineffective for not calling an expert witness in blood splatter and defense wounds. (Obj.

26

Pet. 29–30.) In the Section 440 Decision, the court explained that Petitioner “has not shown that
an expert was available who would have testified that the blood splatter on the wall was made by
a mop” and that “[t]he cause of the splatter on the wall was insignificant when viewed in the
context of two witnesses identifying the [Petitioner] as the one who stabbed Mendoza.” (440
Decision 10.) The court also concluded in the Section 440 Decision that Petitioner “failed to
establish that his attorney should have called or consulted with an expert on defensive wounds.”
(Id.) The state court’s decision is not contrary to or an unreasonable application of federal
constitutional law.
“The decision whether to call any witnesses on behalf of the defendant, and if so which
witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every
trial.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). “[T]he tactical decision
of whether to call specific witnesses — even ones that might offer exculpatory evidence — is
ordinarily not viewed as a lapse in professional presentation.” United States v. Schmidt, 105 F.3d
82, 90 (2d Cir. 1997). In addition,
[a]lthough a failure to seek an expert would constitute objectively
substandard performance if the attorney believed expert assistance
was necessary but failed to hire an expert because he was
inexcusably unaware of a law that permitted him to request
appropriate funds to do so, the failure to seek an expert does not
satisfy the performance prong of Strickland where counsel chooses
a strategy that does not require an expert.
Swaby v. New York, 613 F. App’x 48, 50 (2d Cir. 2015) (citation omitted). “In many instances
cross-examination will be sufficient to expose defects in an expert’s presentation.” Richter, 562
U.S. at 111.
Petitioner believes that Trial Counsel’s cross examination of prosecution witnesses about
the blood splatter analysis and defensive wounds were not sufficient and that the outcome of his
case would have been different had Trial Counsel called his own expert. (Obj. Pet. 29–30.)
27

Petitioner presents no evidence to support this conclusion. Moreover, the record suggests that
Trial Counsel employed reasonable strategy in choosing to cross examine prosecution witnesses
rather than call a defense expert whose testimony about blood splatter and defense wounds
would likely not have overcome the testimony of two eyewitnesses. See Hamilton v. Lee, 94 F.
Supp. 3d 460, 479 (E.D.N.Y. 2015) (finding no ineffective assistance of counsel for failing to call
an expert witness where trial counsel “adequately challenged the prosecution’s [expert witness]
on cross-examination and in his summation”).
The Court denies habeas relief on this claim.
d.

The denial of Petitioner’s request for DNA testing

Petitioner claims that the state court abused its discretion when it denied his 440 Motion
seeking to conduct post-conviction DNA testing of DNA evidence recovered at the scene and not
presented at trial. (Obj. Pet. 13.)
In denying the request, the court stated that such testing, even if favorable to the
Petitioner, “would not have established a reasonable probability that the verdict would have been
more favorable to” Petitioner. (440 Decision 22.) The court also explained that the request for
retesting was denied in part because the property was inaccessible, but even if the property was
available, Petitioner “has not shown the original testing is flawed.” (Id.)
Petitioner cites no law and makes no argument that he has a federal right to postconviction DNA testing. Instead, he argues that the DNA evidence was exculpatory and that the
prosecution failed to comply with its duty to disclose exculpatory evidence pursuant to Brady v.
Maryland. (Obj. Pet. 20.) However, there is nothing in the record or in the petition to suggest
that the evidence Petitioner seeks to have tested was not disclosed to him before trial. In fact, the
hair that Petitioner wanted tested was disclosed to Trial Counsel almost two years before trial
(Sen’g Tr. 3:9–4:13.) Therefore, there is no Brady violation. See Brady v. Maryland, 373 U.S.
28

83, 86 (1963).
Accordingly, the Court denies habeas relief on this claim.
e.

Ineffective assistance of appellate counsel

Petitioner claims that appellate counsel was ineffective for choosing to raise weak issues
on direct appeal while failing to raise meritorious issues. (Obj. Pet. 31.) Specifically, Petitioner
contends that appellate counsel abandoned the ineffective assistance of Trial Counsel claim in the
leave application to the Court of Appeals, rendering it procedurally barred. (Id. at 31–32.)
Petitioner also claims that appellate counsel erred in not raising on appeal Trial Counsel’s failure
to introduce physical DNA evidence at trial. (Id. at 33.)
i.

Independent ineffective assistance of counsel claim

To the extent Petitioner is raising an independent ineffective assistance of appellate
counsel claim, such a claim is without merit.
While an error by post-conviction counsel may in some cases supply the necessary
“cause” to overcome a procedural default, Petitioner cannot assert a separate claim for
ineffective assistance of post-conviction counsel because “a prisoner does not have
a constitutional right to counsel in state postconviction proceedings.” Davila, 582 U.S. at ---,
137 S. Ct. at 2062 (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)). Under 28 U.S.C. §
2254, “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section
2254.” 28 U.S.C. § 2254(i); Martel v. Clair, 565 U.S. 648, 666 n.3 (2012). Accordingly,
Petitioner is not entitled to habeas relief based on his ineffective assistance of appellate counsel
claim.

29

ii.

Cause

While it appears that Petitioner is raising an ineffective assistance of appellate counsel
claim as a sperate claim, the Court nevertheless considers whether any errors allegedly
committed by appellate counsel constitutes cause to overcome a procedural default.
“There is no doubt that ineffective assistance of counsel can serve as cause to excuse
procedural default.” Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir. 2016) (citing Edwards v.
Carpenter, 529 U.S. 446, 450–51 (2000)). Indeed,
[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding there was no counsel or counsel in that
proceeding was ineffective.
Martinez v. Ryan, 566 U.S. 1, 17 (2012). To establish cause, “the [petitioner] must ‘show that
some objective factor external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.’” Davila, 137 S. Ct. at 2065 (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)); Maples v. Thomas, 565 U.S. 266, 280 (2012) (“Cause for a procedural default exists
where ‘something external to the petitioner, something that cannot fairly be attributed to
him[,] . . . ‘impeded [his] efforts to comply with the State’s procedural rule.’” (quoting Murray,
477 U.S. at 478) (alteration in original)); Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012)
(“[T]he 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.”). “Not just any deficiency
in counsel’s performance will do, however; the assistance must have been so ineffective as to
violate the Federal Constitution.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). “[I]t is not
sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument
. . . a petitioner may establish constitutionally inadequate performance if he shows that counsel

30

omitted significant and obvious issues while pursuing issues that were clearly and significantly
weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
The Court finds that appellate counsel’s performance was not so ineffective as to violate
the Federal Constitution. On direct appeal, appellate counsel raised three issues: (1) the Trial
Court violated Petitioner’s right to due process by admitting evidence of an uncharged crime he
allegedly committed, (2) Trial Counsel was ineffective for failing to preserve that due process
argument, and (3) the Trial Court erred when it imposed Petitioner’s sentence consecutively to a
prior undischarged sentence due to a misapprehension that the penal law mandated consecutive
sentencing. (Pet’r’s App. Br.) While the first two claims were denied, the Appellate Division
granted the third and the case was remanded for resentencing. (App. Div. Decision)
Petitioner now argues that “[a] reasonably competent attorney would have found one
nonfrivolous issue warranting a merits brief.” (Obj. Pet. 31.) Appellate counsel did raise the
sentencing issue and the court agreed. (App. Div. Decision.) Furthermore, the Court will not
second guess the reasonable professional judgement of appellate counsel to raise the due process
claim and not the related ineffective assistance of counsel claim when seeking review by the
Court of Appeals. See Waiters v. United States, No. 10-CR-00087, 2020 WL 3960511, at *5
(E.D.N.Y. July 13, 2020) (finding that petitioner could not establish that there were significant
and obvious issues for appeal because the claims had “no merit[] and appellate counsel
reasonably focused on issues that had a better chance of success — a decision a court should not
second guess”) Petitioner has failed to demonstrate that ineffective assistance of appellate
counsel caused his procedural default of his ineffective assistance of Trial Counsel claims.
iii. Fundamental miscarriage of justice
Petitioner contends that there will be a fundamental miscarriage of justice if his claims
are not reviewed because of procedural obstacles. (Obj. Pet. 35.)
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A showing of actual innocence serves merely as a gateway to the airing of a petitioner’s
procedurally defaulted claims and is not itself cognizable as a free-standing basis for relief. See
Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[C]laims of actual innocence based on newly
discovered evidence have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal proceeding.”);
Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012) (“[A] petitioner seeking access to a federal
habeas court in the face of a procedural obstacle must advance both a legitimate constitutional
claim and a credible and compelling claim of actual innocence.”) A habeas court is, in short,
concerned “not [with] the petitioners’ innocence or guilt but solely [with] the question whether
their constitutional rights have been preserved.” Moore v. Dempsey, 261 U.S. 86, 87–88 (1923).
“[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.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (quoting
Herrera v. Collins, 506 U.S. 390, 404 (1993)). “Where a petitioner has procedurally defaulted a
claim by failing to raise it on direct review, the claim may be raised in habeas only if the
petitioner can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually
innocent.’” DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006) (quoting Bousley v. United
States, 523 U.S. 614, 622 (1998)) (alterations omitted). 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 Retke v. Haley, 541 U.S. 386, 393 (2004) (explaining that
Murray v. Carrier, 477 U.S. 478 (1986) recognized a narrow exception to the cause requirement
where a constitutional violation led to the conviction of a [p]etitioner who is actually innocent).

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“The Supreme Court has explained that the fundamental miscarriage of justice exception is
‘extremely rare’ and should be applied in ‘the extraordinary cases.’” Sweet v. Bennett, 353 F.3d
135, 142 (2d Cir. 2003) (quoting Schlup v. Delo, 513 U.S. 298, 321–22 (1995); Murray, 477 U.S.
at 496 (“In an extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default.”). “To establish actual innocence,
petitioner must demonstrate that, ‘in light of all the evidence,’ it is more likely than not that no
reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (quoting Schlup, 513
U.S. at 298).
Although Petitioner maintains his innocence and claims that if “forensic DNA evidence
[had] been presented in [P]etitioner’s trial, no reasonable juror would have found [P]etitioner
guilty beyond a reasonable doubt,” he has not overcome the high burden imposed by the
miscarriage of justice standard. (Obj. Pet. 36.) There was sufficient evidence of Petitioner’s
guilt presented at trial in the form of two eye witnesses and DNA evidence such that even if
DNA testing of the hair in Mendoza’s hand determined that it belonged to someone other than
Petitioner, a jury still could have rationally found Petitioner guilty. See Gupta v. United States,
913 F.3d 81, 88 (2d Cir. 2019) (holding that a claim of actual innocence and therefore
miscarriage of justice failed where, on the record as a whole, the jury could rationally have found
the petitioner guilty); Fernandez v. United States, 757 F. App’x 52, 55–56 (2d Cir. 2018)
(holding that the petitioner did not demonstrate actual innocence by claiming the witnesses who
testified against him were not credible since “the jury was entitled to credit the witnesses who
testified” and petitioner failed to support his actual innocence argument with sufficient evidence)
Accordingly, Petitioner has failed to demonstrate a fundamental miscarriage of justice.

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f.

Discovery request

Finally, Petitioner requests “all discovery pertaining to [Habeas] Rule 6, that is in the
prosecution’s possession.” (Obj. Pet. 36.)
A habeas petitioner is “not entitled to discovery as a matter of ordinary course.” Drake v.
Portuondo, 321 F.3d 338, 346 (2d Cir. 2003); see also Cullen, 563 U.S. at 181 (holding that
habeas review is “limited to the record that was before the state court that adjudicated the claim
on the merits”). A district court, in its discretion, may supplement the record in a habeas case in
lieu of conducting a full evidentiary hearing. See generally Valverde v. Stinson, 224 F.3d 129,
135 (2d Cir. 2000) (“[T]he district court, in its discretion, may utilize any of the habeas rules
designed to supplement the record without the necessity of conducting a full-blown evidentiary
hearing” (quoting United States v. Aiello, 814 F.2d 109, 114 (2d Cir. 1987)); see also Habeas
Rule 7(a) (“If the petition is not dismissed, the judge may direct the parties to expand the record
by submitting additional materials relating to the petition.”). Pursuant to Habeas Rule 6, a court
“may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil
Procedure,” but a “party requesting discovery must provide reasons for the request.” Habeas
Rule 6. “[D]iscovery is only allowed if the district court, acting in its discretion, finds ‘good
cause’ to allow it.” Beatty v. Greiner, 50 F. App’x 494, 496 (2d Cir. 2002); see also Rippo v.
Baker, 580 U.S. ---, ---, 137 S. Ct. 905, 906 (Mar. 6, 2017) (per curiam) (“[P]etitioner was
entitled to discovery because he had also alleged specific facts suggesting that” his claim was
meritorious); Batista v. United States, 792 F. App’x 134, 136 (2d Cir. 2020) (finding that
petitioner “was not entitled to further (or broader) discovery, as ‘the scope and extent of Section
2255 discovery is a matter confided to the discretion of the District Court’” (quoting Bracy v.
Gramley, 520 U.S. 899, 909 (1997))); Drake, 321 F.3d at 346 (“[A] habeas petitioner, unlike the
usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.”).
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The “‘good cause’ standard is satisfied where specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed be able to demonstrate that he is
entitled to relief.” Ferranti v. United States, 480 F. App’x 634, 638 (2d Cir. 2012) (citing Harris
v. Nelson, 394 U.S. 286, 300 (1969)); see also Pizzuti v. United States, 809 F. Supp. 2d 164, 176
(S.D.N.Y. 2011) (“Generalized statements regarding the possibility of the existence of
discoverable material will not be sufficient to establish the requisite ‘good cause.’”).
Petitioner has not shown good cause to obtain discovery under Habeas Rule 6. Petitioner
challenges the state court’s determination that he is not entitled to forensic DNA testing. (Obj.
Pet. 36.) He now seeks all discovery including review of the log book of the lead detective on
the case, James Bodner, and examination of all crime scene photographs, and hopes to show that
prosecution witnesses made deals with the prosecution that were not disclosed. (Id.) Petitioner
believes that in doing so, he will be able to demonstrate his actual innocence. (Id.)
The possibility that the material Petitioner seeks will reveal information he desires is too
general a request and therefore inadequate to establish that he is entitled to relief. See Hammond
v. United States, No. 16-CV-00620, 2018 WL 2376319, at *10 (D. Conn. May 24, 2018)
(concluding that because the petitioner did not raise “allegations that, with factual development
of his claims, could plausibly establish that he is entitled to relief, his request for discovery is
denied”); Beecham v. Lavalley, No. 12–CV–0822, 2013 WL 3243631, at *4 (E.D.N.Y. June 26,
2013) (deciding that Petitioner’s request for discovery to “reveal grounds for relief that
[p]etitioner was not aware of” is “a fishing expedition [that] does not constitute good cause” and
accordingly denying [p]etitioner’s request for discovery”).
III. Conclusion
For the foregoing reasons, the Court adopts the R&R and denies the amended petition for
a writ of habeas corpus. The Court will not issue a certificate of appealability as Petitioner has
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not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal would not be taken in good
faith and, therefore, in forma pauperis is denied for the purpose of any appeal. See Coppedge v.
United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is directed to enter judgment
and close this case.
Dated: September 24, 2020
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge

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