Nedd v. Bradt

Filing 18

MEMORANDUM AND ORDER, In light of the above, the Petition for a writ of habeas corpus is denied, and the case is dismissed. Since petitioner has not made a substantial showing that his constitutional rights were denied, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2). Petitioner may request a circuit judge of the United States Court of Appeals for the Second Circuit to issue the certificate. Fed. R. App. P. 22(b)(1). The Court certifies pursuan t to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be in good faith, and therefore, in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,444-45 (1962). The Clerk of Court is respectfully requested to enter judgment and close this case. So Ordered by Magistrate Judge Cheryl L. Pollak on 5/14/2019. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

FILED

^ITED STATES m

^^ tili?RfcT%URTfD.N.Y.

EASTERN DISTRICT OF NEW YORK

--X

if

MAY 15 2019

5

JOYETTENEDD,

BROOKLYN OFFICE
Petitioner,
MEMORANDUM

-against-

AND ORDER

13 CV 5569(CLP)

MARK L. BRADT,Superintendent of
Attica Correctional Facility^
Respondent.
-X

POLLAK,United States Magistrate Judge:

On October 3,2013, petitioner Joyette Nedd,proceeding pro se, filed this Petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254,raising seven claims. (Pet.^). On
September 16, 2016, petitioner filed an Amended Petition, adding six additional claims and
removing two. (Am. Pet.^). On April 2,2019,the Petition was referred to the undersigned to

prepare a Report and Recommendation. Thereafter, the parties consented to the undersigned for
all proceedings in this case.

For the reasons set forth below,the Court denies the Amended Petition in its entirety.
FACTUAL BACKGROUND

The charges in this case stem from the attempted shooting of Elsworth George

("George")on October 16,2006. The facts set forth below are derived from the testimony
presented during petitioner's trial, which commenced on January 7,2009 in Kings County
'Citations to "Pet." refer to the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas

Corpus by a Person in State Custody,filed on October 3, 2013,ECF No. 1. The pages referred
to in the Petition reflect the "Additional Pages" attached to the Petition.

^ Citations to "Am.Pet." refer to petitioner's Amended Petition, filed on September 16,

2016, ECF No. 9. The pages referred to in the Amended Petition reflect the "Additional Pages"
attached to the Petition.

Supreme Court.
A. Elsworth George's Testimony

At trial, Elsworth George testified that on October 16,2006, he was sitting in his car at
the comer ofNostrand Avenue and President Street in Brooklyn, New York when he saw

petitioner standing in front of his car. (Tr.^ at 185-86). George, a 48-year old certified nursing
assistant and former police officer in Antigua,testified at trial that he knew petitioner as "Rafie"

and had known him for about two years at the time ofthe incident.'^ (Id. at 177, 178,181-82).

According to George, he had a fnend who lived near Nostrand Avenue and he would see

petitioner approximately three or four times a week by the building located at 864 Nostrand
Avenue, where George's friend, Trevor, lived. (Id at 182). George testified that on two

occasions, when female students came home from school, he heard petitioner make disrespectful
remarks towards them, and George told him that it was not nice to speak to them in that way and

petitioner should respect them. (Id. at 182-83). According to George, petitioner responded by
telling George that he was a "faggot" and to "shut the f... up." (Id at 183).
On October 16, 2006, at approximately 1:46 in the aftemoon, George was sitting in his

car after buying some juice in a nearby store, when he looked up and saw petitioner standing in
front of him with a gun. (Id at 185-86, 237). Petitioner asked George if he remembered

petitioner, at which time George asked petitioner if he "was stupid." (Id at 186). Petitioner

pulled the trigger on the gun, but nothing happened; the gun jammed.^ (Id at 186-87). George

^ Citations to "Tr." refer to the transcript ofthe trial proceedings before the state court,

commencing on January 7,2009,contained within the State Court Record,ECF No. 7.
Throughout the record, petitioner's nickname is spelled both as "Rafie" and "Raffie."
The Court uses the former spelling throughout this decision for the sake of consistency.
^ The witness testified that he knew that the gun had jammed because he had guns when
he was a police officer in Antigua. (Id at 200).
2

then used this opportunity to get out of his car because he was "going to stop him [petitioner]

from killing me." (Id. at 187). George testified that when he got out ofthe car, petitioner was at

the front passenger side door, and as George reached the front ofthe car by the license plate, he
realized that petitioner had gotten the gun to work and he heard a "pow." (Id. at 187-88,191).

At that point, George ran back towards the rear left side of his car and petitioner shot at him

again. (Id at 188,191). George testified that the two ofthem kept running around the car, with

petitioner shooting at him several times. (Id at 189,191). One bullet went into the door post of
the car, and another bullet-shot at George when he was at the rear ofthe car- went into the

windshield. (Id at 192). George then ran behind the car to the rear passenger side and

petitioner, who was at the left driver's side, shot at George again. (Id) That bullet broke
George's back passenger window. (Id at 193). They continued to run around the car, with
petitioner shooting at George five or six times. (Id) The witness was shown various
photographs and identified the damage to the car. (Id at 198-99; People s Exs. 2,3).
George testified clearly that the person he knew as "Rafie" was the one firing the shots,
and that there was no one else close by when the shots were fired. (Tr. at 200-01). At some

point, petitioner stopped shooting and started running down President Street. (Id at 201).
George explained that petitioner tried to go into a building, but it was locked, at which time

petitioner ran back up President Street and turned left onto Nostrand Avenue. (Id at 202).
George attempted to follow him but his car was blocked in by another vehicle behind him,so he
drove around the comer back onto Nostrand Avenue and called the police. (Id)

When the police arrived approximately five to ten minutes later, George told them that he
had been the person who reported the shots fired and that "Rafie" was the one who shot at him.
(Id. at 203-04). George indicated the direction in which petitioner had mn,and the officers went

looking for him but did not find him. (Id. at 204). George then got into the uniformed officer's
police car and drove around looking for Rafie, but they did not see him. (Id. at 205-06). After
that, the police took George to the 71st Precinct, where he spoke to Detective Charles Amao.

(Id. at 206). At that time, George gave the detective the other name by which he knew petitioner

-"Joyette." (Id at 207). He did not know petitioner's last name, but he made a phone call to

petitioner's cousin, who told George that petitioner's last name was Nedd. (Id at 208). George
also gave the police a description of petitioner as about five foot, five inches, light skin, and slim
build. (Id) George testified that he was not hurt in the incident; there wasjust damage to his
vehicle, which he paid $3,000 to repair. (Id at 209).

On cross examination, counsel for petitioner questioned George extensively about why he

was in the vicinity of Nostrand Avenue and President Street on October 16,2006, pointing out

that even though George had testified that he went there to visit a friend, he did not actually see
his friend on that day. (Id at 213). George explained on redirect that he had not gotten a chance
to see his fnend because he got "shot at." (Id at 237).

Counsel asked if the witness and petitioner had a dispute because petitioner accused

George of cheating at gambling, but George denied that he was gambling or was in a gambling
house shortly before the incident. (Id at 229-231). He denied that he had ever gambled with

petitioner, but he admitted that he was angry because petitioner had failed to show him respect.
(Id. at 231,236). When counsel asked if George had gotten a machete out of his car during a

prior dispute and chased petitioner, George denied that he ever chased petitioner. (Id at 229-31).
Counsel also questioned George about where he drove with the police after the incident

and for how long they drove around. (Id at 217). Counsel asked if George told the police that

the person who was shooting at him was shooting from a green Mercedes Benz, which the

witness denied. (Id.) George was also cross examined about his own past criminal history,

which the prosecution had elicited on direct as having involved a conviction in August 1995 for
driving a vehicle with a suspended license, and in February 2001 for bail jumping. (Id. at ITS-

ISO,220,223-24). On the latter occasion, George explained that he had been arrested for

fighting with his girlfriend, and then he failed to appear in court because his father had died and
he had gone to the Caribbean for the funeral. (Id at 17S-S0, 220,223-26).
B. Detective Charles Amao's Testimonv

Detective Charles Amao also testified for the prosecution. He testified that he had been a

detective in the 71st Precinct for 11 years and had been a police officer for 16 to 17 years. (Id at

240). He testified that at 1:46 p.m. on October 16, 2006, he received a call ofa shooting at the
comer ofPresident Street and Nostrand Avenue. (Id at 242). When he arrived at the scene, he

observed crime scene tape, four spent shells, and two live rounds from a handgun. (Id) He also

saw the vehicle belonging to George with damage in the windshield and holes in the car. (Id)

He spoke to George briefly on the comer,and George told him that he could identify the person
who shot at him because he had known the individual for approximately three years. (Id at 243-

44). George provided the detective with personal information about petitioner, and then the
detective had George taken to the 71st Precinct. (Id at 244). Other detectives were speaking to
store owners and canvassing for witnesses, but no one was able to provide information as to what

had happened. (Id at 245). Nor was there any video surveillance that recorded the incident.
(Id)

Detective Amao spoke to George again at the Precinct, and George gave the detective

petitioner's "street name" as well as his first name. (Id at 246). According to the detective,
George then made a call and leamed that petitioner's full name was Joyette Nedd. (Id at 247).

The detective performed some computer checks and then attempted that day to locate petitioner
at the address that the police had on file for him. (Id)

The police finally located petitioner on December 27,2006,^ at which time Detective
Amao placed petitioner under arrest. (Id at 248). After petitioner was arrested, George was

shown a polaroid photograph of petitioner, and he identified petitioner as the shooter. (Id at
212-213, 249). The detective also obtained certain pedigree information from petitioner,

including his age, which was 22 at the time, his height, which was five foot, six inches, and his
weight, which was between 150 and 160 pounds. (Id at 250-51).
C. Police Officer Daniel Domarecki's Testimonv

Police Officer Daniel Domarecki also testified as a witness for the prosecution. (Id at

266). He testified that on October 16, 2006, he and his partner Officer Dranteyva were assigned
to the 71st Precinct to transport prisoners to Brooklyn Central Booking. (Id at 267-68). He
testified that he received a radio run and drove to the comer of Nostrand Avenue and President

Street where he saw a male driving a dark Mercedes Benz SUV flagging down the police car and

indicating that he had called 911. (Id at 270-71). The officer observed a bullet hole in the
windshield ofthe car and shattered glass from the rear right passenger window which was in the

interior ofthe car. (Id at 274-75). He also observed shells from the cartridges. (Id at 275).

After speaking to the male, who the officer identified as Elsworth George,the officer proceeded
to canvass the area with Mr. George,looking for the person responsible for the damage to the

vehicle. (Id at 271-73). He proceeded southbound on Nostrand Avenue and went to the
basement ofthe second building from the southwest comer of Nostrand Avenue and President

^Although originally the detective testified that the arrest occurred in 2007, he later
corrected his statement to indicate that petitioner was arrested on December 27,2006. (Compare
Tr. at 248 with 251).
6

Street. (Id at 273). No one was there, but the officer testified that the evidence collection team

gathered evidence from the scene near the car and gave the evidence to Officer Dranteyva. (Id
at 275, 276-77).

On cross examination, the officer was questioned by counsel about the complaint report,
which Officer Domarecki described as "usually the first recorded document." (Id at 290-91).
Defense counsel noted that there was no description as to what the person was wearing, nor were

there any questions asked about the name or nickname of the shooter. (Id at 293). Officer
Domarecki denied any recollection of hearing that the person was shooting from a green
Mercedes Benz. (Id at 294).
D. Police Officer Thomas Jacob's Testimony

Police Officer Thomas Jacob testified that he was assigned to the evidence collection unit
in October 2006 and that when he arrived at the scene ofthe shooting, he observed two shell

casings on the sidewalk,two shell casings in the street, two deformed bullets, and two live
rounds in the street. (Id at 305-07). He photographed the scene and packaged the evidence. (Id

at 308). On cross examination, he indicated that he did not take any fingerprints from the
evidence. (Id at 316).
E. Detective John Kraliic's Testimony

Detective John Kraljic testified that he is a firearms examiner, and that he tests firearms

and ammunition for operability. (Id at 317). He was qualified by the court as an expert in the
field of identification and operability offirearms and ammunition and in the field of microscopic

examination. (Id at 319). He testified that there were two deformed bullets collected from the
scene and explained that they are classified as deformed because they have been fired and
therefore altered from their original shape.(Id at 326). He testified that all four shell casings

and the two live cartridges were all cycled through the same firearm, which he described as a .25

caliber pistol. (Id at 328, 329). Finally, he explained to the jury what would happen if a gun

jammed and how it would be cleared. (Id. at 331-32). He also explained that fingerprints are
generally not taken fi-om bullet casings because the heat generated from the discharge would
evaporate the oils necessary for latent prints. (Id at 333).

At the conclusion ofthe testimony,the defense made a motion to dismiss, arguing that

the prosecution had failed to make out a prima facie case that petitioner intentionally fired any of
the shots to cause physical injury or to kill George. (Id at 335). Counsel also argued that

George was incredible as a matter oflaw and his testimony should be discounted in its entirety.

(Id at 335-36). The court denied the motion, and the lawyers summed up before the jury. (Id at
336, 338).

PROCKDURAL BACKGROUND
A. The Indictment

Following his arrest, petitioner was indicted in Kings County and charged with two
counts of Criminal Possession of a Weapon in the Second Degree, in violation of New York

Penal Law § 265.03[2],[3], one count of Attempted Murder in the Second Degree,in violation
of New York Penal Law §§ 110.00/125.25[1], one count of Attempted Assault in the First

Degree, in violation ofNew York Penal Law §§ 110.00/120.10[I], one count of Attempted
Assault in the Second Degree, in violation of New York Penal Law §§ 110.00/120.05[2], one

count of Criminal Possession of a Weapon in the Fourth Degree, in violation ofNew York Penal

Law § 265.01[1], one count of Criminal Mischiefin the Second Degree, in violation ofNew
York Penal Law § I45.00[l], and one count of Menacing in the Second Degree, in violation of

New York Penal Law § 120.12[1]. (Koelsch Aff7 ^ 5; Ind.^).
B. The Trial

The trial conimenced before the Honorable Sheryl Parker on January 7, 2009,and on

January 13, 2009,the jury returned a verdict of guilty on the charges of Attempted Murder in the
Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Mischief
in the Fourth Degree. (Koelsch Aff. H 6).
C. Petitioner's Section 330.30 Motion and Sentence

On January 16, 2009, petitioner filed a pro^motion seeking to set aside the verdict

pursuant to Criminal Procedure Law Section 330.30, alleging that the evidence in support of his
conviction was insufficient and that his trial counsel was ineffective based upon a statement

made by counsel at the end of his summation suggesting that the jury find petitioner "guilty."
(See Tr. at 419-20,426; see also Koelsch Aff., Ex. J^ at 3). Although the trial court noted that a
claim of ineffective assistance of counsel was not properly brought under Section 330.30, the

court adjourned the sentence and appointed new counsel for petitioner. (Tr. at 421-22).
On March 10, 2009,the trial court denied the Section 330.30 motion Qd,at 436), and

sentenced petitioner to concurrent prison terms of20 years on the Attempted Murder count, 15

years on the Criminal Possession ofa Weapon count, and one year on the Criminal Mischief
count. (Id,at 440). Petitioner was also sentenced to two concurrent five-year periods of postrelease supervision with respect to the felony convictions. (I^

^ Citations to "Koelsch Aff." refer to the Affidavit of Adam M. Koelsch in Opposition to
Petition for Writ of Habeas Corpus, dated December 5, 2013,ECF No. 7.
^ Citations to "Ind." refer to the Indictment, Number 11326/2006, attached to petitioner's
Motion for a Writ of Error Coram Nobis, ECF No. 8.

^ Citations to "Koelsch Aff., Ex. J" refer to the decision and order denying petitioner's

motion to vacate the judgment of conviction, dated February 21, 2013 and entered February 26,
2013, attached as Exhibit J to the Koelsch Affidavit, ECF No. 7.
9

D. The Direct Appeal

In July 2011, petitioner filed a direct appeal from the judgment of conviction through his

attorney Lynn W.L. Fahey, claiming that the evidence was legally insufficient to prove his intent

to kill the victim. (Koelsch Aff. H 8; see also Appeal Br.'° at 18-25). Petitioner also claimed that
he had received ineffective assistance of counsel at trial because: 1)counsel failed to object to

the police officer's testimony suggesting that petitioner had a criminal record; 2)counsel
summed up by mistakenly asking the jury to find petitioner "guilty;" and 3)counsel failed to

object to the prosecutor's allegedly improper comments during summation. (Koelsch Aff.f 8;

Appeal Br. at 26-38). In addition, petitioner argued that the sentence was excessive. (Koelsch
Aff. H 8; Appeal Br. at 38-41).

On December 27,2011,the Appellate Division, Second Department, unanimously

affirmed the trial court's judgment. People v. Nedd.90 A.D.3d 1076,934 N.Y.S.2d 848(2d

Dep't 2011). The Appellate Division held that "[vjiewing the evidence in the light most
favorable to the prosecution,... we find the evidence was legally sufficient to establish

defendant's guilt of attempted murder in the second degree beyond a reasonable doubt." Id. The
court further stated that,"upon our independent review ... we are satisfied that the verdict...

was not against the weight ofthe evidence." Id (citations omitted). The court found that the
remaining contentions raised by petitioner on appeal were "without merit." Id

On April 16,2012, petitioner's application to appeal to the Court of Appeals was denied.
People V. Nedd. 18 N.Y.3d 996,968 N.E.2d 1007(2012).

Citations to "Appeal Br." refer to the Brieffor Defendant-Appellant, dated July 2011,
and labeled Respondent's Exhibit B in the State Court Record at page 444, ECF No. 7.
10

E. The 2012 Motion to Vacate the Judgment

By motion dated October 9,2012, petitioner moved to vacate the judgment ofconviction

pursuant to Criminal Procedure Law Section 440.10(l)(h),^' arguing that: 1)the trial court was
required to order a competency examination of petitioner, sua sponte, which it failed to do; 2)

petitioner received ineffective assistance ofcounsel because his attorneys failed to request a
competency examination; and 3)he received ineffective assistance of counsel because his

attorneys failed to advise him about the prosecution's plea offers. (Koelsch Aff. H 11; Koelsch
Aff., Ex.

On February 21,2013,the state court denied petitioner's motion without a hearing.

(Koelsch Aff., Ex. J). The court found that there was"no reasonable basis" for the court to

believe that petitioner was not competent to stand trial, based on the court's interactions with

petitioner and his behavior during the proceedings. (Id. at 5). Therefore,the court held that it
was not required to order a competency examination^sponte. (Id.) Specifically, the court

noted that petitioner had appeared in court more than 25 times, and "[a]t no time did any judge
see a basis to order" an exam. (Id) With respect to petitioner's claim that he received
ineffective assistance when his counsel did not request a competency examination,the court held

that petitioner's attomeys' legal representation did not fall below state or federal standards. (Id
at 5-6). Finally, the court denied petitioner's claim that his attomeys provided ineffective
assistance by failing to advise him to accept a plea offer, finding that the claim was unsupported

"Criminal Procedure Law Section 440.10(l)(h) states that a court may vacate a

judgment if it "was obtained in violation of a right ofthe defendant under the constitution ofthis
state or of the United States." N.Y. Grim. Proc. Law § 440.10(l)(h).

'2 Citations to "Koelsch Aff., Ex. H"refer to defendant's Motion to Vacate the Judgment
of Conviction under New York Criminal Procedure Law Section 440.10, dated October 9,2012
and attached as Exhibit H to the Koelsch Affidavit, ECF No. 7.
11

by petitioner's papers and contradicted by counsels' affirmations.^^ (Id at 6).
The Appellate Division denied petitioner's request for leave to appeal on July 26,2013.
(Koelsch Aff. H 12).
F. The Initial Habeas Corpus Petition

On October 3,2013, petitioner, proceeding pro se, filed the initial Petition for a writ of
habeas corpus in this Court. (Pet.). The initial Petition raised seven claims: 1)that petitioner is

actually innocent ofthe attempted murder charge, and but for trial counsel's ineffective

assistance and prosecutorial misconduct, the result ofthe proceeding and his appeal would have

been different; 2)that the indictment failed to give him notice ofthe conduct forming the basis of
the attempted murder charge; 3)that the New York sentencing scheme lacks criteria for
determining a defendant's sentence within the legislatively specified range, that his sentence was
excessive under federal sentencing guidelines, and that he was punished for exercising his right

to trial; 4)that the evidence was insufficient to establish petitioner's guilt of attempted murder;
5)that trial counsel was ineffective because he: a)failed to object when a police witness

suggested petitioner had a criminal record, b)concluded his summation by asking the jury to find
petitioner "guilty," and c)failed to object to allegedly improper summation comments by the
prosecution; 6)that petitioner's sentence was excessive for a first time felony offender; and

7)that appellate counsel was ineffective in failing to raise the argument that the indictment failed
to provide proper notice. (Id.)

At the time that the initial Petition was filed, not all ofthese claims had been exhausted in

that petitioner had failed to raise some ofthem before the state courts. (See discussion infra

The Court notes that this third claim - whether petitioner received ineffective

assistance because his attorneys failed to advise him to take a plea — was not raised in either the
original habeas Petition or his Amended Petition. (See discussion infra pp. 51-52).
12

Section V). However,the claim that the evidence was insufficient for the attempted murder
conviction, the claim that he received ineffective assistance oftrial counsel, and the sentencing

claims were all raised in his brief to the Appellate Division on the direct appeal, and were thus
exhausted at the time that the initial Petition was filed.
G. The 2013 Coram Nobis Application

While the initial habeas Petition was pending, petitioner moved for a writ of error coram

nobis in the Appellate Division, Second Department, on December 17, 2013, claiming that he
had received ineffective assistance of appellate counsel on various grounds. On June 4, 2014,

the Appellate Division denied the writ of error coram nobis. holding that "[t]he appellant has
failed to establish that he was denied the effective assistance of appellate counsel." People v.

Nedd. 118 A.D.3d 731,986 N.Y.S.2d 849(2d DepT 2014). Petitioner's subsequent application

for leave to appeal was denied by the Court of Appeals on September 18,2014. People v. Nedd.
24N.Y.3d 963 (2014).

In a letter dated October 21,2014,the Assistant District Attorney assigned to handle the

Petition submitted a letter to the district court indicating that while petitioner had exhausted some

ofthe claims in the Petition through his coram nobis motion, others remained imexhausted and,

in any event, all were without merit. (10/21/2014 Ltr.'"^).
H. The 2015 Motion to Vacate the Judgment

On March 31,2015, petitioner filed a second pro se motion to vacate his conviction and
to set aside his sentence, pursuant to Criminal Procedure Law Sections 440.10 and 440.20.

Citations to "10/21/2014 Ltr." refer to ADA Koelsch's letter to the district court, dated
October 21, 2014,ECF No. 8.
13

(Barall

Ex. W'^). In this motion, petitioner claimed: 1)that he was actually innocent of

attempted murder, and that his conviction was the result of ineffective assistance of counsel and

prosecutorial misconduct; 2)that he was deprived of due process, equal protection, and his rights
under the Criminal Procedure Law because the indictment did not provide adequate notice ofthe

facts supporting the attempted murder charge; and 3)that his sentence of20 years on the

attempted murder charge violates various constitutional guarantees and the federal sentencing
guidelines. (Id at 1-3).

In a decision dated October 27, 2015,the Supreme Court, Kings County, denied his

motion,finding that he had failed to state a prima facie claim of actual innocence because he
failed to present any factual allegations to support the claim. (Barall Aff, Ex.

at 3).

The court also rejected petitioner's claims that but for errors on the part of defense

counsel and the prosecution, the jury would not have found him guilty. (Id at 3-5). Claiming

that George's trial testimony was inconsistent with the DD-5 police report ofthe interview of

George and with the Complaint Room Screening Sheet("ECAB"), petitioner argued that counsel
should have used this inconsistency to impeach George at trial and that the prosecutor knowingly

adduced false testimony. (Id at 5). The court, after reciting the proper standards under
Strickland v. Washington.466 U.S. 668(1984),found both claims to be without merit. (Id)

Citations to "Barall Aff." refer to the Supplemental Affidavit in Opposition to Petition
for Writ of Habeas Corpus, dated October 28, 2016, ECF No. 10.

Citations to "Barall Aff., Ex. W"refer to petitioner's March 31, 2015 motion pursuant
to New York Criminal Procedure Law Sections 440.10 and 440.20, attached to ADA Barall s

Affidavit as Respondent's Exhibit W,ECF No. 10. Although some ofthe submissions state that
this motion was filed on May 31,2015,the correct date appears to be March 31,2015, based on
the final page ofthe motion.

Citations to "Barall Aff,Ex. Y"refer to the Decision and Order denying defendant's

March 31,2015 motion pursuant to New York Criminal Procedure Law Section 440.10/440.20,
dated October 27,2015 and attached to ADA Barall's Affidavit as Respondent's Exhibit Y,ECF
No. 10.
14

The court found that counsel could not be faulted for not using this evidence for impeachment

because the source ofthe information was not provided and, nevertheless, the facts from the

earlier reports were not inconsistent with George's trial testimony. (Id.^ Since petitioner had
failed to present any evidence that George made a false statement or that the prosecutor

knowingly procured false testimony, the court found that there was no merit to either the
ineffective assistance of counsel or prosecutorial misconduct claim. (Id at 5-6). The court also
found that these claims of ineffective assistance and prosecutorial misconduct were procedurally

barred pursuant to Criminal Procedure Law Section 440.10(3)(c) because they could have been
raised in an earlier motion but were not. (Id. at 6). In essence, the court held that because

petitioner could have raised these new claims when he raised the earlier claims in his initial
440.10 motion, his attempt to do so in the second motion was barred. (Id)

Similarly, with respect to petitioner's claim that the indictment provided an inadequate
recitation offacts, the court found that that claim was procedurally barred because petitioner
could have raised the issue on direct appeal but unjustifiably failed to do so. (Id (citing People
V. Cuadrado,9 N.Y.Sd 362, 365, 880 N.E.2d 861 (2007))).

Finally, the court noted that Section 440.20 permits a court to set aside a sentence only on

a few specific grounds- namely,that it was unauthorized,illegally imposed, or otherwise invalid
as a matter oflaw. (Id at 7(citing C.P.L. § 440.20[1])). According to the court, the sentence

petitioner received of20 years on the attempted murder charge was within the statutorily
prescribed range, as was the five year term of post-release supervision. (Id) Accordingly,the
court denied petitioner's second 440 motion in its entirety. (Id)

Petitioner's application for leave to appeal this decision was denied on April 7, 2016, and

his application for leave to appeal to the Court of Appeals was also denied on June 27,2016.
15

(Barall Aff.^ll).
1.

The Amended Habeas Petition

On September 16, 2016, petitioner filed an Amended Petition for a Writ of Habeas

Corpus. (Am. Pet.). In this Amended Petition, petitioner raises the claims originally brought in
his initial Petition, along with additional claims raised in the state courts since the filing ofthe

original habeas Petition. These include: 1)ineffective assistance of appellate counsel on various
grounds; 2) petitioner's competency to stand trial; 3)ineffective assistance oftrial counsel for

not seeking a competency examination; and 4)the illegal and unconstitutional sentence.'^
Respondent did not object to the filing ofthe Amended Petition but submitted a

Supplemental Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, urging
the Court to deny the Amended Petition in its entirety because the claims are procedurally barred
and without merit, or both. (Supp. Mem.^^ at 1; see also Barall Aff. H 14).
J. Telephone Conference

On April 23,2019,the Court held a telephone conference in this case. Petitioner

appeared on his own behalf, and Victor Barall from the Kings County District Attorney s Office
appeared for respondent. Petitioner and respondent agreed to consent to this Court for all
proceedings in this case, and the completed consent form was filed on May 14,2019.

In his original habeas Petition, petitioner raised the argument that his appellate counsel
was ineffective because she failed to raise the alleged deficiencies in the indictment. Petitioner
does not raise this claim in his Amended Petition. Moreover, Mr. Nedd argues that his sentence
was excessive in both Ground Three and Ground Six of his original Petition. (Pet. at 5 & 9). He

appears to have dropped one of these grounds in his Amended Petition, but he does raise
arguments relating to his sentence in the Amended Petition that are addressed infra pp. 43-46.
•^Citations to "Supp. Mem." refer to the respondent's Supplemental Memorandum of
Law in Opposition to Petition for Writ of Habeas Corpus, attached as Exhibit to the

Supplemental Affidavit of ADA Victor Barall, in Opposition to Petition for Writ of Habeas
Corpus, dated October 28,2016, ECF No. 10.
16

During the conference, petitioner also reiterated his argument that he should not have
been sentenced to 20 years after he had been offered plea deals for two years and five years.

Moreover, he argued that he should have been better advised by his counsel to accept the pleas

offered by the prosecution. Although the latter argument was not raised in either Petition, the

arguments that petitioner raised during the telephone conference are addressed in more detail
below.
DISCUSSION

I.

Timeliness of Petition

This habeas Petition is governed by the Antiterrorism and Effective Death Penalty Act of

1996("AEDPA"),Pub. L. No. 104-132,110 Stat. 1214(codified as amended in scattered
sections ofthe United States Code), which provides that a "1-year period of limitation shall

apply to an application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court." 28 U.S.C. § 2244(d)(1). This limitation, absent certain exceptions
that do not apply to this case, runs from "the date on which the judgment became final by the
conclusion of direct review or the expiration ofthe time for seeking such review." 28 U.S.C.

§ 2244(d)(1)(A). A conviction is deemed final for AEDPA purposes when the defendant's time
to seek certiorari before the United States Supreme Court has expired. S^ Williams v. Artuz,

237 F.3d 147, 151 (2d Cir. 2001).^® Moreover, any "time during which a properly filed

application for State post-conviction or other collateral review ... is pending" is excluded from
the calculation ofthe statute of limitations period. 28 U.S.C. § 2244(d)(2).

Petitioner's direct appeal to the Appellate Division was denied on December 27, 2011

Ifthe defendant files a petition with the United States Supreme Court, the conviction is
final when certiorari proceedings have concluded. Williams v. Artuz,237 F.3d at 151.
17

(see Koelsch Aff.^ 9(citing People v. Nedd.90 A.D.3d at 1076)), and petitioner's application
for leave to appeal to the Court of Appeals was denied on April 16, 2012. (See id. H 10 (citing

People V. Nedd. 18 N.Y.3d at 996)). Under Rule 13 ofthe Rules ofthe Supreme Court ofthe
United States, petitioner's conviction became final 90 days after petitioner's motion for leave to

appeal to the Court of Appeals was denied, on July 15, 2012.^^
Thus, the statute of limitations applicable to petitioner's habeas Petition would have

expired on July 15,2013, one year after the period for petitioner to seek Supreme Court review
expired, but since he filed his initial motion to vacate the judgment pursuant to Criminal
Procedure Law Section 440.10 on October 9,2012,the time for filing the habeas Petition was

stayed until July 26,2013, when the Appellate Division denied petitioner's motion for leave to

appeal from the denial of his motion to vacate the judgment. Petitioner thereafter filed his initial
habeas Petition on October 3,2013, and therefore, his original Petition was timely filed before
this Court.

However,the filing ofa federal habeas petition does not toll the statute oflimitations

under Section 2244(d)(2). Duncan v. Walker. 533 U.S. 167, 181-82, 121 S. Ct. 2120,2129,150

L. Ed. 2d 251 (2001);s^ 28 U.S.C. § 2244(d)(2)(stating that "[t]he time during which a

properly filed application for State post-conviction or other collateral review ... is pending" is
excluded from the calculation ofthe statute oflimitations period)(emphasis added). As a result,

the statute oflimitations period was not tolled "during the pendency of[petitioner's] first federal

habeas petition." Id. Accordingly, after calculating the amount oftime tolled by petitioner's

post-conviction motions brought in state courts, the Court finds that petitioner's Amended

^'A petition for a writ of certiorari is timely when filed within 90 days after entry of
judgment of a state court of last resort or a United States court of appeals. Sup. Ct. R. 13.
Petitioner did not seek such relief.
18

Petition was filed well after the one-year statute of limitations period expired. Thus, at issue is

whether the claims in petitioner's Amended Petition can be considered by this Court, given the
expiration of the statute of limitations.

Amendments to habeas petitions are governed by Rule 15 ofthe Federal Rules of Civil
Procedure. 28 U.S.C. § 2242(stating that petitions"may be amended or supplemented as

provided in the rules of procedure applicable to civil actions"); Littleiohn v. Artuz. 271 F.3d 360,
363(2d Cir. 2001). Here, petitioner filed his original Petition on October 3,2013, and he filed
his Amended Petition on September 16,2016. Therefore, petitioner cannot amend as a matter of

course, pursuant to Rule 15(a)(1), because 21 days have passed since the original Petition was
served.

Petitioner can file an amended petition under Rule 15(a)(2), given that respondent does

not object to the amendment,and given that the "court should freely give leave when justice so

requires." Fed. R. Civ. P. 15(a)(2). However, where, as here, the statute of limitations has
expired, amendments must relate back "to the date ofthe original pleading." Fed. R. Civ. P.
15(c)(1). Amendments relate back when they arise "out ofthe conduct, transaction or
occurrence set out... in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). In a habeas

proceeding, the original pleading is a habeas petition. Mavle v. Felix, 545 U.S. 644,663-64
(2005). The Supreme Court has held that in the habeas context, new claims in an amended
petition relate back only when they share a"common core of operative facts" with claims in the
original petition. Id. at 663-64; see also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 816(2d
Cir. 2000); Nieves-Andino v. Conwav. No.08 CV 5887,2010 WL 1685970,at *7(S.D.N.Y.
Apr. 20,2010). In other words, an amended petition does not relate back "when it asserts a new

ground for relief supported by facts that differ in both time and type from those the original
19

pleading set forth." Mavle v. Felix. 545 U.S. at 650. Importantly,the fact that an original
petition and an amended petition pertain to the same "trial, conviction, or sentence" is not
sufficient to create a common core of operative facts. Id at 664.

As discussed above, petitioner raises multiple new claims in his Amended Petition,

including: 1)ineffective assistance of appellate counsel on various grounds; 2)petitioner's

competency to stand trial; 3)ineffective assistance oftrial counsel for not seeking a competency
examination; and 4)the illegal and unconstitutional sentence. The Court finds that the claims

relating to ineffective assistance of appellate counsel and his sentence relate back to the claims
raised in his original Petition. Specifically, petitioner raises in his Amended Petition that his

appellate counsel provided ineffective assistance based on her failure to forcefully raise the
alleged inconsistences in George's testimony. Such an argument was mentioned in the original
Petition. tCompare Pet. at 11-12

Am.Pet. at 16). Similarly, petitioner argued that his

sentence was unconstitutional and excessive in his original Petition, as he does again in his
Amended Petition. tComnare Pet. at 5-6, 9-10 with Am.Pet. at 33-41). Although these

arguments presented in the Amended Petition are not identical to those presented in the original
Petition, the Court finds that they share a common core of operative facts.

However, while the arguments relating to his competency were raised in his 2012 motion,

they relate neither in time nor type to the claims in the original habeas Petition, nor do they arise
from a core of operative facts common to claims in the original Petition. Nevertheless, even

though the claims regarding his competency are untimely,the Court has considered the substance
of these new claims, and concludes that they are without merit.
11.

AEDPA Standards

Under 28 U.S.C. § 2254, as amended by AEDPA,the authority offederal courts to grant
20

writs of habeas corpus on the merits of claims filed by state prisoners is limited to instances in

which it can be shown that the adjudication of a claim on the merits in state court: (1)"resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court ofthe United States," 28 U.S.C. § 2254(d)(1);

or(2)"resulted in a decision that was based on an unreasonable determination ofthe facts in
light ofthe evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
In Williams v. Tavlon the Supreme Court indicated that the "contrary to" and

"unreasonable application" clauses of Section 2254(d)(1) have independent meanings. 529 U.S.
362,404-05 (2000). Under the first prong, a state court decision is considered to be "contrary

to" clearly established federal law where the state court "applies a rule that contradicts the

governing law set forth in [Supreme Court] cases," or where the state court "confronts a set of
facts that are materially indistinguishable" from those considered by the Supreme Court, but
"nevertheless arrives at a result different from [Supreme Court] precedent." Id at 405-06;

accord Evans v. Fischer, 712 F.3d 125, 132-33(2d Cir. 2013); King v. Greiner,453 F. App x 88,

89(2d Cir. 2011). The precedent providing guidance in this analysis are "'the holdings, as

opposed to ... dicta" ofthe Supreme Court's decisions at the time ofthe state court decision.
Contrerasv. Artus. 778 F.3d 97,110(2d Cir. 2015)(quoting Williams v. Tavlor. 529 U.S. at
412).

Under the "unreasonable application" prong of Section 2254(d)(1), a state court decision
will be set aside if it involves an "unreasonable application" ofthe correct goveming legal rule to

the particular facts ofthe case, see Williams v. Tavlor, 529 U.S. at 407,409; King v. Greiner,
453 F. App'x at 89; Evans v. Fischer, 712 F.3d at 133, or ifthe decision "refuses to extend a
legal principle that the Supreme Court has clearly established to a new situation in which it
21

should govern." Emmons v. Artus. 494 F. App'x 127, 128(2d Cir. 2012)(quoting Hoi Man
Yung V. Walker. 468 F.3d 169,176(2d Cir. 2006)). In conducting this analysis, the appropriate

inquiry is whether the decision was objectively unreasonable, not merely whether it was
incorrect or erroneous. Williams v. Tavlor. 529 U.S. at 409-11.

The Supreme Court has made it clear that review under Section 2254(d)is extremely
narrow. The Court has stated that habeas corpus is'"a guard against extreme malfunctions in the

state criminal justice systems, not a substitute for ordinary error correction through appeal.'"
Woods V. Donald. 135 S. Ct. 1372, 1376,191 L. Ed. 2d 464(2015)(quoting Harrington v.

Richter, 562 U.S. 86,102-03 (2011)). A habeas court must first determine the theories that
formed the basis ofthe state court's decision, then ask whether "fairminded jurists could

disagree" that those theories were inconsistent with a prior Supreme Court decision. Harrington
V. Richter. 562 U.S. at 101. A habeas petitioner must show that the state court's ruling was "so

lacking in justification" that there was an error in existing law that is "beyond any possibility for

fairminded disagreement." Id at 103. This standard is intentionally difficult to meet.^^ Id at
102.

Under AEDPA,a state court's determination of a factual issue is "presumed to be

correct," 28 U.S.C. § 2254(e)(1); Sarcina v. Artus,452 F. App'x 44,46(2d Cir. 2011), and the

petitioner has the "burden ofrebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1). Moreover,"a decision adjudicated on the merits in a state

court and based on 2ifactual determination will not be overturned on factual grounds unless

See Cameron v. Smith, No. 11 CV 5100,2011 WL 6708790 at *3(E.D.N.Y. Dec. 21,

2011)(holding that "[t]his standard ... is arguably the narrowest standard ofjudicial review in
the law").
22

objectively unreasonable in light ofthe evidence presented in the state-court proceeding."
Miller-El v. Cockrell. 537 U.S. 322, 340(2003)(citing 28 U.S.C. § 2254(d)(2))(emphasis
added).
III.

Exhaustion of Petitioner's Claims

Before considering the merits of each of petitioner's claims, this Court must first

determine if petitioner has exhausted all available state remedies and whether federal habeas
review is permissible.

A federal court may not grant a petition for a writ of habeas corpus unless a petitioner has
exhausted all available state court remedies.

28 U.S.C. § 2254(b)(1)(A); Picard v. Connor,

404 U.S. 270, 275-76(1971); Richardson v. Superintendent of Mid-Oranee Corr. Facilitv. 621

F.3d 196,201 (2d Cir. 2010); Galdamez v. Keane. 394 F.3d 68,72(2d Cir. 2005); Aparicio v.
Artuz, 269 F.3d 78,89(2d Cir. 2001); Vittor v. New York State Den't of Corr. and Cmtv.
Supervision. No. 13 CV 3112,2014 WL 1922835, at *3(E.D.N.Y. May 14, 2014). This rule,

based on principles of comity between state and federal courts, requires that the state have the
first opportunity to address and correct alleged violations of state prisoner's federal rights.
Coleman v. Thompson. 501 U.S. 722,731 (1991); accord Picard v. Connor.404 U.S. at 275-76.

"To fulfill the exhaustion requirement, a petitioner must have presented the substance of his
federal claims 'to the highest court ofthe pertinent state.'" Bossett v. Walker. 41 F.3d 825,828

(2d Cir. 1994)(quoting Pesina v. Johnson. 913 F.2d 53,54(2d Cir. 1990)), cert, denied. 115 S.
Ct. 1436(1995)). "Tn order to have fairly presented his federal claim to the state courts[,] the

petitioner must have informed the state court of both the factual and the legal premises ofthe
claim he asserts in federal court.'" Rush v. Lempke.500 F. App'x 12, 14(2d Cir. 2012)(quoting
Dave V. Attomev Gen, of State of New York. 696 F.2d 186, 191 (2d Cir. 1982)(en banc)).
23

A habeas petitioner satisfies the exhaustion requirement if he has presented his claim to

the appropriate state courts in accordance with state procedural requirements, and has thereby

"afford[ed] the state courts a meaningful opportunity to consider [the] allegations oflegal error."
Vasquez v. Hillerv. 474 U.S. 254,257(1986)(citations omitted). Although some courts have

insisted upon citation in the state pleadings to a specific clause ofthe Federal Constitution that is
alleged to have been violated, courts in this Circuit have held that a claim may be "fairly

present[ed] to the state courts ... without citing chapter and verse ofthe Constitution" ifthere is:
"(a) reliance on pertinent federal cases employing constitutional analysis,(b)reliance on state

cases employing constitutional analysis [in factually similar circumstances],(c)assertion ofthe
claim in terms so particular as to call to mind a specific right protected by the Constitution, and

(d)allegation of a pattern offacts that is well within the mainstream of constitutional litigation."
Dave V. Attomev Gen, of State of New York,696 F.2d at 194; accord Carvaial v. Artus. 663

F.3d 95,104(2d Cir.), cert, denied. 132 S. Ct. 265 (2011); Jones v. Vacco. 126 F.3d 408,413-14

(2d Cir. 1997)(holding that "[c]it[ation to] a specific constitutional provision or rel[iance] on
federal constitutional precedents alerts state courts ofthe nature ofthe claim"); Williams v. Lord,
996 F.2d 1481,1483(2d Cir. 1993)(holding that petitioner had fully presented her claim to the

state court where,"[a]lthough she did not cite specific constitutional provisions in her [state

court] brief[,]... she explicitly asserted her constitutional right to present a defense ...[and]
cited a leading Supreme Court case in this area"), cert, denied, 510 U.S. 1120(1994).
The legal claims raised in the state courts must also be the "substantial equivalent" ofthe
claims raised in the federal petition. See Picard v. Connor.404 U.S. at 278; accord Jones v.

Murohv.694 F.3d 225,247(2d Cir. 2012); Waterhouse v. Rodriguez, 848 F.2d 375, 381 (2d Cir.

1988)(noting that "[t]he legal theory relied upon in the federal court need not... be identical to
24

the legal theory presented to the state courts, provided that the essential factual allegations and
the ultimate constitutional question raised in the federal petition were presented to the state

courts"). Once a federal claim has been properly presented to the state courts, the claim is
considered exhausted even ifthe state court did not address the claim on the merits and instead

rejected it on a state procedural ground, or did not rule on the claim on either substantive or
procedural grounds, but nonetheless had a fair opportunity to address the claim. See, e.g.,
Coleman v. Thompson. 501 U.S. at 731-32.

When Mr. Nedd's habeas Petition was initially filed in October 2013, it contained both
exhausted and unexhausted claims. Under AEDPA,district courts faced with a "mixed" petition

for habeas corpus may stay the petition to allow the petitioner to return to state court to exhaust

previously unexhausted claims or may deny the unexhausted claims on the merits. S^ Rhines v.
Weber. 544 U.S. 269, 278(2005). See also 28 U.S.C. § 2254(b)(2). Since that time, however,

petitioner initiated subsequent proceedings in the state courts and has exhausted all of his claims.
(See discussion infra Section V).
IV.

Procedural Default

As a separate and distinct issue, the Court must also address whether there was a

procedural default with respect to any ofthe claims in the state proceedings.

Enele v. Isaac.

456 U.S. 107, 129(1982); Francis v. Henderson.425 U.S. 536,542(1976). "A defendant whose

claim is rejected in state court for failure to comply with a state procedural rule may be
precluded from raising that claim on habeas review in federal court." Petronio v. Walsh,736 F.
Supp. 2d 640,652(E.D.N.Y. 2010)(citing Coleman v. Thompson.501 U.S. at 729-30; Garcia v.
Lewis. 188 F.3d 71,79(2d Cir. 1999)). Thus, even if a petitioner raises a colorable federal

claim, habeas review is barred ifthe claim was rejected in the state court on a procedural ground
25

that is both "'independent' ofthe merits ofthe federal claim" and provides an "'adequate' basis
for the court's decision." Id (quoting Femandez v. Smith. 558 F. Supp. 2d 480,489(S.D.N.Y.
2008)).

Here,the state courts have found that certain of petitioner's claims were procedurally

barred because petitioner did not properly comply with the state's procedural rules. Where the
state court relied on a procedural default in rejecting petitioner's claim, this Court has examined
the merits ofthe claim regardless, and in each instance found the claims not only procedurally
barred but also without merit. (See discussion infra).
V.

Petitioner's Claims

A.

Ground One - The Inadeauacv ofthe Indictment

Petitioner's first claim is that the indictment: 1)failed to apprise the accused of the

factual allegations for the conduct in support ofthe attempted murder count in the second degree;

2)denied petitioner proper notice ofthe particulars ofthe charge that would have helped prepare
the defense; 3)failed to state the particulars that must inform the courts and the accused as to the

acts in support ofthe charge; and 4)the supporting facts must be sufficient in law to support the
charge and "the facts must originate from the original source

"(Am.Pet. at 6).

The First Count ofthe indictment charged as follows:

The Grand Jury of the County of Kings by indictment, accuses the
defendant of the crime of attempted murder in the second degree

[PL 110/125.25(1)] committed as follows:
The defendant, oh or about October 16, 2006, in the County of

Kings, with intent to cause the death ofEllsworth George,attempted
to cause the death of Ellsworth George.
(Ind.).

Although petitioner's claim regarding the inadequacy ofthe indictment was not raised on
direct appeal, it was presented to the state court in petitioner's second 440.10/440.20 motion,
26

filed on March 31, 2015, and therefore the claim has now been exhausted. (Barall Aff.^ 8; Ex.

W). However,in reviewing this claim, the state court held that it was procedurally barred

because petitioner could have raised the issue on direct appeal but unjustifiably failed to do so.
(Barall Aff., Ex. Y at 6).

Under Section 440.10(2)(c), a court considering a motion to vacate must deny the claim if

sufficient facts appeared on the record for the claim to have been raised on direct appeal, but it
was not. ^People v. Cuadrado,9 N.Y.3d at 364-65. The state court's reliance on a state

procedural law,independent ofthe federal question, was proper in that New York Criminal
Procedure Law § 440.10(2)(c) has been found to constitute an independent and adequate state

ground. See Richardson v. Superintendent of Mid-Orange Corr. Facilitv, 621 F.3d at 201: Clark
V. Perez. 510 F.3d 382, 390-93(2d Cir. 2008); Bethea v. Walsh. No.09 CV 5037,2016 WL

258639, at *32(E.D.N.Y. Jan. 19,2016). Thus, habeas review is barred ifthe claim was rejected
in the state court on a procedural ground that is both "'independent' ofthe merits ofthe federal

claim" and provides an "'adequate' basis for the court's decision." Petronio v. Walsh,736 F.
Supp. 2d at 652(quoting Fernandez v. Smith. 558 F. Supp. 2d at 489).
A defendant may overcome the preclusory effect of an independent and adequate

procedural bar if he can establish "cause"for the procedural default and "prejudice" stemming
therefrom. Murrav v. Carrier. 477 U.S. 478,485, 106 S. Ct. 2639,2644, 91 L. Ed. 2d 397

(1986). In the alternative, a defendant who can demonstrate "actual innocence," can also
overcome the procedural bar. McOuiggin v. Perkins. 569 U.S. 383, 386,133 S. Ct. 1924,1928,
185 L. Ed. 2d 1019(2013). Here, petitioner has made no showing of cause or prejudice that

would explain the failure to raise this claim on direct appeal, and he has also not demonstrated
actual innocence as set forth infra pp. 29-32. For these reasons, his claim relating to the
27

sufficiency of the indictment should be denied.
However,even if the Court were to consider the merits of the claim, it is clear that the

language in the indictment charging attempted murder in the second degree satisfied all ofthe
constitutional requirements in that it contained all ofthe elements ofthe offense so as to fairly
inform defendant ofthe charge, and it was sufficient to enable defendant to plead double

jeopardy in defense offuture prosecutions for the same charge. See United States v. Stevens,
210 F.3d 356(2d Cir. 2000); United States v. Santeramo,45 F.3d 622,624(2d Cir. 1995). Here,
the indictment cited the relevant statute and the allegations closely tracked the language ofthe

statute, including the approximate date and location ofthe crime and the identity ofthe victim.
Palmer v. Marshall. No. 07 CV 5917,2009 WL 47424, at *3(S.D.N.Y. Jan. 8,2009)(holding

that "[a]n indictment need only track the language ofthe statute and, if necessary to apprise the
defendant ofthe nature ofthe accusation[s] against him, state time and place in approximate

terms")(quoting United States v. Frias. 521 F.3d 229,235(2d Cir. 2008)). Contrary to

petitioner's contention, there is no requirement that the indictment contain detailed factual
allegations ofan evidentiary nature. See Bowman v. Ercole, No.09 CV 480,2010 U.S. Dist.
LEXIS 143026, at *77-81 (S.D.N.Y. Sep. 1, 2010), report and recommendation adopted bv 2011
U.S. Dist. LEXIS 42866(S.D.N.Y. April 11, 2011); People v. Soto. 52 A.D.2d 852, 852, 382

N.Y.S.2d 810,811 (1976), affd,44 N.Y.2d 683,376 N.E.2d 907(1978)(holding that the
indictment must contain a factual statement "without allegations of an evidentiary nature");

People V. Rampersaud, 52 A.D3d 336,337(1st Dep't 2008)(holding that "allegations of an
evidentiary nature" need not be contained in the indictment).

Accordingly,even ifthe first ground ofthe Amended Petition was not procedurally
barred from habeas review, a review of the merits ofthe claim shows that the state court's
28

decision was neither contrary to nor involved an unreasonable application of clearly established
federal law.

B.

Ground Two - Actual Innocence

Petitioner's second basis for habeas relief is that he was actually innocent of the

attempted murder charge and that he was only convicted due to his trial counsel's ineffective
assistance and the prosecutor's misconduct, which prevented him from receiving a fair trial.
(Am. Pet. at 8). In his Petition, petitioner cites various portions of George's testimony as George

was describing the number of gunshots, where petitioner aimed his gun, where George was after

he got out ofthe car, and how he was being chased around the vehicle by petitioner. (Id at 8-9).
Petitioner argues that George's statements during certain parts ofthe testimony were

contradicted by other parts of his testimony and by Officer Domarecki's testimony as to the
location ofthe glass fragments from the bullets. (Id at 9). Petitioner also points to the facts
contained in the DD-5 investigation report prepared on the date ofthe incident by Detective
Amao based on his interview with George,and the facts set forth in the complaint room

screening sheet prepared on the day of petitioner's arrest by Myles McKenna,arguing that there
were statements in the initial report and the screening sheet that contradicted those of George at
trial. (Id at 9-10).

Petitioner argues that these facts were not brought to the jury's attention and would have
demonstrated that petitioner was not shooting at George, but rather was firing at the car and was
therefore not guilty of attempted murder. (Id at 11). Petitioner contends that George's

contradictory testimony, when considered with other evidence,including the location ofthe

damage caused by the bullets to the car, shows that George altered his testimony and
intentionally lied in order to support the attempted murder charge. (Id) Petitioner further argues
29

that the prosecutor in her opening statement "knowingly used perjured testimony" to obtain his
conviction on the attempted murder charge because the prosecutor "states exactly what George
testified too [sic]," and did not include facts that appeared in the screening sheet or the

investigation report. (Id at 15). Petitioner also argues that trial counsel was ineffective for
failing to bring these inconsistencies to the attention of the jury. (Id)
Like the first claim, this claim of actual innocence had not been exhausted at the time the

initial habeas Petition was filed, but petitioner did raise this argument in his Section
440.10/440.20 motion filed with the state court on March 31, 2015. Thus,the claim has now
been exhausted.

In reviewing the claim of actual innocence and the related claims of ineffective assistance

and prosecutorial misconduct, the state court found that both the allegations of prosecutorial
misconduct and ineffective assistance of trial counsel were procedurally barred because these

claims could have been raised on direct appeal or in an earlier motion but were not. (Barall Aff.,

Ex. Y at 6). Therefore, like petitioner's claim relating to the adequacy ofthe indictment,the
court held that these claims were barred pursuant to Criminal Procedure Law Section
440.10(3)(c). (Id)

Under federal law, a claim for actual innocence can be the basis for considering a claim

that is time-barred or procedurally barred. See McOuiggin v. Perkins, 569 U.S. at 386(holding
that actual innocence "if proved, serves as a gateway through which a petitioner may pass

whether the impediment is a procedural bar ... or ... expiration ofthe statute oflimitations");
Rivas V. Fischer. 687 F.3d 514,540(2d Cir. 2012). A claim of actual innocence must be "both

'credible' and 'compelling.'" Rivas v. Fischer,687 F.3d at 541. In order for a petitioner to
demonstrate a "credible" claim of actual innocence, there must be "'new reliable evidence.'" Id
30

(quoting Schlun v. Dele. 513 U.S. 298,324(1995)). This may consist of new exculpatory
evidence not presented at trial, including scientific evidence, eyewitness accounts that are

deemed trustworthy, or critical physical evidence. Id Petitioner must also demonstrate that "in

light ofthe new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.
..." Id In McOuiggin v. Perkins, the Supreme Court made it clear that "[t]he gateway should

open only when a petition presents 'evidence ofinnocence so strong that a court cannot have
confidence in the outcome ofthe trial.'" 569 U.S. at 401 (quoting Schlun v. Delo. 513 U.S. at
316).

In this case, petitioner raised his claim of actual innocence before the state court in his
Section 440.10/440.20 motion, which evaluated the claim and denied it on the merits. (Barall

Aff,Ex. Y at 3). The court found that the facts as summarized in the earlier reports were not

inconsistent with George's trial testimony. (Id at 5). In his habeas Petition, petitioner simply

reargues the points raised in his prior motion and does not provide any new evidence, much less
the credible and compelling evidence necessary to convince a court that it could not have
confidence in the outcome ofthe trial.

Am.Pet. at 8-15). Having reviewed the allegations

in his Petition thoroughly, the Court finds no basis to conclude that the state court's evaluation of
the merits was erroneous or that there was any new evidence presented to this Court that would
demonstrate his actual innocence. Thus,the Court finds that petitioner has not carried his

The question of whether there is a freestanding federal constitutional claim of actual
innocence is still an open question, and even if it was an available claim, the Supreme Court has
held that the showing for such a claim would be "extraordinarily high." Herrera v. Collins, 506
U.S. 390,417(1993); see also Green v. Lee, No. 14 CV 6344,2016 WL 110524, at *9(S.D.N.Y.
Jan. 8,2016)(observing that "[njeither the Supreme Court nor the Court of Appeals for the
Second Circuit has ever concluded that a habeas court can entertain a free-standing claim of

actual innr>cence"T report and recommendation adopted. No. 14 CV 6344,2016 WL 1275051

(S.D.N.Y. Mar. 31,2016). As noted in Davis v. Walsh,No.08 CV 4659,2015 WL 1809048,
*12(E.D.N.Y. April 21,2015), where the petitioner merely "marshals the same arguments about
31

burden of showing that the state court's denial of his actual innocence claim was contrary to or

an unreasonable application of clearly established federal law. See Carev v. Musladin. 549 U.S.

70, 72-77(2006); Allah v. Cunningham. No. 13 CV 2805,2016 U.S. Dist. LEXIS 9615, at *1924(E.D.N.Y. Jan. 27, 2016); Davis v. Walsh.2015 WL 1809048 at *11-12.

As to the related claims of prosecutorial misconduct and ineffective assistance of counsel,
the state court also considered and rejected those claims on the merits despite the procedural bar.

(Barall Aff., Ex. Y at 5-6). With respect to the claim of misconduct on the part ofthe prosecutor

in presenting George's testimony, the state court found that based on the record, there was no

evidence that George made a false statement or that the prosecutor knowingly procured false

testimony. (Id at 5). Thus,the court found that there was no merit to the claim of prosecutorial
misconduct. (Id.j

To the extent that petitioner was complaining about counsel's failure to use the DD-5 and

ECAB reports at trial, the court found that counsel could not have used this evidence for
impeachment purposes because "the source ofthe information is not provided in the document
and the individual who prepared it did not testify." (Id) Accordingly, the court concluded that
there was no basis for finding that counsel was ineffective. (Id)

Where a defendant has made a claim that he received ineffective assistance of counsel, he

must show that counsel's performance "fell below an objective standard ofreasonableness" and
that there is a reasonable probability that absent this error in performance,the outcome ofthe
trial would have been different. Strickland v. Washington,466 U.S. at 688; Gonzalez v. United

his trial counsel's failure to introduce" certain testimony,"[tjhis showing falls woefolly short of

the applicable threshold." Given the Court's finding as to petitioner's failure to satisfy the
standards for overcoming the state court's conclusion on the merits of his claim, the Court finds
no reason to evaluate it as a freestanding claim.
32

States. 337 F. Supp. 2d 419,423(E.D.N.Y. 2004)(citing United States v. Leslie. 103 F.3d 1093,
1099(2d Cir.), cert, denied. 520 U.S. 1220(1997)). To establish a claim ofineffective
assistance oftrial counsel, a petitioner must prove: (1)that counsel's performance was deficient
in that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment," and (2)that this deficient performance prejudiced the defense in that the errors
were "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland v. Washington. 466 U.S. at 687. "[T]he burden rests on the accused to demonstrate a
constitutional violation." Carrion v. Smith. 549 F.3d 583, 588(2d Cir. 2008)(citing United
States V. Cronic. 466 U.S. 648,658 (1984)).

Prior to the passage of AEDPA,habeas review of a claim ofineffective assistance of

counsel required courts to "judge the reasonableness of counsel's challenged conduct on the facts

ofthe particular case, viewed as ofthe time of counsel's conduct." James v. Coughlin. 22 F.3d
427,429(2d Cir. 1994)(quotations and citations omitted). Under AEDPA,a habeas court

reviewing the decision of a state appellate court that has denied a claim ofineffective assistance
ofcounsel must deny an application for a writ of habeas corpus unless the adjudication ofthe
state law claim "involved an unreasonable application of[] clearly established Federal law,as

determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Under AEDPA,"the Strickland standard ... is the relevant 'clearly established Federal

law, as determined by the Supreme Court ofthe United States.'" Aparicio v. Artuz. 269 F.3d at

95 & n.8(quoting 28 U.S.C. § 2254(d)(1)). However,for purposes of AEDPA,a petitioner need
not demonstrate that his particular theory ofineffective assistance of counsel is itself also

"clearly established." Id at 95 n.8. Rather, for a petitioner to succeed under Section 2254(d)(1),
he must show that the state court applied Strickland to the facts of his case in an "objectively
33

unreasonable manner." Bell v. Cone. 535 U.S. 685,698-99(2002); see also Yarborough v.
Gentry. 540 U.S. 1,5 (2003).

Before examining the specific claim, the Court notes that in evaluating claims of
ineffective assistance of counsel, the New York Court of Appeals noted in People v. Baldi. 54

N.Y.2d 137, 146-47,429 N.E.2d 400,405,444 N.Y.S.2d 893,898 (1981),that the court must

"avoid both confusing true ineffectiveness with mere losing tactics and according undue

significance to retrospective analysis. It is always easy with the advantage of hindsight to point
out where trial counsel went awry in strategy." Counsel's decision as to how and with what
information to cross examine a witness is clearly a strategic decision that the court should not
second guess. People v. Baldi. 54 N.Y.2d at 146-47.

Here, petitioner faults counsel for failing to impeach George's credibility using these
inconsistences. As petitioner's appellate counsel noted in the Affirmation in Response to Coram

Nobis Application, trial counsel focused on other aspects of George's credibility and did "an

adequate job of assailing Mr. George's credibility." (Fahey Aff.^^ U 9). A review ofthe trial
transcript shows that George was put in a situation that was fast paced and clearly frightening
from the perspective ofsomeone being shot at multiple times. (Tr. at 188-93; see also Fahey

Aff. 1111). While petitioner may have identified minor inconsistencies in the details of where
George was at the time specific shots were fired, none ofthese rise to the level of outright lies.
At the same time, there was indisputable evidence that the vehicle had been shot in a variety of
locations, corroborating George's testimony that petitioner was chasing him around the vehicle

shooting at him, and there was no evidence to demonstrate that George's identification of
Citations to "Fahey Aff." refer to the affirmation of Lynn Fahey, petitioner's appellate
counsel, in response to petitioner's Motion for a Writ of Error Coram Nobis, dated March 4,
2014 and attached to Respondent's Oct. 21,2014 Letter as Exhibit R,ECF No. 8.
34

petitioner as the shooter was inaccurate. (See, e.g.. Tr. at 10-12).
Moreover, as the state court noted,the information contained in the screening sheet could

not have been used for impeachment purposes because the source ofthe information was not

given in the documents,and the individuals who prepared the document were not called to testify
at trial. See Haves v. Conwav.No.08 CV 5280, 2010 U.S. Dist. LEXIS 72542, at *36-37

(E.D.N.Y. July 19, 2010)(holding that because "the source ofthe information contained in the

police report[was] not given,... the hearsay contained in the report cannot be considered a prior
inconsistent statement... such that it could be used to impeach the witness"). The reason for

such a ruling is clear in that any inconsistencies in documents prepared by others were not

necessarily inconsistent with the witness's testimony. Escobar v. Senkowski. No.02 CV 8066,
2005 U.S. Dist. LEXIS 44164, at *62-63(S.D.N.Y. May 26,2005), report and recommendation
adopted bv 2005 U.S. Dist. LEXIS 19234(S.D.N.Y. Sep. 7,2005)(holding that there was no
ineffective assistance of counsel where trial counsel failed to impeach using a prior statement in

a police report because the report"was not a prior inconsistent statement at all").
Petitioner has failed to show that counsel's failure to use these documents to impeach

George's trial testimony fell below an objective standard ofreasonableness. Nor has he shown
that the outcome ofthe proceeding would have been different had the documents been used.
Counsel's decision to focus on other areas of George's testimony is not something that is a basis

for granting the Petition, and the state court's decision to reject these claims is neither contrary to
clearly established federal law, nor did it result in a decision based on an unreasonable
determination of the facts in light ofthe evidence before the state court.

Similarly, petitioner did not provide any evidence to prove that George gave perjured
testimony or that the prosecution knowingly procured perjured testimony. Accordingly, the state
35

court's decision to reject the prosecutorial misconduct claim is neither contrary to clearly
established federal law, nor did it result in a decision based on an unreasonable determination of

the facts in light ofthe evidence before the state court.
C.

Ground Three-Ineffective Assistance of Appellate Counsel

Petitioner's third claim is that he received the ineffective assistance of his appellate

counsel. (Am. Pet. at 16). In support ofthis claim, petitioner cites the alleged inconsistencies in

George's testimony noted supra p. 29, and he contends that appellate counsel was ineffective
because the brief before the Appellate Division failed to properly bring these inconsistencies to

the attention ofthe court on appeal. (IdJ He appears to be arguing that if the Appellate Division
had been made aware of these inconsistencies, they might have held the evidence insufficient to

support the verdict. (Id.) Petitioner also challenges appellate counsel's effectiveness in arguing
the strength ofthe evidence, the ineffective assistance oftrial counsel claim, and the claims
related to his sentence. (Id.)

Petitioner raised these claims in his petition for a writ of error coram nobis on December

17,2013.

10/21/2014 Ltr., Ex. Q^^). On June 4, 2014,the Appellate Division denied

petitioner's motion, and on September 18,2014,the Court of Appeals denied petitioner

permission to appeal to that court. People v. Nedd. 118 A.D.Sd 731, 986 N.Y.S.2d 849(2d
Dep't 2014), Iv denied, 24 N.Y.3d 963(2014). Accordingly, petitioner's third ground for habeas
relief has been exhausted.

The Strickland standard for ineffective assistance of counsel applies equally to appellate
counsel as well as trial counsel. See Smith v. Robbins. 528 U.S. 259,285(2000)(holding that

Citations to "10/21/2014 Ltr., Ex. Q"refer to petitioner's Motion for a Writ of Error
Coram Nobis. dated December 17,2013, and attached as Exhibit Q to respondent's Oct. 21,2014
Letter, ECF No. 8.
36

"the proper standard for evaluating [petitioner's] claim that appellate counsel was ineffective in
neglecting to file a merits brief is that enunciated in Strickland"'): Abdurrahman v. Henderson,
897 F.2d 71,74(2d Cir. 1990); Hughes v. Sheahan. 312 F. Supp. 3d 306,333(N.D.N.Y. 2018),
appeal dismissed. No. 18-1694,2018 WL 6334650(2d Cir. Nov. 16,2018). Accordingly, a

petitioner alleging ineffective assistance of appellate counsel must prove both that: (1) appellate
counsel acted unreasonably in failing to raise a particular issue on appeal, and(2)absent

counsel's deficient performance, there was a reasonable probability that defendant's appeal
would have been successful before the state's highest court. See Smith v. Robbins, 528 U.S. at

285; Aparicio v. Artuz,269 F.3d at 95. Failure to raise a meritorious issue of state law on appeal

may give rise to a violation offederal law sufficient to sustain habeas corpus relief only ifthe
relevant standards under Strickland are met. Mosbv v. Senkowski,470 F.3d 515,521 (2d Cir.
2006).

Appellate counsel "need not(and should not)raise every non-frivolous claim, but rather

may select from among them in order to maximize the likelihood ofsuccess on appeal." Smith
V. Robbins. 528 U.S. at 288(internal citations omitted). Indeed, it is not the role of a reviewing

court to second-guess the reasonable professional judgment of appellate counsel as to the most

promising claims on appeal. Lugo v. Kuhlmann,68 F. Supp. 2d 347,371-72(S.D.N.Y. 1999).
Thus,in order to establish constitutionally inadequate performance, a petitioner must show that

appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly
and significantly weaker." Rivera v. Portuondo, 156 F. App'x 426,427(2d Cir. 2005)(quoting
Mavo V. Henderson. 13 F.3d 528,533(2d Cir. 1994)).

Moreover,this Court is limited to determining that state appellate counsel was ineffective

only if counsel failed to raise a claim on behalf ofthe defendant that implicated a clearly
37

established federal law as determined by the Supreme Court. See Mosbv v. Senkowski,470 F.3d
at 519; Sellan v. Kuhlman,63 F. Supp. 2d 262,269(E.D.N.Y. 1999), affd. 261 F.3d 303(2d
Cir. 2001).

Although petitioner challenges the adequacy of appellate counsel's brief, it is clear that
counsel raised the issue ofthe legal sufficiency ofthe evidence and the excessive length ofthe
sentence. The brief also raised concerns about the ineffectiveness of trial counsel because: 1)

counsel failed to object to the police officer's testimony suggesting that petitioner had a criminal
record; 2)he mistakenly concluded his summation by asking the jury to find petitioner "guilty;"

and 3)he failed to object to certain allegedly improper comments made by the prosecutor in
summation. CSee also discussion infra pp. 47-51). Appellate counsel also made arguments

regarding the application ofthe facts to the law in this case and,following the Appellate
Division's affirmance ofthe conviction, counsel sought permission to appeal to the Court of

Appeals, which was denied. Moreover,to the extent that petitioner is focused on the failure to

bring the inconsistencies in George's testimony more forcefully to attention ofthe Appellate
Division, a claim similar to that was raised in his first motion for a writ ofcoram nobis and

rejected by the Appellate Division on the merits. People v. Nedd, 118 A.D.3d at 731.
Having reviewed petitioner's claim regarding the alleged inconsistencies in George's

testimony, and finding that such a claim was without merit, the Court finds that appellate
counsel's decision not to raise that claim on appeal does not rise to the level of ineffective

assistance of counsel as required by Strickland. As noted, appellate counsel is not required to

raise every non-frivolous claim, and it is not this Court's role to second-guess appellate counsel s
"reasonable professional judgment" as to which claims to raise as the most promising claims on

appeal. Lugo v. Kuhlmann.68 F. Supp. 2d at 371-72; see also Smith v. Robbins, 528 U.S. at 288

38

(internal citation^ omitted). Accordingly,the Court finds that in rejecting petitioner's claim of
ineffective assistance of appellate counsel, the state court did not unreasonably apply well
established federal law.^^
D.

Ground Four - Legal Insufficiency ofthe Evidence

Petitioner's fourth claim for habeas relief is that the evidence was insufficient to establish

petitioner's guilt of attempted murder beyond a reasonable doubt because the evidence only
reflected petitioner's intent to damage the car and not to kill George. (Am. Pet. at 31). Petitioner
raised this claim before the Appellate Division in his direct appeal(Appeal Br. at 18-25), and the

Appellate Division found that the evidence "was legally sufficient to establish the defendant's

guilt of attempted murder in the second degree beyond a reasonable doubt," and that the verdict

was not against the weight ofthe evidence. People v. Nedd.90 A.D.3d at 1076. Petitioner has
not demonstrated that the state court's decision on this issue was an unreasonable application of

clearly established federal law.

In challenging the legal sufficiency ofthe trial evidence, a defendant carries a"very

heavy burden," Fama v. Comm'r of Corr. Servs., 235 F.3d at 81; Einaugler v. Supreme Court of
N.Y.. 109 F.3d 836,840(2d Cir. 1997), and cannot succeed if"after viewing the evidence in the

light most favorable to the prosecution, any rational trier offact could have found the essential
elements ofthe crime beyond a reasonable doubt." Jackson v. Virginia,443 U.S. 307, 319

As stated supra note 18, petitioner argued in his original habeas Petition that his

appellate counsel provided ineffective assistance by failing to raise the alleged deficiencies ofthe
indictment on appeal. (Pet. at 11). Although he does not raise this argument in his Amended
Petition, the Court has reviewed it out of an abundance of caution, and notes that petitioner
exhausted this claim through his coram nobis motion. (10/21/2014 Ltr., Ex. Q). However, given
that this Court found that the indictment satisfied constitutional requirements(see supra pp. 26-

29), the Court denies this claim on its merits, as appellate counsel was not required under
Strickland to raise a non-meritorious claim.
39

(1979). The habeas court is required to "defer to the jury's resolution of any conflicts in the
testimony and to its assessment of the credibility ofthe witnesses." Harden v. LaClaire, No.07
CV 4592,2008 U.S. Dist. LEXIS 23617, at *29-30(S.D.N.Y. Mar. 26,2008).

In evaluating the state law charge of attempted murder in the second degree, the law is
clear that the issue ofintent may be inferred from the act itself or from the defendant's conduct.
Hughes V. Lebron. No. 14 CV 9479,2016 WL 5107030, at *8(S.D.N.Y. Sept. 19,2016)(citing
People V. Bracev. 41 N.Y.2d 296, 301,392 N.Y.S.2d 412,416(1977)). Although petitioner

argues that he only intended to damage George's car, the evidence suggests otherwise. The

photographs and officers' testimony regarding the location ofthe bullets corroborated George's
testimony about the shooting and petitioner chasing him around the car. Moreover,the existence
of the live rounds recovered at the scene corroborates George's testimony that the gun jammed

and petitioner tried to clear it. Taken together, this evidence was clearly sufficient for the jury to
conclude that petitioner was notjust shooting at the car, but was attempting to kill George.

Indeed,if petitioner's only intent was to damage the car, he would not have followed George
around the car, and the location ofthe bullet holes corroborate George's testimony that petitioner

was shooting directly at him as he moved. To the extent that petitioner has raised various

arguments in his papers, these merely reflect his disagreement with the jury's assessment of
George's credibility, which go only to the weight and not the sufficiency of the evidence. (Resp.
Mem.27 17 (citing Correav. Duncan. 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001)(noting that

federal courts are precluded from considering a claim that the verdict was against the weight of
the evidence))).

Citations to "Resp. Mem." refer to respondent's Memorandum of Law,filed in

opposition to petitioner's original Petition for a Writ of Habeas Corpus, dated December 5,2013,
ECF No. 7.
40

Having thoroughly reviewed the arguments here, the Court concludes that there was no
error on the part ofthe state court with respect to evaluating the sufficiency ofthe evidence that
would warrant habeas relief.

E.

Grounds 5 and 6-Petitioner's Comnetencv

Petitioner's fifth claim is that the trial court erred in not sua sponte ordering a

competency examination to determine if petitioner was fit to stand trial. (Am.Pet. at 31). In
addition to complaining about the trial court's failure to order a competency exam, petitioner
argues in his sixth claim for relief that the failure oftrial counsel to investigate and present

evidence of petitioner's incompetence to stand trial constituted ineffective assistance of counsel.
m

Petitioner argues that there was "overwhelming evidence" that he was mentally unstable
at the time oftrial, citing: 1) his attempted escape after the verdict but before final judgment; 2)

his involuntary commitment to Bellevue Hospital Center for psychiatric treatment; 3)his

diagnosis and treatment at Bellevue; 4)the report oftwo psychiatrists at Bellevue; 5)the trial
court's acknowledgment of petitioner's mental issues; 6)the acknowledgment by his defense

counsel that petitioner had previously been diagnosed with bi-polar disorder; 7)the behavior of
petitioner at trial; and 8)the admission by the prosecution on appeal that the trial court was
aware of petitioner's mental disability. (Id. at 31-32). Thus, he argues that both the trial court
and trial counsel failed to adequately address his competency.

Neither ofthese claims were raised in petitioner's original habeas Petition, but petitioner
did raise them in his October 9,2012 motion to vacate the judgment pursuant to Criminal
Procedure Law Section 440.10.

Koelsch Aff., Ex. H). By Order dated February 21,2013,

the Kings County Supreme Court rejected these claims on the merits. The court stated: "Based

41

on the court's colloquy with defendant and observations of his demeanor during the course ofthe
trial there was no reasonable basis for this Court to believe that the defendant was unable to

understand the charges against him or the proceedings that were taking place." (Koelsch Aff,
Ex. J at 5). The court went on to find that the "record shows that the defendant was alert,
coherent, and able to participate in the legal proceeding." (Id.)

On March 28, 2013, petitioner applied for leave to appeal the State Supreme Court's

decision, which was denied on July 26,2013. Thus,these claims have now been exhausted.
However,as stated above, the Court finds that they are untimely. (See discussion sutira p. 20).

Nevertheless, having reviewed the submissions by petitioner and the State, there is

nothing upon which to conclude that the State Supreme Court unreasonably applied well
established federal law in rejecting these claims. As stated above, in asserting a claim of
ineffective assistance of counsel, petitioner must show that counsel's performance "fell below an

objective standard ofreasonableness" and that there is a reasonable probability that absent this
error in performance, the outcome ofthe trial would have been different. Strickland v.
Washington.466 U.S. at 688. Mr. Farkas, who represented petitioner from shortly after his

arrangement until March 28,2008, and Mr. Sweeney, who represented petitioner from April 17,
2008 until approximately January 2009, both provided affirmations that they believed petitioner

was competent while each attomey represented him. (Farkas Aff. & Sweeney Aff.^^). The
attorneys' failure to pursue a motion that they deemed to be without merit is not grounds for a
finding of ineffective assistance ofcounsel. See 28 U.S.C. § 2254(d)(1); United States v.

Citations to "Farkas Aff." and "Sweeney Aff." refer to the Affidavits of petitioner's

counsel, George A. Farkas, Esq. and Thomas Sweeney, Esq., dated November 12, 2012 and
November 14,2012,respectively, and attached to the Affirmation of Adam M.Koelsch in
Opposition to Motion to Vacate Judgment,ECF No. 7.
42

Regalado. 518 F.3d 143, 150 n.3 (2d Cir. 2008); Aparacio v. Artuz. 269 F.3d at 99 &n.lO.

With respect to the court's failure to order a competency hearing sua sponte. the Court
finds that there was no reason for the trial court to doubt petitioner's ability to understand the

proceedings, based on the court's interactions with petitioner as well as his conduct during the
trial See People v. Tortorici. 92 N.Y.2d 757, 765,709 N.E.2d 87(1999)(noting that"a

defendant is presumed to be competent," and that the decision to order a competency
examination "lies within the sound discretion ofthe trial court"). This finding is bolstered by the

psychiatric examination performed in this case, after which two medical professionals opined on
June 26, 2009,that Mr. Nedd did not lack the capacity to understand the proceedings against
him. (Tr. at 672).

Accordingly, the Court denies grounds five and six on the merits.
F.

Grounds Seven. Eight, and Nine - The Illegality of Petitioner's Sentence

In challenging his sentence, petitioner raises several claims: 1)that he should have

received leniency because he was a first time offender(Ground 7); 2)that the sentence exceeded
federal sentencing guidelines(Ground 7); 3)that the sentence punished petitioner for going to

trial(Ground 7); and 4)that New York's Penal Law Section 70.02 is unconstitutional because

the sentencing scheme lacked standards to govern the court's exercise of discretion(Grounds 8
and 9). (Am.Pet. at 33-34, 38-39).

Petitioner received a concurrent sentence of20 years on the attempted murder count, 15

years on the criminal possession of a weapon count, and one year on the criminal mischief count.
(Tr. at 440). The sentences imposed on the weapon and criminal mischief charges were the
maximum permitted under New York Penal Law. See N.Y. Penal L. §§ 70.02(l)(b),(3)(b),
70.15(1), 145.00(1), 265.03(2). The 20 year sentence imposed on the attempted murder charge

43

was less than the maximum, which is 25 years.

id §§ 70.02(l)(a),(3)(a), 110/125.25(1).

Petitioner challenged his sentence in part in his brief on direct appeal, where he argued
that as a first time felony offender who had been offered a plea to 2 years and 5 years, his

sentence was excessive. (Appeal Br. at 38-40). Lynn Fahey, his attorney on appeal, argued for

leniency, citing his youth, his lack of a criminal history, his mental health, and the fact that no
one was hurt in the incident. (Id.) The Appellate Division rejected his sentencing claim on the
merits without discussion. People v. Nedd.90 A.D.3d at 1076.

He also challenged his sentence in his March 31, 2015, motion to vacate the judgment

and set aside the sentence, arguing that he should have been granted leniency as a first time
offender, his sentence exceeded federal sentencing guidelines, and he was punished for

exercising his right to go to trial. (Barall Aff,Ex. W). Moreover, petitioner argued in his 2015
motion - as he does in Ground Bight of his amended habeas Petition -that New York State
Penal Law Section 70.02 is unconstitutional. (Id) Petitioner also argued in his 2015 motion that

his sentence violates the constitutional guarantee of equal protection, as raised in Ground Nine of
the Amended Petition. (Id)

On October 27, 2015,the state court rejected these arguments on the merits, stating "[t]he
sentence he received ... is within the statutorily prescribed range for such an offense

Absent

any legal basis for defendant's challenge to his sentence, this claim is rejected." (Barall Aff., Ex.
Y at 7). As stated above, petitioner's application for leave to appeal this decision was denied on

April 7,2016, and his application for leave to appeal to the Court of Appeals was also denied on
June 27, 2016. Thus,these claims have been exhausted.

Petitioner claims that the disparity between the plea deals, which offered a term oftwo to

five years, and the sentence imposed by the state court of20 years demonstrates that the court

44

sentenced him to this high sentence in retaliation for petitioner's decision to proceed to trial.
(Am. Pet. at 34). Not only is there no suggestion in the record that the court was penalizing

petitioner for exercising his right to proceed to trial, but courts have held that the fact that the
court imposed a greater sentence after trial, does not, in itself, suggest vindictiveness on the part
ofthe court. See United States ex rel. Williams v. McMann.436 F.2d 103, 106-07(2d Cir.

1970)(finding disparity of pretrial offer ofthree to seven years as opposed to the five to ten

years imposed by the court not evidence of vindictiveness on the part of court or prosecution);
Van Gorder v. Allerd. 387 F. Supp. 2d 251, 260(W.D.N.Y. 2005)(holding that there was no

basis to argue that the court was acting vindictively in imposing a more severe sentence than

offered at the time of plea). The facts ofthis case differ from those in Izaeuirre v. Lee,in which
the district court found that the petitioner was entitled to a presumption of vindictiveness when

the sentencing judge asked the petitioner - after he had rejected a plea deal but before trial had
commenced -"do you understand that if you are found guilty after this trial you will do 25 years

in prison?," and then sentenced him to 25 years, which was the non-mandatory statutory
maximum. 856 F. Supp. 2d 551, 574(E.D.N.Y. 2012). In the absence of any independent

evidence to support petitioner's assertion of vindictiveness, the state courts correctly found no
basis on which to vacate the sentence.

Moreover, since matters relating to sentencing are govemed by state law and not

cognizable in a habeas corpus proceeding, see Glucksman v. Bims,398 F. Supp. 1343, 1352
(S.D.N.Y. 1975), and since the sentence was within the range prescribed by state law,"no
federal constitutional issue is presented," White v. Keane 969 F.2d 1381, 1383-84(2d Cir. 1992),

and petitioner's claim regarding his sentence is not a ground for this Court to grant habeas relief.
See also Hvattv. Bellnien No.09 CV 6594,2009 WL 3423359, at *14(S.D.N.Y. Oct. 23,2009)

45

(holding that "[a]n excessive sentence claim does not provide a basis for habeas relief).
Similarly, to the extent that petitioner argues that his sentence exceeded federal
sentencing guidelines, this claim is not cognizable in an application for habeas relief because his

sentence is governed by state law and not the federal sentencing guidelines.^^ Thus, the Court
denies these claims on the merits.

G.

Ground Ten -Ineffectiveness of Appellate Counsel

Petitioner's tenth claim is that his appellate counsel was ineffective because counsel only

challenged the 20 year prison sentence when petitioner believes that counsel should have

challenged the concurrent sentence on all three charges as being unduly harsh for a first time
offender who had been offered a much lower plea deal. (Am.Pet. at 41). Petitioner raised this

claim of ineffective appellate counsel in his motion for a writ of coram nobis, and the Appellate
Division denied the claim on the merits, holding that "[t]he appellant has failed to establish that

he was denied the effective assistance of appellate counsel." 118 A.D.3d at 732(citing Jones v.
Barnes.463 U.S. 745,103 S. Ct. 3308,77 L.Ed.2d 987(1983); People v. Stultz. 2 N.Y.3d 277,
778 N.Y.S.2d 431, 810 N.E.2d 883 (2004)).

As the State noted in its brief before the Appellate Division, petitioner's appellate counsel

actually argued in her papers that the sentence on the weapons possession count should have
been shorter and could have been at a minimum three and one-half years. (10/21/2014 Ltr, Ex.

S^° at 21; Appeal Br. at 41;^Supp. Mem. at 11-12). Counsel argued that there was"no reason

... to impose the maximum available term for the weapons possession" count, and she argued

As stated above, this claim relating to the federal sentencing guidelines was also raised
in his second 440 motion, filed in March 2015. (See Koelsch Aff., Ex. H).
Citations to "10/21/2014 Ltr, Ex. S" refer to respondent's Memorandum of Law,filed

in opposition to defendant's Motion for a Writ of Error Coram Nobis and attached as
Respondent's Exhibit S to respondent's Oct. 21,2014 Letter, ECF No. 8.
46

that the sentence should be modified and petitioner given "shorter concurrent determinate prison

terms." (Appeal Br. at 40). Thus, contrary to petitioner's arguments, his appellate counsel did
challenge the excessiveness of the weapons charge.

Moreover, since the trial court ordered that the sentences on the weapons charge and the

criminal mischief charge were to run concurrently with the sentence imposed on the attempted

murder charge, those sentences were effectively subsumed within the attempted murder sentence

of20 years. As a result, even if counsel had been able to persuade the court to lower the
sentence on the weapons charge, petitioner would still have been facing 20 years on the

attempted murder charge. Thus, had petitioner shown that his appellate coxmsel failed to raise
this argument, he still would be unable to demonstrate that he suffered prejudice because the
court found that the 20 year sentence on the attempted murder charge was not excessive and
therefore would have remained unchanged, regardless ofthe outcome of this additional
argument.

Having reviewed the merits ofthis claim, the Court finds that petitioner has failed to
demonstrate that appellate counsel's representation in this regard "fell below an objective
standard of reasonableness" and that absent this error, the outcome ofthe appeal would have
been different. ^Strickland v. Washington,466 U.S. at 688.
H.

Ground Eleven - Ineffectiveness of Trial Counsel

Petitioner's final claim in his Amended Petition is that his trial counsel was ineffective

for: 1)failing to object when a police witness' testimony suggested that petitioner had a prior
criminal record; 2)concluding his summation by mistakenly asking the jury to find petitioner

"guilty;" and 3)failing to object to comments made by the prosecutor in summation. (Am.Pet.
at 44-45). This claim ofineffective assistance oftrial counsel was raised on direct appeal to the

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Appellate Division, which rejected the claim on the merits without further discussion. People v.
Nedd. 90 A.D.3d at 1076 (holding that the "remaining contentions are without merit").

With respect to the first basis for challenging trial counsel's performance, Detective
Amao testified at trial that he located petitioner by performing some "computer checks" and then

going to petitioner's address "that was in our records." (Tr. at 247-48). Although petitioner
argues that this testimony suggested that petitioner had a prior criminal record, there is no
evidence to suggest that this testimony, even ifthe jury interpreted it the way petitioner suggests,

was not harmless in light of all the other evidence of petitioner's guilt. Counsel's decision not to

object to this testimony may have been one ofstrategy and a desire not to bring additional
attention to the testimony. In total, the failure to object does not rise to the Strickland standard,
and there is no basis on which to conclude that the state court's determination in this regard

constituted an unreasonable application of that principle to the facts of petitioner's case.
Parks V. Sheahan, 104 F. Supp. 3d 271, 285(E.D.N.Y. 2015).

Similarly, the Appellate Division found the claim that counsel erred in misspeaking and
requesting that the jurors find petitioner "guilty" did not rise to the level ofineffectiveness

required by Strickland. Although it was unfortunate that counsel made this misstatement, shortly
after the defense summation,the court gave counsel an opportunity to correct the statement

before the jury. (Tr. at 360-61). Counsel explained to the jurors that he did not ask them to find
petitioner guilty, but that his sore throat and the emphasis that he put on the words made it sound
as if that is what he had said. (Id at 361). There is nothing in the record to suggest that the jury

did not accept this explanation, and it is highly unlikely that this misstatement led the jurors to
believe that counsel thought his client was guilty.

People v. Fludd. 173 A.D.2d 840, 570

N.Y.S.2d 663(2d Dep't 1991)(noting that "[a] solitary misstatement within the defense

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counsers summation is insufficient to support the defendant's contention that his counsel

conceded his guilt"); see also People v. Sweeney. 84 A.D.3d 1123,1124,924 N.Y.S.2d 802, 803
(2d Dep't 2011). Having reviewed the record, the Court concludes that the state court's
determination that this error did not rise to the level of ineffectiveness required by Strickland was

not an unreasonable application of that principle to the facts of petitioner's case.

Finally, to the extent that petitioner argues that trial counsel failed to object to certain
statements made by the prosecution in summation, again a review ofthe record supports the
reasonableness ofthe Appellate Division's determination that this did not rise to the level of

ineffective representation. In summation,the prosecution made several comments that petitioner
finds objectionable.

First, the prosecutor commented on petitioner's demeanor during the trial noting that

"[t]he defendant's not sitting over there at the table smiling right now because he was charged
with loading that firearm." (Tr. at 375). However,this comment was made in response to

petitioner's counsel's argument during cross examination that it was irrelevant whether

defendant's prints had been found on the recovered bullets, because he was not being prosecuted
for loading the gun, but for shooting at George. (Id.) The prosecutor did not suggest that the fact
that petitioner was smiling was evidence of guilt.

Second, petitioner argues that the prosecutor made inflammatory remarks, seeking to

invoke the juror's sympathy, when the prosecutor asked the jurors to imagine how George felt
during the shooting. (Id. at 372). This comment was made in the context ofthe prosecutor's

argument that it was unreasonable to believe that George, who had just been shot at several
times, had the presence of mind to fabricate his identification and frame petitioner when

speaking to the police immediately after the incident. (Id at 357, 359-60). Even if the remark

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was intended to promote sympathy,the trial court explicitly gave an instruction to the jury that it
could not base its verdict on sympathy. (Id at 393). The law presumes that the jury followed
this instruction. See Weeks v. Angelone. 528 U.S. 225,234, 120 S. Ct. 727, 145 L. Ed. 2d 727

(2000); United States v. Aquart. 912 F.3d 1, 34(2d Cir. 2018). Here,the court took steps to cure
whatever misconduct might have occurred from the prosecutor's remarks by giving this
instruction. See United States v. Shareef. 190 F.3d 71,78(2d Cir. 1999).

Petitioner also argues that in the summation, the prosecutor placed the jurors in the role

of"community defender." (Appeal Br. at 37-38). The comments though that are challenged by

petitioner simply asked the jury to return a verdict of guilty; there was no suggestion that the jury
had an obligation to the victim or the community. Such an argument has been held proper in the

past. See Davis v. Poole. 767 F. Supp. 2d 409,421 (W.D.N.Y. 2011); Figueroa v. Ricks, 378 F.
Supp. 2d 210,228(W.D.N.Y. 2005).

In reviewing a habeas claim based on prosecutorial misconduct in the context of
comments made during summation,the habeas court considers whether the prosecutor's
comments "'so infected the trial with unfairness as to make the resulting conviction a denial of

due process.'" Darden v. Wainwright,477 U.S. 168,181 (1986)(quoting Donnellv v.
DeChristoforo. 416 U.S. 637,643(1974)). As the court in United States v. Rodriguez noted,"It

is a 'rare case' in which improper comments in a prosecutor's summation are so prejudicial that a

new trial is required." 968 F.2d 130,142(2d Cir. 1992)(quoting Flovd v. Meachum.907 F.2d
347, 348(2d Cir. 1990)). In determining if the prosecutor's comments caused substantial

prejudice, the court should consider: 1)the severity ofthe misconduct; 2)whether the court took
measures to cure the misstatements; and 3) what the likely effect of the statements were on the
outcome of the trial. United States v. Zemlvanskv« 908 F.3d 1,16(2d Cir. 2018)(quoting

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United States v. Banki. 685 F.3d 99, 120(2d Cir. 2012)), cert, denied. No. 18-7778,2019 WL

499846(Mar. 18, 2019). Here, as noted, the prosecutor's comments were not improper.
Moreover,there has been no showing that even ifthe comments were improper that they caused

substantial prejudice to petitioner. The trial court gave specific instructions that summations

were simply arguments and not evidence, and in light ofthe evidence in support of petitioner's
guilt, petitioner has failed to demonstrate that these statements significantly impacted the
outcome of the trial.

For the same reason, trial counsel's decision not to object to these comments is not a

basis for concluding that petitioner received ineffective representation. ^United States v.
Cohen.427 F.3d 164, 170(2d Cir. 2005)(holding that the failure to object to a prosecution's

proper summation did not constitute ineffective assistance of counsel); Cuevas v. Henderson,
801 F.2d 586,592(2d Cir. 1986)(finding that because the prosecutor's summation was

appropriate, the defendant's counsel's failure to object did not support the conclusion that his
performance fell below the "reasonably competent" standard of Strickland).
Accordingly, based on the review ofthe record, the Court finds that the Appellate
Division's determination that petitioner's claims ofineffective assistance of trial counsel were

without merit was neither contrary to nor involved an unreasonable application offederal law
that would warrant habeas relief.

In addition to the ineffective assistance claims raised in the Amended Petition, petitioner
raised in his 2012 440 motion that his trial counsel should have advised him to take the pleas

offered by the prosecution. "Defense counsel have a constitutional duty to give their clients

professional advice on the crucial decision of whether to accept a plea offer from the
government." Pham v. United States. 317 F.3d 178,182(2d Cir. 2003)(citing Boria v. Keane.

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99 F.3d 492,498(2d Cir. 1996)). The evidence in the record demonstrates that petitioner's trial
counsel communicated with Mr. Nedd about the plea offers and the ramifications oftrial, and

Mr. Nedd rejected both offers. For example, during a pretrial hearing on March 29,2008,

petitioner's counsel, Mr. Farkas, informed the court that he had requested a two-year plea deal
from the government, but Mr. Nedd refused to accept it. (Tr. at 3). Moreover, during a pretrial

hearing on January 6,2009, Mr. Sweeney informed the court that petitioner had rejected a fiveyear plea deal, stating that Mr. Sweeney "had an opportunity to speak with Mr. Nedd on
numerous occasions about the potential for a conviction, as well as the potential exposure he
could suffer should he be convicted ofthe top count. [He][sjteadfastly maintained that is

innocent and rejected all offers by the District Attorney's Office." (Tr. at 12-13).
These transcripts are supported by the attorneys' affirmations. Specifically, Mr. Farkas
stated that he had advised defendant to take the two-year plea offer, given the evidence against

him and the potential sentence that he faced, but petitioner refused because he "wanted his trial."
(Farkas Aff. H 16). Mr. Sweeney also stated that he told petitioner that he would likely be
convicted, but again petitioner refused to accept the government's offer. (Sweeney Aff. Iffl 11,

12). These affirmations are further corroborated by Mr. Sweeney's handwritten notes, attached
to his affirmation. (Tr. at 769-70).

Based on the transcripts and affirmations, the Court finds that petitioner's trial counsel

adequately communicated the plea offers to petitioner as well as the risks of proceeding to trial,
and petitioner rejected the offers. Thus, in denying petitioner's initial 440 motion,the state court

properly concluded that trial counsel informed and advised petitioner about all plea offers,
meeting their obligations under Strickland. (See Barall Aff,Ex. Y at 6).

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CONCLUSION

In light ofthe above,the Petition for a writ of habeas corpus is denied, and the case is
dismissed. Since petitioner has not made a substantial showing that his constitutional rights

were denied, a certificate of appealability will not issue.^^ S^ 28 U.S.C. § 2253(c)(2).
Petitioner may request a circuitjudge ofthe United States Court of Appeals for the Second
Circuit to issue the certificate. Fed. R. App. P. 22(b)(1). The Court certifies pursuant to 28

U.S.C. § 1915(a)(3)that any appeal from this Order would not be in good faith, and therefore, in
forma pauneris status is denied for the purpose of an appeal. Coppedge v. United States, 369
U.S. 438,444-45 (1962).

The Clerk of Court is respectfully requested to enter judgment and close this case.
SO ORDERED.

Dated: Brooklyn, New York
May 14, 2019

s/Cheryl L. Pollak

Cheryl L.J^llak
United St^es Magistrate Judge
Eastern District of New York

To make this substantial showing, petitioner must demonstrate that "reasonable jurists
could debate whether (or, for that matter, agree that)the petition should have been resolved in a
different manner or that the issues presented were 'adequate to deserve encouragement to

proceed further.'" Slack v. McDaniel. 529 U.S. 473,475,120 S. Ct. 1595,1599, 146 L. Ed. 2d
542(2000)rquoting Barefoot v. Estelle. 463 U.S. 880,893 & n.4, 103 S. Ct. 3383, 3395,77 L.
Ed. 2d 1090(1983)).

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