Acevedo v. Capra

Filing 15

MEMORANDUM DECISION AND ORDER: The petition for a writ of habeas corpus is denied, and the case is dismissed. A certificate of appealability shall not issue. See 28 U.S.C. § 2253(c). Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444, 82 S. Ct. 917, 920 (1962). Ordered by Judge Brian M. Cogan on 3/25/2014. (Barrett, C)

UNITED STATES DISTRICT COURT
C/M
EASTERN DISTRICT OF NEW YORK
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:
DENNYS ACEVEDO,
:
: MEMORANDUM
Petitioner,
: DECISION AND ORDER
:
- against : 13 Civ. 5579 (BMC)
:
MICHAEL CAPRA, Superintendent at
:
Sing Sing Correctional Facility,
:
:
Respondent.
:
:
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COGAN, District Judge.
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his
conviction for first degree manslaughter. As to those claims raised on direct appeal, I hold that
the rejection of one of the claims was not inconsistent with nor did it unreasonably apply
Supreme Court precedent. As to petitioner’s second claim, I hold that it is deemed exhausted
and procedurally barred because petitioner did not raise it as a federal claim on direct appeal.
Most of petitioner’s other claims are procedurally barred, but he has exhausted ineffective
assistance of counsel claims as to those barred contentions, so the petition largely turns on the
review of his ineffective assistance claims as constituting cause to excuse the procedural bar.
The ineffective assistance of counsel claim presents a procedural posture often seen but
rarely analyzed, raising issues about both the proper application of the New York Criminal
Procedure Law in state court and how that law intersects with the standard of federal habeas
corpus review. Under New York law, ineffective assistance of counsel claims that are based on
errors or omissions that appear on the record of a defendant’s direct appeal must be raised on that
direct appeal or they are deemed forfeited. Conversely, counsel errors based on matters that do

not appear on the record cannot be raised on direct appeal and must be raised in collateral
proceedings. But what happens if a defendant’s ineffective assistance claim alleges both on the
record and off the record error? Which state court considers the possibility that while each
individual counsel error may not have prejudiced a defendant, the sum total of error, both on the
record and off, does?
Recent decisions from the Appellate Division, Second Department, which rendered the
decision under review here, hold that a collateral proceeding is the proper place to raise these
“mixed” claims of ineffective assistance. Nevertheless, it appears that these holdings have not
taken root with either the District Attorneys’ offices within the Second Department, nor with
some of the trial courts in that jurisdiction. As occurred in this case, District Attorneys continue
to assert in collateral state court proceedings that any claims of counsel error that could have
been raised on direct appeal are procedurally barred, and the court in the collateral proceeding
can only hear claims of counsel error based on matters that are off the record. The state courts,
as occurred in this case, often oblige, and to make matters more complicated, often do not
expressly distinguish which claims they believe to be off the record, and thus are being
considered on the merits, and which claims they believe are procedurally barred by the failure to
raise them on direct appeal.
After some initial resistance, respondent in the instant case has conceded at the Court’s
urging that when this occurs, this Court cannot apply the deferential standard of review normally
applied in federal habeas corpus proceedings under the Antiterrorism and Effective Death
Penalty Act of 1996. No state court has evaluated the ineffective assistance claim in its totality,
and petitioner cannot be faulted because he fully utilized the available state procedures to

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exhaust the claim in the only manner provided by state law. Under these circumstances, the
ineffective assistance claim must be considered de novo.
Having undertaken this analysis, I conclude that none of the counsel errors alleged by
petitioner can be classified as objectively unreasonable decisions by counsel, nor can I conclude
that petitioner was prejudiced. I therefore deny the ineffective assistance claim along with the
other claims and dismiss the petition.
BACKGROUND
Petitioner’s conviction arose out the stabbing death of one Jose Santiago. Santiago and
his friend Richard Gonzalez encountered a group of men and women in a diner that included
petitioner and his friend Jose Placencia. The encounter occurred after 4:00 a.m., after all of the
participants had spent the night at a nightclub. Words were exchanged in the diner and the
exchange escalated into a street fight a short distance from the diner, in which Santiago was
stabbed and ultimately died. A medical examiner testified that Santiago died from being stabbed
multiple times with such force that his ribs were broken and his heart was pierced.
Following the incident, petitioner fled, making a stop at his girlfriend’s sister’s house in
Pennsylvania, then going on to the Dominican Republic, where he was found and extradited
seven years later. As discussed below, the time lapse has significance, since by the time
petitioner was extradited, neither of the two identifying witnesses could identify petitioner in
court, even though they had independently picked out his photograph immediately following the
incident.
The morning of Santiago’s death, the investigating detective, Martin, interviewed
González, who gave a description of the two men who had fought with Santiago as Hispanic and

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Dominican. Detective Martin had worked in the precinct for a decade, knew that it was a
Dominican neighborhood, and knew that a street gang called Los Papi Chulos was active there.
The next day, Detective Martin and another detective interviewed a disinterested witness,
Raul Rios, who had witnessed the fight and attempted to give aid to Santiago after the stabbing.
Rios did not know Santiago or Gonzalez, but knew by sight the two men who had fought with
Santiago. He described the two men as Dominican, one dark-skinned with a light mustache, and
the other light-skinned with bleached blonde hair. Martin, who had no suspects at that point,
showed Rios 27 photographs of people who Martin thought were affiliated with Los Papi
Chulos. Rios picked petitioner’s photograph out of the group, and Martin issued a warrant for
petitioner’s arrest.
Martin then created a photo array that included petitioner’s picture and five others. He
testified that he included photographs that had similar physical characteristics to petitioner as to
likeness, skin color, and ethnicity. A computer then randomly arranged the comparables that
Martin had selected in the array. Martin showed the array to Gonzalez that same day. Gonzalez
identified petitioner and signed petitioner’s photograph to so indicate. Rios identified petitioner
out of another copy of the same photo array, also signing his name, and identified Placencia as
the second assailant out of a different photo array.
The facts were disputed at trial as to who the aggressor in the fight was and who had
stabbed Santiago. Gonzalez testified that he saw the fight but could not see who had stabbed
Santiago. However, he further testified that after petitioner and Placencia ran away when
Santiago was stabbed, petitioner returned, holding a knife, and Gonzalez told him they didn’t
want any more trouble. Gonzalez testified that he did not see where petitioner went after that.

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Prior to petitioner’s trial, Placencia pled guilty to first degree manslaughter, stating in his
allocution that he and petitioner had intended to cause Santiago serious physical injury and had
caused his death. At trial, however, he testified on behalf of petitioner more specifically than his
allocution and said that he (Placencia) had stabbed Santiago but that was because Santiago had
“walk[ed] into the knife,” which Placencia testified was only two inches long and which
Placencia had drawn only to scare Santiago. Thus, Placencia’s story was that Santiago had
effectively impaled himself on the knife. Placencia further testified that petitioner had only
punched Santiago when Santiago came at them. Petitioner testified in his own behalf as well,
consistently with Placencia, although saying that he did not know how Santiago had been
stabbed and had not seen it.
Petitioner and Placencia were both charged with two counts of second degree murder and
one count of fourth degree criminal possession of a weapon. As noted above, Placencia pled
guilty prior to petitioner’s trial to first degree manslaughter and was sentenced to ten years’
imprisonment. At petitioner’s trial, the trial court submitted, without objection, the additional
charge of first degree manslaughter as a lesser included offense. The jury convicted petitioner on
the manslaughter charge and acquitted him of the murder charge. The court sentenced petitioner
to twenty years as a second violent felony offender. The Appellate Division affirmed his
conviction and the New York Court of Appeals denied leave to appeal. People v. Acevedo, 84
A.D.3d 1390, 925 N.Y.S.2d 523 (2d Dep’t 2011), leave to appeal den., 17 N.Y.3d 951, 936
N.Y.S.2d 77 (2011).
Petitioner then commenced simultaneously two collateral challenges to his conviction:
(1) a proceeding in the trial court under N.Y. C.P.L. §440.10, challenging the effectiveness of his
trial counsel on numerous grounds; and (2) a coram nobis proceeding in the Appellate Division,

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challenging the effectiveness of his appellate counsel for failing to raise the effectiveness of his
trial counsel, for those same reasons, on direct appeal. As to the latter, the Appellate Division
summarily held that “[petitioner] has failed to establish that he was denied the effective
assistance of appellate counsel.” People v. Acevedo, 104 A.D.3d 862, 960 N.Y.S.2d 656 (2d
Dep’t 2013), leave to appeal den., 21 N.Y.3d 1001, 971 N.Y.S.2d 253 (2013).
About three weeks later, the §440 court denied petitioner’s §440 motion. It set forth
three grounds for its ruling, in the following order. First, the §440 court held that: “[T]o the
extent that the conduct complained of appears in the trial record, the court is barred from
considering them.” It did not specify which grounds appeared in the trial record and which did
not. Second, it held that: “In the instant matter, the conviction was affirmed and there was also a
finding that appellate counsel was effective, leading this court to the inevitable conclusion that
the present motion must be denied.” Third, it held that:
Under Federal Standards the defendant is also require to demonstrate prejudice,
manifested by the reasonable probability that the verdict would have been
different but for [trial] counsel’s alleged ineffectiveness. Strickland v.
Washington, 466 U.S. 668. No credible evidence has been presented to this court
that would substantiate such a finding.
The Appellate Division denied leave to appeal this Order.
Additional facts will be set forth below as they relate to each of petitioner’s points of
error.

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DISCUSSION
I.

Claims rejected on the merits on direct appeal
Petitioner had two claims rejected solely on the merits on direct appeal.
A. Insufficiency of the evidence
The Appellate Division held that “viewing the evidence in the light most favorable to the

prosecution, we find that it was legally sufficient to establish that the defendant intended to cause
serious physical injury to the victim and caused the victim’s death.” Acevedo, 84 A.D.3d at
1391, 925 N.Y.S.2d at 525 (citation omitted).
Since the Appellate Division rejected this claim on the merits, my review of that decision
attracts the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2254(d). That statute provides for habeas corpus relief only if the state court’s
adjudication of the claim was (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;” or (2)
“based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Id. The decision of a state court is “contrary” to clearly established
federal law within the meaning of § 2254(d)(1) if it is “diametrically different” from, “opposite
in character or nature” to, or “mutually opposed” to the relevant Supreme Court precedent.
Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000) (internal quotation marks
omitted). Moreover, a state court decision involves “an unreasonable application” of clearly
established Federal law if the state court applies federal law to the facts of the case “in an

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objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1439
(2005).
The Supreme Court has clarified that the AEDPA standard of review is extremely
narrow, and is intended only as “a ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction through appeal[.]” Ryan v.
Gonzales, ––– U.S. ––––, 133 S. Ct. 696, 708 (2013) (quoting Harrington v. Richter, ––– U.S. ––
––, 131 S. Ct. 770, 786). State court decisions must “be given the benefit of the doubt,” Felkner
v. Jackson, ––– U.S. ––––, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v. Lett, 559 U.S. 766,
773, 130 S. Ct. 1855, 1862 (2010)), and “even a strong case for relief does not mean that the
state court’s contrary conclusion was unreasonable.” Harrington, 131 S. Ct. at 786. Indeed, in
Harrington, the Supreme Court went so far as to hold that a habeas court may only “issue the
writ in cases where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme Court’s] precedents.” Id. This standard of “no possibility”
of disagreement among “fairminded jurists” as to the existence of legal error is arguably the
narrowest standard of judicial review in the law. Moreover, the Supreme Court has expressed a
lack of patience with lower courts that view its pronouncements as permitting a substantial
measure of flexibility in applying this standard. See Parker v. Matthews, ––– U.S. ––––, 132 S.
Ct. 2148 (2012).1

1

Harrington and Cavazos v. Smith, ––– U.S. ––––, 132 S. Ct. 2 (2011), may have abrogated the oft-quoted language
in Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000), that while “[s]ome increment of incorrectness beyond error
is required . . . the increment need not be great; otherwise habeas relief would be limited to state court decisions ‘so
far off the mark as to suggest judicial incompetence.’” The Harrington/Cavazos standard may not quite require
“judicial incompetence,” id., but by precluding relief except where the error is “beyond any possibility for
fairminded disagreement,” Harrington, 131 S. Ct. at 787, it certainly comes close. The Second Circuit has noted that
these Supreme Court decisions have narrowed the standard of habeas review that the Circuit previously applied. See
Rivera v. Cuomo, 664 F.3d 20, 21-22 (2d Cir. 2011) (reversing its earlier decision granting habeas relief upon
consideration of Cavazos).

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As is often the case in habeas corpus review, petitioner’s burden is doubly difficult. He
not only faces the narrow standard of review described above, but the issue he has raised –
insufficiency of the evidence – itself is already subject to a narrow standard of review. In
reviewing the sufficiency of the evidence to support a conviction, the inquiry is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979) (emphasis in original). Thus, even
when “faced with a record of historical facts that supports conflicting inferences[,] [the habeas
court] must presume – even if it does not affirmatively appear in the record – that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Wheel
v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994). Relief on a sufficiency claim cannot be granted
unless the record is “so totally devoid of evidentiary support that a due process issue is raised.”
Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994).
In sum, to obtain relief on an insufficiency claim, Harrington and Jackson, read together,
require a finding that both the jury’s verdict and the state court’s review of the jury’s verdict
represent conclusions by each that at least border on the irrational. Petitioner does not come
close to making that difficult showing here.
The trial of this case was purely a swearing contest. Gonzalez testified that he saw
petitioner holding a knife shortly after the fight a couple of inches away from Santiago. He also
testified that petitioner and Placencia ran towards him and Santiago after the heated exchange in
the diner. Rios confirmed that petitioner and Placencia had fought with Santiago. It was
undisputed that Santiago was unarmed. The medical examiner testified that Santiago had died of
multiple stab wounds to the heart which caused broken ribs. The identification testimony

9

showed that Gonzalez and Rios had picked petitioner picked out of photographs, and in any
event, petitioner and Placencia, in their testimony, admitted being involved in the altercation.
Moreover, petitioner’s story was undercut by his and Placencia’s prior convictions; petitioner’s
flight to the Dominican Republic after the fight; and Placencia’s somewhat absurd testimony that
Santiago had suffered multiple, deep stab wounds and broken bones by repeatedly impaling
himself on Placencia’s supposedly two-inch knife.
All the prosecution needed to do was to introduce sufficient evidence so that the jury
could find beyond a reasonable doubt that petitioner intended to cause serious physical injury to
Santiago, or that he acted in concert with Placencia, who had such intent, to do so. The
Appellate Division’s holding that there was sufficient evidence to sustain the jury verdict was
neither contrary to, nor an unreasonable application of, Supreme Court authority.
B. Improper questioning as to gang membership2
During the cross-examination of Placencia, the prosecutor elicited that Placencia was
“around” Los Papi Chulos but he denied being a member of the gang. In addition, the prosecutor
asked both petitioner and Placencia on cross-examination to explain a hand gesture (referred to
as a “symbol” in the questioning) depicted in certain photographs of them, which, on direct
appeal, petitioner contended was an implied reference to gang membership. In this questioning
about the hand gesture, neither the prosecutor, Placencia, nor petitioner ever made any express
reference to gang membership; both Placencia and petitioner described the hand gesture as just a

2

In alluding to this claim in petitioner’s collateral challenges to the conviction, but not on direct appeal, the parties
referred to this claim as the alleged violation of the trial court’s pretrial Sandoval ruling, in which the trial court had
ruled that the prosecutor could inquire into petitioner’s felony conviction, but could not ask him about gang
membership. This is somewhat of a misnomer. The Sandoval ruling did not say anything about cross-examining
Placencia about gang membership or anything else. This is as expected, since a Sandoval hearing addresses what
convictions and wrongful acts of a defendant can be used at trial in cross-examining him. See Grayton v. Ercole,
691 F.3d 165, 173 (2d Cir. 2012).

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greeting that had no significance. In addition, the prosecutor asked petitioner whether he had
seen any members of Los Papi Chulos while staying in Pennsylvania with his sister, to which
petitioner replied, “No. I don’t know them.”
On direct appeal, petitioner contended that this line of questioning was “palpably and
unduly prejudicial.” The Appellate Division held that: “While the prosecutor’s questions
pertaining to gang involvement were improper since there was no connection between gang
membership and the alleged crime, they did not deprive the defendant of a fair trial.” Acevedo,
84 A.D.3d at 1391, 925 A.D.3d at 526 (citations omitted).
This point is not reviewable on federal habeas corpus because petitioner presented it to
the state courts only as a question of state law. To the extent he is now attempting to assert it as
a federal constitutional claim, it is unexhausted.
Before raising this claim in support of a petition for a writ of habeas corpus, a petitioner
must exhaust any available state remedies. 28 U.S.C. § 2254(b)(1)(A). To properly exhaust a
state court remedy, a petitioner “must apprise the highest state court of both the factual and the
legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v.
Keane, 394 F.3d 68, 73 (2d Cir. 2005); see also St. Helen v. Senkowski, 374 F.3d 181, 182-83
(2d Cir. 2004) (“To satisfy the exhaustion requirement of 28 U.S.C. § 2254(b), a petitioner must
alert the state court to the constitutional nature of a claim but need not refer[ ][to] chapter and
verse [of] the U.S. Constitution.”) (alterations in original, internal quotation marks and citation
omitted); Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (“Because non-constitutional
claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state
courts on notice that they are to decide federal constitutional claims.”) (citations omitted).

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In Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982) (en banc), the Second
Circuit listed four methods by which a defendant may be considered to have fairly presented a
federal constitutional claim to the state courts:
(a) reliance on pertinent federal cases employing constitutional analysis, (b)
reliance on state cases employing constitutional analysis in like fact situations, (c)
assertion of the claim in terms so particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.
Neither in his Appellate Division brief nor in his application for leave to appeal to the New York
Court of Appeals did petitioner ever cite a federal case, refer to the United States Constitution, or
even use the words “due process.” Indeed, although the Appellate rejected the claim on the basis
that the prosecutor’s questions did not deprive petitioner of a “fair trial,” petitioner’s briefs did
not even use that term, contending only that the questioning was “unduly prejudicial.” In any
event, the Second Circuit has squarely held that even when a petitioner uses the words “fair
trial,” that does not mean that a petitioner has presented the state courts with a federal claim:
Appellant suggests that references in his state court brief to denial of a “fair trial”
sufficiently alerted the Appellate Division to a contention that the trial failed to
comport with the due process guaranties of the Fourteenth Amendment. . . . [But]
the exhaustion requirement is not automatically satisfied every time an alleged
trial error is claimed to deny a defendant a “fair trial.” State court briefs routinely
characterize a variety of errors as a denial of a fair trial, conveying the thought
that the error, simply as a matter of state law, warrants a new trial. Alleging lack
of a fair trial does not convert every complaint about evidence or a prosecutor’s
summation into a federal due process claim.
Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982).
The state law cases cited by both petitioner and the Appellate Division in the state courts
support the view that this issue was presented as a question of New York law. None of them
referred to the United States Constitution or the due process clause or to any federal cases.
Rather, the New York cases upon which petitioner relied appear to relate to a New York

12

evidentiary rule that prohibits a prosecutor from inquiring into gang membership unless there is
evidence connecting the gang membership to the charged crime. See People v. Livingston, 128
A.D.2d 645, 645, 512 N.Y.S.2d 889, 890 (2d Dep’t 1987). The Appellate Division, rejecting
petitioner’s argument, similarly referred to a line of New York cases that qualify the application
of this rule when its disregard does not have a material impact on the likelihood of the
defendant’s conviction. See People v. Turner, 46 A.D.3d 847, 848, 848 N.Y.S.2d 275, 276 (2d
Dep’t 2007); People v. Sellan, 143 A.D.2d 690, 691, 533 N.Y.S.2d 109, 110 (2d Dep’t 1988).
There is thus nothing in the state court record to indicate that the state courts should have been,
or were, alerted to the presence of a federal constitutional claim on this issue.
If petitioner was simply reasserting his state law claim in the instant petition, I would
deny it on the ground that state law claims are not cognizable on habeas corpus review. See
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991). However, he has used
different language in asserting the claim here than he used in state court – it is included as one of
the points of error under a point heading labeled, “The Petitioner is being held in violation of his
United States Constitutional Right to a fair trial.” This is sufficient to allege a federal
constitutional claim. But, as noted above, it is an unexhausted federal constitutional claim.
The failure to exhaust this claim does not mean that petitioner should be permitted to
return to state court, as that would be a futile gesture – plaintiff’s opportunity to raise this claim
with the state courts has passed. Any federal constitutional challenge to the prosecutor’s
questioning would have to have been raised on direct appeal, and cannot be raised in state court
now. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (“Petitioner was entitled to one (and
only one) appeal to the Appellate Division and one request for leave to appeal to the Court of
Appeals . . . .”). When a claim is in that posture, it is deemed exhausted but procedurally barred

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and cannot be heard on federal habeas corpus review. See Reyes v. Keane, 118 F.3d 136, 139
(2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed,
489 U.S. 255, 263 n.9, 109 S. Ct. 1038, 1043 n.9 (1989))). See also St. Helen, 374 F.3d at 183
(“[E]ven if a federal claim has not been presented to the highest state court or preserved in lower
state courts under state law, it will be deemed exhausted if it has become procedurally barred
under state law.”); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (petitioner’s
procedurally defaulted claims deemed exhausted where he could no longer obtain state court
review because of his procedural default); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir.
2002) (claims deemed exhausted where they were “procedurally barred for not having been
raised in a timely fashion”); Bossett, 41 F.3d at 828 (“[I]f the petitioner no longer has ‘remedies
available’ in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.”)
(quoting Grey, 933 F.2d at 120-21); Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056,
1059 (1989) (“It would be inconsistent with [§ 2254(b) ], as well as with underlying principles of
comity, to mandate recourse to state collateral review whose results have effectively been
predetermined . . . .”). The claim is therefore rejected.
II. Claims held unpreserved on direct appeal
A. Unduly suggestive identification procedure
1. Background
All of the facts concerning Gonzalez and Rios’ photographic identification of petitioner,
described above, came out in Detective Martin’s testimony either at the pretrial Wade hearing or
trial. In addition, the record showed that six months after Gonzalez had picked petitioner out of
the photo array (although petitioner was still in the Dominican Republic), the case was presented

14

to a grand jury, at which Rios again picked petitioner out of the same six person photo array out
of which Gonzalez had picked him.
However, the suppression court at the Wade hearing was not expressly asked to, and did
not, consider whether the photo array or the group of photographs shown to Rios was unduly
suggestive. Rather, whatever it was that caused the Wade hearing to be held – the record does
not contain any written motion by petitioner’s counsel – the Wade hearing instead consisted of
what was in effect a motion in limine by the prosecutor to determine if the photo of petitioner
from the Los Papi Chulos photos and the photo array, and Martin’s testimony about Gonzalez
and Rios picking petitioner out of those photographs (collectively, the “photographic evidence”),
could be introduced at trial. The problem for the prosecutor was that after petitioner’s seven
years in absentia, neither Gonzalez nor Rios could identify petitioner in person or recall which
photograph they had selected; indeed, Rios could not even recall whether he had picked
petitioner out of the 27 Los Papi Chulos photographs. The prosecutor needed to use Martin’s
testimony as to Gonzalez’ and Rios’ response to the Los Papi Chulos photographs and the photo
array to make the identification.
There is a statute in the New York Criminal Procedure Law, N.Y. Crim. Proc. Law §
60.25, which addresses this situation. That statute provides that a witness may testify at trial that
another person identified a defendant on an earlier occasion if certain foundational requirements,
like lack of present recollection, are met. The Wade hearing consisted of the issue of whether
Martin would be allowed to testify at trial as to Gonzalez’ and Rios’ identification of petitioner
from the photographs, and the suppression court held that if the prosecutor presented foundation
testimony consistent with her proffer at the Wade hearing, such testimony could be admitted.
Petitioner’s trial attorney agreed to that procedure.

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At trial, Gonzalez and Rios testified, first out of the hearing of the jury and then before it,
that they could not recall whether petitioner was the person they picked out from the photos, but
each testified that their signatures appeared on petitioner’s photograph. Based on that
foundation, the trial court permitted Martin to testify that they had picked out petitioner, and
Gonzalez and Rios had signed petitioner’s photograph out of the array when he had shown it to
them. Petitioner’s counsel did not object to this testimony.
Nevertheless, on direct appeal, petitioner contended for the first time that the trial court
should have suppressed the pretrial identification of petitioner by the witnesses to the fight
because it was unduly suggestive. He argued that Rios’ identification from the photo array was
tainted because Rios had previously picked petitioner out of the 27 Los Papi Chulos
photographs. He further argued that Gonzalez had not given enough of a description to permit
Martin to compile the photo array.
The Appellate Division held that this claim was “unpreserved for appellate review, since
he failed, at a Wade hearing . . . , to raise the specific grounds upon which he now challenges the
procedure . . . .” Acevedo, 84 A.D.3d at 1390, 925 N.Y.S.2d at 524 (citations omitted). The
Appellate Division alternatively held that “[i]n any event,” petitioner’s claim was “not supported
by the record.” Id. The Appellate Division, as to this alternative ruling, expressly held that
petitioner’s claim of dissimilarity between his and the “fillers’” photographs was contrary to the
record. It also expressly held that the procedure was not unduly suggestive. Id.
2. Procedural Bar
A federal court should not address the merits of a petitioner’s habeas claim if a state court
has rejected the claim on “a state law ground that is independent of the federal question raised
and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885
16

(2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991))
(emphasis in original). When a state court rejects a petitioner’s claim because he “failed to meet
a state procedural requirement[,]” the procedural bar may constitute an adequate and independent
ground for the state court’s decision. Coleman, 501 U.S. at 729-30, 111 S. Ct. at 2554. See also
Murden v. Artuz, 497 F.3d 178, 191-92 (2d Cir. 2007). State procedural grounds are only
adequate to support the judgment and foreclose federal review if they are “firmly established and
regularly followed” in the state. Lee, 534 U.S. at 376 (quoting James v. Kentucky, 466 U.S. 341,
348, 104 S. Ct. 1830, 1835 (1984)).
It is well-settled that New York’s contemporaneous objection rule, codified at N.Y. Crim.
Proc. Law § 470.05, is an independent and adequate state law ground that ordinarily precludes
federal habeas corpus review. See, e.g., Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011). That
statute requires a party to seek pretrial suppression of any evidence which he knows the
prosecution intends to introduce. See People v. Vann, 92 A.D.3d 702, 938 N.Y.S.2d 182 (2d
Dep’t 2012). In addition, if a defendant presents arguments to suppress some evidence but not
additional arguments to suppress other evidence, he has failed to preserve any objection to
suppress the evidence against which he has not moved. Id.; People v. Inge, 90 A.D.3d 675, 933
N.Y.S.2d 879 (2d Dep’t 2011). Here, there can be no question that petitioner’s trial counsel did
not object to the photographic evidence and testimony as unduly suggestive, and thus the state
court properly held the claim to be unpreserved.
The issue then becomes whether any ground exists for reaching the merits
notwithstanding that procedural bar. Procedural default on state law grounds may be overcome
by a petitioner who either demonstrates “‘cause’ for the default and ‘prejudice attributable
thereto,’ or . . . that failure to consider the federal claim will result in a ‘fundamental miscarriage

17

of justice.’” Harris, 489 U.S. at 262, 109 S. Ct. at 1043 (citations omitted). Although, in some
circumstances, ineffective assistance of counsel can constitute “cause” sufficient to avoid a
procedural default, see Murray v. Carrier, 477 U.S. 478, 488-89, 106 S. Ct. 2639, 2645-46
(1989), the ineffective assistance claim must itself have been exhausted in the state court.
Edwards v. Carpenter, 529 U.S. 446, 447, 120 S. Ct. 1587, 1589 (2000).
3. Ineffective Assistance of Counsel
Under New York practice, as applicable in this case, the proper procedure to assert
ineffective assistance of counsel for failure to challenge the use of the photographic evidence at
trial was on direct appeal when the challenge to the photographs was raised. This was because
the failure to object was apparent from the hearing and trial court record, and New York courts
require ineffective assistance claims that are apparent from the record to be raised on direct
appeal, or else they are waived. See N.Y. Crim. Proc. Law § 440.10(2)(c); Aparicio, 269 F.3d at
93 (“New York law prohibits review of a claim on collateral review when the defendant
unjustifiably fails to raise the claim on direct appeal”); Reyes, 118 F.3d at 139. The Second
Circuit has regularly held that a court’s denial of a § 440.10 motion on the basis of the movant’s
failure to raise an issue on direct appeal is an independent and adequate state ground barring
federal habeas review. See, e.g., Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 2003).
These facts give rise to a scenario that sometimes occurs in habeas corpus review of a
double procedural default. The scenario can be explained as follows. First, a state court holds
on direct appeal that a petitioner has forfeited a substantive constitutional claim apparent on the
record, e.g., an evidentiary error sufficiently serious to deprive him of due process, by not
preserving it at trial. A federal habeas review court would recognize this procedural bar unless
there is “cause” and “prejudice” to excuse it, which might include ineffective assistance of trial

18

counsel. As noted above, to consider the ineffective assistance claim, federal habeas corpus law
requires exhaustion of that claim in state court. However, if petitioner only raised ineffective
assistance of counsel on this point in a collateral challenge, then the state court will hold that
claim procedurally barred as well, since it should have been raised on direct appeal.
The question raised by this scenario is whether petitioner, having asserted his ineffective
assistance claim in a manner not procedurally permitted by state law – the §440 proceeding –
where it was doomed to fail, and having forfeited his opportunity to raise it properly (since he
has already taken his one direct appeal), has, in fact, properly exhausted his ineffective assistance
claim. In other words, is the exhaustion requirement separate from the proper procedural context
under state law in which the claim must be raised? If the answer to this question is in the
affirmative, then it leaves the standard of federal habeas corpus review unclear. When the
federal court goes to assess the merits of the ineffective assistance claim as “cause” for
procedurally defaulting on the substantive claim, it will not find a merits determination to which
it can give AEDPA deference because the state court has relied on the procedural bar.
Alternatively, if the state court expresses an alternative holding on the merits (as the §440 court
did in this case), the federal habeas court’s review of that alternative merits holding, without
determining that the procedural bar invoked by the state court was exorbitant, would seem to run
afoul of the Supreme Court’s pronouncement that state courts should not fear federal habeas
corpus review of merits determinations that are wholly alternative to state procedural bars, since
the federal courts must recognize valid state procedural bars. See Harris, 489 U.S. at 264 n. 10
(“[A] state court need not fear reaching the merits of a federal claim in an alternative holding.”)
(emphasis in original). Where a state court rules that a claim is “not preserved for appellate
review,” and then, prefaced by the phrase “in any event,” goes on to reject the claim’s merits in

19

the alternative, such a claim is still procedurally barred. Glenn v. Bartlett, 98 F.3d 721, 724-25
(2d Cir. 1996).
The case law holds, however, that exhaustion has a procedural component – if petitioner
fails to use the proper state court procedure for raising his ineffective assistance claim and the
state court therefore procedurally defaults the claim, then the claim is unexhausted. See Dean v.
Smith, 753 F.2d 239 (2d Cir. 1985)3; see also Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448 (1944)
(per curiam); Ellison v. Brown, 16 F.3d 1219, at *2 (6th Cir. 1994); Ramos v. Racette, No. 11
Civ. 1412, 2012 WL 12924, at *16 (E.D.N.Y. Jan. 4, 2012); Gil v. Kelly, No. 90 Civ. 0603, 1992
WL 151901, at *3 (E.D.N.Y. June 16, 1992). Most courts hold that if there is no longer an
avenue under state procedural law in which petitioner may properly present the claim, then the
claim will be deemed exhausted and procedurally barred. See Grey, 933 F.2d at 120. Other
courts simply skip over the exhaustion requirement and find the claim procedurally barred. See
Avent v. Napoli, No. 08 Civ. 932, 2013 WL 1788626, at *10-12.
In the instant case, petitioner’s attempt to raise his ineffective assistance of trial counsel
claim as to the photographic identification issue in a §440 proceeding was virtually certain to fail
because, as shown above, state law required that claim to be raised on direct appeal. Because the
manner in which he raised it was procedurally defective, and because there was not and is not
any way to raise that claim in state court, it is deemed exhausted and procedurally barred. The
§440 court’s alternative holding that petitioner had not demonstrated ineffective assistance of
3

Although Dean stands for the still valid, pre-AEDPA rule that utilization of an improper procedure does not result
in exhaustion of a claim, it is a peculiar decision. The Second Circuit held that the petitioner had not exhausted his
claim because he had sought to raise it in a state habeas corpus proceeding, which was not the proper method under
state law, as the state court had held. The Second Circuit dismissed the claim as unexhausted so that the petitioner
could exhaust it through a §440 motion and then return to federal court if it was denied. “This post-conviction
remedy in the state courts is apparently still available to Dean.” Id. at 241. However, a §440 was not available to
the petitioner. His claim was that a jury instruction was defective. This was a claim that had to be raised on direct
appeal, not under §440, and thus the state courts would have rejected it as procedurally barred.

20

counsel is of no assistance to him, because this Court is constrained by the §440 court’s prior,
and proper, invocation of a procedural bar. See Harris, 489 U.S. at 264 n.10. It is no different
than if petitioner had not raised the claim in his §440 proceeding at all.4
That does not end the inquiry, however, as to whether petitioner might have cause for not
raising his photographic evidence claim. This is because he contended, in his coram nobis
motion, that his appellate counsel on direct appeal should have raised his trial counsel’s
ineffectiveness as to, among other things, the failure to object to the photographic evidence as
unduly suggestive.
The situation encountered by the Second Circuit in the often-cited Aparicio case was
similar. The main difference is that the petitioner there had not raised his ineffective assistance
of trial counsel claim in a §440 proceeding; he had raised one aspect of it in his coram nobis
motion and another aspect of that claim not at all. Nevertheless, the Second Circuit held that his
coram nobis motion – which, like the instant case, was disposed of by one sentence saying that
the petitioner had received effective assistance of appellate counsel – served as a gateway to
considering the underlying claim of a due process violation at trial. It did this, first, by requiring
a determination of whether there was cause and prejudice as a result of the alleged ineffective
assistance of trial counsel, and, second, by then requiring a determination of the first issue
through examining the underlying due process issue itself. There is, of course, quite a bit of
compartmentalization occurring in such an analysis, but in the interest of federalism, it is
important to recognize the distinction between reviewing the underlying claim and addressing

4

The Court observes that this is problem most often encountered when a petitioner has retained private counsel or is
appointed counsel for the direct appeal other than the Legal Aid Society, as was the case here. In this Court’s
experience, Legal Aid Society lawyers, when confronted with a possibly unpreserved claim that they wish to raise
on appeal, uniformly assert ineffective assistance of trial counsel in anticipation of a potentially adverse ruling on
preservation, thus exhausting the claim for federal habeas corpus purposes.

21

whether there is cause and prejudice that would excuse a procedural default. The procedure in
Aparicio is therefore the procedure that I will follow here.
To show a Sixth Amendment violation to effective assistance of appellate counsel,
petitioner must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984). First, he must show that counsel’s performance fell below “an objective
standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S. Ct. at
2064-65. The court must apply a “strong presumption of competence” and “affirmatively
entertain the range of possible reasons [petitioner’s] counsel may have had for proceeding as
they did.” Cullen v. Pinholster, ––– U.S. ––––, 131 S. Ct. 1388, 1407 (2011) (citation and
internal quotation marks omitted). Second, the petitioner must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 669, 104 S Ct. at 2055-56. “The likelihood
of a different result must be substantial, not just conceivable.” Harrington, 131 S. Ct. at 792.
Although Strickland speaks to ineffective assistance of trial counsel claims, it is equally
applicable to claims of ineffective assistance of appellate counsel. Aparicio, 269 F.3d at 95;
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). “On appeal, counsel is not required to
argue every non-frivolous issue; rather, the better strategy may be to focus on a few more
promising issues so as not to dilute the stronger arguments with a multitude of claims. . . .
[I]nadequate performance is established only if counsel omitted significant and obvious issues
while pursuing issues that were clearly and significantly weaker.” King v. Greiner, 210 F. Supp.
2d 177, 182 (E.D.N.Y. 2002) (citing Jones v. Barnes, 463 U.S. 745, 751–53, 103 S. Ct. 3308,
3312-14 (1983)). But a petitioner may not rebut the presumption of effective assistance by
simply arguing that appellate counsel’s decision to raise certain issues and not others constitutes

22

ineffectiveness. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Appellate counsel is not
required to “press nonfrivolous points . . . if counsel, as a matter of professional judgment,
decides not to present those points.” Jones, 463 U.S. at 751, 103 S.Ct. at 3312; see also Knowles
v. Mirzayance, 556 U.S. 111, 127, 129 S. Ct. 1411, 1422 (2009) (“The law does not require
counsel to raise every available nonfrivolous defense”). A petitioner must prove that there is a
reasonable probability that the unraised claims would have succeeded. King, 210 F. Supp. 2d at
182-83 (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).
Moreover, since the Appellate Division declined to award coram nobis relief on the
merits, my review of that decision is subject to AEDPA’s deferential standard as described
above. Indeed, in reviewing claims of ineffective assistance of counsel, whether trial counsel, or,
in this instance, appellate counsel, my review is “doubly deferential.” Knowles, 556 U.S. at 123
(citing Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S. Ct. 1, 4 (2003) (per curiam)); see 28
U.S.C. § 2254(d). To prevail, petitioner must show not only that counsel’s performance fell
below the Strickland standard of reasonableness, but also that the state court’s application of the
Strickland standard was itself unreasonable and not merely incorrect. See Harrington, 131 S.Ct.
at 785.
In examining the claim of ineffective assistance of counsel, whether at trial or appellate
level, it is also readily apparent petitioner cannot meet Strickland’s prejudice prong. This is
because, in fact, the Appellate Division ruled in the alternative that petitioner’s identification
claim had no merit. There is no basis for believing that the Appellate Division would have
reached a different result if the claim had been preserved at trial. This means that the only
argument that petitioner’s counsel forfeited was the ability to have this Court review the
Appellate Division’s decision on the merits (which would not have been an alternative holding if

23

the claim had been preserved) under the deferential AEDPA standard (the standard this Court
would have used but for the procedural default).
This does the petitioner no good because it is very clear, even under de novo review, that
there was nothing unduly suggestive about the photographic evidence. Detective Martin showed
Rios twenty-seven Los Papi Chulos photographs. He said nothing that would alert Rios to any
one of them; he simply asked Rios to state whether he recognized any of the people in the
photographs, and if so, how, at which point Rios picked out petitioner as the perpetrator. Martin
did not, and indeed, could not have possibly steered Rios to petitioner’s photographic, because at
that point, petitioner was not a subject of the investigation and there is nothing to suggest that
Martin even knew who he was. Nor was there any visible identifying information that could
have directed Rios to any of the photographs.
The photo array that Martin thereafter compiled included petitioner, selected from the 27
photographs, and five others that Martin selected on the basis of resembling petitioner in terms of
likeness, skin color, and ethnicity. A computer determined their position in the array, not Martin.
There’s nothing wrong with any of that either. Both Rios and Gonzales picked petitioner out of
the photo array. The fact that Rios picked petitioner out of the 27 photographs and again out of
the six photograph array, and that Gonzalez independently picked petitioner out of the array,
gave further assurance that the threshold requirement for admitting photographic identification
had been met.
“A defendant’s right to due process includes the right not to be the object of suggestive
police identification procedures that make an identification unreliable. . . . Generally, a witness
will not be allowed to make an in-court identification if the authorities’ pretrial photographic
identification procedures were so impermissibly suggestive as to give rise to a very substantial

24

likelihood of irreparable misidentification.” United States v. Douglas, 525 F.3d 225, 242 (2d
Cir. 2008) (internal quotation marks and citations omitted) (emphasis in original). The
determination of whether pretrial identification procedures were unduly suggestive “is a fairly
permissive standard, and a court applying this standard to the facts of a specific case is …
entitled to significant ‘leeway’ when we review its decision for reasonableness.” Richardson v.
Superintendent of Mid–Orange Corr. Facility, 621 F.3d 196, 202 (2d Cir. 2010) (citation and
internal quotation marks omitted).
Having determined that the photographic identification had sufficient integrity to present
no due process problem, the following analysis disposes of this claim: petitioner’s trial counsel
was not ineffective for failing to make an objection that would not have succeeded; petitioner’s
appellate counsel was not ineffective for failing to raise trial counsel’s ineffectiveness because
that also would not have succeeded; there is neither cause nor prejudice for petitioner’s
procedural default in failing to raise this claim on direct appeal; and, therefore, the claim is
procedurally barred from review in this Court.
B. Failure to Instruct on Justification Defense
On direct appeal, petitioner contended that the trial court should have instructed on the
defense of justification. He argued that since his testimony was that Santiago was the aggressor,
petitioner “was engaged in some degree of self-defense [sic] . . . .” He acknowledged that his
trial counsel had not requested such an instruction, and that no New York court has ever held that
a trial court has an obligation to give a justification instruction sua sponte, but argued that four
intermediate appellate courts from other states had reversed convictions based upon the need to
do so. He did not argue that trial counsel was ineffective in failing to seek such a charge.

25

The Appellate Division held that the claim was “unpreserved for appellate review, since
[petitioner] never requested such a charge,” and that, “[i]n any event, contrary to defendant’s
contention, the Supreme Court was not required to give the charge, sua sponte, as such an
instruction would have interfered with defendant’s theory of the case that the People failed to
demonstrate that he possessed the requisite intent, and that he was not an accessory under Penal
Law §20.00.” Acevedo, 84 A.D. at 1391, 925 N.Y.S.2d at 525. The claim, therefore, is in the
same procedural posture as the photographic evidence claim discussed above. That is, the initial
issue before this Court is whether to uphold the procedural bar in the Appellate Division’s
decision, a question that must be answered by determining whether appellate counsel was
ineffective for failing to raise the alleged ineffectiveness of trial counsel in not preserving this
claim, which could constitute cause and prejudice for the procedural default.
Under the Strickland standard as set forth above, appellate counsel was not ineffective for
failing to assert ineffectiveness of trial counsel as to this claim, essentially for the reason that the
Appellate Division stated in its alternative holding – it was flatly inconsistent with petitioner’s
defense. The theory of defense, indeed, the entire reason for calling Placencia and having him
admit to the stabbing, and having petitioner testify that he did not do the stabbing, was to lay the
crime on Placencia. For petitioner to have requested an instruction that the jury could find that
he was justified in stabbing Santiago would have completely undercut that theory of the case.
Strickland recognizes that “strategic choices made after thorough investigation of law and
fact relevant to plausible options are virtually unchallengeable” on federal habeas corpus review.
Strickland, 466 U.S. at 690; see also Yarborough, 540 U.S. at 8, 124 S. Ct. at 5 (there is a “strong
presumption” that counsel’s attention to certain issues to the exclusion of others reflects trial
tactics rather than “sheer neglect”). Here, trial counsel had the unusual situation of a witness,

26

Placencia, who was willing to admit to the stabbing. His decision to go with that rather than
arguing that petitioner was justified in doing the stabbing cannot be second-guessed on either
direct appeal or habeas corpus review. There was thus no ineffective assistance of appellate
counsel in failing to raise ineffective assistance of trial counsel, no ineffective assistance of trial
counsel for choosing what could reasonably be thought of as petitioner’s best case, and no cause
or prejudice that would excuse petitioner’s procedural default.
III. Remaining Ineffective Assistance Claims
In his §440 and coram nobis motions, petitioner raised a number of other claims of
ineffective assistance of trial counsel, and, because of appellate counsel’s failure to raise these on
direct appeal, ineffective assistance of appellate counsel. Some of these claims are based on
alleged errors or omission that appear on the record, and therefore could, and indeed, had to be
raised on direct appeal, but were neither preserved at trial nor raised on direct appeal. Some of
them are purely off the record claims that could only be raised in a §440 motion.
This is the kind of claim that the Second Department has referred to under New York law
as a “mixed claim” of ineffective assistance of counsel. See People v. Freeman, 93 A.D.3d 805,
806, 940 N.Y.S.2d 314, 315 (2nd Dep’t 2012); People v. Maxwell, 89 A.D.3d 1108, 1109, 933
N.Y.S.2d 386, 388 (2nd Dep’t 2011). It has recently clarified state procedural law so that it is
now understood that such a claim is properly raised in a §440 motion even though part of it – the
part that arises from matters apparent on the record – would, if standing alone, have to be raised
on direct appeal and could not be raised in a §440 motion. See Freeman, 93 A.D.3d at 806, 940
N.Y.S.2d at 315 (defendant’s “mixed claim” of ineffective assistance of counsel “cannot be
resolved without reference to matter outside the record, a CPL 440.10 proceeding is the
appropriate forum for reviewing the ineffective assistance claim in its entirety”) (internal

27

quotation marks omitted)). Although not articulated by the Second Department, the reason for
this result seems obvious enough – if no court could consider the totality of claimed counsel
error, there would be no remedy for a series of attorney actions or omissions, each of which,
even if objectively unreasonable, did not cause sufficient prejudice to warrant relief from the
conviction, but which cumulatively cause such prejudice.
The initial question is whether this Court should consider the ineffective assistance of
trial counsel claim, as disposed of in the §440 motion, or the ineffective assistance of appellate
counsel claim, as disposed of in the coram nobis motion. The matter is complicated because the
§440 court, as one of the three grounds for its holding, expressly deferred to the Appellate
Division’s rejection of the coram nobis motion. It is further complicated because of one of the
§440 court’s other grounds for its holding, that “to the extent” petitioner’s ineffective assistance
of trial counsel claim was based on on-the-record omissions, it was procedurally barred.
As to this latter point, I reject the §440 court’s holding of an undifferentiated procedural
bar for two reasons. First, because the §440 court did not differentiate between which grounds
were on-the-record and which were off-the-record, and then went on to reject the entire
ineffective assistance claim on the merits, its holding in this regard is not distinguishable from
the “either/or” language, i.e., that a petitioner’s claims are “either unpreserved or without merit,”
which the Second Circuit instructed, in Jimenez v. Walker, 458 F.3d 130 (2d Cir. 2006)
(extending the presumption that “the state court decided the case the way it did because it
believed that federal law required it to do so” to the determination under 28 U.S.C. § 2254(d) of
whether a state-court adjudication is ‘on the merits’) (quoting Michigan v. Long, 463 U.S. 104041, 103 S. Ct. 3469, 3476 (1983)), should be construed as a determination of merits and given
AEDPA deference. Second, if the §440 court’s “to the extent” language meant that it would not

28

review the totality of petitioner’s ineffective assistance claim, that would be an exorbitant use of
a procedural bar, as it would deprive petitioner of his right, under the state court cases cited
above, to have both his on-the-record and off-the-record ineffective assistance claims determined
in one proceeding. See Contant v. Sobol, ––– F. Supp. 2d ––––, 2013 WL 6425006, *23-25
(S.D.N.Y. 2013) (finding state procedural bar inadequate in a “mixed” ineffective assistance
claim). There would be no forum under which the cumulative effect of error could be reviewed.
For the same reason, the §440 court’s deferral to the Appellate Division does not
constitute an independent and adequate state law ground for rejecting the claim. The Appellate
Division could not, in the context of a coram nobis motion, determine whether that portion of
petitioner’s ineffective assistance of trial counsel claim that relied upon off-the-record trial
counsel error constituted grounds for relief. The only issue before the Appellate Division on
coram nobis is whether appellate counsel should have made other points on direct appeal. Since
the direct appeal is confined to the trial record, the Appellate Division could not fault appellate
counsel for failing to raise off-the-record points. Thus, the proper decision for review on federal
habeas corpus is that of the §440 court, as it is the only court that had the complete ineffective
assistance of trial counsel claim before it.
The question then becomes as to the standard of review that applies in this habeas corpus
proceeding. Generally, when a state court decides that a claim is procedurally barred or,
alternatively, without merit, and the procedural bar fails, the federal standard is deferential
review under AEDPA as described above. See Jimenez, 458 F.3d at 146; see also Hawkins v.
Costello, 460 F.3d 238, 242 (2d Cir. 2006). But that ruling is unwarranted here, as it appears that
the §440 court’s merits holding was not truly alternative. Rather, the §440 court appears to have
accepted the District Attorney’s argument that it should exclude from its consideration of the

29

merits those parts of petitioner’s ineffective assistance claim that could have been raised on
direct appeal. Under these circumstances, the proper standard of review is de novo, because
petitioner has done all that state law allows him to do to exhaust his ineffective assistance claim,
and yet no state court has considered that claim in its totality. There is thus no state court
decision to which AEDPA deference can be accorded.
As shown below, although the ineffective assistance of trial counsel claim must be
reviewed in its entirety, this is not a case where the sum of the parts is greater than the whole.
None of petitioner’s individual points of error, in fact, reflect objectively unreasonable conduct
on the part of trial counsel, and thus even de novo review does not result in a viable claim under
Strickland.
A. Failure to investigate potential witnesses and introduce exculpatory evidence
Petitioner stated in an affidavit in his §440 motion that he “asked [sic] my trial attorney
that he should contact [three named individuals] so that they could testify on my behalf,” but his
attorney “declined to investigate my claims, nor did he make the slightest attempt to produce”
these three witnesses. In response, apparently at the behest of the District Attorney, his trial
attorney put in an affidavit saying he had discussed these witnesses at length with petitioner; that
petitioner had given the attorney phone numbers at which to contact these witnesses; that the
phone numbers were all disconnected; that he had retained an investigator to track these
witnesses down; and that the investigator had been unable to locate these witnesses, let alone
confirm that they had exculpatory evidence. In his reply affidavit, petitioner averred that he had
not only given his counsel the telephone numbers, but the addresses of the three purported
witnesses. He pointed out that his trial counsel’s affidavit did not disclose whether the
investigator had checked those addresses.

30

Petitioner offered no proof as to what these witnesses would have testified. His moving
affidavit merely made a conclusory assertion that he told his attorney to contact them “so that
they could testify in my behalf.” His brief made similarly conclusory albeit slightly more
focused assertions that they would have testified “as to his lack of participation in the
crime . . . .”
There is no constitutional violation in the §440 court’s rejection of this point. Petitioner
had to concede that the statement in his §440 moving affidavit that his attorney “did [not] make
the slightest attempt to produce” these witnesses was wrong. Petitioner gave no specifics about
what these witnesses would say, and his attorney retained an investigator to try to find them; he
did not abandon petitioner or ignore the lead that petitioner had given him. Under these
circumstances, counsel was not objectively unreasonable under Strickland.
B. Failure to object to submission of first degree manslaughter charge as lesser included
offense to second degree murder
Petitioner had three points as to why his attorney should have objected when the trial
court determined to submit the lesser included offense of first degree manslaughter. First,
according to petitioner, the claim was time-barred. Second, had it not been submitted, petitioner
contended that the jury would have acquitted him of the murder charge, rather than convicting
him of the manslaughter charge. Third, he argued that submission of the manslaughter charge
violated the extradition treaty between the United States and the Dominican Republic because
petitioner had only been extradited for murder, not manslaughter.
His trial counsel responded in his affidavit that irrespective of any statute of limitations
defense to the manslaughter charge, he wanted that count submitted, as he viewed it as the most
likely means to avoid conviction on the murder charge. The District Attorney argued that the

31

statute of limitations had not expired because it was tolled for virtually all of the time during
which petitioner had fled the jurisdiction and resided in Pennsylvania and the Dominican
Republic.
Petitioner’s disagreement with his trial counsel’s strategy is not a ground for habeas
corpus relief. Even an attorney’s strategy of admitting to facts that constitute a lesser included
defense is not constitutionally ineffective assistance of counsel. See Farrington v. Senkowski,
214 F.3d 237, 244 (2d Cir. 2000) (explaining that counsel’s concession of defendant’s guilt on a
lesser charge to induce the jury to acquit on more serious charges was an acceptable tactical
decision and not ineffective assistance under Strickland ); Wilson v. Heath, No. 10-CV-3814,
2013 WL 5530673, *8 (E.D.N.Y. Sept. 30, 2013) (“counsel’s decision to request a lesser
included offense to permit the jury to acquit petitioner of murder is entitled to deference as a
strategic decision, as it may render favorable results to Petitioner”); Nunez v. Miller, No. 00–
CV–0966 (ERK), 2001 WL 1773731, at *7 (E.D.N.Y. July 12, 2001) (finding it acceptable under
Strickland for counsel to concede defendant’s guilt to a lesser offense as a strategy to get the jury
to acquit defendant on the more serious charges).
It is of course easy enough for petitioner, with the benefit of a hindsight that includes
acquittal on the murder charge, to assert that the jury would have acquitted him of murder
anyway even without the manslaughter charge. That seems dubious as the manslaughter
conviction shows that the jury was not buying his and Placencia’s testimony, and it is purely
speculative as to whether that would have resulted in acquittal instead of conviction for murder
in the absence of the manslaughter charge. As Judge Chin observed in Brown v. Rick, No. 01
Civ. 4310, 2003 WL 22801397, *6 (S.D.N.Y. Nov. 25, 2003), in rejecting the same ineffective
assistance claim as petitioner raises here, “due to the all-or-nothing nature of proceeding without

32

a lesser included offense instruction, petitioners often challenge the effectiveness of their counsel
on the grounds that they failed to request such an instruction.” (Emphasis in original).
Counsel’s strategic decision does not warrant habeas corpus relief.
As to petitioner’s claim that his counsel should have objected to the submission of the
manslaughter charge pursuant to the extradition treaty between the Dominican Republic and the
U.S. prohibits his trial on other charges, there is a two-pronged answer.
First, as noted above, petitioner’s trial counsel averred that he wanted the manslaughter
charge submitted to the jury, and indeed, while we will never know, that strategy may well have
avoided petitioner’s conviction for murder. His strategic determination not to insist on terms of
the treaty was a strategic decision that does not violate Strickland. See Farrington, 214 F.3d at
244; Wilson, at *8; Nunez, at *7.
Second, the extradition treaty between the United States and the Dominican Republic, 36
Stat. 2468, at Article II(1), expressly defines murder as including first degree manslaughter:
“Murder, comprehending the crimes designated by the terms of patricide, assassination,
manslaughter, when voluntary, poisoning or infanticide.” Thus, when petitioner was extradited
for the crime of murder, that already included the crime of manslaughter. The extradition
warrant no more had to say “manslaughter” instead of “murder” than it had to say “first degree
murder” as opposed to “second degree murder.” See Fiocconi v. Attorney General, 462 F.2d
475, 481 (2d Cir. 1972) (charges added after extradition “of the same character” as the charge
upon which extradition occurred did not violate the treaty); United States v. Paroutian, 299 F.2d
486, 490-91 (2d Cir. 1962) (no treaty violation where defendant extradited to the Southern
District to New York for “narcotics trafficking” and then additionally indicted in the Eastern
District of New York for “receipt and concealment of heroin,” because “the test whether trial is

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for a ‘separate offense’ should be not some technical refinement of local law, but whether the
extraditing country would consider the offense actually tried ‘separate.’”).
Because petitioner suffered no prejudice from his counsel’s failure to raise this point, he
has not met the requirements for a Strickland claim.
C. Misuse of Placencia’s Testimony
Petitioner’s objection on this point before the §440 court was obscure. It appears to
assert that defense counsel should have objected to some, unspecified portion of Placencia’s
cross-examination, perhaps having to do with the fact that Placencia pled guilty, and that he
further should have requested an instruction to the jury that it could not hold Placencia’s guilt,
and particularly his guilty plea, against petitioner.
Under any standard of review, this claim would fail. There was nothing wrong with the
cross-examination of Placencia; certainly nothing to which objection could reasonably have been
taken. And given the defense in this case, an instruction to the jury not to consider Placencia’s
guilt against petitioner would have been a non-sequitur because the whole point of putting
Placencia’s guilt before the jury, which of course was the reason that defense counsel called him,
was that, if believed, it would exonerate petitioner. The jury was either going to believe
Placencia’s and petitioner’s story or not; an instruction along the lines that petitioner suggested
in his §440 motion would have served no purpose.
D. Coercive jury remark
On the Thursday before the Friday on which the jurors reached a verdict, the trial court
advised them that although they had not tried the case on Fridays previously, they would
continue their deliberations the next day, but would only sit until 2:00 p.m.: “Normally we

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wouldn’t work on Friday but since we are deliberating I’ll bring you in tomorrow but we will
only work until 2:00.” Although the transcript resumes the next day with some further
proceedings, the record then contains a gap. Reading between the lines, I conclude that what
happened was that the jury advised the trial court that it could not reach a verdict on the murder
count, but that it had reached a verdict on the manslaughter count. It further seems that the trial
court and the parties understood that this meant that the jury was ready to convict on the
manslaughter count, most likely because its continuing difficulty on the murder count, but its
resolution of the lesser included manslaughter count, compelled that conclusion (although it is
also possible that the jury expressly advised the trial court that it was ready to convict on
manslaughter). I infer that this is what occurred because, after a break in the proceedings, the
following dialogue ensued between the trial court and the prosecutor:
THE COURT: I have given you some time. What’s the People’s position?
MS. CARVAJAL: I spoke to my office and the [victim’s] family and we would
like to take a partial verdict. Just tell them we are taking the manslaughter as their
verdict and that you are just going to disband them.
In other words, the prosecutor had asked her supervisors and Santiago’s family whether they
would be satisfied with a manslaughter conviction and had determined to proceed on that basis.
The trial court then continued:
THE COURT: What I should ask them is whether with any additional time would
they ever be able to reach a verdict on the top count. If they say no then I agree
that’s what we will do.
Let's bring the jury in. . . .
THE COURT: Let the record indicate the jury is all present and seated in their
proper seats.
I received your note indicating that you are unable to reach a verdict on the top
count. I guess the issue is will you ever be able to reach a verdict if I sent you
home and you come back Monday will you be able to reach a verdict on the top
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count. If your answer is maybe if we have some more time we could then that's
what I would do and you would come back Monday. On the other hand if your
answer is that we will never able to reach a verdict on the top count then I will
allow you to go to the second count and I will take a verdict on the second count
right now. So I want you to go back, make that decision and let me know, but I
[would] 1ike to get out of here by 2: 30 so I want you to make your decision
quickly. The decision is will we ever come to a verdict on the top count. If we
can then you come back Monday. If you can’t then I'll accept a verdict on the
second count.
Petitioner’s claim is that by confirming the prior day’s advice that the trial court would conclude
proceedings for the week at 2:00 p.m. (although extending the time to 2:30 p.m.), the trial court
pressured the jury into reaching its verdict, and that his counsel was ineffective for not objecting
s opinion.
The deficiencies in petitioner’s argument are extensive. First, the most analogous
Supreme Court authority is its Allen charge jurisprudence. The Supreme Court has held that,
because of the potential coercive effects of an Allen charge, such instruction should be evaluated
“in its context and under all the circumstances.” Lowenfield v. Phelps, 484 U.S. 231, 237, 108
S.Ct. 546, 550 (1988). Of course, the trial court’s inquiry to the jury was not in any way an Allen
charge. The trial court did not urge jury to reach a verdict. It gave the jury a choice – give up on
the murder count if you can’t decide it, or come back Monday if you think more deliberations
would help.
More fundamentally, the only “coercion” that the trial court applied was to coerce the
jury into absolving petitioner of the murder charge, which is precisely what it did. If the jury had
convicted petitioner of murder before 2:30 p.m., then at least petitioner would have a colorable,
albeit still weak, claim. But the trial court never gave that jury that option. The trial court’s
remark gave the jury the choice of either reporting by 2:30 that it was still deadlocked, in which
case it understood that the trial would be over, or that it wished to continue deliberating on the

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murder charge the following week. Convicting on the murder charge before 2:30 was not an
option identified by the trial court – nor could the jury have understood it to be one, since the
trial court’s remark occurred after 2:15 p.m. Petitioner’s claim that his attorney should have
objected to the remark is not only meritless, but ironic, since the remark led to his acquittal for
murder.
E. Failure to object to evidence seized in Pennsylvania
After petitioner fled the scene of the murder, he stayed with his girlfriend’s sister, one
Carmen Juarbe, in Redding, Pennsylvania before fleeing to the Dominican Republic. Local
Redding police, acting at the behest of Detective Martin and other investigating New York City
police detectives, went to the Juarbe’s home, obtained her consent to search it, and found various
identification and other documents belonging to petitioner. The documents confirmed the
identification of petitioner from the photographic evidence. Petitioner contends that his trial
counsel should have moved to suppress these documents, and once he had achieved that, then his
arrest in the Dominican Republic would also have been illegal. But petitioner never said why the
documents should be suppressed. Not only did the consent of the resident, Juarbe, confirm the
legality of the search, but petitioner, as a mere transient, had no standing to challenge it. See
Brown v. United States, 411 U.S. 223, 229, 93 S. Ct. 1565, 1569 (1973). His counsel did not
have to engage in an exercise in futility. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.
1995); Purnell v. Smith, No. 85 Civ. 3998, 1988 WL 3388, at *2 (S.D.N.Y. Jan. 6, 1988).
F. Failure to object to Vienna Convention violations
Petitioner claims that his attorney should have objected to his arrest because he was not
advised of his right to contact the Dominican Consulate, a right secured to him by Article 36 of
the Vienna Convention on Consular Relations of 1963. See Geneva Convention on Consular
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Relations and Optional Protocol on Disputes, art. 36, Apr. 24, 1963, 21 U.S.T. 77. But “a
defense attorney cannot be labeled ineffective for failing to advise his client of the right to speak
to a diplomatic official who could do no more to protect his rights than counsel himself.” United
States v. Arango, 99 CV 3726, 1999 WL 1495422, at *3 (E.D.N.Y. Dec. 29, 1999). Moreover,
“a violation of Article 36 . . . is not a basis for the dismissal of an indictment.” United States v.
De La Pava, 268 F.3d 157, 163 (2d Cir. 2001). Petitioner failed to make any showing to the
§440 court how such advice would have helped him.
CONCLUSION
The petition for a writ of habeas corpus is denied, and the case is dismissed. A certificate
of appealability shall not issue. See 28 U.S.C. § 2253(c). Further, the Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444, 82 S. Ct. 917, 920 (1962).
SO ORDERED.

Digitally signed by Brian M.
Cogan
U.S.D.J.
Dated: Brooklyn, New York
March 25, 2014

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