Wilson v. Smith
ORDER: For the reasons stated in the attached decision, Wilson's petition is denied. Because Wilson has failed to make a substantial showing that he was denied a constitutional right, no certificate of appealability shall issue. A copy of this decision and a transcript of the oral argument will be mailed to the petitioner. Ordered by Judge John Gleeson on 2/10/2015. (Levin, Sarah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION ONLY
- versus -
JOSEPH T. SMITH,
A P P E A R A N C E S:
Shawangunk Correctional Facility
200 Quick Road
PO Box 700
Wallkill, NY 12589
Petitioner, pro se
District Attorney, Kings County
350 Jay Street, Renaissance Plaza
Brooklyn, New York 11201
Marie-Claude Palmieri Wrenn
Attorney for Respondent
JOHN GLEESON, United States District Judge:
Rahman Wilson petitions under 28 U.S.C. § 2254 for a writ of habeas corpus.
Wilson is presently incarcerated pursuant to a New York state criminal conviction and sentence
of two consecutive twenty-year terms of imprisonment following a trial for murder. He now
argues that he was denied federal constitutional rights before, during, and after trial. I heard oral
argument on the motion on January 20, 2015, at which Wilson appeared via videoconference.
For the reasons given below, Wilson’s petition is denied.
Facts of the Crime
Around 4:05 a.m. on December 27, 2008, a police officer heard shots being fired
at a club located at 181 Chester Street in Brooklyn, New York. She responded to the scene and
saw that two people, later identified as Jamel Benjamin and Travis Bright, had been shot. Tr. 5773. Both men died from their wounds.
James Bynum testified that he worked at the club doing cleaning and
maintenance. Tr. 129-30. On the night of the shooting, there was a birthday party for Sidney
Mitchell. There were about one hundred guests. Tr. 132-36. Around three o’clock in the
morning, three men walked in who looked out of place. They went to talk to Mitchell and the
woman who paid for the party. Tr. 137-39.
Around 3:30 a.m., Bynum went outside and saw Mitchell, along with some of his
friends, talking to the three men. Everything was quiet until about 4 o’clock, and the three men
had gone back inside. Everyone started to leave the party. Bynum, who had gone inside after
the three men, went back outside. That was when Bynum heard a loud noise that sounded like a
metal chair slamming on the floor. Tr. 142-48. When he went inside to investigate, people were
running out of the club and he was punched in the face by one of the three men. Tr. 149. At that
point, he and several security guards were trying to hold down the man who punched Bynum in
the face, and Mitchell said to the man, “you like to shoot people?” Based on this, Bynum
thought the man he was holding down had a weapon. Tr. 149-53. While Bynum was holding
the man down, the cousin shot him in the head. Tr. 153-56. Bynum started cursing at the
shooter, then he watched the shooter run out of the club. Tr. 157-58. Bynum later identified
Wilson as the shooter. Bynum had never seen Wilson before that night. Tr. 162-63.
Kim Smith also witnessed the shooting. He testified that Sidney Mitchell, a coworker, invited him to his birthday party on the night of December 26, 2008. Tr. 319-22. Smith
said he first saw Wilson about half an hour after Mitchell came to the party, and Wilson was with
two other people. One of the men was short and was wearing a gray leather jacket with a logo
on the back. Tr. 329-30. When Wilson came in, he went up to Smith and Mitchell. Smith was
telling Mitchell about a tattoo on Smith’s arm, and Wilson grabbed Smith’s arm to point out an
area that Wilson thought should be tattooed. Tr. 330-31. At the time, Smith thought Wilson’s
first name was Ramel, and he knew him as Mitchell’s cousin. Wilson worked with Smith at a
bus company at the time, and Smith saw him every day for about twenty minutes each morning.
Tr. 326-27. Smith and Wilson never spoke, and they did not have any problems. Tr. 328.
Smith testified that around 3:30 or 4:00 a.m., where there were only about five
people left on the dance floor, several men arrived who looked out of place. Tr. 325-26. One of
the men was shorter than the others, and Wilson went up to him and asked who they were with.
The shorter man said, they’re with me, they are homies. Tr. 332.
Smith testified that when the party was ending, Wilson and Mitchell had a playful
fight on the floor, but everything still seemed to be going well. Then, Smith saw Wilson enter
the party with a revolver in his hand. Tr. 333-34. He was with another man, shorter than
Wilson, who was saying, “give it back to me,” to Wilson. Tr. 341. Wilson told the man, “I’m
only going to just scare him.” Tr. 336.
Wilson started talking to a man with dreadlocks, later identified as Jamel
Benjamin, and telling him to come outside, but Benjamin ignored Wilson. Tr. 335-36; 338-41.
Smith saw Wilson shoot Benjamin then go up to security guards who were wrestling with
another man and shoot the man the security guards were holding down. Tr. 338-41. After
Wilson shot the second person, Smith saw him run out of the club. Smith also ran out of the club
with his girlfriend and called 911. Tr. 348-49.
When Smith called 911, he told the operator that two men had been shot in the
face. Tr. 354-55. Smith told the 911 operator that he heard more shots because when the shooter
exited the club, he was still firing his gun. Tr. 355-56. Smith also told the 911 operator that
someone was giving the police a statement who saw the shootings better than Smith did. When
Smith said that, he meant that the other person knew the shooter better than Smith before that
evening. Tr. 356-57. After Smith called 911, he and his girlfriend stayed until the police and
ambulance came, and then they walked home. Tr. 358. Smith later identified Wilson in a lineup.
Tr. 364-66. Smith first identified Wilson as “Ramel,” but learned from his girlfriend that his real
name was “Rahman.” Tr. 357.
Shakir Afzal was also present the night of the shooting. Afzal testified that his
father runs the nightclub located at 181 Chester Street, known as Platinum 181. Tr. 265-66.
Afzal said he was outside the club when shots were fired at around 2:00 a.m.; when he heard the
shots, he went inside and saw two men lying on the floor. He did not see anyone shooting and
did not see anyone with a gun. Tr. 269-72. Afzal’s cousin is James Bynum. Tr. 272. When
Afzal saw the bodies, he called 911. Tr. 273. After the police arrived, Afzal went to the station
for questioning and then returned to the club to clean up. When he was cleaning up, he found a
bullet located near one of the bodies. Tr. 275-81. Afzal called the police, and Detective Parks of
the NYPD went to the scene to collect the bullet. Tr. 474-77. The medical examiner testified
that he recovered another bullet from the body of Jamel Benjamin. Tr. 111-16. Detective
Wilfredo Torres of the Firearms Analysis Section testified that he examined both bullets and
determined they were fired from the same firearm, a .9mm/.38mm caliber. Tr. 231-46.
Wilson was charged in Kings County with two counts of first-degree murder, two
counts of second-degree murder, and criminal possession of a weapon in the second degree.
Wrenn Decl. (ECF No. 7) at ¶ 5. Trial began in July 2010. Only the second-degree murder
charges and the weapon charge were submitted to the jury. Id. ¶ 6. On August 13, 2010, a jury
convicted Wilson of both counts of second-degree murder and the weapon charge. Tr. 910-16.
At the end of the trial, the government moved to dismiss the first-degree murder counts. Wrenn
Decl. ¶ 6, n.1. On September 3, 2010, the court sentenced Wilson to consecutive terms of
twenty-five years’ imprisonment for the murder convictions, and a concurrent five-year prison
term for the weapon conviction. Id. ¶ 7.
Subsequent Procedural History
Wilson appealed to the New York Supreme Court’s Appellate Division, Second
Department. He argued that (1) the prosecution failed to prove his guilt beyond a reasonable
doubt and the verdict was against the weight of the evidence; (2) the prosecution impermissibly
elicited hearsay evidence to support the testimony; (3) the prosecution improperly impeached a
defense witness; and (4) that his sentence was excessive. See Wren Decl. Ex. L1 (App. Div. Br.)
On December 5, 2012, the Second Department modified Wilson’s sentence,
reducing it to two consecutive indeterminate terms of 20 years to life. It otherwise affirmed the
trial court’s decision. People v. Wilson, 955 N.Y.S.2d 362, 363 (2d Dep’t 2012). The appellate
court found that Wilson’s argument regarding insufficient evidence was unpreserved for review.
Id. at 364. It also found that Wilson’s argument that the prosecution impermissibly elicited
hearsay testimony was unpreserved. It did note that it was error to admit the testimony in
question, i.e., Smith’s testimony that he learned Wilson’s real name (Rahman, not Ramel, as he
had believed) from Smith’s girlfriend. But it further noted that the error was harmless in light of
the overwhelming evidence of guilt. See id. A judge of the New York Court of Appeals denied
leave to appeal on February 21, 2013. People v. Wilson, 20 N.Y.3d 1066 (2013) (Graffeo, J.).
In his petition for habeas relief, filed on May 14, 2014, Wilson raises the first two
arguments he submitted to the Second Department: (1) that the prosecution failed to prove his
guilt beyond a reasonable doubt and his verdict was against the weight of the evidence; and (2)
that the prosecution impermissibly elicited hearsay evidence to support the testimony. 1 In his
reply brief, Wilson also raises the argument that his trial and appellate counsel were ineffective.
Standard of Review
The exhaustion requirement, codified at 28 U.S.C. §§ 2254(b) and (c), obligates a
federal habeas petitioner to exhaust state judicial remedies before seeking relief from a federal
court. To exhaust state remedies, a petitioner must “fairly present” his federal constitutional
claims to the highest state court with jurisdiction over them. Duncan v. Henry, 513 U.S. 364,
365 (1995) (internal quotation marks and alterations omitted); Daye v. Attorney General of New
York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). This requirement affords the state system “the
opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Duncan,
513 U.S. at 365 (quotation marks and citation omitted).
Procedural Default and Adequate and Independent State Grounds
A federal habeas court may not “review a claim rejected by a state court if the
decision of the state court rests on a state law ground that is independent of the federal question
The petition itself is ambiguous with respect to whether Wilson is advancing in this proceeding the
third and fourth claims he advanced in the Appellate Division. However, Wilson made clear at oral argument that
he was not. Therefore, I will not respond to those arguments here.
and adequate to support the judgment.” Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (citing
Coleman v. Thompson, 501 U.S. 722, 729 (1991)) (internal quotation marks and citation
omitted). The adequate and independent state ground doctrine, like the exhaustion requirement,
is “grounded in concerns of comity and federalism.” Coleman, 501 U.S. at 730. Without this
doctrine, “habeas would offer state prisoners whose custody was supported by independent and
adequate state grounds . . . a means to undermine the State’s interest in enforcing its laws.” Id. at
This holds true any time “a state court has expressly relied on a procedural default
as an independent and adequate state ground, even where the state court has also ruled in the
alternative on the merits of the federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.
1990); accord Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (“[A] state court need not fear
reaching the merits of a federal claim in an alternative holding.”) (emphasis in original). Thus,
“as long as the state court explicitly invokes a state procedural bar rule as a separate basis for
decision,” the adequate and independent state ground doctrine “curtails reconsideration of the
federal issue on federal habeas.” Gadsden v. Lee, No. 12-CV-4204 JG, 2013 WL 3938500, at *3
(E.D.N.Y. July 30, 2013) (quoting Harris, 489 U.S. at 264 n. 10).
“Before accepting a procedural bar defense, a federal court must examine the
adequacy of the alleged procedural default,” as “state courts may not avoid deciding federal
issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.”
Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (citation and quotation marks omitted). “[A]
procedural bar will be deemed adequate only if it is based on a rule that is firmly established and
regularly followed by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999)
(citations and quotation marks omitted); see also Lee v. Kemna, 534 U.S. 362, 376 (2002)
Cause and Prejudice
A state procedural default qualifies as an adequate and independent ground and
will preclude federal habeas review “unless the habeas petitioner can show cause for the default
and prejudice attributable thereto . . . or demonstrate that failure to consider the federal claim
will result in a fundamental miscarriage of justice.” Harris, 489 U.S. at 262 (quotation marks
and citations omitted); accord Coleman, 501 U.S. at 750. A petitioner may establish cause by
showing “that the factual or legal basis for a claim was not reasonably available to counsel,” or
that “some interference by officials . . . made compliance impracticable.” Murray v. Carrier,
477 U.S. 478, 788 (1986) (quotation marks and citations omitted). A petitioner may establish
prejudice by showing that the error worked to petitioner’s “actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Torres v. Senkowski, 316 F.3d
147, 152 (2d Cir. 2003) (quotation marks and citation omitted). Finally, if the petitioner cannot
show cause and prejudice, the procedural default may nonetheless be excused if he can show that
a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., “that
he is actually innocent of the crime for which he has been convicted.” Dunham v. Travis, 313
F.3d 724, 730 (2d Cir. 2002) (citations omitted).
AEDPA Deference to State Court Decisions on the Merits
If a claim is exhausted and procedural default does not apply, I will move on to
consider the merits of the claim under the standard articulated in 28 U.S.C. § 2254, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under that standard,
a federal habeas court may grant habeas relief “with respect to any claim that was adjudicated on
the merits in State court proceedings” only if the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)(2). In addition, a federal habeas court must presume all state court factual determinations to be
correct, unless the petitioner rebuts the findings by clear and convincing evidence. Id.
Wilson’s Claims for Relief
Wilson makes several arguments in support of the writ. First, he argues that the
evidence was insufficient to prove his guilt beyond a reasonable doubt. Second, he argues that
his Sixth Amendment right to confrontation was violated when the trial court allowed prejudicial
hearsay evidence. Respondent admits that these two claims have been exhausted because Wilson
presented them to both the Second Department and New York Court of Appeals. Opp. Br. 2.
Respondent argues instead that Wilson’s claims are procedurally defaulted, since the Second
Department found that both of the arguments were unpreserved in the trial court. Id. In
Wilson’s reply brief, he also argues that his trial and appellate counsel were ineffective.
The Sufficiency of the Evidence
Wilson argues that the jury’s verdicts were based on insufficient evidence because
the testimony of the two eyewitnesses at trial was not credible and there was no physical
evidence presented or evidence of motive. See Br. 7-12. Respondent argues this claim has been
procedurally defaulted and in any event is without merit.
Even if the issue were properly preserved, the claim is clearly meritless. To
overturn a conviction based on insufficiency of the evidence, a defendant must establish that,
“viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Dixon v.
Miller, 293 F.3d 74, 81 (2d Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(additional citation omitted). “A defendant challenging the sufficiency of the evidence
supporting his conviction bears a heavy burden . . . .” Dixon, 293 F.3d at 81 (citation omitted).
Wilson fails to meet this burden. Viewing the evidence in the light most
favorable to the prosecution, two eyewitnesses – Bynum and Smith – had clear views of the
shooter, and they both identified Wilson as the shooter. Trial counsel had an opportunity to
cross-examine both witnesses and argued all of the credibility issues that Wilson raises now. It
is the province of the jury – not a trial or habeas court – to determine the reliability of witness
testimony. In short, a reasonable jury could have found Wilson guilty of both murders.
Wilson’s claim is also procedurally defaulted. “[F]or an argument concerning the
sufficiency of the evidence to be preserved, it must be ‘specifically directed’ at the alleged error .
. . .” Dixon, 293 F.3d at 80 (2d Cir. 2002) (quoting People v. Gray, 86 N.Y.2d 10, 19 (1995)
(additional citation omitted). Wilson’s trial counsel made a motion to dismiss at the close of the
prosecution’s case, and said “there are numerous major and various inconsistencies in the
testimony from Kim Smith to James Bynum.” Tr. 611. Counsel argued that Smith and Bynum’s
testimony were both “unbelievable,” but did not elaborate further. See Tr. 611-12. The court
denied the motion. Tr. 612-13. On appeal, Respondent argued that the issue was not preserved
because defense counsel did not argue the specific inconsistencies that he mentions on appeal,
including Smith’s 911 call and the “purported lack of information provided by Smith in that
call.” Wrenn Decl. Ex. M (Resp. Br.) at 24. The Second Department found that Wilson’s
argument regarding insufficient evidence was unpreserved for review. Wilson, 955 N.Y.S.at
The Second Department’s decision that Wilson’s claim is unpreserved rests on
independent and adequate state law grounds. The decision to affirm the conviction was
“independent of the claim [petitioner] raises in the instant habeas petition.” See Williams v.
Walsh, No. 02 CIV. 7633 (HB), 2004 WL 2754859, at *3 (S.D.N.Y. Dec. 1, 2004) (citation
omitted). It was a clearly stated ground based on a “firmly established and regularly followed
New York procedural rule . . .” See Garvey v. Duncan, 485 F.3d 709, 718 (2d Cir. 2007)
(referring to N.Y.C.P.L § 470.05(2)).
Moreover, the appellate court’s decision does not qualify as an “exorbitant”
application of the contemporaneous objection rule. See id. at 713-14 (“[I]n certain limited
circumstances, even firmly established and regularly followed state rules will not foreclose
review of a federal claim if the application of the rule in a particular case is ‘exorbitant.’”)
(quoting Lee, 534 U.S. at 375). The motion to dismiss alerted the court generally to the issue of
the unreliability of the eyewitnesses’ testimony, and I might have found the issue to be
adequately preserved. However, “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Downs v. Lape, 657 F.3d 97, 105 (2d Cir.
2011) (citation and internal quotation marks omitted). Finally, petitioner has not demonstrated
cause or prejudice to overcome the procedural default under the standard articulated above.
Impermissible Hearsay Testimony
Wilson also argues that the trial court allowed impermissible hearsay testimony.
See Br. 14-16. He contends that hearsay testimony elicited from Kim Smith – that his girlfriend
told him Wilson’s real first name was “Rahman” and not “Ramel” – violated his rights under the
Confrontation Clause because he was not given an opportunity to cross-examine Kim Smith’s
girlfriend, Shameva Ector. See id. at 17. He also argues that the judge should have given a
limiting instruction on the testimony of Kim Smith. See id. Respondent points out that this
claim has been defaulted, and in any event any error was harmless. Opp. Br. 13-16.
I agree with the Second Department that the issue was not preserved for appellate
review. See Wilson, 955 N.Y.S.2d at 364. Using the same standard discussed above, the
contemporaneous objection rule is well-established, and the Second Department’s opinion
clearly stated that it was relying on that rule in its decision. The questioning at issue went as
Now, you testified earlier you believed his name was Ramel; correct?
When did you learn that his name was actually Rahman?
That same night when [I] went home.
Now, do you know if your girlfriend [k]new the Defendant?
Yes, she did.
Mr. Fredella: Objection.
Mr. Jackson: If he knows.
I’ll withdraw the question, Judge.
The Court: Go ahead.
Did your girlfriend also work at the bus company?
Yes, she did.
Did she work there at the same time that the Defendant did?
Yes, she did.
It was she who told you his name was Rahman?
Tr. 357. Wilson’s trial attorney did not object to the hearsay testimony when it was elicited, and
he did not use this as a basis for his motion to dismiss at the close of the government’s evidence.
See Tr. 357-58, 611-12. Thus, independent and adequate grounds exist for the state court’s
decision rejecting this claim, and Wilson has not established cause or prejudice to overcome the
The Second Department also considered the merits of the claim. See Wilson, 955
N.Y.S.2d at 364. It found that the testimony at issue was inadmissible hearsay because it was
“offered for its truth, i.e., to prove that the person the eyewitness saw shoot the victim was, in
fact, Rahman.” Id. Petitioner argues this error violated his Confrontation Clause rights under the
Sixth Amendment. However, the Second Department found that the testimony did not violate
defendant’s Confrontation Clause rights because the evidence of guilt was overwhelming and
because “the testimony elicited by the People during direct examination did not imply that the
eyewitness’s girlfriend viewed the shooting and identified the defendant as the shooter, but,
rather, indicated that the girlfriend merely supplied the correct name of the subject coworker.”
Id. (citation omitted).
Assuming without deciding that the admission of the challenged testimony
violated petitioner’s Confrontation Clause rights, I agree with the Second Department that any
error was harmless. See id. (citation omitted). On habeas review, I use the standard articulated
in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), to decide whether a state court’s
determination of a constitutional error was harmless. See McBee v. Burge, 644 F. Supp. 2d 270,
284 (E.D.N.Y. 2009) (quoting Fry v. Pliler, 551 U.S. 112, 127 (2007)), aff’d, 395 F. App’x 762,
763 (2d Cir. 2010). The Brecht standard allows a court to grant a habeas petition only if the
petitioner establishes that “the error had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’” Glenn, 98 F.3d at 729 (quoting Brecht, 507 U.S. at 638
(additional citation omitted)).
Wilson has not met this standard. Kim Smith witnessed the shootings and
identified the defendant, a person he knew as “Ramel,” as the shooter. The fact that Smith’s
girlfriend later corrected Smith and told him Wilson’s first name was Rahman (not Ramel) did
not alter the reliability of Smith’s eyewitness testimony. Smith had an independent knowledge
of Wilson, who he saw daily at work. Therefore, the error did not have a “substantial and
injurious effect or influence in determining the jury’s verdict.” See Brecht, 507 U.S. at 638.
Ineffective Assistance of Counsel
In his reply brief, petitioner raises the issue of ineffective assistance of counsel.
See Reply at 2. He claims his trial counsel was ineffective by failing to object to inadmissible
evidence throughout the trial, and appellate counsel was ineffective for not conducting a factual
investigation into petitioner’s innocence. See id. At oral argument, Wilson specified that his
trial counsel was ineffective for (1) failing to object to hearsay testimony about Smith learning
Wilson’s real name from his girlfriend and (2) failing to call Smith’s girlfriend as a witness.
Also at oral argument, Wilson also dropped his claim with respect to appellate counsel.
Though the Second Department stated that Wilson was afforded the effective
assistance of trial counsel, see Wilson, 955 N.Y.S.2d at 364-65l, Wilson never raised a claim of
ineffective assistance of trial counsel on direct appeal or in a § 440 motion, and therefore any
such claim is unexhausted. However, I can decide to consider Wilson’s claim of ineffective
assistance of trial counsel on the merits under 28 U.S.C. § 2254(b)(2), notwithstanding his failure
To establish a claim of ineffective assistance of counsel under the federal
constitution, Wilson must show that (1) his counsel supplied deficient representation, and (2)
Wilson suffered prejudice as a result of that deficient performance. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). To establish deficient performance, Wilson must
show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at
688. “The challenger’s burden is to show ‘that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 687). To
establish prejudice, a challenger must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
As explained above, Wilson’s arguments with respect to the hearsay testimony of
Kim Smith are weak. There was good reason for the jury to credit Smith’s eyewitness testimony
that Wilson was the shooter, and that was not undermined in the slightest by Smith’s testimony
that he learned from his girlfriend that Wilson’s real first name was Rahman, not Ramel. A
successful objection to the hearsay would not have established a reasonable probability of a
different outcome in the case. See Strickland, 466 U.S. at 694. Similarly, it is unclear what aid –
if any – the testimony of Kim Smith’s girlfriend would have brought to Wilson’s case. Merely
supplying Wilson’s real name would not have altered the critical facts supplied by Smith or any
other witness. Wilson’s arguments do not establish an ineffective assistance claim under
Strickland, as there is no reasonable possibility the result of his trial would have been different
had his counsel objected to the hearsay in question. For these reasons, Wilson’s ineffective
assistance claim is denied.
For the reasons stated above, Wilson’s petition is denied. Because Wilson has
failed to make a substantial showing that he was denied a constitutional right, no certificate of
appealability shall issue.
John Gleeson, U.S.D.J.
Dated: February 10, 2015
Brooklyn, New York
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