Miller v. Graham

Filing 16

MEMORANDUM AND ORDER, For the foregoing reasons, the petition for a writ ofhabeas corpus is denied and dismissed. The court declines to issue a Certificate of Appealability because petitioner has not shown that "reasonable jurists could debate w hether... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement toproceed further." Middleton v. Att'ys Gen. of States of N.Y., Pennsylvania, 396 F.3d 207, 209 {2d C ir. 2005) (internal quotation marks omitted); see also 28 U.S.C. § 2253 (c) ("A certificate of appealability may issue... only if theapplicant has made a substantial showing of the denial of a constitutional right."). Additionally, 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 purpose of an appeal. Coppedge v.United States, 369 U.S. 438, 444-45 (196 2). The Clerk of Court is respectfully requested to enter judgment denying and dismissing the petition, serve a copy of this docket, and close the case. (Certificate of Appealability Denied re: 1 Petition for Writ of Habeas Corpus, 13 Petition for Writ of Habeas Corpus). Ordered by Judge Kiyo A. Matsumoto on 8/7/2018. c/m Fwd. for Judgment. (Galeano, Sonia)

FILED
incllfko office

US D'oTFLGT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT

^

EASTERN DISTRICT OF NEW YORK

"^^2018 *

X

JEFFREY MILLER,

BriOOKLYN OFFICE
Petitioner,

MEMORANDUM & ORDER

- against -

14-cv-5901 (KAM)

HOWARD GRAHAM, Superintendent of Auburn
Correctional Facility
Respondent.
X

MATSUMOTO, United States District Judge:

On October 6, 2014, petitioner Jeffrey Miller

(''petitioner") brought the above-captioned pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the Eastern District of New York,

challenging his conviction of one count of murder in the second
degree and three counts of criminal possession of a weapon in
the fourth degree.

(See ECF No. 1, Petition for Writ of Habeas

Corpus ("Pet."), filed 10/06/2014.)

Petitioner filed several

amended and supplemental petitions, the latest of which was
filed on November 7, 2016.

(See ECF No. 13, Supplemental

Petition for Writ of Habeas Corpus ("Second Supp. Pet."), filed
11/07/2016.)
denied.

For the reasons set forth below, the petition is

FACTS

I.

Background Facts

Petitioner's conviction stems from the death of Denise

Gibbs C'Gibbs").

Petitioner and Gibbs were dating and had been

living together in Gibbs' apartment for about two months prior
to her death.

(ECF No. 6-1, State Ct. R. of October 16, 2007

Proceedings ("Gibbs-Fitts Testimony Tr."), filed 12/10/2014, at
61-62.)!

4:26 PM on Sunday, May 14, 2006, petitioner called

Gibbs' mother asking where her daughter was.

(Id. at 65.)

Gibbs' mother said she did not know, and petitioner said she

must be with friends.

(Id.)

Gibbs' mother told petitioner that

he was ''messing up" because of his drug use.

(Id. at 68.)

Gibbs had told her mother about arguments Gibbs and petitioner

had been having over his drug use.

(Id.)

Minutes later, at 4:33 PM, petitioner called 911 and

reported that he found his girlfriend bleeding under some
blankets and that she appeared to be dead.

(ECF No. 6-1, State

Ct. R. of October 16, 2007 Proceedings at 6, 21; ECF No. 6-2,
State Ct. R. of Direct Appeal, filed 12/10/2014, at 45.)
Petitioner told the dispatcher he discovered the body after

noticing a television was missing from Gibbs' apartment and

thinking his stepson had taken it into the room where Gibbs'

1 Citations to the transcripts of the state court proceedings refer to the
internal paginations and not the page number assigned by the Electronic Case
Filing ("ECF") system.

body was.

(ECF No. 6-2, State Ct. R. of Direct Appeal at 45.)

At 4:37 PM on Sunday, May 14, 2006, Police Officer Julio
Hernandez (''Officer Hernandez") responded to petitioner's 911
call.

(ECF No. 6-1, State Ct. R. of October 17, 2007

Proceedings ("Hernandez Testimony Tr."), filed 12/10/2014, at
78.)

Officer Hernandez found Gibbs in a bedroom, lying on the

floor, face down, with the lower half of her body covered in

quilts.

(Id. at 79-80.)

Gibbs was "hog-tied," with her arms

and legs bound together behind her back with an electrical cord.
(Id. at 92-93.)

Petitioner was in the apartment when Officer Hernandez

arrived and, according to Officer Hernandez, petitioner appeared
to be a "little groggy," like he had "just woken up," but also

"very calm."

(Id. at 80-81, 120.)

The officer observed that

the apartment showed no signs of disarray or struggle.
82.)

(Id. at

Petitioner told Officer Hernandez that he arrived home the

day before (Saturday, May 13, 2006) at 11 AM, still drunk after
a night of drinking, and walked to his bedroom and fell asleep.
(Id. at 97-98, 119.)

Petitioner stated that he did not wake up

until that afternoon (Sunday, May 14, 2006), at which point he
noticed a stereo or television was missing and went to look for

Gibbs, thinking something was wrong.

(Id. at 97-98.)

Petitioner claimed he then looked into a bedroom where he found

Gibbs and subsequently called 911.

(Id.)

Dr. Frede Frederic performed an autopsy on Gibbs and
concluded that she died of asphyxia due to compression of her
neck and/or occlusion of her airway.

(ECF No. 6-1, State Ct. R.

of October 16, 2007 Proceedings (''Frederic Testimony Tr."),
filed 12/10/2014, at 34.)

Dr. Frederic concluded that a knotted

bandana placed deep inside Gibbs' mouth occluded Gibbs' airway,
preventing any air from passing into her lungs.

(Id.)

From

small abrasions on Gibbs' neck. Dr. Frederic concluded that her

neck was compressed by either a hand or a forearm, but not a

ligature.

(Id.)

Dr. Frederic estimated that the neck

compression lasted "maybe less than 15 seconds," but it was
possible it only lasted a second or two if the pressure was

forceful enough to cause a "vasovagal reflex," which would stop
the heart instantly.

(Id. at 51-55.)

There was no trauma to

Gibbs' body other than to her neck, and her fingernails were
well manicured and not broken.

(Id. at 32, 59.)

Dr. Frederic

also concluded that Gibbs' arms and legs were bound after she

was already dead.

(Id. at 38.)

Gibbs had been dead between 24

and 36 hours before her body was discovered by the police.

(Id.

at 35.)

Petitioner voluntarily accompanied the police officers
to the 73^^ Precinct where he was questioned by Officer Sean

McTighe ("Officer McTighe").

(ECF No. 6-1, State Ct. R. of

October 17, 2007 Proceedings ("McTighe Testimony Tr."), filed

12/10/2014, at 130-31, 139-40.)

Petitioner was informed of his

Miranda rights and waived his right to counsel, but refused to
sign the Miranda form.

(Id. at 139-40.)

Petitioner elaborated on his earlier story and

explained that he and Gibbs had been play fighting the prior
morning (Saturday), which included choking one another.
141, 174-75.)

(Id. at

Petitioner also said that he and Gibbs had been

arguing recently due to his drug use, and that he left Gibbs'
apartment on Saturday to sell CDs.

(Id. at 141.)

Petitioner

claimed that he returned drunk to Gibbs' apartment at 2 AM and

then woke up at 4 PM when someone knocked on his door to buy a
CD, after which he found Gibbs' body and called 911.

143-44.)

(Id. at

Officer McTighe had petitioner take off his shirt and

determined there were no marks indicating petitioner had been in
a physical altercation.

(Id. at 148.)

After the interview, petitioner was charged with petit

larceny and placed in a holding cell.

(Id. 150.)

The arrest

was based on petitioner's statement to police, made while at

Gibbs' apartment, that he sold a cable box recently.
149-50.)

Police also found a cable bill found in Gibbs'

apartment with petitioner's name on it.

(Id. at 150.)

Petitioner remained in a holding cell overnight.
51.)

(Id. at

(Id. at 150-

After Officer McTighe was informed early on Monday,

May 15, 2006 of the autopsy results concluding that Gibbs died
from asphyxiation, he interviewed petitioner again at 3:30 PM on
May 15.

(Id. at 151-52.)

Petitioner again waived his Miranda

rights, but this time he also signed the Miranda form.
154-56.)

(Id. at

During this interview, petitioner produced a

handwritten statement.

(Id. at 157.)

Petitioner's written statement stated that he returned

to Gibbs' apartment around 10 AM on Saturday, May 13, after a

night of smoking crack.

(Id.)

When Gibbs saw that petitioner

was high, she got upset and started pushing petitioner, who
pushed Gibbs back.

(Id.)

Eventually, they wound up in a

bedroom where, according to petitioner's statement, Gibbs fell

and stopped moving.

(Id.)

Petitioner then tied Gibbs up and

put a scarf in her mouth so that when she woke up she would not
be able to move or scream.

(Id.)

He then unhooked the stereo

from Gibbs' apartment and sold it to buy crack, and he proceeded
to smoke the crack in the apartment.

(Id. at 157-58.)

Petitioner then sold Gibbs' television and bought more crack,

returning again to smoke it in the apartment.

(Id. at 158.)

Petitioner then tried to sell his mp3 player for more

crack, but decided that ''enough was enough" and then started to

cry about what happened "because [he] was so sorry because
[Gibbs] didn't deserve this."

(Id.)

Petitioner wrote that he

decided to take his own life and searched the apartment for

pills.

{Id,)

He found three different medications and took a

handful of them before covering Gibbs and then sitting on the

floor with his back against her while he waited for the pills to
take effect.2

(Id.)

Petitioner wrote, ''I felt terrible because

I let crack destroy not only my life but hers as well."

(Id.)

Petitioner wrote that, after the pills began to kick

in, he became extremely drowsy.

(Id.)

He made his way to his

bed and laid down ^^to let the pills finish [him] off."

(Id.)

He woke up around 4 PM on Sunday, May 14, to a neighbor knocking
on his door.

(Id. at 158-59.)

Petitioner wrote that he then

saw a missed call from Gibbs' mom, so he called her back and
asked her where Gibbs was.

(Id. at 159.)

After hanging up,

petitioner went to look at Gibbs one more time and to apologize
to her.
911.

(Id.)

(Id.)

At that point, he saw blood and decided to call

Petitioner ended his statement by writing, ''I find

myself wishing I could take it all back.
with her.

A piece of me died

I couldn't begin to explain how sorry I am.

please forgive me."

God

(Id.)

2 Officer McTighe went back to Gibbs' apartment and found bottles of all three
drugs that petitioner claimed to take in his suicide attempt (Seroquel,
Trazodone and Risperdal). (EOF No. 6-1, McTighe Testimony Tr. at 195-96.)
Officer McTighe indicated that the pills had been removed from the bottles
and that he believed petitioner took them, though he did not notice physical
signs of overdose when he saw petitioner on May 14. {Id. at 195-96, 198-200,
207, 213-14.)

After providing this statement to police, petitioner

was placed under arrest for murder in the second degree.

(Id.

at 160.)

II.

Bench Trial, Verdict, and Sentencing

On October 11, 2007, petitioner appeared before Judge

Matthew D'Emic in the Supreme Court for the County of Kings,
Criminal Division, Part 4.

(ECF No. 6-1, State Ct. R. of the

October 11, 2007 Proceedings, filed 12/10/2014, at 1-2.)
Petitioner's trial counsel, Peter Guadagnino, Esq., informed the

court that petitioner was waiving his right to a jury trial, and
petitioner signed a form to that effect.

(Id. at 2-3, 4-5.)

The court confirmed that a Huntley hearing, as to the

admissibility of petitioner's written statement to police, would
be incorporated into the bench trial.^

(Id. at 4-5.)

On the afternoon of October 16, 2007, petitioner's

bench trial commenced.

(ECF No. 6-1, State Ct. R. of the

October 16, 2007 Proceedings, filed 12/10/2014, at 1-2.)

At the

end of the prosecution's case on October 18, 2007, the court

brought up the Huntley issue as to whether petitioner's written
statement, made while in police custody, should be suppressed.
(ECF No. 6-1, State Ct. R. of the October 18, 2007 Proceedings,
filed 12/10/2014, at 215.)

Trial counsel consulted with

3 A Huntley hearing is a hearing pursuant to New York State law for the
purpose of reviewing whether a statement by a defendant was made
involuntarily.

See 32A N.Y. Jur. 2d Criminal Law: Procedure § 1665.

petitioner and then told the court that he would not "argue

against the introduction of those statements into evidence."
{Id.)

Trial counsel then requested that the charges be

dismissed due to the prosecution's failure to make a prima facie
case.

(Id. at 232-33.)

The court denied the request.

(Id.)

The court submitted to itself charges of murder in the

second degree, and the lesser included offenses of first and

second-degree manslaughter, and criminally negligent homicide.
(Id. at 216, 218, 233.)

In summation, trial counsel admitted

that petitioner caused the death of the victim, for which
petitioner was sorry, and that the only issue for the court to
decide was petitioner's "culpable state of mind[.]"
233-34.)

(Id. at

Trial counsel stressed that the testimony from the

medical examiner indicating that one second of pressure could
have killed Gibbs combined with no evidence of any struggle
demonstrated a lack of intent to kill.

(Id. at 237.)

In

addition, counsel stressed that petitioner tied Gibbs up and

placed a bandana in her mouth as evidence that he did not even
realize she was dead.

(Id. at 238-39.)

On October 22, 2007, the trial judge found petitioner

guilty of second degree murder and three counts of criminal
possession of a weapon in the fourth degree.

(EOF No. 6-1,

State Ct. R. of the October 22, 2007 Proceedings, filed

12/10/2014, at 257.)

The trial judge explained that, despite

the fact that Gibbs was bound only after her death, the

^"'viciousness of all [Mr. Miller]'s acts leads to the unavoidable

conclusion beyond a reasonable doubt that Mr. Miller intended to
cause the death of Ms. Gibbs."

(Id. at 258.)

Trial counsel requested October 30, 2007 as a

sentencing date, which the trial judge said he would try to

accommodate despite a worry of whether "it [was] enough time for

probation."

(Id. at 259.)

Sentencing was adjourned

subsequently to November 28, 2007, at which point trial counsel
requested an adjournment to mid-January 2008.
State Ct. R. of Direct Appeal at 13.)

(ECF No. 6-2,

The trial judge set the

sentencing for December 6, 2007 and, at the beginning of the
sentencing hearing, trial counsel again requested an adjournment
of sentencing.

(ECF No. 6-1, State Ct. R. of December 6, 2007

Proceedings, filed 12/10/2014, at 2-3.)

Trial counsel explained

that he had expected a presentence investigation report from the
Osborne Society, which psychiatrically evaluated petitioner for
a few hours, but the report had not yet been submitted to trial
counsel.

(Id.)

Counsel did not elaborate as to his efforts to

obtain the report or its importance to sentencing.
denied the request.

The court

(Id. at 3.)

Petitioner gave a statement to the court during which
he described Gibbs' death as an "accident" and "tragedy," and
stated that he had taken Gibbs in from a shelter because her

10

family did not care about her.

{Id. at 11-14.)

Petitioner also

stated that he disagreed with his lawyer submitting a mental

health analysis from Piker's Island instead of a different,
unspecified evaluation.

{Id. at 12.)

The prosecution requested 25 years to life, and trial

counsel requested ''the lower end of the sentencing guidelines

range," noting petitioner's prior psychiatric history and his
drug problem as mitigating factors.

(Id. at 10, 16.)

The court

sentenced petitioner to concurrent terms of imprisonment of the
maximum of twenty-five years to life on the murder count and one

year each on the three criminal possession of a weapon counts.
(Id. at 16-17.)
III. Post-Conviction Proceedings

A.

Petitioner's First C.P.L. § 440.10 Motion

On January 26, 2009, petitioner moved pro se to vacate

his conviction pursuant to Section 440.10 of the New York State
Criminal Procedure Law ("C.P.L. § 440.10").

(ECF No. 6-3, State

Ct. R. of First 440.10 Motion, filed 12/10/2014, at 2-26.)^
Petitioner moved to vacate his judgment on ineffective

assistance of counsel grounds.

Petitioner argued that trial

counsel was ineffective because, inter alia, counsel failed: to

pursue a viable suppression claim for petitioner's oral and

" citations to all state court filings refer to the page numbering assigned by
the ECF filing system at the top of each document.

11

written statements given to police while in custody; to provide
expert testimony to counter the government's medical examiner;
to establish the seriousness of petitioner's drug addiction and
its effect on his ability to form the intent to kill; to procure

an independent pre-sentencing report from a mental health

organization that had spent hours interviewing petitioner; and
to prepare for trial and mount a substantial defense.
10-26.)

(Id. at

Petitioner attached 22 exhibits, including letters he

sent to trial counsel requesting an affidavit in response to the
ineffective assistance of counsel claims.

(Id. at 88-89, 91.)

The People opposed petitioner's motion in papers filed
on March 31, 2009.

(Id. at 92-94.)

The People argued that all

of petitioner's claims were procedurally barred because they
could be ''discerned from the record," which requires them to be

heard on direct appeal.

(Id. at 96.)

In addition, the People

argued that all of petitioner's claims were meritless.

(Id.)

On June 16, 2009, the trial court denied petitioner's

motion on procedural grounds pursuant to C.P.L. § 440.10(2)(b),
because "all of the claims" were "appealable or pending on

appeal, and sufficient facts appear on the record" to allow for
"adequate review thereof" on direct appeal.

(Id. at 103.)

The

trial court also decided the motion on its merits, including a

specific analysis of the suppression and expert witness claims.
(Id. at 104-05.)

The trial court found that counsel had

12

"rigorously cross-examined" the People's medical examiner and
that a more certain cause of death "would not advance the

[petitioner]'s claim that his acts were unintentional."
104.)

(Id. at

As to the suppression claim, the court found that the

trial court held a Huntley hearing and determined that the

petitioner "knowingly, intelligently and voluntarily waived his
right to remain silent."

{Id.)

The trial court held that

defense "[c]ounsel provided a cogent and coherent defense" and
there "was nothing deficient in the level of representation

given to defendant."

(Id. at 103-05.)

Petitioner's leave to

appeal was denied on September 15, 2009.
B.

(Id. at 106.)

Petitioner's Direct Appeal

On May 27, 2010, with the assistance of appellate

counsel, petitioner filed a direct appeal of his verdict.
No. 6-2, State Ct. R. of Direct Appeal, at 2-38.)

(EOF

Petitioner

argued that: the evidence was insufficient to prove intent to
kill beyond a reasonable doubt; the trial court abused its
discretion by not adjourning sentencing to allow for an expert
report on petitioner's mental health; the sentence was
excessive; and trial counsel was ineffective for not procuring a

pre-sentence mental health report in time for sentencing.
at 3-4.)

(Id.

Petitioner also filed a pro se supplemental brief

dated August 2010.

(Id. at 86-114.)

In his pro se brief,

petitioner repeated his ineffective assistance of counsel claims

13

from his first C.P.L. § 440.10 motion including counsel's

failure to: investigate an alleged pretextual arrest; suppress

petitioner's statement to police while in custody; introduce
evidence of petitioner's drug addiction and its relation to

petitioner's ability to develop an intent to kill; investigate
petitioner's case; and call an expert witness to counter the
government's medical examiner's testimony regarding Gibbs' cause
of death.

(Id. at 87, 111.)

The People responded to petitioner's May 21, 2010

brief on July 9, 2010.

(Id. at 40.)

The People argued that the

evidence was sufficient to find petitioner guilty of second

degree murder, the trial court did not abuse its discretion by
not granting a sentencing adjournment, and the sentence was not
excessive.^

(Id. at 41, 73-84.)

The People responded to

petitioner's pro se brief on September 24, 2010.

(Id. at 117.)

The People argued that the court could not hear petitioner's
ineffective assistance claims because they were not on the

record, but, to the extent they were on the record, they had no
merit.®

(Id. at 116, 128-30.)

5 Although the People argued in their response to petitioner's first C.P.L. §
440.10 motion that all of petitioner's ineffective assistance of counsel
claims could be decided on the record, supra, they argued in this brief that
some of those same claims were procedurally barred because they were not on
the record. (EOF No. 6-2, State Ct. R. of Direct Appeal at 73.)

® Again, this argument contradicts the People's prior position in their
response to petitioner's first C.P.L. § 440.10 motion. (ECF No. 6-3, State
Ct. R. of First 440.10 Motion at 96.)

14

On February 15, 2011, the New York State Supreme

Court, Appellate Division, Second Department entered an opinion
affirming petitioner's conviction.

See People v. Miller, 916

N.Y.S.2d 816 {N.Y. App. Div. 2d Dept. 2011).

The state court

held that there was sufficient evidence to find petitioner

intended to kill Gibbs because petitioner occluded Gibbs'

airways both by strangulation of Gibbs' neck and by petitioner's
insertion of a bandana deep into Gibbs' mouth that blocked

Gibbs' airway.

See id. at 816-17.

The state court found that

petitioner's intent to cause Gibbs' death could be inferred from
both of those acts by petitioner.

Id. at 817.

The state

appellate court also found that three specific ineffective
assistance of counsel arguments were not sufficiently on the
record to be heard on direct appeal: failure to submit ''evidence

of psychiatric problems and drug addition," failure to
"investigate certain matters," and failure "to call an expert
witness."

Id.

However, the state court did reach the merits

of petitioner's allegation that counsel failed to suppress his
statements made to police while in custody.

See id.

The court

held that the "subject statements provided proof from which the
defense could advance a theory that the homicide was

accidental," thus it was a reasonable trial strategy under the
circumstances.

Id.

The court also found that the sentence was

not excessive and petitioner's "remaining contentions are

15

without merit."

Id.

Petitioner's leave to appeal was denied by

the Court of Appeals on April 21, 2011.

See People v. Miller,

947 N.E.2d 1202 (N.Y. 2011).

C.

Petitioner's Second C.P.L. § 440.10 Motion.

On October 24, 2011, petitioner moved pro se for a
second time to vacate his conviction pursuant to C.P.L. §

440-. 10.

(ECF No. 6-4, State Ct. R. of Second 440.10 Motion,

filed 12/10/2014, at 3.)

Petitioner moved to vacate based on,

inter alia, a pretextual arrest by the government, which

petitioner alleged was used to extract a statement from him
while in custody.

(Id. at 12-22.)

Petitioner also made various

ineffective assistance of counsel claims, which he had made in

his prior motions, including failure to: investigate the facts
related to his arrest and the statement made by petitioner in

custody; suppress the statements petitioner made in custody;
investigate the facts and law of his defense; produce an expert
to counter the government's medical examiner; present available
mitigating evidence related to his drug use; and properly

prepare a plausible defense related to petitioner's alleged
intoxication at the time of Gibbs' death.

(Id. at 23-47.)

On December 9, 2011, the People responded to

petitioner's second 440 motion.

(Id. at 158, 163-64.)

The

People argued that all of petitioner's claims were procedurally
barred by C.P.L. § 440.10(2)(a), (2)(c), (3)(b), or (3)(c), and

16

that any claims that were not barred were without merit.
at 164.)

(Id.

Specifically, the People argued that petitioner's

suppression claim was barred because the court decided that
issue on direct appeal, and that petitioner's ineffective
assistance of counsel claim regarding an expert witness was

barred because the trial court rejected this claim on the merits

in petitioner's first C.P.L. § 440.10 motion.

(Id. at 166-67,

175.)

On January 31, 2012, the trial court issued a one-page

memorandum and order denying petitioner's second motion.
at 204.)

(Id.

The court held that all of petitioner's claims were

procedurally barred by C.P.L. § 440.10(2)(a) because the trial
court found the claims were previously decided on their merits

in the prior C.P.L. § 440.10 motion and direct appeal.

(Id.)

Petitioner's leave to appeal was denied on July 2, 2012.

(Id.

at 205.)

D.

Petitioner's Coram Nobis Motion

On August 6, 2012, petitioner filed a coram nobis

motion alleging the People included misrepresentations in their
prior filings and that the courts had been playing ^^table

tennis" with petitioner's claims, bouncing the claims back and
forth between courts without ruling on the merits.

(ECF No. 6-

5, State Ct. R. of Coram Nobis Motion, filed 12/10/2014, at 11.)

On September 17, 2012, petitioner's appellate counsel submitted

17

an affidavit explaining that petitioner was not complaining
about her effectiveness as counsel but rather petitioner's

inability to have his claims heard on their merits.
73, 75.)

(Id. at 72-

His appellate counsel said petitioner may be right

about the court erring on the procedural bar it utilized in the
second C.P.L. § 440.10 decision, but coram nobis was not the

proper application. (Id. at 73-75.)
On August 6, 2012, the People responded to

petitioner's coram nobis motion by asserting that petitioner's

allegations were, or that he should have known they were, false
because the trial court's first C.P.L. § 440.10 decision did

reach a merits decision on petitioner's claims.

(Id. at 24-25.)

Thus, when combined, the first C.P.L. § 440.10 decision and the
decision on direct appeal reached the merits on most of
petitioner's claims.

(Id. at 33.)

On April 3, 2013, the New York State Supreme Court,

Appellate Division, Second Department, denied petitioner's coram
nobis motion in a three-sentence opinion.

See People v. Miller,

961N.Y.S.2d 787 (N.Y. App. Div. 2d Dept. 2013).

The court held

petitioner had ^^failed to establish that he was denied the
effective assistance of appellate counsel."

Id.

leave to appeal was denied on September 28, 2013.
State Ct. R. of Coram Nobis Motion at 76.)

18

Petitioner's

(ECF No. 6-5,

E.
Petitioner's C.P.L.R. § 5015 Motion (Third C.P.L.
§ 440.10 Motion)

On September 24, 2012, petitioner filed a pro se
motion under New York Civil Practice Laws and Rules § 5015(a)(3)

C'C.P.L.R. § 5015") to have the trial court vacate his judgment

of conviction due to ''fraud, misrepresentation and misconduct"

from "the adverse party."

(EOF No. 6-6, State Ct. R. of

5015(a)(3) Motion, filed 12/10/2014, at 4.)

Petitioner alleged

that the prosecution committed fraud by covering up police
misconduct of illegally detaining petitioner on petit larceny

charges and by knowingly using "fabricated testimony" of police
officers.

(Id. at 8, 18-19.)

On November 19, 2012, the People responded to

petitioner's motion by pointing out that C.P.L.R § 5015(a)(3)
applies to only civil cases "and thus has no application to"
petitioner's case and by contending that the motion should
instead be treated as a third C.P.L. § 440.10 motion.

79.)

{Id. at

The People argued that, as such, all claims were

procedurally barred because they had previously been rejected on
the merits or they could have been raised previously but were

not.

(Id. at 89.)

The People also argued that petitioner's

allegations that the prosecution knowingly using perjured
testimony about the petit larceny charge is effectively a

19

suppression claim and, as such, the claim needed to be heard on
direct appeal pursuant to C.P.L. § 710.40.

(Id. at 95-96.)

On December 7, 2012, the trial court treated

petitioner's motion as a third C.P.L. § 440.10 motion and denied
the motion.

(Id. at 98-99.)

The trial court rejected all prior

claims under C.P.L. § 440.10(2)(a) and new claims were rejected

under C.P.L. § 440.10(2)(c) for not being raised in an earlier

appeal.

(Id. at 99.)

As to the claims that the prosecution

knowingly used perjured testimony of police, the court found

that they were "either bald assertions lacking any credible
evidence or matters that were previously decided."

(Id.)

Petitioner's leave to appeal was denied on June 24, 2013.

(Id.

at 100.)

F.

Petitioner's Fourth C.P.L. § 440.10 Motion

On April 4, 2014, petitioner, with the assistance of
counsel, filed a fourth C.P.L. § 440.10 motion to vacate his
conviction and to be granted an evidentiary hearing to develop
his claim.

(ECF No. 6-7, State Ct. R. of Fourth 440.10 Motion,

filed 12/10/2014, at 2-17.)

Petitioner alleged that no court

had "ever evaluated all of [petitioner's] claims of ineffective
assistance of counsel, including those which require further

evidentiary development, in the proper context of each other
claim."

(Id. at 2 (emphasis omitted).)

Petitioner largely

repeated his prior claims, including trial counsel's failure to

20

obtain a mental health pre-sentence report from the Osborne

Society.

(Id. at 3-5.)

Petitioner added new claims about trial

counsel's failure to raise the effect of drug withdrawal induced

psychosis on petitioner's statements made to police and failure
to raise extreme emotional disturbance or insanity as a defense.
(Id. at 3-4.)

The People responded to petitioner's fourth C.P.L. §
440.10 motion on May 13, 2014.

(Id. at 18-55.)

The People

argued that all of petitioner's claims were procedurally barred
either for previously being ruled on the merits or because new
claims could have been raised in prior appeals.

(Id. at 32.)

On July 11, 2014, the trial court denied petitioner's
motion.

(Id. at 103.)

The trial court ruled that all of the

petitioner's claims were procedurally barred under C.P.L. §
440.10(2)(c) and (3)(c), and that petitioner ''failed to raise

and support any argument based on information that is outside
the trial record."

(Id. at 104.)

Petitioner did not file a

leave to appeal the denial of the fourth C.P.L. § 440.10 motion.
IV.

Petitioner's Federal Habeas Petition

On October 6, 2014, petitioner filed a petition for a

writ of habeas corpus pursuant to Section 2254 seeking to vacate
his conviction.

(EOF No. 1, Pet.)

Petitioner attached 218

pages of documents, which, among other exhibits, included two
attachments that laid out "supporting facts" (Attachment A) and

21

elaborated on his first ground for relief of insufficient
evidence (Attachment B).

(ECF No. 1-2, Exhibits to Pet., filed

10/06/2014; ECF No. 1-3, Exhibits to Pet., filed 10/06/2014.)

In the petition itself, ground two was described as
[i]neffective assistance of trial counsel" and ground three as

[p]rosecutor knowingly used perjured testimony, [p]rosecutor
committed fraud, misrepresentation and misconduct[.]"

1, Pet. at 6, 8.)

(ECF No.

Petitioner did not provide supporting facts

for ground two or three in his October 6, 2014 petition.
On November 10, 2014, petitioner submitted a Motion to

Amend his petition and included a supplemental habeas petition
that elaborated upon his second and third grounds for habeas

relief.

(ECF No. 5, Supplemental Petition (''Supp. Pet."), filed

11/10/2014.)

Petitioner included Attachment C and Attachment D,

which provided specific allegations for his ineffective
assistance and prosecutorial misconduct claims, respectively.
(ECF No. 5-1, Attachment C to Supp. Pet., filed 11/10/2014; ECF
No. 5-2, Attachment D to Supp. Pet., filed 11/10/2014.)
On December 10, 2014, the People submitted their

response to the petition, which included the complete state
court trial record and all filings from the subsequent state

court appeals.
12/10/2014.)

(ECF No. 6, People's Response, filed
Also on December 10, 2014, the court granted

petitioner's Motion to Amend and stated that ^^the additional

22

facts set forth in the attachments to petitioner's" motion would

be considered.

(ECF Entry dated 12/10/2014.)

The People were

also given an opportunity to file ^^additional briefing td

respond to" petitioner's supplemental brief.

(Id.)

On December

17, 2014, the People informed the court that they would not be

filing an additional answer to the petition.

(ECF. No 7,

People's 12/17/2004 Letter, filed 12/17/2014, at 1.)
On February 13, 2015, petitioner filed a response to

the People's submission.
filed 2/13/2014.)

(ECF No. 10, Petitioner's Response,

On November 7, 2016, petitioner filed a

second supplemental petition with exhibits.
Supp. Pet.)

(ECF No. 13, Second

This supplement added more detail to various

ineffective assistance of counsel claims raised in petitioner's

first supplemental petition and asserted a new claim.
2-5, 12-16.)

(Id. at

On November 28, 2016, the People informed the

court that they would not oppose petitioner amending his
petition with the November 3, 2016 filing and that the People
would continue to rely on their December 10, 2014 papers.

(ECF

No. 14, People's 11/28/2016 Letter, filed 11/28/2016.)
STANDARD OF REVIEW

A writ of habeas corpus filed by an individual in

state custody is governed by, inter alia, the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA").
2254.

28 U.S.C. §

Section 2254 of AEDPA provides that a district court

23

shall issue a writ of habeas corpus for a petitioner in state

custody ''only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."

28 U.S.C. § 2254(a).

Section 2244 provides that a one-year

statute of limitations applies to "an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of
a State court."

28 U.S.C. § 2244(d)(1); see generally 28 U.S.C.

§ 2244(d).

I.

State Court Application of Federal Law

A district court shall not grant a writ of habeas

corpus unless "the applicant has exhausted the remedies
available in the courts of the State," "there is an absence of

available State corrective process," or "circumstances exist
that render [such State corrective] process ineffective to

protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).
A district court may grant a writ of habeas corpus for

claims that were adjudicated on the merits in state court and
the adjudication produced a decision that was "contrary to, or

involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States."

28 U.S.C. § 2254(d)(1).

"A state court

'adjudicate[s]' a state prisoner's federal claim on the merits
when it (1) disposes of the claim 'on the merits,' and (2)

reduces its disposition to judgment."

24

Sellan v. Kuhlman, 261

F.3d 303, 312 {2d Cir. 2001) (brackets in original) (quoting 28
U.S.C. § 2254(d)(1)); see also Reznikov v. David, Nos. 05-CV-

1006 (RRM), 05-CV-1008 (RRM), 2009 WL 424742, at *3 (E.D.N.Y.

Feb. 20, 2009) (''Under AEDPA, a proper merits adjudication

requires only that (a) a federal claim be raised, and (b) that
it be disposed of on substantive, rather than procedural

grounds."). "When a state court [adjudicates a federal claim on
the merits], a federal habeas court must defer in the manner

prescribed by 28 U.S.C. § 2254(d)(1) to the state court's
decision on the federal claim — even if the state court does not

explicitly refer to either the federal claim or to relevant
federal case law."

Sellan, 261 F.3d at 312.

Clearly established federal law is limited to the

jurisprudence of the Supreme Court at the time of the relevant
state court decision.

Cir. 2005).

Howard v. Walker, 406 F. 3d 114, 122 (2d

The "contrary to" and "unreasonable application"

clauses are analyzed independently.

Stultz v. Artus, No. 04-CV-

3170 (RRM), 2013 WL 937830, at *5 (E.D.N.Y. Mar. 8, 2013).

A

state court's decision is contrary to federal law "if the state

court arrives at a conclusion opposite to that reached by [the

Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set

of materially indistinguishable facts."

Williams v. Taylor, 529

U.S. 362, 413 (2000) (O'Connor, J., concurring and writing for

25

the majority in this part).

An unreasonable application of law

occurs when ^'the state court identifies the correct governing

legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the
prisoner's case."

Id.

Unreasonableness is measured

objectively, and requires "a ^higher threshold' than
^incorrect.' "

Stultz, 2013 WL 937830, at *5 (quoting Knowles

V. Mirzayance, 556 U.S. Ill, 123 (2009)).

The state court's

application must have "[s]ome increment of incorrectness beyond
error. . . .

great[.]"
2000).

[H]owever, . . . the increment need not be

Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.

If a district court determines a state court's

application of law was unreasonable, "it must next consider
whether such error was harmless."

Stultz, 2013 WL 937830, at *5

(citations and internal quotation marks omitted).

Apart from a state court's unreasonable or contrary

application of federal law, a district court may grant a writ of
habeas corpus when the state court decision "was based on an
unreasonable determination of the facts in light of the evidence

presented in the State court proceeding."
2254(d)(2).

28 U.S.C. §

State court determinations of facts are presumed

correct, however, and the petitioner bears the burden of

"rebutting the presumption of correctness by clear and
convincing evidence."

Id. at § 2254(e)(1).

26

A district court

^^may overturn a state court's application of federal law only if
it is so erroneous that there is no possibility fairminded

jurists could disagree that the state court's decision conflicts
with [Supreme Court] precedents."

Nevada v. Jackson, 569 U.S.

505, 508-09 (2013) (per curiam) (citations and internal

quotation marks omitted).

A federal court ''cannot grant habeas

relief where a petitioner's claim pursuant to applicable federal
law, or the U.S. Constitution, has been adjudicated on its
merits in state court proceedings in a manner that is not

manifestly contrary to common sense."

Santone v. Fischer, 689

F.Sd 138, 148 (2d Cir. 2012) (quoting Anderson v. Miller, 346
F.3d 315, 324 (2d Cir. 2003)).
II.

Exhaustion Requirement

Pursuant to Section 2254, a district court may not

grant a habeas petition made by "a person in custody pursuant to
the judgment of a State court" unless "the applicant has
exhausted the remedies available in the courts of the State."

28 U.S.C. § 2254(b)(1)(A).

This rule is "grounded in []

concerns for federalism and comity between the state and federal

sovereigns . . . [and] ensures that federal courts respect the
'States' interest in correcting their own mistakes.' " Aparicio
V. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (other internal
citation omitted) (quoting Coleman v. Thompson, 501 U.S. 722,
732 (1991)).

To satisfy the exhaustion requirement, a

27

petitioner must have "(i) presented the federal constitutional
claim asserted in the petition to the highest state court (after

preserving it as required by state law in the lower courts) and
(ii) informed that court (and lower courts) about both the

factual and legal bases for the federal claim."

Ramirez v.

Attorney Gen. of New York, 280 F.3d 87, 94 (2d. Cir. 2001)
(citing, inter alia, Picard v. Connor, 404 U.S. 270, 276-77
(1971)); see also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.
1994) ("To fulfill the exhaustion requirement, a petitioner must

have presented the substance of his federal claims to the

highest court of the pertinent state." (citation and internal
quotation marks omitted)).
"Even 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 is, as a result,

then procedurally barred under state law."
94.

Ramirez, 280 F.3d at

Where a claim is exhausted but procedurally barred, a court

may nonetheless review it if the petitioner shows "cause for the
default and prejudice, or demonstrate[s] that failure to
consider the claim will result in a miscarriage of justice

(i.e., the petitioner is actually innocent)."

Aparicio, 269

F.3d at 90 (citing Coleman, 501 U.S. at 748-50).

If a state

court ruling contains a plain statement that a claim is

procedurally barred, then the federal court may not review it,

28

even if the state court also rejected the claim on the merits in
the alternative.

See Harris v. Reed, 489 U.S. 255, 264 n.lO

(1989) (explaining that "a state court need not fear reaching
the merits of a federal claim in an alternative holding" when it

explicitly invokes a state procedural ground as a separate basis
(emphasis in original)).
Ill. Treatment of Pro Se Pleadings

In the instant action, petitioner is proceeding pro

se.

A pro se petitioner's pleadings are held to ^^less stringent

standards than formal pleadings drafted by lawyers," Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation
marks omitted), and are construed ^'to raise the strongest

arguments that they suggest," Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted).

''Nonetheless, a pro se [litigant] is not exempt from compliance
with relevant rules of procedural and substantive law."

Rivera

V. United States, No. 06-CV-5140 (SJF), 2006 WL 3337511, at *1
(E.D.N.Y. Oct. 4, 2006) (citing Faretta v. California, 422 U.S.

806, 834 n.36 (1975)).

Petitioner's papers are evaluated

accordingly.
DISCUSSION

On October 6, 2014, petitioner filed this timely

petition for a writ of habeas corpus pursuant to Section 2254

29

seeking to vacate his conviction.'^

(ECF No. 1, Pet. at 1.)

Petitioner, who is currently incarcerated, raises three general

grounds in his original habeas petition, which he expanded upon

in two supplemental briefs: (1) there was insufficient evidence
for the trial court to find an intent to kill; (2) petitioner's

trial counsel was ineffective; and (3) prosecutorial misconduct,

(ECF No. 1, Pet. at 4-5; ECF No. 5-1, Attachment C to Supp. Pet,

at 1, 5-6; ECF No. 5-2, Attachment D to Supp. Pet. at 1-2; ECF
No. 13, Second Supp. Pet. at 3, 10, 12, 14.)
Petitioner has exhausted his remedies in state court

by way of his motions to vacate pursuant to C.P.L. § 440.10 and
his direct appeal to the Appellate Division and the New York
Court of Appeals.

See supra Facts Section III.

However, some

of those claims, as seen below, are exhausted because they were
never decided on their merits in state court and are now

procedurally barred.
For the reasons set forth below, the"petition is
DENIED.

The court adopts the tolling calculation presented by respondent, but with
one correction. (ECF No. 10, Gov't Response at 2 n.l.)

Petitioner's fourth

C.P.L. § 440.10 motion was filed on April 4, 2014, not April 14, 2014, as

respondent erroneously stated. (ECF No. 6-7, State Ct. R. of Fourth 440.10
Motion at 2.)

The number of days tolled for the fourth C.P.L. § 440.10

motion remains 87 days when using April 4, 2014.

30

I.

Insufficient Evidence Claim

The first ground of petitioner's habeas petition is
that his trial verdict was not supported by sufficient evidence.

(ECF No. 1-3, Exhibits to Pet. at 57.)

Petitioner included this

claim in his direct appeal, it was denied on its merits, and

leave to appeal the decision to the Court of Appeals was denied.
Thus, this claim was exhausted in the state court system on its
merits and can be reviewed by this court.
A.

Legal Standard

On habeas review, the court's evaluation of whether
evidence was sufficient to sustain a conviction is subject to a

stringent standard of review.

The conviction will be upheld if

any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt, after the
evidence is viewed in the light most favorable to the

prosecution.

Linton v. Bradt, 775 F. Supp. 2d 574, 581

(E.D.N.Y. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 324

(1979); Einaugler v. Supreme Court of the State of New York, 109
F.3d 836, 840 (2d Cir. 1997)).

Indeed, ''[e]ven when faced with

a record of historical facts that supports conflicting
inferences, [the 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. "

31

Archer v. Fischer, No. 05-CV-

4990 (JFB), 2009 WL 1011591, at *8 (E.D.N.Y. Apr. 13, 2009)

(internal quotation marks omitted) (quoting Wheel v. Robinson^
34 F.3d 60, 66 (2d Cir. 1994)).

Stated differently, the court

''must defer to the jury's 'assessments of the weight of the
evidence and the credibility of witnesses.' "

Leveille v.

Ercole, No. 05-CV-5602 (ARR), 2006 WL 3257233, at *4 (E.D.N.Y.

Nov. 9, 2006) (quoting Maldonado v. Scully, 86 F.3d 32, 35 (2d
Cir. 1996)).

The "inquiry does not focus on whether the trier

of fact made the correct guilt or innocence determination, but
rather whether it made a rational decision to convict or

acquit."

Herrera v. Collins, 506 U.S. 390, 402 (1993) (emphasis

omitted).

B.

Analysis

A federal court reviewing an insufficiency of the
evidence claim must look to state law to determine the elements

of the crime.

Cir. 1999).

Quartararo v. Hanslmaler, 186 F.3d 91, 97 (2d

Second degree homicide in New York State requires

proof of intent to kill beyond a reasonable doubt.
Law § 125.25.

N.Y. Penal

In the instant case, viewing the evidence in the

light most favorable to the prosecution, the verdict was

supported by ample evidence with which the trial court could
find such intent.

The strongest evidence as to petitioner's

intent, which the state Appellate Division's decision noted when
denying petitioner's direct appeal, was that there were two

32

possible causes of death, and each would have been sufficient to
kill Gibbs on its own.

From this, the Appellate Division found

that it was reasonable for the trial court to conclude that

either petitioner's acts of strangulating Gibbs or pushing a
bandana into her throat, which obstructed her airways and caused

her death, demonstrated an intent to kill her.

Petitioner

argues that the hog-tying of Gibbs is actually evidence that he

thought she was still alive, and thus lacked any intent to kill.
However, when faced with two possible inferences, the court

''must presume . . . 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)

(citing Jackson, 443 U.S. at 319).
Here, the court presumes that the trial court

concluded petitioner's hog-tying of Gibbs was meant to ensure

her death, and not to impair her mobility upon waking.

In fact,

the trial court specifically rejected petitioner's argument

about his hog-tying of Gibbs when finding that petitioner's
"acts lead[] to the unavoidable conclusion beyond a reasonable

doubt that [petitioner] intended to cause the death of Miss
Gibbs."

(ECF No. 6-1, Trial Tr. at 258.)

As a result, the

Appellate Division's determination that the evidence was legally
sufficient was not based on an unreasonable application of

federal law.

See Wise v. Superintendent of Attica Corr.

33

Facility, No. 08-CV-6312 (MAT), 2010 WL 3943733, at *11
(W.D.N.Y. Oct. 7, 2010) (finding evidence of intent to kill
sufficient where evidence, as here, included, inter alia, prior

arguments between defendant and victim, death by asphyxiation,
defendant covering victim with blankets, inconsistent stories to

police, and suspicious comments to others); see also Wynder v.
Smith, No. 09-CV-4541 (JLC) (LAP), 2011 WL 70556, at *13

(S.D.N.Y. Jan. 10, 2011) (finding evidence of intent to kill

sufficient where petitioner "admitted to killing [the victim]
and [the victim] was found strangled with a shirt around her

neck and her jaw broken in two places").

Accordingly,

petitioner's sufficiency of the evidence claim is denied.
II.

Ineffective Assistance of Counsel

The second ground for petitioner's habeas petition

involves multiple claims of ineffective assistance of his trial
counsel.

In three separate habeas filings, the petitioner's

combined claims of ineffective assistance include trial

counsel's failure to: (1) pursue a viable suppression claim for

petitioner's statements made while in police custody; (2)
conduct pretrial investigations of petitioner's statements made
while in police custody during an alleged pretextual detention;
(3) provide expert medical testimony or consultation to counter
the People's medical examiner; (4) prepare for trial or mount a
substantial defense; (5) notify the Osborne Society about

34

petitioner's sentencing date in order to acquire a presentence

report; (6) raise an intoxication defense and to utilize
evidence establishing the seriousness of petitioner's drug
addiction; as well as (7) that the cumulative effect of all
ineffective assistance errors denied him a fair trial; and 8)

trial counsel's presentation of an alleged false narrative of

what happened during Gibbs' death.®

(ECF No. 5-1, Attachment C

to Supp. Pet. at 1, 5-6; ECF No. 13, Second Supp. Pet. at 3, 10,
12, 14.)

Claims 1, 2, and 7 were exhausted on the merits in
state court.

However, claims 3 and 4 were rejected by

procedural bars in various of plaintiff s motions pursuant to
C.P.L. § 440.10(2)(a).

However, a denial under C.P.L §

440.10(2)(a) is not an independent and adequate state ground

that precludes federal habeas review.

Silverstein v. Henderson,

706 F.2d 361, 368 (2d Cir. 1983); Soberanis v. Brown, No. 10-CV-

® The People contend that petitioner is re-alleging all of his prior
ineffective assistance of counsel claims raised in every prior motion that

petitioner made in state court. (ECF No. 6, People's Memorandum of Law, at 5
n.2.) However, petitioner makes a specific, numbered list of his ineffective
assistance of counsel claims in his habeas papers, with no language about

incorporating any other ineffective assistance of counsel arguments made
below.

(ECF No. 5-1, Attachment C to Supp. Pet. at 1, 5-6; ECF No. 13,

Second Supp. Pet. at 3, 10, 12, 14.) The claims specified in petitioner's
habeas papers are the only claims this court will review. Thus, they do not
include claims that trial counsel failed to: challenge the legal sufficiency

of the evidence, challenge false evidence presented at the Sandoval hearing,
make an opening statement, object to improper comments made by the

prosecutor, adequately cross-examine the People's witnesses, investigate and
present a defense of insanity or extreme emotional disturbance, or file an
appeal by the deadline. (Compare id./ with ECF No. 6, People's Memorandum of
Law at 4-5.)

35

2695 (RA) (RLE), 2014 WL 5038364, at *1 n.l (S.D.N.Y. Sept. 30,

2014) (collecting cases demonstrating disagreement within the
Second Circuit on this point, but noting the Second Circuit

^'already settled the matter" in Silverstein).

The court

therefore reviews claims 3 and 4 under the deferential standard
of AEDPA.

Petitioner raised claim 5 in his first C.P.L. § 440.10

motion, which was rejected both procedurally and on its merits.
He also raised claim 5 in his fourth C.P.L. § 440 motion, which
the trial court denied under C.P.L. § 440.10(2)(c) and (3)(c),

which both relate to failure to previously raise an issue.

In

determining whether the trial court's reliance on § 440.10(2)(c)
and (3)(c) was ''adequate" to support the judgment, the court
must examine whether these procedural rules are " 'firmly

established and regularly followed' by the state in question."
Garcia v. Lewis, IBS F.3d 71, 77 (2d Cir. 1999) (quoting Ford v.

Georgia, 498 U.S. 411, 423-24 (1991)).

"Whether application of

the procedural rule is firmly established and regularly followed
must be judged in the context of the specific circumstances

presented in the case, an inquiry that includes an evaluation of
the asserted state interest in applying the procedural rule in
such circumstances."

Louis v. Fischer, No. 04-CV-2887 (KAM),

2007 WL 4198255, at *20 (E.D.N.Y. June 25, 2007) (internal

36

quotation marks omitted) (citing Cotto v. Herbert, 331 F.3d 217,
240 (2d Cir. 2003)).

Here, the claim was previously raised in petitioner's
first C.P.L. § 440 motion.

Therefore, the state court was

incorrect in finding that the claim had not previously been
raised.

The correct procedural bar would have been C.P.L. §

440.10(2)(a).

The use of § 440.10(2)(c) and (3)(c) by the state

court to deny this claim is inadequate to bar federal habeas
review.

As a result, claim 5 is not procedurally barred and the

court will consider the merits of claim 5.

Petitioner raised a version of claim 6 in his first

C.P.L. § 440.10 motion when he discussed the failure of trial

counsel to bring up his drug addiction in connection to his
intent to kill.

(See ECF No. 6-3, State Ct. R. of First 440.10

Motion at 17-18.)

A version of claim 6 also appeared in

petitioner's second C.P.L. § 440.10 motion.
Ct. R. of Second 440.10 Motion at 44-47.)

(ECF No. 6-4, State
Because this claim,

similar to claim 5, failed on its merits in the first C.P.L. §
440.10 motion and was then found to be procedurally barred by
the trial court under C.P.L. § 440.10(2)(a) after the second

C.P.L. § 440.10 motion, the court will consider claim 6 on its
merits.

Petitioner never raised claim 8 in a prior appeal in

New York State Court, and it is therefore now barred from being

37

raised in state court under various C.P.L. § 440.10 provisions.

If a petitioner's "claim has not been exhausted and the

petitioner no longer has a state forum in which to raise the
claim, the claim should be deemed exhausted but procedurally
barred from habeas review."

Desrosiers v. Phillips, No. 05-CV-

2941 (CBA), 2007 WL 2713354, at *3 {E.D.N.Y. Sept. 13, 2007)

(citing, inter alia, Bossett, 41 F.3d at 828-29).

Thus, claim 8

is procedurally barred from review by the court.^
A.

Legal Standard

The right to effective assistance of counsel
guaranteed by the Sixth Amendment to the United States

Constitution was "clearly established" by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984).
U.S. at 390-91.

Williams, 529

Under Strickland, a defendant claiming

ineffective assistance of counsel must demonstrate that both

prongs of Strickland are satisfied: "deficient performance by
counsel and prejudice."

Premo v. Moore, 562 U.S. 115, 122

(2011) (citation omitted).

However, "[t]he Strickland standard

5 Petitioner also requests an evidentiary hearing in order to further develop
the record for his ineffective assistance of counsel claims.

(EOF No. 13,

Second Supp. Pet. at 16.) Under 28 U.S.C. § 2254(d), which applies to habeas
claims that were first adjudicated on the merits in state court proceedings,
the district court may not rely upon new evidence produced at an evidentiary
hearing to determine habeas relief, and must instead limit its review to **the
record that was before the state court that adjudicated the claim on the
merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see also Lopez v.

Miller, 906 F. Supp. 2d 42, 51-52 (E.D.N.Y. 2012).

Because all of the claims

that the court is evaluating were adjudicated on their merits in state court,
the motion for an evidentiary hearing is denied.

38

is a general one, so the range of reasonable applications is
substantial."

Harrington v. Rlchter, 562 U.S. 86, 105 (2011).

To establish deficient performance, a person

challenging a conviction must show that counsel's representation
''fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 688.

A court reviewing an attorney's

performance must be "highly deferential" and must make "every
effort . . . to eliminate the distorting effects of hindsight"
and must evaluate "the conduct from counsel's perspective at the

time."

Id. at 689.

Thus, a reviewing court "must indulge a

strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance[.]"

Id.; see also

Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009).

In establishing prejudice, a habeas petitioner must
demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have
been different.

A reasonable probability is a probability

sufficient to undermine confidence in the outcome."

466 U.S. at 694.

Strickland,

It is not enough "to show that the errors had

some conceivable effect on the outcome of the proceeding."
at 693.

Id.

Rather, "[cjounsel's errors must be 'so serious as to

deprive the defendant of a fair trial, a trial whose result is
reliable.' "

Harrington, 562 U.S. at 104 (quoting Strickland,

466 U.S. at 687).

"In assessing prejudice stemming from the

39

failure to investigate and introduce certain evidence, a court
must consider

the relevant evidence that the jury would

have had before it,' had the evidence been introduced, including
unfavorable evidence."

Barnes v. Surge, 372 F. Appx. 196, 199

(2d Cir. 2011) (emphasis in original) (quoting Wong v.
Belmontes, 558 U.S. 15, 20 (2009) (per curiam)).
Because the standards under Strickland and Section

2254(d) are both highly deferential, ''when the two apply in
tandem, review is 'doubly' " deferential.

at 105 (quoting Knowles, 556 U.S. at 123).

Harrington, 562 U.S.

As the Supreme Court

warned in Harrington:

[f]ederal habeas courts must guard against the danger of

equating

unreasonableness

unreasonableness

under

§

under
2254(d).

Strickland
When

§

with

2254(d)

applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's
deferential standard.

Id.

Because the trial court and appellate court adjudicated on

their merits all of petitioner's ineffective assistance claims

currently before this court, the "doubly" deferential standard
of review under Section 2254 applies.
B.

Application

The trial court and the Appellate Division adjudicated

most of petitioner's ineffective assistance of counsel claims on
the merits.

When ruling on petitioner's ineffective assistance

of counsel claims, the trial court applied the federal

40

Strickland standard and New York State's ''meaningful

representation" standard.

(ECF No. 6-3, State Ct. R. of First

440.10 Motion at 103-04.)

"The Second Circuit has repeatedly

emphasized that the New York standard for ineffective assistance
of counsel is not contrary to Strickland . . .

Kelly v. Lee,

No. ll-CV-3903 (CBA), 2014 WL 4699952, at *12 (E.D.N.Y. Sept.

22, 2014); see also Eze v. Senkowski, 321 F.3d 110, 122-24 (2d
Cir. 2003).

Thus, the difference between the second prong of

the New York standard and the federal standard, see Kelly, 2014

WL 4699952, at *13 (explaining that under the New York standard

"prejudice is examined more generally in the context of whether
the defendant received meaningful representation" (citation and

internal quotation marks omitted)), is not sufficient to render
the Appellate Division's decision contrary to or an unreasonable
application of Supreme Court law.

When evaluating a claim for ineffective assistance of
counsel under AEDPA, a court asks "whether there is any

reasonable argument that counsel satisfied Strickland^s
deferential standard."

Harrington, 562 U.S. at 105.

Here,

there are reasonable arguments that trial counsel satisfied the
Strickland standard for each of the claims raised by petitioner.

Accordingly, petitioner's ineffective assistance of counsel
claims are denied.

41

1. Failure to Suppress Petitioner^s Statement Made While in
Custody

Petitioner's first claim of ineffective assistance of

counsel is that trial counsel did not suppress the oral or

written statements that petitioner made to police while in

custody.

At trial, defense counsel consented to the

admissibility of the statement and used it when arguing that

petitioner did not intend to kill Gibbs.

Petitioner raised this

suppression issue on direct appeal and the state court ruled
that trial counsel's use of petitioner's statement was

^^meaningful representation."

Miller, 916 N.Y.S. 2d at 817.

The

court reasoned that the statement ''provided proof from which the

defense could advance a theory that the homicide was accidental,
and thus reflected an objectively reasonable and legitimate

trial strategy under the circumstances and evidence presented."
Id.

It is well settled that, under Strickland's first

prong, "strategic decisions regarding the challenging of
evidence and witnesses cannot be second-guessed in an effort to

support an ineffective assistance of counsel claim."

Mejia v.

United States, 862 F. Supp. 2d 263, 277 {E.D.N.Y. 2012).

Trial

counsel's "decision whether or not to file a suppression motion
is one such tactical decision that courts generally will not
disturb."

United States v. Wilson, 146 F. Supp. 3d 472, 478

42

(E.D.N.Y. 2015); see also United States v, Jacobs, 270 F. Supp.
2d 293, 298 (D. Conn. 2003) (describing decision not to argue

for suppression as a ''sound tactical decision").

Here, the

decision by trial counsel to utilize petitioner's statement

about a brief struggle with Gibbs was a reasonable strategic
choice that positioned him well to argue for lesser included
charges devoid of an intent to kill.

Petitioner's statement was

the only evidence that told a version of events that could
explain Gibbs' death as unintended.

Thus, trial counsel's

strategy of combining petitioner's statement to police with the
admission from the medical examiner that Gibbs could have died

almost instantly from brief pressure to her neck was a
reasonable one that this court will not disturb.

Significantly, petitioner also fails to demonstrate
that the outcome would have been different but for the conduct

of trial counsel (the second prong of Strickland), though it is

not necessary to address the second prong once petitioner has
failed under the first.

See Bennett v. United States, 663 F.3d

71, 85 (2d Cir. 2011) (finding ineffective assistance of counsel
claim "must be rejected if the defendant fails to meet either

the performance prong or the prejudice prong").

In order to

demonstrate ineffective assistance of counsel for failing to

make a motion to suppress, "the underlying motion must be shown
to be meritorious, and there must be a reasonable probability

43

that the verdict would have been different if the evidence had

been suppressed."

United States v. Matos, 905 F.2d 30, 32 (2d

Cir. 1990) (citing Kimmelman v. Morrison, All U.S. 365, 375-76
(1986)).

Here, petitioner signed his written statement and a
Miranda form indicating that he was waiving his Miranda rights.10

Because petitioner waived his constitutional rights after being
advised of them, ''any motion to suppress the signed statement on

the part of petitioner's counsel would likely have failed and,
therefore, does not constitute ineffective assistance of
counsel."

Silent v. Perlmann, No. 07-CV-4524 (JFB), 2008 WL

5113418, at *11 (E.D.N.Y. Nov. 25, 2008).

Even if petitioner's

statement to police were suppressed, there was ample evidence

making it not "unreasonable for counsel to have concluded that
petitioner would have been convicted at trial" regardless of
suppression.

Id. at *11.

For the reasons stated above, the Appellate Division's

decision denying petitioner's ineffective assistance claim
regarding the suppression of petitioner's statement was not

"contrary to," nor did it involve "an unreasonable application

Petitioner argues in his petition that he did not agree to waive his
rights. (EOF No. 5-2, Attachment D to Supp. Pet. at 2.) The trial court
record contains testimony that petitioner did waive his rights multiple
times, as well as testimony that petitioner refused to sign the first Miranda
card after agreeing to waive his rights verbally. (ECF No. 6-1, Trial Tr. at
138-40, 153-54, 164-67.)

44

of, clearly established Federal law, as determined by the

Supreme Court."

28 U.S.C. § 2254(d)(1).

The suppression-based

ineffective assistance of counsel claim is denied.

2. Failure to Investigate Circumstances Surrounding
Petitioner's Petit Larceny Arrest

In his second ineffective assistance of counsel claim,

petitioner argues that trial counsel failed to investigate the
circumstances surrounding petitioner's allegedly unlawful

custody, during which time he wrote his incriminating statement.
(EOF No. 5-1, Attachment C to Supp. Pet. at 1.)

Petitioner

argues that his arrest for petit larceny was pretextual and, as
a result, his statement should have been suppressed.

(Id.)

This court has already determined, supra, that trial counsel's

use of petitioner's statement was not ineffective assistance of
counsel.

Because petitioner's failure to investigate claim is

essentially a claim that his statement should have been

suppressed, the court need not review the merits to determine
that this ineffective assistance of counsel claims fails, and it
is denied.

3. Failure to Provide or Consult with a Medical Expert

Petitioner's third ineffective assistance of counsel

claim is that trial counsel failed to provide an expert witness

to counter the testimony of the medical examiner called by the

People.

The trial court acknowledged in its opinion denying

45

petitioner's first C.P.L. § 440.10 motion that, despite the lack
of a defense expert, trial ''counsel rigorously cross-examined
the Medical Examiner about the manner and cause of death."

No. 6-3, State Ct. R. of First 440.10 Motion at 104.)

(ECF

By cross-

examining the medical examiner, trial counsel elicited testimony
essential to petitioner's defense.

The medical examiner

admitted it was possible that a single blow to the neck could
have been sufficient to kill Gibbs, as opposed to a sustained

strangulation of 15 seconds.
at 51-55.)

(ECF No. 6-1, Frederic Trial Tr.

This fit perfectly into trial counsel's argument

during summation of an accidental death during a quick struggle.
(ECF No. 6-1, Trial Tr. at 238.)

Thus, petitioner's trial was

one of "the general class of cases recognized in Harrington
where cross-examination of the People's expert alone could be a

viable, and thus constitutionally effective, strategic choice."
Morency v. Annucci, No. 14-CV-672 (DLI) (ST), 2017 WL 4417718,
at *14 (E.D.N.Y. Mar. 20, 2017) (citing Harringtonr 562 U.S. at

111), report and recommendation adopted, 14-CV-672 (DLI) (ST),
2017 WL 4417647 (E.D.N.Y. Sept. 30, 2017); see, e.g., Pierre v.

Ercole, 560 F. Appx. 81, 82-83 (2d Cir. 2014) (summary order)
(finding trial counsel was not ineffective for choosing to
vigorously cross-examine the state's pathologist instead of

calling his own doctor to cast doubt on the pathologist's
testimony).

46

Petitioner also has not provided an affidavit or other

evidence from an expert establishing that alternative testimony
existed that would have undermined the state medical examiner's

testimony.

Given ''the absence of a specific proffer of what an

expert would have said that might be relevant to [petitioner's]
case," and the deference given to state court decisions under

the AEDPA, petitioner's ineffective assistance claim based on
trial counsel's decision to not call an expert witness is
denied.

McDowell v. Heath, No. 09-CV-7887 (RO) (MHD), 2013 WL

2896992, at *40 (S.D.N.Y. June 13, 2013) (collecting cases).
4. Failure to Prepare for Trial or Mount a Substantial Defense
Petitioner's fourth ineffective assistance of counsel

claim is that trial counsel failed to prepare for trial or mount

a substantial defense.

It appears that petitioner brings this

claim because he believes trial counsel "failed to put to shape

or form any plausible theory of defense."
Supp. Pet. at 14.)

(ECF No. 13, Second

Specifically, petitioner suggests trial

counsel was ineffective when he moved for a judgment of

acquittal after the People rested without providing the trial
court with any "proof in support" of the motion.

(Id.)

However, trial counsel was almost certainly aware that such a
motion had little merit in this case.

See United States v. Wu,

No. 02-CR-271 (GEL), 2009 WL 3053741, at *3 (S.D.N.Y. Sept. 17,

2009) (finding counsel could not "be faulted for not arguing the

47

point more vigorously" when the motion was ^'without merit").
Because this is the only specific example cited by petitioner,
his otherwise conclusory allegations regarding his counsel's
failure to prepare a defense are insufficient to support an
ineffective assistance claim.

See Besser v. Walsh, No. 02-CV-

6775 (AJP), 2003 WL 22093477, at *36 (S.D.N.Y. Sept. 10, 2003)

(collecting cases), report and recommendation adopted, No. 02CV-6775 (LAK), 2003 WL 22681429, at *1 (S.D.N.Y. Nov. 13, 2003);
see also Morales v. United States, No. 98-3700, 1999 WL 1015641,

at *2 (2d Cir. 1999) (denying the petitioner's ""conclusory
assertion[s]" as insufficient to support an ineffective
assistance of counsel claim).

In addition, it is clear from the

state court record that trial counsel did provide a plausible
defense of accidental death during a struggle (ECF No. 6-1,
Trial Tr. at 238), which utilized testimony from the state

medical examiner and the petitioner's statement to police.

Accordingly, the state court's finding that this claim failed
was not an unreasonable application of federal law, and the
claim is denied.

5. Failure to Obtain an Independent Presentence Report from a

Mental Health Organization for Petitioner's Sentencing
Petitioner's fifth ineffective assistance claim is

that trial counsel failed to obtain a presentence report from

the Osborne Society, which would have reflected its independent

48

opinion of petitioner's mental health.

C to Supp. Pet. at 6.)

(ECF No. 5-1, Attachment

Petitioner does not go beyond this

general description in his petition, but the court looks to his
more fleshed out argument from his first and fourth C.P.L. §

440.10 motions given the more lenient standard of interpreting
claims of pro se petitioners.

(ECF No. 6-3, State Ct. R. of

First 440.10 Motion at 23; ECF No. 6-7, State Ct. R. of Fourth
440.10 Motion at 4.)

At the beginning of petitioner's sentencing hearing,
trial counsel requested an adjournment because he had not yet
received the Osborne Society's report of petitioner's mental
health.

The trial court denied the application and proceeded

with sentencing.

The trial and sentencing records are devoid of

any information as to why trial counsel was unable to obtain the
report, but nonetheless they do not contain evidence pointing to
fault on the part of trial counsel.
Even without the Osborne Society report, trial counsel

raised petitioner's psychiatric history, suicidality, and drug
addiction as mitigating factors during sentencing.

Trial

counsel also elicited testimony from Officer McTighe that he

believed petitioner had consumed pills in a suicide attempt
after Gibbs' death.

In addition, there was a substantial amount

of information about petitioner's mental health struggles

presented to the trial court for sentencing purposes, including

49

a psychiatric evaluation from the Riker's Island prison.

The

Riker's Island evaluation indicated that petitioner had: been

raised in a one-parent household since he was two years old;
been hospitalized or in residential care for psychiatric
reasons; attempted suicide twice, in November 2005 and May 2006;
abused alcohol on a daily basis; abused marijuana since the age
of nine and had a $200 per day crack-cocaine habit since the age
of 28 (he was 36 when the report was prepared); had received a

diagnosis of bipolar disorder and depression in 2006; and had
been taking three medications daily.

(ECF No. 6-2, State Ct. R.

of Direct Appeal at 81-82.)

Because trial counsel attempted to obtain an

adjournment, and there is no evidence in the record that not

obtaining the mental health report was trial counsel's fault, it
cannot be said that trial counsel failed to uncover and present

significant mitigating evidence at sentencing, such that his
conduct constituted ineffective assistance of counsel.

Williams, 529 U.S. at 396.

See

Given the information that trial

counsel presented to the trial court and knew had been included
in sentencing submissions to the trial court, the court cannot
find that trial counsel's inability to obtain the Osborne

Society report satisfies the Strickland standard for ineffective
assistance of counsel.

See, e.g., Perez v. Greiner, No. 01-CV-

5522 (AKH), 2002 WL 31132872, at *8 (S.D.N.Y. Sept. 25, 2002)

50

(denying ineffective assistance of counsel claim where trial
counsel stated defendant should receive maximum sentence if he

committed the murders and presented no mitigating evidence); see
also Bethea v. Walsh, No. 09-CV-5037 (NGG), 2016 WL 258639, at

*25 (E.D.N.Y. Jan. 19, 2016) (denying ineffective assistance of
counsel claim where trial counsel did not present all mitigating

evidence he could have presented); Carlisle v. Herbert, No. 01CV-11392 (SAS), 2002 WL 1822735, at *4 (S.D.N.Y. Aug. 8, 2002)

(denying ineffective assistance claim where trial counsel failed
to uncover various mitigating factors).

Accordingly, petitioner

has not demonstrated that trial counsel's failure to obtain the

Osborne Society report ''fell below an objective standard of
reasonableness."

Strickland, 466 U.S. at 688.

The state

court's decision on this claim was not an unreasonable

application of federal law and petitioner's fifth ineffective
assistance of counsel claim is denied.

6. Failure to Raise an Intoxication Defense and to Utilize

Evidence Establishing the Seriousness of Petitioner^s Drug
Addiction

Petitioner's sixth ineffective assistance of counsel
claim is that trial counsel failed to raise an intoxication

defense or utilize petitioner's drug addiction to promote his
defense.

Under New York law, "[a] charge on intoxication should

be given if there is sufficient evidence of intoxication in the
record for a reasonable person to entertain a doubt as to the

51

element of intent on that basis."

People v. Sirica, 17 N.Y.3d

744, 746 (N.Y. 2011) (citing People v. Perry, 61 N.Y.2d 849, 850
(N.Y. 1984)).

Courts in New York will not charge intoxication

as a defense based only on conclusory claims or ^'bare

assertion[s] by a defendant that he was intoxicated."
Gaines, 83 N.Y.2d 925, 927 (N.Y. 1994).

People v.

New York courts have

also denied a charge of intoxication when a court's evaluation
of the evidence, taken in the light most favorable to the

defendant, shows that the "defendant's overall course of conduct

showed that he was behaving purposefully."
A.D.3d 241, 242 (1st Dep't 2003).

People v. Manning, 1

Numerous New York State cases

have found that an intoxication charge is not warranted when the

defendant does not offer specific testimony as to the effect of

drugs or alcohol on his mental state.

McCray v. Conway, No. 10-

CV-5138 (RJS) (GWG), 2011 WL 291698, at *8 (S.D.N.Y. Jan. 31,

2011) (collecting New York State cases), report and
recommendation adopted. No. lO-CV-5138 (RJS) (GWG), 2014 WL
5035215 (S.D.N.Y. Sept. 30, 2014).

Here, at a minimum, petitioner's claim fails under the
second Strickland prong, prejudice, because he cannot prove that
an intoxication charge would have been granted, let alone that

granting one would have changed the outcome of the trial.

In

his written statement to police, petitioner claimed that he
returned home at 10 AM on Saturday morning after a night of

52

smoking crack and that Gibbs '"could tell [he] was high."
No. 6-1, Trial Tr. at 157.)

(ECF

This "bare assertion" is the only

evidence as to petitioner's intoxication at the time of the
murder, which is not sufficient to warrant an intoxication

charge under New York Law.

Gaines, 83 N.Y.2d at 927.

Petitioner also fails under the first Strickland prong

of deficient performance.

Based on New York law, testimony by

petitioner would have been required to obtain an intoxication
charge.

Such testimony would have been incredibly risky for

petitioner because his inconsistent statements to police left
him vulnerable to damaging cross-examination.

Thus, it was not

unreasonable for defense counsel to make the strategic decision

to not push petitioner to testify.

See Underwood v. Artuz, No.

95-CV-7866 (SAS), 1996 WL 734898, at *4 (S.D.N.Y. Dec. 24, 1996)

{finding no ineffectiveness of counsel where trial counsel did
not call defendant to testify as to his own intoxication where

testifying might have subjected defendant to damaging crossexamination); see also Gssime v. Greinerf No. 02-CV-04602 (JEW),
2003 WL 23185772, at *16 (E.D.N.Y. Oct. 29, 2003) (finding no

ineffectiveness of counsel for not pursuing intoxication charge
because defendant's required testimony would have been

"extremely risky").

Given defense counsel's decision not to

elicit testimony regarding intoxication at trial, petitioner has

not overcome the presumption under Strickland^s first prong that

53

counsel acted reasonably in not requesting an intoxication
charge.

Strickland, 466 U.S. at 689-90.

Therefore, the court

denies petitioner's sixth claim of ineffective assistance of
counsel.

7. Cumulative Effect of All Ineffective Assistance Claims

Petitioner's seventh claim is that the cumulative

effect of all of trial counsel's alleged errors denied him the

right to effective assistance of counsel.

Even if petitioner's

trial counsel's actions resulted from error rather than strategy

or reasons beyond his control, counsel's performance must still
be accorded a degree of deference, as the Sixth Amendment does

not guarantee ''error-free, perfect representation," Morris v.
Garvin, No. 98-CV-4661 (JG), 2000 WL 1692845, at *3 (E.D.N.Y.
Oct. 10, 2000), but merely a "wide range of professionally

competent assistance," Strickland, 466 U.S. at 689.

Since this

court has determined that none of petitioner's other ineffective
assistance claims are meritorious, nor even appear to be errors

of trial counsel, the state court's rejection of petitioner's
ineffective assistance claims, individually and cumulatively,

was not an unreasonable application of federal law.

See Wise v.

Smith, 735 F.2d 735, 739 (2d Cir. 1984) (defendant "was not

entitled to a perfect defense, and the cumulative effect of the
errors and omissions that we might find do not amount to a

54

denial of effective assistance of counsel").

Thus, petitioner's

seventh ineffective assistance claim is denied.
Ill. Prosecutorial Misconduct

The third ground for petitioner's habeas petition
involves two claims of prosecutorial misconduct relating to:

(1) the People's alleged use of perjured testimony by a police
officer; and (2) the People's alleged fraud regarding

petitioner's petit larceny arrest.
to Supp. Pet. at 13-16.)

(ECF No. 5-2, Attachment D

The court is procedurally barred from

hearing these claims on the merits because neither was raised in
petitioner's first C.P.L. § 440.10 motion or his direct appeal.
Although petitioner did raise the claims on subsequent appeals,
the claims were procedurally barred from being heard on those

appeals under C.P.L. § 440.10(2)(c) for not having been raised
earlier.

(See ECF No. 6-4, State Ct. R. of Second 440.10 Motion

at 21-22; ECF No. 6-5, State Ct. R. of Coram Nobis Motion at 15-

17.)

Because petitioner's prosecutorial misconduct claims have

^^not been exhausted and the petitioner no longer has a state
forum in which to raise the claim, the claim [is] deemed

exhausted but procedurally barred from habeas review."
Desrosiers, 2007 WL 2713354, at *3.
CONCLUSION

For the foregoing reasons, the petition for a writ of
habeas corpus is denied and dismissed.

55

The court declines to

issue a Certificate of Appealability because petitioner has not
shown that ^treasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to

proceed further."

Middleton v. Att'ys Gen. of States of N.Y.,

Pennsylvania, 396 F.3d 207, 209 {2d Cir. 2005) (internal

quotation marks omitted); see also 28 U.S.C. § 2253(c) (^^A
certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.").

Additionally, 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 purpose of an appeal.
United States, 369 U.S. 438, 444-45 (1962).

Coppedge v.

The Clerk of Court

is respectfully requested to enter judgment denying and
dismissing the petition, serve a copy of this Memorandum and
Order and the judgment on pro se petitioner, note service on the
docket, and close the case.
SO ORDERED.

Dated:

August 7, 2018
Brooklyn, New York
/s/
HON. KIYO A. MATSUMOTO

United States District Judge

56