Gutierrez v. Capra

Filing 13

MEMORANDUM AND ORDER, For the reasons set forth above, the instant petitionfor a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED in its entirety. The Court declines to issue a certification of appealability because petitioner has no t shown that reasonable jurists could debate whether... the petition should have been resolved in a different manner or that theissues 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); see also 28 U.S.C. § 2253 (c) (A certificate of appealability may issue... only if the applicant has made a substantial showing of thedenial of a constitutional right."). (Certificate of Appealability Denied re: 1 Petition for Writ of Habeas Corpus) Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not betaken 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, (1962). 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 thecase. (Ordered by Judge Kiyo A. Matsumoto on 4/5/2019) c/m Fwd. for Judgment. (Galeano, Sonia)

, filed
USn
OFFICE
S.DlSTRlCr COURT E.D.N.Y.

■k ^^u5^2G!3 a
UNITED STATES DISTRICT COURT

EASTERN

BROOKLYN OFFICE

DISTRICT OF NEW YORK
•X

Aaron Gutierrez,

Petitioner,

MEMORANDUM

14-CV-6887

- against -

& ORDER

(KAM)

Michael Capra,
Respondent.
■X

MATSUMOTO, United States District Judge:

Pro se petitioner Aaron Gutierrez

("petitioner")

seeks

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 convictions of murder in the second degree,
attempted murder in the second degree, assault in the second
degree and criminal possession of a weapon in the fourth degree.
(See ECF No.

1,

Petition for Writ of Habeas Corpus

("Pet.") .)

BACKGROUND

I.

Crimes of Conviction and Criminal Charges
Petitioner's

conviction stems

from the murder of a

female victim and attempted murder of another female victim.

On

March 12, 2003, petitioner, in possession of $2300 in cash went
shopping for new clothes and then to a bar with friends.
No.

20) .

9-8,

State Ct. R. of the June 26,

2006 Proceedings,

(ECF
at 17,

Petitioner then arrived at a strip club around 2:45 a.m.

^11

on March 13, 2003.

(Id. at 19.) ^

When petitioner exited the

strip club around 4:10 a.m., one of the female dancers, Marli
Ambrosini {^'Ambrosini"), approached him.

(Id. at 21.)

Petitioner and Ambrosini then decided to reserve a hotel room

that petitioner booked under a false name.

(Id. at 58-59.)

Around that time, Ambrosini called her roommate Hilauricea Biz

(^^Biz"), and told her petitioner had offered to pay them $400
each to have sex with them.

(ECF No. 9-4, State Ct. R. of the

June 20, 2006 Proceedings, at 81.)

After Petitioner and

Ambrosini had sex at the hotel, they left the hotel, and around
6:30 a.m. arrived at Ambrosini and Biz's apartment.

(ECF No. 9-

8 at 27.)

Ambrosini then gave her roommate Biz $300 cash and
asked her to come into the living room.

(ECF No. 9-4 at 82.)

The three then engaged in sexual relations.

(Id. at 86.)

After

the sexual encounter. Biz showered and went back to the room.

(Id.)

Ambrosini then entered the room and gave Biz another $100

because petitioner was paying to stay the night.

(Id.)

At

trial. Biz testified that later that night she heard a loud
noise and went to ascertain the source of the noise.

90.)

(Id. at

After calling for Ambrosini to make sure everything was

1 References to page numbers in documents filed electronically
are the page numbers assigned by the Electronic Court Filing
System (^'ECF'') .

all right and not receiving a response, she went to investigate
where the sound came from.

(Id.)

When she got to the bathroom

door, Biz saw petitioner bent over inside the bathtub.
91-93.)

(Id. at

Feeling as though something was wrong. Biz turned

around to summon help.

(Id. at 93.)

Biz testified that when

she turned around to go get help, she was attacked by petitioner
from behind with a knife or other sharp object.

(Id. at 94.)

She sustained cuts to her neck, shoulder and wrist (Id. at 95.)

Petitioner told a different story at trial.
Petitioner testified that while he was at the hotel with

Ambrosini, she mentioned she had a cousin at home so they ^^could

have a good time" together.

(ECF No. 9-8 at 26.)

Petitioner

also testified that at no point did he make a payment for sex
with the women.

(Id. at 26-27.)

After the sexual interaction,

petitioner claimed he could not find his glasses and that the

^■"wad [of money he had] look[ed] a little smaller".

(Id. at 35.)

Petitioner testified that although he knew "something was not

right, and wanted to leave. . . (he) gave them the benefit of the
doubt and everything was going to be fine so (he) decided to
take a shower".

(Id.

at 36. )

Petitioner testified that while he was

in the shower

he was hit on the side of the head and forehead by either Biz or
Ambrosini.

(Id. at 37.)

He claims that Ambrosini had a bottle

in her hand and Biz had a knife.

(Id.)

Petitioner testified

that Biz stated something about ^^money" and swung the knife at
him.

(Id.)

Petitioner claimed that he grabbed the knife from

Biz and began to swing it at the women in self-defense.

(Id.)

Petitioner claimed that he then gathered his stuff and ^^stormed
out of the place."

(Id. at 39.)

After the confrontation, Biz fled the apartment and
went to the street to find help.
witnesses called 911.

(ECF No. 9-4 at 95.)

(Id. at 96.)

There,

Around that time,

petitioner was seen fleeing the apartment complex with a

something in his hand which he then threw into the garden next
to the apartment.

(Id.)

When the police arrived they first encountered Biz,
who was bleeding from her neck and shouting ^^my friend."
No. 9-4 at 41-42.)

(ECF

The police then entered the apartment and

found Ambrosini lying on the bathroom floor.

(Id.)

There was

blood in the bathroom as well as the living room, dining room,
and kitchen area.

(Id. at 64.)

Detectives investigating the

scene recovered a bloody knife with a serrated blade from the
kitchen floor.

(ECF No. 9-6, State Ct. R. State Ct. R. of the

June 22, 2006 Proceedings, at 52.)

Police also found a broken

Absolut brand vodka bottle on the front steps and on the front

walkway of the apartment. (ECF No. 9-6 at 94.)

Around 9:00 AM police officers on patrol received a
radio call that there was an assault in progress along with a

description of a male who was last seen wearing a red shirt
leaving the location.

(ECF No. 9-5, State Ct. R. of the June

21, 2006 Proceedings, at 71.)

While canvassing the area, the

police found a man who stated he had seen someone running that
matched the description of the man the police were looking for.
(Id. at 72.)

The police found petitioner in a red sweatshirt ten
blocks from the crime scene.

apparently due to running.

Petitioner was out of breath,

(Id. at 73.)

The officers placed

petitioner in handcuffs and took him back to the scene of the
crime.

{Id,)

Once they returned. Biz positively identified

petitioner as the person who had committed the crime.
78.)

(Id. at

After the positive identification, petitioner was taken

back to the precinct.

(Id. at 79.)

At the precinct, the police

recovered $1,138 from petitioner, and advised petitioner of his
Miranda rights, after which he gave oral and written statements
to detectives.

(Id. at 79; ECF No. 9-5 at 108-112).

During his interview with detectives, there was

redness on petitioner's forehead and a small cut to his left
forearm and a very small cut right above the thumb of his right
hand.

(ECF No. 9-5 at 114).

The detectives called for medical

attention, but petitioner did not have to go to the hospital.
(Id. at 114-15.)
(Id. at 115.)

Petitioner received a band aid for the cut.

A medical examiner performed an autopsy on the body of
Ambrosini.

(ECF No. 9-7, State Ct. R. of the June 22, 2006

Proceedings, at 102.)

Ambrosini had two stab wounds, one to the

front of her chest and one on the back of her left shoulder.

(Id.)

Further, the victim had thirty-one other incised wounds.

(Id.)

When the internal autopsy took place, the examiner

determined that the chest stab was associated with hemothorax,

which is bleeding in the chest cavity as well as bleeding around
the heart.

(Id. at 104).

The stab wound went through ^'skin and

then the tissue, the soft tissue, the fatty tissue underneath
the skin, the left sixth rib, the sac around the heart, through
the chamber of the heart, and then it also made a hole in the
sac around the back of the heart".

(Id. at 105.)

Dr. Ambrosi reviewed the medical reports of Biz.
at 119.)

(Id.)

(Id.

Biz had wounds on her shoulder, wrist, and neck.

Altogether, the wounds required twenty-six stiches. (Id.)

Further, the doctor reviewed petitioner's medical examination
from that night and determined that both of petitioner's wounds

were superficial, and insignificant compared to those Ambrosini
received.

(Id. at 121.)

Petitioner was charged with two counts of murder in
the second degree, two counts of assault in the second degree,

and one count of criminal possession of a weapon in the fourth
degree.

II.

Court Proceedings

Because she spoke Portuguese, Biz elected to use a

court interpreter to provide translation services during Biz's
testimony at trial. The court interpreter first alerted the
court of her inability to concentrate during cross examination
of Biz.

(ECF No. 9-4 at 113.)

At that time, the court reporter

asked for, and was granted, a break.

{Id.)

After the brief

break, the proceedings began again without immediate issue or
request from the interpreter.

(Id. at 114.)

Later, during

Biz's cross examination, the interpreter asked for a five-minute
break so that she could take a seat.

(ECF No. 9-5 at 4.)

Because the interpreter asked for a break in the middle of an

important question of the cross examination, the judge asked the
interpreter to continue a little while longer.

(Id.)

The

interpreter translated a few additional questions and responses

and requested a break again.

(Id. at 8.)

The judge granted the

break and the interpreter took a break while the judge spoke to
the parties' attorneys at side bar.

(Id. at 8.)

During the side bar conversation, the judge stated

"the interpreter feels abused by being asked to come back into
the courtroom now.

She is almost in tears.

I can't see how we

are going to continue with this interpreter."

(Id.)

The court.

however, allowed the interpreter to continue translating for Biz
after in the interpreter return from her break.

(Id.)

The

interpreter raised no further issues.
Petitioner also raises six arguments regarding the

prosecution's actions during summation.

(ECF No. 9-11, Appeal

from a Judgment of the Supreme Court County of Queens, at 45.)
Petitioner argues that the trial court acted improperly because
it did not ^^exercise its control over the courtroom by stepping

in during the prosecutor's summation".

(Id.)

Petitioner also

argues that the People voiced their personal opinions of

petitioner's guilt when they opened the summation with ''he did
it" and that he was "guilty of murder".

(Id. at 40-41.)

Petitioner asserts that the People acted improperly in stating
that the defense counsel was wanting to "get [the jury] to

forget what his client did to those women."

(Id. at 51.)

Petitioner further argues that the prosecutor acted improperly
in claiming that the defendant was lying.

(Id.)

Further,

petitioner claims that the prosecutor improperly inflamed the
jury by arguing that no matter the occupation of the women they
did not deserve to be "butchered like an animal."

(Id. at 54.)

Next petitioner argues that the prosecutor improperly commented
that:

[Ejverybody on the street could tell who the victim
was and who the perpetrator was, the guy who is
running away with the broken bottle is the
8

perpetrator. The woman standing there running from
the defendant screaming for help is the victim. They
didn't need any DNA for analysis.
(Id. at 55)

Finally, petitioner asserts that the prosecution

was improper in stating "if both of the [victims] had been
killed inside of that apartment, ladies and gentlemen, he never

would have been caught" and that the defendant ^^would have
gotten away it" had the police not caught him.

(Id. at 47)

Respondent's affidavit and memorandum of law in
opposition to the petition for a writ of habeas corpus argue

that the actions of the prosecuting attorney were reasonable

responses, considering both the evidence and the actions of the
defense attorney's summation.

(ECF No. 8, Memorandum in

Opposition to Petition for Writ of Habeas Corpus ^^Opp. Mem.", at
42-43.) In its memorandum, respondent states that the prosecutor

did not improperly state her personal opinion that petitioner
was guilty but, rather, was commenting on petitioner's
statements during the trial, admitting that he had killed
Ambrosini.

(Id. at 41.)

Respondent's memorandum also asserts

that the prosecutor did not state her personal belief that
petitioner murdered Ambrose and was guilty, but was instead was

asking the jury to take notice of petitioner's demeanor when he
viewed the autopsy and other photos of the victims.

(Id.)

Respondent argues that it was proper to ask the jury to consider
petitioner's behavior during trial, ^^especially during

potentially highly emotionally charged points, where petitioner
had appeared to be indifferent." {Id.)
Respondent also disputes that the prosecutor
improperly stated that petitioner had lied. (Id. at 42.)

Instead, respondent asserts that the prosecutor was responding
to the defense counsel's argument that petitioner had been

honest and ^^unbelievably consistent." (Id.)

Respondent further

contends that the prosecution was addressing petitioner's claim
of self-defense by describing it as a ^'tall tale" and referred
to petitioner's injuries as minor, in comparison to the victims'

injuries and noting that one victim was stabbed from the behind.
(Id.)

Respondent's memorandum claims the comments regarding the

evidence were proper, particularly given Dr. Ambrosi's testimony
that stated that petitioner's injuries were insignificant in
comparison to the victims' injuries.

(Id.)

During summation, petitioner claimed that the

surviving victim was not credible, and made numerous comments

about her job as an exotic dancer.

(ECF No. 9-8 at 129-137.)

In response, the prosecutor argued that the victim did not
deserve to be butchered like an animal, even I she had engaged

in risky behavior. (0pp. Mem.at 43-44.)
Lastly, respondent argues that the prosecutor's

comments on petitioner's flight from the scene of the crime was
proper because the trial evidence itself showed that petitioner
10

was apprehended a short distance from the crime scene, running
down the street, carrying a tee shirt, with his sneakers untied.
(Id. at 44.)

Respondent argues that the prosecutor's statement

that petitioner was caught because he failed to kill both women
was proper because they ^^merely asserted that petitioner was
caught because one victim survived the attack was ^'a fair
comment under the circumstances here, and no objection by

counsel was merited."

(Id. at 45.)

Respondent notes that there

was no evidence that the victims knew petitioner prior to the

crime, that petitioner used an alias to register at the hotel
with the murder victim, and that the surviving victim ran from

the crime scene, yelling for help.

(Id.)

At no point did

defense counsel object to these specific remarks during
summation.

There were, however, defense objections to other

parts of the prosecutor's summation which the judge overruled.
The defense counsel objected during summation to the
characterization of the crime by the prosecution, and the court

ruled that the prosecutor's arguments were based on evidence and

the jury would make their own decision about the weight to give
them. (ECF No. 9-9, State Ct. R. of the June 26, 2006

Proceedings, at 55.).

The defense counsel also generally

objected when the prosecution argued in summation that

petitioner had his hand over Ambosini's mouth in the bathroom
when he attacked her. (Id. at 56.)
11

The court responded by

stating that "something speculative is an assessment[,] [the

jury] can draw it . . . if [the jury] think[s] it[']s had a
reasonable inference [the jury] will be allowed to adopt this.

Attorneys are making arguments.''

{Id.)

The court overruled the

defense objection to the prosecution's argument that petitioner
would never have been caught if he had killed victims, because

petitioner used an alias at the hotel.

(Id. at 62.)

The court

stated that it was a fair argument, given that the prosecution

met the objection with the counterargument of "take all these
things about him". (Id.)
After summation, the jury was instructed by the court

to "not be a detective and get involved in speculation or guess
work about what could or should have been," and to, "[d]ecide

the case solely on the evidence actually presented or lack of
evidence."

(Id. at 67.)

The court also told the jury that it

was not bound by any of the arguments made by the attorneys

during summation, but if the jury found one was reasonable and
logical and consistent with the evidence, then the jury was free
to accept that argument.

(Id. at 67.)

The jury was also

instructed on the elements of each individual charge, including

the requirements of intent.

(Id. at 86.)

During deliberations,

the jury sent a note to the judge asking for clarification on
the elements of the crimes, and to re-watch petitioner's

videotaped statement.

(Id. at 114.)
12

The court proceeded to

show the video, and reiterate the jury instructions regarding
all of the charges, including intent.

(Id. at 116-124.)

III. Verdict and Sentencing

On June 28, 2006, the jury returned a verdict of
guilty on the following counts: murder in the second degree,

attempted murder in the second degree, assault in the second
degree, and criminal possession of a weapon in the fourth
degree.

(EOF No. 9-10, State Ct. R., at 4-5.)

On July 18, 2006 , petitioner was sentenced to twenty-five years
to life for the murder in the second degree; ten years for

attempted murder in the second degree to run consecutively to
the murder in the second degree sentence, with five year postrelease supervision; seven years for assault in the second
degree to run concurrently with the first sentence; and one year
for criminal possession of a weapon in the fourth degree count

which merged by imposition of law.
IV.

(Id. at 24-25.)

Post-Conviction Proceedings

A. Petitioner's Direct Appeal to the Appellate Division

On November 7, 2012, petitioner appealed his
conviction to the New York State Supreme Court Appellate

Division, Second Department.

Petitioner appealed on the

following bases: (1) he was deprived of his right to a fair
trial, (2) the prosecutor committed errors in summation, (3) the
court erred in not informing the jury on the requirements for
13

the element of intent to be found, and (4) the court also erred

in failing to charge the lesser offenses of manslaughter 2,

manslaughter 1, and criminally negligent homicide.

(ECF No. 9-

11 at 18, 45, 62.)

Petitioner argued on appeal that he was deprived of

his right to a fair trial because the interpreter expressed an

inability to perform her duties twice, and stated that she could
not concentrate.

{Id. at 19-21.)

Petitioner also alleged that

the prosecutor engaged in misconduct during summation and crossexamination.

{Id. at 48-53.)

Next, petitioner alleged that the

court's charge was not complete and proper because it did not
include the lesser charges available.

{Id. at 62.)

Specifically, petitioner argued that the judge should have
instructed the jury regarding whether or not intent could be

found if petitioner was acting in self-defense. (Id. at 67.)
Lastly, petitioner argued that he was denied the effective
assistance of counsel because his counsel did not object when

the above challenged conduct occurred.

(Id. at 30.)

On June 5, 2012, (id. at 79), the People responded

that the appellate court could not review petitioner's claim

regarding the interpreter because the claim relied on facts that
were not on the record.

(Id. at 100.)

The People further

argued petitioner's claims about the interpreter were

unpreserved and that the court gave reasonable accommodation to
14

the interpreter during trial.

(Id. at 100.)

The People also

argued that the prosecutor's comments were fair and any

challenges to the prosecutor's actions were unpreserved.
at 112.)

(Id.

Further, the People asserted that the court's charge

was proper and that, in any event, petitioner's claims were once
again not preserved.

(ECF No. 9-12, State Ct. R. at 6-9.)

Finally, regarding the ineffective counsel claim, the People

argued that petitioner's attorney had provided meaningful and
constitutionally sufficient representation.

(Id. at 16.)

Shortly thereafter, petitioner filed a reply brief further
asserting that petitioner was denied a fair trial based on the
claims asserted.

(Id. at 23-34.)

On November 7, 2012, the Appellate Court denied the

defendant's direct appeal.
897 (2012).

People v. Gutierrez, 952 N.Y.S.2d

The court held that the claims regarding the

inadequate interpreter were unpreserved for appellate review.
(Id. at 898.)

The court also held that the failure of

petitioner's counsel to object to the conduct of the

interpreter, the court, or the prosecutor on cross examination
and summation did not deprive petitioner of effective assistance
of counsel.

(Id.)

All other claims by petitioner were found to

not be preserved for appellate review.

{Id.)

On November 26,

2012, petitioner sought leave to appeal the decision to the New
York Court of Appeals.

On July 16, 2013, the application was
15

denied by the Court of Appeals.

People v. Gutierrezf 994 N.E.2d

394 (2013).

B. Motion to Reargue

On November 28, 2012, petitioner filed a motion to

reargue with the Supreme Court Appellate Division.

On February

13, 2013, the Second Judicial Department of the Appellate

Division unanimously denied the motion to reargue.

People v.

Gutierrez, 21 N.Y.3d 1074 (2013).
C. Motion to Reconsider

On July 28, 2013, Petitioner submitted a request to

reconsider the Court of Appeal's denial of his application for
leave.

(ECF No. 9-12, State Ct. R. at 116.)

Petitioner raised

two issues in the request, (1) whether an attorney may delegate
to his client the strategic decision about lesser charges and
(2) whether the trial judge should have made a reasonable

inquiry as to whether the same interpreter should have been used
throughout the trial.

(Id. at 116-119.)

On August 12, 2013,

petitioner submitted a supplemental request to reconsider, which
offered a new argument: that defense counsel's decision to allow

petitioner to decide whether a charge for a lesser included
offense would be included the jury instructions created a hybrid

representation.

(Id. at 120-122.)

On September 17, 2013, the

court denied the motion for reconsideration.

16

(Id. at 127.)

D. Supreme Court

On November 29, 2013, petitioner filed a petition for
a writ of certiorari with the Supreme Court of the United

States.

On January 27, 2017, the petition was denied.

Gutierrez v. New York, 134 S. Ct. 1034 (2014).
STANDARD OP REVIEW

A writ of habeas corpus proceeding with an individual

in state custody is governed by the rules outlined in the
Antiterrorism and Effective Death Penalty Act of 1996 (^^AEDPA").

Section 2254 of AEDPA provides that a district court 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 law or treaties of the United States."

U.S.C. § 2254(a).

28

Further, there is a one-year statute of

limitations for "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 2Q U.S.C. § 2244(d).
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."
2254(b)(1)(A), (B).

28 U.S.C. §

Even if a petitioner has not exhausted all
17

state remedies, the district court may still deny the

application for a writ of habeas corpus on the merits.

28

U.S.C. § 2254(b)(2).

A district court may grant a writ of habeas corpus for

claims that were adjudicated on the merits in state court where
the adjudication produced a decision that the district court
views as ^^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."

Sellan v.

Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (brackets in original)

(citing 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.
18

When reviewing the claims clearly established by
federal law, the court is limited to the jurisprudence of the

Supreme Court at the time of the relevant state court decision.
Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005).

District

courts must independently analyze if there is an unreasonable
application of federal law as outlined by the Supreme Court or
if the decision of the state courts is contrary to the federal
law.

Stultz V. Artus, No. 04-CV-3170, 2013 WL 937830, at *5

(E.D.N.Y. Mar. 8, 2013).

A state court's decision in a case is

considered to contradict 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 the majority in

this part).

An unreasonable application of federal 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. . . [H]owever . . . the increment
19

need not be great[.]"
{2d Cir. 2000).

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

If a district court determines that 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 quotations 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 a petitioner in a habeas corpus proceeding
bears the burden of "rebutting the presumption of correctness by
clear and convincing evidence."

28 U.S.C. § 2254(e)(1).

A

district court therefore "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, 133 S.Ct. 1990, 1992 (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
20

common sense."

Santone v. Fischer, 689 F.3d 138, 148 {2d Cir.

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

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, 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

November

19.

2014,

petitioner

filed

this

timely

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
seeking to vacate his conviction.
asserts

claims

unexhausted

and

that are
claims

procedurally

that

federal

In his petition, petitioner

are

prisoner

seeking

available

state court remedies.

exhausted.

habeas

21

barred,

review
See 28

claims

Generally,

must

first

that
a

are

state

exhaust

U.S.C. § 2254(b)(1)(A)

(^^An application for a writ of habeas corpus . . . shall not be
granted unless . . . the applicant has exhausted the remedies
available in the courts of the State.").

In order to satisfy the

exhaustion requirement, a habeas petitioner must give the state
courts a fair opportunity to review the claims and correct any

alleged error.

Days v. Attorney Gen, of State of N.Y., 696 F.2d

186, 191 {2d Cir.1982) (see also Rhines v. Weber, 544 U.S. 269,

273, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) 'MUnterests of comity
and federalism dictate

that state

courts must have

opportunity to decide a petitioner's claims").
habeas statute

provides

a

^^simple

and

the

first

Thus, the federal

clear

instruction

to

potential litigants: before you bring any [habeas] claims to
federal court, be sure that you have first taken each one to state
court."

Rhines, 544 U.S. at 276-77 (quoting Rose v. Lundy, 455

U.S. 509, 520(1982) (internal quotation marks omitted)).

In light of the total exhaustion requirement, a district
court

faced

unexhausted

with

a

claims,

habeas petition

as

presented

generally has three options.

in

the

exhausted

instant

and

petition,

First, the court may dismiss the

unexhausted claim without prejudice.
278.

containing

See Rhines, 544 U.S. at 274,

Second, if the claim is plainly meritless, the court may

deny the claim on the merits, notwithstanding the petitioner's
failure to exhaust.

for

a

writ

of

See 28 U.S.C. § 2254(b)(2) (^''An application

habeas

corpus

may
22

be

denied

on

the

merits,

notwithstanding

the

failure

of the

applicant

to

exhaust the

remedies available in the courts of the State."); see also Rhines,

544 U.S. at 277 (''[T]he district court would abuse its discretion

if it were to grant [petitioner] a stay when his unexhausted claims

are plainly meritless").

Third, where an unexhausted claim is

contained in a petition along with exhausted claims, a district

court may either invite petitioner to delete the unexhausted claims
and proceed with only the exhausted claims, or, in order to avoid
foreclosing

federal

review

of

the

unexhausted

claims,

under

''limited circumstances," the court may "stay the petition and hold

it in abeyance while petitioner returns to state court to exhaust

his previously unexhausted claims."

RhineSf 544 U.S. at 275-77.

Specifically, a district court may only stay a mixed petition for
a writ of habeas corpus if: (1) good cause exists for petitioner's
failure to exhaust his claims in state court; (2) the unexhausted

claims are not "plainly meritless," and (3) petitioner has not

engaged in intentionally dilatory litigation tactics.

See id. at

277-78.

In his petition for a writ of habeas corpus,

petitioner raised five claims. Three of the claims are exhausted
and two are not. Petitioner fails to show good cause for a stay
in order to exhaust his unexhausted claims.

For the reasons

explained below, the claims in the instant petition for habeas
relief are denied.

23

A. Claims Unpreserved for Appellate Review

Petitioner's appeal to the Appellate Division of the

New York State Supreme Court was denied because petitioner failed
to raise the objections during his trial, and thus preserve them
for appeal.
1. Legal Standard

A petitioner's federal claim may be barred
procedurally if it was decided by the state courts on

^^independent and adequate" grounds.
U.S. 722, 729-33 (1991).

Coleman v. Thompson, 501

In determining whether a procedural

rule is independent, the ''state courts must actually have relied
on the procedural bar as an independent basis for its

disposition of the case" by "clearly and expressly stating that

it's judgement [sic] rests on a state procedural bar."

Harris

V. Reed, 489 U.S. 255, 261-65 (1989).
Next, to establish if a procedural rule is adequate

the court must examine if it is "firmly established and

regularly followed by the state."
77 (2d Cir. 1999).

Garcia v. Lewis, 188 F.3d 71,

Federal courts generally will not consider a

federal issue in a case "if the decision of the state court

rests on a state law ground that is independent of the federal
question and adequate to support the judgment."

Garvey v.

Duncan, 485 F.3d 709, 713 (2d Cir.2007) (quoting Lee v. Kemna,
534 U.S. 362, 375, (2002)).
24

A federal court reviewing a habeas claim cannot review a

procedurally barred claim on the merits unless the petitioner can
show ''cause for the default and actual prejudice because of the

alleged violation of federal law, or demonstrate that failure to
consider the claim will result in a fundamental miscarriage of

justice."

Coleman, 501 U.S. at 750.

A petitioner can

demonstrate cause by showing, ^Ml) the factual or legal basis for

a petitioner's claim was not reasonably available to counsel, (2)
some interference by state officials made compliance with the

procedural rule impracticable, or (3) the procedural default was
the result of ineffective assistance of counsel."

McLeod v.

Graham, No. 10 Civ. 3778, 2010 WL 5125317, at *3 (E.D.N.Y. Dec.

9, 2010) (citing Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.
1994)).

To overcome a procedural default, the petitioner must show
that "more likely than not, in light of the new evidence, no
reasonable juror would find him guilty beyond a reasonable
doubt."

House, 547 U.S. at 536.

2. Application

On direct appeal, the Appellate Division clearly

decided that the challenges made by petitioner regarding whether
he was denied a fair trial because of the interpreter, the

prosecutor's actions during cross examination and summation, and
the charge to the jury and jury instructions, were all
25

unpreserved for appellate review pursuant to New York's

contemporaneous objection rule, C.P.L. § 470.05(2).

See

Gutierrez, 952 N.Y.S.2d at 8 97. (''The defendant's contention that
he was deprived of a fair trial because a court interpreter
was unable to properly perform her duties is unpreserved for

appellate review (see CPL 470.05[2]). . . the defendant's

remaining contentions are unpreserved for appellate review, and
we decline to review them in the exercise of our interest of

justice jurisdiction.").

"New York's contemporaneous objection rule provides

that a party seeking to preserve a claim of error at trial must

lodge a protest to the objectionable ruling 'at the time of such
ruling ... or at any subsequent time when the trial court had an
opportunity of effectively changing the same.'"

Whitley v.

Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (citing C.P.L. §
470.05(2)).

"New York courts consistently interpret § 470.05(2)

to require that a defendant specify the grounds of alleged error
in sufficient detail so that the trial court may have a fair

opportunity to rectify any error."

Garvey v. Duncan, 485 F.3d

709, 715 (2d Cir. 2007).

New York Criminal Procedure Law § 470.05 requires a

defendant to raise a specific justification objection during
trial for the issue to be preserved on appeal.

See People v.

Smiley, 755 N.Y.S.2d 870 (N.Y. App. Div. 2003) (citing C.P.L.
26

470.05) (^^The defendant's contention that the People failed to

disprove his justification defense beyond a reasonable doubt is
unpreserved for appellate review.").
Under 28 U.S.C. § 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."

2254(b)(1)(A).

28 U.S.C. §

To meet the exhaustion requirement, 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 Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30
L.Ed.2d 438 (1971).

The state court applied an independent New

York state law, C.P.L. § 470.05(2), that states the criteria to
establish that these specific claims are barred from appellate

review because they were not preserved by a specific objection.
"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".

Ramirez, 280 F.3d at 94.

Where a claim is exhausted but procedurally barred, a court may
27

nonetheless review it if 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).
Petitioner is unable to show cause and prejudice, or

that a fundamental miscarriage of justice will occur in absence
of review.

In its decision to affirm the conviction, the

Appellate Division held that the claims regarding the court

interpreter, the court's charges to the jury, and the failure of
the court to intervene during summation were all unpreserved for

appellate review.

See Gutierrez, 952 N.Y.S.2d at 897.

In the

state of New York, courts have regularly determined that for a

party to preserve a question of law for review, an objection at
trial must occur.

By using this precedent, the Appellate

Division relied on a state procedural rule.
Petitioner failed to survive the procedural bar by

showing cause or prejudice.

Although cause for failure to

preserve a claim can be met by petitioner showing his counsel
was ineffective, petitioner fails to meet this burden as well.

Further, petitioner does not show that there would be any

prejudice if these claims were not considered or that it would
impact the case to the point of a different verdict.

28

For these

forgoing reasons, claims 1(A), 1(B), 1(D), 1(E), 1(F), 2(A),
2(B), and 2(C), are procedurally barred from being heard.
B. Ineffective Counsel Claim

Petitioner also claims that his counsel was

ineffective for failing to object to the People's summation, and
to the interpreter, and for following his client's wishes

regarding the lesser included offense charge.

To meet the

Strickland standard, petitioner must show that the actions of
his counsel ''fell below an objective standard of reasonableness"
and that "but for" these actions the decision in his case would
have had a different outcome. Strickland v. Washington, 466 U.S.

668, 694 (1984).

Here, petitioner fails to establish under

Strickland that his counsel's actions fell below an objective
standard of reasonableness and that the outcome of the trial

would have been different, but for the alleged ineffectiveness,
and thus fails to meet his burden.

Strickland v, Washington,

466 U.S. 668 (1984).

1. Legal Standard

Under the Sixth Amendment, a criminal defendant is

afforded "the right . . .to have the Assistance of Counsel for
his Defense."

U.S. Const. Amend. VI.

A defendant is not

guaranteed "perfect counsel," but rather, "effective assistance
of counsel."

Constant v. Martuscello, 119 F. Supp. 3d 87, 142

(E.D.N.Y. 2015) (emphasis in original) (internal quotation marlcs
29

omitted) (quoting Burt v. Titlow, 134 S.Ct. 10, 18 (2013);
McMann v. Richardson, 397 U.S. 759, 771 n.l4 (1970)).
In order for a petitioner to show that they can

fundamentally establish a claim of ineffective assistance of
counsel, they must meet the two-prong test outlined in
Strickland v. Washington, 466 U.S. 668, 691 (1984).

A

petitioner must show that: (1) counsel's performance was

deficient, meaning that it ''fell below an objective standard of
reasonableness," and (2) "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."

Id. at 688, 694.

two prongs may be addressed in either order.

The

Id. at 697.

Further, a court assessing an ineffective assistance claim is

not required "to address both components of the inquiry if the
defendant makes an insufficient showing on one."

{Id).

The first prong's "reasonableness" analysis is

determined by what the court views as "prevailing professional
norms."

Id. at 688.

Generally, "there is a strong presumption

that counsel's actions 'might be considered sound trial

strategy."

Stultz, 2013 WL 937830, at *7 (quoting Strickland,

466 U.S. at 688-89).

The court may presume that counsel has

acted reasonably where "counsel is prepared and familiar with
the relevant facts and legal principles."

Brown v. Phillips,

No. 03-CV-0361 (DGT), 2006 WL 656973, at *8 (E.D.N.Y. Mar. 12,
30

2006) {quoting Farrington v. Senkowski, 19 F. Supp. 2d 176, 179
(S.D.N.Y, 1998)).

Under the second prong, prejudice, a ^'reasonable

probability" is one "sufficient to undermine confidence in the
outcome."

Strickland, 466 U.S. at 694.

"A court hearing an

ineffectiveness claim must consider the totality of the evidence

before the judge or jury," id. at 695, and petitioner must
"affirmatively prove prejudice arising from counsel's allegedly

deficient representation," Carrion v. Smith, 549 F.3d 583, 588
(2d Cir. 2008) (citations and internal quotation marks omitted).

"[T]he standard for judging counsel's representation
is a most deferential one."

105 (2011).

Harrington v. Richter, 562 U.S. 86,

Due to the heightened deference under AEDPA, "[a]

federal court reviewing a state court's determination regarding
ineffective assistance of counsel has been characterized as

'doubly' deferential by the Supreme Court."

Constant, 119 F.

Supp. 3d at 143 (quoting Harrington, 562 U.S. at 105).

Thus,

"[w]hen § 2254(d) applies, the question is not whether counsel's
actions were reasonable" but rather "whether there is any

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

Harrington, 562 U.S. at 105.

2. Application

The Appellate Division adjudicated petitioner's
ineffective assistance of counsel claim on the merits and held
31

that ^Mefense counsel's failure/ inter alia, to object to the

prosecutor's remarks during summation did not deprive the
defendant of the effective assistance of counsel".

People v.

Gutierrez, 952 N.Y.S.2d 897 (2012).

When determining how to rule on petitioner's
ineffective assistant of counsel claim, the Appellate Division

applied the state of New York's standard.^

When ruling on

petitioner's ineffective assistance of counsel claim, the
Appellate Division applied New York State's ^^meaningful

representation" standard.

See Id.

^*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, 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 only difference between the second prong of

the New York standard and the federal standard is the holistic

approach the state court takes on review.

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)).

The difference is not

2 Though the court does not explicitly state which standard they
are applying, the cases they reference use the legal standard of
New York State.
32

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, the court must determine, ^Vhether there is
any reasonable argument that counsel satisfied Strickland^s
deferential standard."

Harrington, 562 U.S. at 105.

There are

certainly reasonable arguments here that defense counsel
satisfied the Strickland standard and provided adequate

representation to petitioner.

Petitioner's claim that he was

denied effective assistance of counsel when the defense counsel

failed to object to the use of the interpreter, the

prosecution's summation, and consulting petitioner regarding
whether to include the lesser included offense of manslaughter

in the jury charge does not satisfy the first prong of
Strickland: it was not unreasonable for the state court to find

that defense counsel's representation was not deficient.

First, upon stating that she needed a break due to
difficulty concentrating, the interpreter was given one.
No. 9-4 at 113.)

{EOF

The interpreter asked for another break and

was briefly denied one because defense counsel was in the middle
of a cross examination, (ECF No. 9-5 at 4), however after the

interpreter again asked for another break, the court granted the
request.

(Id. at 8.)

The court then received reports that the

interpreter felt abused and wished not to re-enter the court.
33

(Id.)

After the court determined that there was not much time

needed to finish the cross-examination, the court interpreter

re-entered and began interpreting again.

(Id. at 8-10.)

It is

unclear in the record whether she reentered of her own accord or

was asked to do so by the court.

(Id.)

Overall, the court

interpreter's complaints were limited to a brief period—she only
expressed an issue with concentration well into the crossexamination of the witness.

(EOF No. 9-4 at 113.)

Most importantly, there were no indications and there
is no allegation that the interpreter was not correctly
interpreting the testimony.

Indeed, there were no complaints

from Biz, who spoke sufficient English to be reminded to speak

Portuguese.

See People v. Felix, 212 A.D.2d 410 (2d Dept. 2000)

(finding that where a complainant who spoke some English failed
to signal in any way that the interpreter was not translating
correctly and did not have evidence of error, the burden of
proving the interpreter was failing to perform the job was not
met).

Thus it was reasonable for petitioner's counsel to not

object.

The decision not to object may have been a strategic

decision as defense counsel was in the middle of a cross

examination and did not see an issue with the way answers were

being delivered by the interpreter.
Petitioner was not denied effective assistance of

counsel when defense counsel did not object to parts of the
34

prosecutor's summation that petitioner alleges biased the jury
against petitioner.

Petitioner claims that the prosecutor

improperly stated her opinion, improperly stated that petitioner
had lied, improperly vouched for Biz's testimony, improperly

inflamed the jury, and improperly described petitioner running
away from the scene of the crime. (ECF No. 9-11 at 45.)
Petitioner stated that the People voiced their personal opinions

of petitioner's guilt when they opened the summation with ''he
did it" and that he was "guilty of murder" along with other
comments Petitioner alleged were inflammatory.
51, 54.)

(Id. at 40-41,

Petitioner also argued that the prosecutor acted

improperly in opining on his guilt, saying, "everybody on the
street could tell who the victim was and who the perpetrator

was, the guy who is running away with the broken bottle is the
perpetrator," (Id. at 55), and stating that, "if both of the
[victims] had been killed inside of that apartment, ladies and

gentlemen, he never would have been caught."

(Id. at 47.)

A conviction on a criminal charge should not be

"lightly overturned based on a prosecutor's comments standing
alone" in what appears to be an otherwise fair proceeding.
United States v. Young, 470 U.S. 1, 11 (1985).

When looking at

a'prosecutor's remarks and determining if they violated a
defendant's constitutional rights, a prosecutor's remarks must
create such an unfair trial that the resulting conviction was
35

the result of a denial of due process.

Donnelly v.

DeChristoforof 416 U.S. 637, 643 (1974); Garofolo v. Coomb, 804

F.2d 201, 206 (2d Cir. 1986).

A prosecutor's alleged misconduct

during summation is grounds for reversal only when there is a
^^substantial prejudice" towards the defendant because of those

specific misconduct.

United States v. Tutino, 883 F.2d 1125,

1136 (2d Cir. 1989), cert, denied, 110 S.Ct. 1139 (1990) United
States V. Nersesian, 824 F.2d 1294, 1327 (2d Cir.), cert,

denied, 484 U.S. 957, (1987).

Thus, we must consider how

prejudicial the prosecutor's conduct was during summation and if
there are any measures the trial court could have used or did
use to cure the prejudice.

See United States v. Modica, 663

F.2d 1173, 1181 (2d Cir. 1981), cert, denied, 456 U.S. 989
(1982).

The court must then decide whether conviction was

certain absent the prejudicial conduct.

Id.

On review of petitioner's claims, the prosecutor's

summations, the objections that the defense counsel raised, and
the evidence presented, it is unlikely that the challenged
statements in the prosecutor's summation affected the jury's

reasoning and ability to conclude and judge the evidence fairly.
Young, 470 U.S. at 12-13.

The issues raised in petitioner's

claims are largely refuted by respondent's affidavit, which

explains the responsive nature of the People's comments, which
were based on the evidence and proper, given what the defense
36

had said in summation.

When considering comments made by a

prosecutor, it is appropriate for an appellate court to apply
the ""invited response" or ""invited reply" rule, which the

Supreme Court explained in Lawn v. United States, 355 U.S. 339,
(1958).

Id. at 11.

Given that, in this instance, the defense

council attacked the credibility of the prosecution's witnesses,
and vouched for the defendant, it is not unreasonable that the

prosecution responded.

Id.

Importantly, petitioner's counsel

did object to other parts of the summation.

Defense counsel's

reasons for not objecting to other aspects of the prosecutor's
summation have not been shown by petitioner to have rendered
counsel's assistance ineffective.

Further, the evidence against petitioner was strong,

and the prosecutor merely commented on the evidence in response
to the defense's arguments.

Petitioner was found fleeing the

scene after he used a fake name at a hotel and then proceeded to

go home with a woman he was paying for sex.

Petitioner's claim

of self-defense was refuted by the medical doctor's assertion

that petitioner's injuries and cuts were superficial and only
required a band aid, compared to the injuries resulting in the
death of one victim, and the injury with knife wounds, inflicted
from behind, on the second victim.

Given the weight of evidence

against petitioner prior to summation, the comments made by the

37

prosecutor in the summation did not render the trial
fundamentally unfair.

Petitioner also alleges that he has been denied
effective assistance because his defense counsel waived

inclusion in the charges of the lesser included offense of

manslaughter after consulting with petitioner.

The court asked

petitioner and confirmed on record that petitioner wanted to
omit the lesser charge.

(ECF No. 9-8 at 117-118.)

Upon

confirmation, the defense reviewed his clients stated preference
and waived the lower charge.

There are potential dangers for the defense if lesser
included offenses are in the charge, a factor that defense

counsel often incorporate into their strategy.

See United

States V. Tsanas, 572 F.2d 340, 345 (2d Cir. 1978), cert,

denied, 435 U.S. 995 (1978).

As explained by the court in

United States v. Tsanas, a defendant faces the possibility that

the ''advantage gained by giving the jury an option between a
conviction on the greater charge and setting him free is
counterbalanced by the danger that a juror who could on no

account have been persuaded to convict on the greater and is not

truly convinced beyond a reasonable doubt of all elements of the
lesser offense may nevertheless convict on the latter."
345-346.

Id. at

The decision to include or omit a lesser included

offense instruction is a matter of trial strategy and is
38

entitled to deference, see Cuevas v. Henderson, 801 F.2d 586,
590 (2d Cir.1986) (indicating ^'reluctance to second-guess

matters of trial strategy"), cert, denied, 480 U.S. 908 (1987),
and thus it does not fall outside the bounds of reasonable

professional conduct.

See Torres v. Stinson, No. 97-cv-5310

(JG), 2000 WL 1919916, at *6 (E.D.N.Y. Dec. 29, 2000) (holding
that submission of lesser included offenses may give the jury

the ability to find guilt in a crime where the prosecution was
unable to prove the elements of the original crime charged;
thus, failure to include lesser included offenses may be a

proper trial strategy); Grant v. Bara, No. 87-CV-9217, 1989 WL
146796, at *2 (S.D.N.Y. Nov. 28, 1989) (holding whether to
include lesser included offenses is a trial strategy and is

entitled to deference).

See Colon v. Smith, 723 F. Supp. 1003,

1008 (S.D.N.Y. 1989) (holding that failure to request lesser
included offenses may be a proper trial strategy).

Though it is not necessary to address the second
Strickland prong, it bears mentioning that petitioner cannot
establish sufficient prejudice to undermine the outcome of his
criminal trial.

Accordingly, petitioner's claim for ineffective

assistance of counsel is denied.
C. Unexhausted Claims

1. Legal Standard

A district court shall not grant a writ of habeas
39

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."
(b)(1)(A)(B).

28 U.S.C. § 2254

If claims have not been exhausted, and cannot be

reviewed due to state procedural processes, a district court
cannot review the claims on habeas review.

See Rhines, 544 U.S.

at 277.

2. Application

Petitioner failed to raise his hybrid representation

argument, and the claim regarding the trial court's duty to

intervene, on direct appeal.

As a result. Petitioner cannot raise

that constitutional challenge in a state post-judgment proceeding

because state law bars presentation of claims on collateral review
that could have been raised on direct appeal. See N.Y.C.P.L.

440.10(2(0 ; People v. Cooks, 67 N.Y.2d 100, 103 (1986).

Thus,

petitioner's claims are barred from review in this Court.

See

Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Strogov v.

Attorney Gen. of State of N.Y, 191 F.3d 188, 193 (2d Cir. 1999).
In his federal appeal, petitioner claims he was denied
a fair trial because the trial court did not warn him of the

dangers of hybrid representation when he told the court he did
not want lesser offenses included in the jury charges.
40

Further,

he claim the trial court failed to prevent the prosecution from

proceeding with an improper summation.

Both claims are from

review by this court because of procedural default.
Petitioner's claims were not raised in the direct appeal to the

Appellate Division, and New York state rules prevent petitioner
from litigating the claims now.

Petitioner has not shown that

denial of relief will result in a fundamental miscarriage of

justice.

As to cause and prejudice, petitioner offers no

justification for his failure to raise these claims in the state
courts, and nothing in the record indicates that his default was
because of some objective element external to the defense.

See

Amadeo v. Zant, 486 U.S. 214 (1988); Murray v. Carrier, 477 U.S.
478, 488 (1986).

Because petitioner has not established cause for the
procedural default, this court need not address whether
petitioner would be prejudiced by failure to review these
claims.

See Murray v. Carrier, 477 U.S. at 498 (federal courts

should adhere to the "cause and prejudice test" in the

conjunctive); Francis v. Henderson, 425 U.S. 536, 542 (1976)
(requiring not only a showing of cause for the procedural
default, but also a showing of actual prejudice).
CONCLUSION

For the reasons set forth above, the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
41

DENIED in its entirety.

The Court declines to issue a

certification 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); see also 28
U.S.C. § 2253 (c) (t^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.
U.S. 438, 444-45, (1962).

Coppedge v. United States, 369

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:

Brooklyn, New York
April 5, 2019

/s/
KIYO A. MATSUMOTO

United States District Judge
42