Jackson v. Perez

Filing 21

MEMORANDUM AND ORDER: The petition for a writ of habeas corpus is denied. Because Petitioner has not made a substantial showing of the denial of a constitutional right, no certificate of appealability will issue. See 28 U.S.C. § 2253(c). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and in forma pauperis status is therefore denied for purposes of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Order to the pro se Petitioner. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 12/4/2020. c/m to petitioner. (LiCalzi, Christine)

Case 1:15-cv-01403-EK-LB Document 21 Filed 12/04/20 Page 1 of 54 PageID #: 1087

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
WILLIE JACKSON,
MEMORANDUM & ORDER
15-CV-1403(EK)(LB)

Petitioner,
-againstADA PEREZ, Superintendent,
Respondent.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Table of Contents

I. Introduction .............................................. 2
II. Factual Background ....................................... 3

III. Procedural History ...................................... 6
A. Pre-Trial Suppression Hearing ........................... 6
B. Suppression Hearing Reopened ........................... 12
C. Pre-Trial Hearings ..................................... 15

D. Trial .................................................. 16
1. The State’s Case ...................................... 16
2. The Defense Renews Its Request to Suppress Evidence ... 20
3. Petitioner’s Testimony ................................ 21
4. Conviction and Sentencing ............................. 23

E. Direct Appeal and Post-Conviction Relief ............... 23

IV. Standard of Review ..................................... 26
V. Discussion ............................................... 27
A. Ground One: Denial of Right to Self-Representation ..... 27
B. Ground Two: Prosecutorial Misconduct ................... 33

1. Applicable Law ........................................ 35
a. Brady v. Maryland ................................... 35
b. Use of False Testimony .............................. 35
1

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2. Failure to Turn Over Witness Statements Regarding the
Alleged Identification Procedure ........................ 36
3. Failure to Identify the 60th Precinct Officers and Turn
Over the “Log Sheet” ..................................... 39

4. Failure to Correct the Testimony of the 61st Precinct
Officers ................................................. 40
5. Failure to Produce the 911 Call Record and to Correct the
Testimony of Sarine Gabay ................................ 42
6. Alteration of the Videotaped Confession ............... 42

C. Ground Three: Ineffective Assistance of Counsel ........ 44
D. Ground Four: Failure to Reopen the Suppression
Hearing ................................................... 48

VI. Evidentiary Hearing .................................... 52
VII. Conclusion ............................................. 53
I.

Introduction

Willie Jackson, proceeding pro se, petitions this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 9, 2010, following a bench trial, Petitioner was found
guilty of burglary in the third degree, criminal mischief in the
fourth degree, petit larceny, and criminal possession of stolen
property in the fifth degree.

He was sentenced to a term of

imprisonment of fifteen years to life, and is currently
incarcerated.
The petition asserts four grounds for habeas relief:
(1) the state court denied Petitioner’s request to represent
himself at a hearing on his motion to suppress certain evidence,
in violation of the Sixth Amendment; (2) the prosecution
committed misconduct by, among other things, failing to turn
2

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over exculpatory evidence pursuant to Brady and failing to
correct false testimony at the suppression hearing and trial;
(3) his counsel rendered constitutionally ineffective
assistance; and (4) the trial court violated his due process
rights by refusing to reopen the suppression hearing following
certain trial testimony.

Petitioner also requests an

evidentiary hearing.
For the reasons set forth below, the request for an
evidentiary hearing is denied, and the petition is denied in its
entirety on the merits.
II.

Factual Background

Police officers arrested Petitioner on October 4, 2007
at approximately 1:20 a.m. for breaking a window at the Carvel
store at 2733 Coney Island Avenue in Brooklyn, New York, and
stealing the cash register.

The following facts, taken from the

state court trial record (unless otherwise noted), are
summarized “in the light most favorable to the verdict.”
Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).
Officers Adam Rothman and Jon-Kristian Rzonca — both
from the 61st Precinct of the New York City Police Department —
were on patrol when they received a radio transmission reporting
a burglary in progress at the corner of Avenue Y and Coney

3

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Island Avenue.

Trial Tr. 1 23:9-21 (Rothman); 163:3-14 (Rzonca).

After the officers responded, they saw Petitioner walking down
Avenue Y; as they approached, they witnessed him put a large box
on the ground and walk away from it.
167:11-20 (Rzonca).
cash register.

Id. 27:6-17 (Rothman);

Moments later, they saw that the box was a

Id. 28:11-24 (Rothman); 169:23-170:7 (Rzonca).

As discussed below, officers from both the 60th and 61st
Precincts responded, and recollections about which set of
officers reached Petitioner first varied somewhat between the
suppression hearing testimony and the trial testimony.

Shortly

after the stop, though, Officer Rothman searched the Petitioner
and recovered a set of keys from his pocket, which were later
determined to fit the cash register.
(Rothman).

H1 Tr. 14:6-13; 16:12-19

The 60th Precinct officers then took Petitioner to

their station.

Trial Tr. 63:8-9 (Rothman).

After visiting the

Carvel store, Officers Rothman and Rzonca picked up Petitioner
from the 60th Precinct station and brought him to the 61st.
63:14-64:7 (Rothman).

Id.

There, he confessed to stealing the cash

1
“Trial Tr.” is the trial transcript from March 2, 2010 to March 9,
2010. “H1 Tr.” is the suppression hearing transcript from January 20, 2009
and January 21, 2009. “H2 Tr.” is the transcript from the February 17, 2009
hearing in which Justice Konviser read her opinion on the suppression motion
into the record. “H3 Tr.” is the transcript from the reopened suppression
hearing on June 11, 2009. “H4 Tr.” is the July 29, 2009 hearing transcript
in which Justice Konviser read her opinion into the record regarding the
reopened suppression hearing. “H5 Tr.” and “H6 Tr.” are pretrial conference
transcripts from July 30, 2009 and October 2, 2009, respectively.
“Sentencing Tr.” is the sentencing transcript from April 23, 2010.

4

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register in a statement to Detective Marcia Baughan, which she
recorded in writing, and also in an oral statement given on
video to Assistant District Attorney (“ADA”) John Giannotti,
during which Officer Rothman was also present.

Id. 72:20-21

(Rothman).
Petitioner maintains that the events in question
transpired very differently.

According to him, this is a case

of mistaken identity; he claims that he never broke into the
store, never had a cash register, and never even saw Officers
Rothman or Rzonca until they appeared at his pretrial
suppression hearing, despite their extensive testimony about
responding to the radio call, searching Petitioner, recovering
the cash register, arresting him, transporting him after the
arrest, and sitting through his confession.

Petitioner

acknowledges he was arrested near the Carvel on the night in
question, but claims the arresting officers were only from the
60th Precinct, and they obtained important proof of his innocence
when they conducted a “showup identification procedure” “at the
crime scene.”

Petition at 3. 2

He claims that during this

identification procedure, a series of bystanders — purportedly
eyewitnesses to the crime — confirmed he “was not the
perpetrator.”

Petitioner’s Br. at 4, ECF No. 1-2; see also

Citations to a given page of the Petition refer to the pagination
assigned by ECF, rather than the document’s internal pagination.
2

5

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Petitioner’s Reply Br. at 11, ECF No. 10.

These exculpatory

statements, Petitioner contends, are lost to posterity because
of the State’s inability to identify the witnesses in question
or the officers from the 60th Precinct who purportedly conducted
the identification procedure.

In support of these claims, the

Petitioner has proffered only his own testimony.

See Trial Tr.

236-87.
III. Procedural History
A.

Pre-Trial Suppression Hearing
Prior to trial, Petitioner moved to suppress

(1) certain physical evidence — the cash register and its keys —
seized around the time of his arrest, on the ground that there
was no probable cause for the search or seizure; and (2) his
written and videotaped confessions, on the ground that they were
involuntarily made.

In response to these requests, the state

court conducted a two-day Dunaway / Mapp / Huntley hearing 3 on
January 20 and 21, 2009 before Justice Jill Konviser.
H1 Tr.

Three witnesses testified:

See

Officers Rothman and Rzonca,

and Detective Marcia Baughan from the 61st Precinct.

A hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979)
addresses whether a defendant’s statement subsequent to arrest must be
suppressed due to lack of probable cause for the arrest. A hearing pursuant
to People v. Huntley, 15 N.Y.2d 72 (1965) is used to determine the
voluntariness of a defendant’s statement. And a Mapp hearing addresses
whether physical evidence should be suppressed. Mapp v. Ohio, 367 U.S. 643
(1961).
3

6

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On the first day of the hearing (January 20, 2009),
Officer Rothman testified that around 1:20 a.m. on October 4,
2007, he and his partner Officer Rzonca were on patrol when they
received a radio alert of a burglary in progress on Coney Island
Avenue at Avenue Y.

Id. 10:9-11:5.

Rothman testified that the

radio alert described a “black male, carrying a box heading
westbound towards Ocean Parkway on Avenue Y.”

Id. 11:1-5.

They drove east on Avenue Y and saw a man, later
identified as Petitioner, about a block away carrying a large
box.

Id. 11:22-12:10.

The officers then saw him put the box

down on the street and continue walking.

Id. 13:1-3.

They

pulled up and stopped Petitioner, who was then a block away from
the Carvel.

Id. 19:11-14.

The officers then “walked him” to

“another patrol car [that] had pulled up.”

Id. 14:2-4.

Once at

that patrol car, Rothman handcuffed Petitioner and frisked him
and, feeling a hard object in his pocket, removed that object,
which turned out to be a set of keys.

Id. 14:6-13; 16:12-19.

Rothman and Rzonca then “put him in the other officers’ car who
were there to secure him.”

Id. 20:20-23.

After Petitioner was

”secure,” Rothman saw that the box Petitioner discarded was a
cash register.

Id. 16:24-7:3; 19:22-25.

Rothman and Rzonca then proceeded to the Carvel, id.
20:20-21:21, while the 60th Precinct officers took Petitioner to
“the stationhouse,” id. 38:4-9.

Officers Rothman and Rzonca
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interviewed the Carvel owner Patrick Aceto, who had just arrived
at the scene, and confirmed that the store’s cash register had
been stolen and the seized keys fit the register’s drawer lock.
Id. 21:17-22:6; 23:15-20.

Rothman testified on cross-

examination that he never conducted an identification procedure,
nor did he know of any other officer who did.

Id. 43:10-17.

The court next heard testimony from Detective Marcia
Baughan, who had taken and transcribed Petitioner’s first
confession at the 61st Precinct stationhouse.

She testified

that, before taking his statement, she read Petitioner his
Miranda rights from a form, which he signed and initialed next
to every right.

Id. 50:3-15; 54:23-25.

The prosecution

introduced Petitioner’s transcribed statement into evidence
through Detective Baughan.

It read as follows:

I was on the boardwalk in Coney Island on Wednesday night.
I went for a walk. I saw a Carvel and there were kids
inside working. Then I thought, do I want to stay out or
go back to jail? I don’t want to hurt anyone to go back.
I wait until the store closed. The employees left. I made
sure that they were gone and went to the side window where
the picnic tables were and I kicked the window. I went
inside and took the cash register. I climbed back out the
same window with the cash register and walked westbound on
Avenue Y, then the police came and stopped me, then I was
arrested.
Id. 59:2-12.

Detective Baughan, too, denied having knowledge of

any officer conducting an identification procedure and stated

8

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there was no information in Petitioner’s case file concerning
such a procedure.

Id. 63:24-64:13.

At the end of the first day of suppression-hearing
testimony, defense counsel Ivan Vogel announced that Petitioner
wanted him “relieved” as counsel.

Id. 83:1-2.

This revelation

came immediately after Justice Konviser decided sua sponte to
call Officer Rzonca to testify the following day.
(“This hearing is going to continue tomorrow.

Id. 83:13-16

I am going to ask

you to have the partner of Officer Rothman available first thing
in the morning.”).

Justice Konviser’s initial response to the

request that counsel be relieved was “No.”

Id. 83:3.

Petitioner then stated, “I am going pro se, your Honor.” Id.
83:4-5.

Justice Konviser answered, “You are not going pro se

unless I say you are going pro se.
courtroom?”

Id. 83:6-8.

Who’s the Judge in this

She continued:

I do see from your file you had another very good lawyer
who also asked to get relieved early on from Legal Aid
Society. You have another very good lawyer standing next
to you. And you have a right to have a lawyer, a good one,
and you have that. You don’t have the right to the lawyer
of your choice, unless you want to hire someone, sir.
That’s the rules.
Id. 83:18-24.

Petitioner explained that he was dissatisfied

with Mr. Vogel’s failure to object to Officer Rothman’s
testimony that the radio alert described the suspect as a “black
male,” when the transmission had not, in fact, mentioned race.
Id. 84:1-3.

The day’s proceeding then adjourned.
9

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On the following day (January 21), Mr. Vogel continued
to represent Petitioner at the suppression hearing without any
mention of the representation issue.

Rzonca’s testimony at this

hearing was substantially similar to Officer Rothman’s the day
before.

He testified to the same sequence of events regarding

the stop and arrest, stating that the 60th Precinct officers
arrived on the scene “simultaneously.”

Id. 102:9-14; 106:3-4.

Rzonca’s testimony also clarified certain points.

He stated

that it was about three to four minutes after arresting
Petitioner that the officers received confirmation that the
burglary involved a stolen cash register from the nearby Carvel.
Id. 107:6-108:15.

He also testified that the 60th Precinct

officers initially took Petitioner back to their stationhouse,
and that after visiting the crime scene, he and Rothman picked
the Petitioner up there and transported him to the 61st Precinct.
Id. 115:24-25.
The representation issue came up again near the end of
the hearing.

Following Rzonca’s testimony, Justice Konviser

asked the parties to “step up on scheduling” and held a sidebar
off the record.

Id. 134:19-21.

Following that discussion,

Justice Konviser stated:
[L]et me just put this all on the record . . . .
Yesterday, when you left here, you indicated that perhaps
you wanted to go pro se or handle this case without the
assistance of Mr. Vogel, and now your attorney tells me you
want to think about it, you are not so sure . . . so the
10

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record is clear, I did see you conferring with Mr. Vogel
today as he was going through the process here today, in
terms of the hearing.
Id. 135:3-16.
Justice Konviser then informed Petitioner of his right
to self-representation.

She advised him that “before you decide

whether or not you’re going to ask me that you want to go pro se
. . . you need to understand” the level of training required of
lawyers to try cases effectively.

Id. 135:17-136:5.

Justice

Konviser concluded, “You can think about it, let me know.

If

you do, I will go over everything with you and you let me know
what you want to do.”

Id. 136:3-5.

The suppression hearing

then concluded.
Several weeks later, on February 17, 2009, Justice
Konviser denied the motion to suppress.

She found that (1) the

officers had reasonable suspicion to stop Petitioner, H2 Tr.
10:14-15; (2) they had probable cause for his arrest (once the
officers saw the cash register and, minutes later, learned that
a cash register had been stolen from the Carvel), id. 12:2-18;
(3) the cash register was lawfully seized because Petitioner
“abandoned” it by “dropp[ing] it to the ground” and “walk[ing]
away from it,” id. 15:9-13; (4) Petitioner’s transcribed and
video-recorded confessions were made “freely and voluntarily,”
id. 16:1-3; and (5) he validly waived his Miranda rights in
advance of those confessions, id. 16:6-25.
11

The court did,

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however, grant Petitioner’s motion to suppress the keys to the
cash register, because Officer Rothman acknowledged he did not
believe they were a weapon when he removed them from
Petitioner’s pocket during the initial frisk.

Id. 14:18-15:8.

After this ruling, Petitioner expressed
dissatisfaction with his lawyer yet again.

Following a sidebar,

H2 Tr. 20:17-18, Justice Konviser confirmed, without mentioning
Petitioner’s prior pro se requests, that he was now seeking the
appointment of a new lawyer rather than to proceed pro se.
stated:

She

“As I understand, Mr. Jackson, the last time you were

here you were unhappy with your lawyer.

Obviously, you have now

won part of your [suppression] motion that he made on your
behalf, but is this what you want to do, sir?”
Petitioner replied, “Yes.”
concluded, “Okay.

Id. 20:24.

Id. 20:19-23.

Justice Konviser

This is the last chance you are going to get

. . . The next lawyer is the lawyer you are going to get.

This

is the last time I am going to have this discussion.”
Id. 20:25-21:4.

The court then assigned Petitioner his third

lawyer, Kleon Andreadis.
B.

Id. 21:5-7.

Suppression Hearing Reopened
Petitioner’s counsel asked the court to reopen the

suppression hearing to allow Mr. Jackson to testify on his own
behalf.

H3 Tr. 1:10-13.

On April 13, 2009, Justice Konviser

12

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granted this request, and Petitioner testified on June 11, 2009.
Id.
Petitioner testified as follows.

At around 1:30 a.m.

on October 4, 2007, he had walked from a 7-11 store to the
picnic benches behind the Carvel, where he was planning to sleep
because he had lost his bed at a homeless shelter.

Id. 4:3-22.

While walking to the picnic benches, he observed a woman walking
her dog and five teenaged employees outside the Carvel.
5:10-6:15.

Id.

He then heard a siren go off from inside the store.

Id. 6:18-22.

A few minutes later, an unmarked police car pulled

up and a detective asked Petitioner what he was doing there.
Id. 7:6-12; 46:17-18.

When Petitioner replied he was looking

for a place to sleep, the detective handcuffed him and placed
him in the police car.

Id.

The detective then drove the car to

the front of the Carvel, where the alleged identification
procedure took place:
[H]e [the unidentified officer] asked the female could she
recognize me or identify me . . . She told him, no. Also,
the three teens, he asked them the same thing, and they
said no. After that, about ten minutes, ten, 15 minutes
later, the other two teens came back to the store . . . But
I think it was the owner, the same van that picked them up
. . . [c]ame back . . . .
So the detective asked all
three of them could they identify me, and they said, no.
Id. 7:14-8:11.
Officers then took Petitioner to a police station,
which he believed was the 61st Precinct.
13

Id. 9:2-9.

Petitioner

Case 1:15-cv-01403-EK-LB Document 21 Filed 12/04/20 Page 14 of 54 PageID #: 1100

did not provide any other information about these officers or
indicate whether they worked for the 60th or 61st Precinct.
Petitioner did, however, testify that Rothman and Rzonca were
not the arresting officers and, despite their extended testimony
about the night in question, Petitioner said he had never seen
them before the suppression hearing.

Id. 19:6-9.

At the station, Petitioner testified, he asked to
speak with his attorney before making his first inculpatory
statement.

Id. 10:9-13; 58:19-59:5.

But he acknowledged he did

not ask for a lawyer during the subsequent videotaped confession
he made there, or any time thereafter.

Id. 49:15-50:4.

Petitioner also testified that he only made these statements
because Detective Baughan promised him placement in a “program”
in exchange for his confession.

Id. 11:25-12:12.

Several weeks later, the court affirmed its prior
rulings on suppression, H4 Tr. 3:6-15, finding Petitioner’s
testimony “incredible and unworthy of belief,” id. 7:23-25.
Justice Konviser went on to reiterate that she found the
testimony of Officers Rothman and Rzonca to be “detailed” and
“credible,” and that Petitioner had offered no “credible reasons
why these two officers . . . offered perjurous testimony.”

Id.

8:3-11.
After Justice Konviser read this order into the
record, Petitioner renewed his request to proceed pro se.
14

Mr.

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Andreadis informed the court that Petitioner “is going to
proceed pro se in this case” and no longer wanted
representation.

H4 Tr. 10:12-20.

Justice Konviser asked

Petitioner, “Is that what you want to do, Mr. Jackson?”
11:1-2.

He replied, “Yes, ma’am.”

Id. 11:3.

Id.

Justice Konviser

then informed Petitioner once again of the risks associated with
self-representation.

During this conversation, Petitioner

stated that he only wanted a Black attorney, and would represent
himself if one were not assigned.

Id. 36:11-12.

Also during

this exchange, Mr. Andreadis complained that Petitioner wanted
him to “chase down a prim rose path of suspicion” relating to
Petitioner’s contention that the videotaped confession had been
tampered with.
C.

Id. 34:1-7.

The hearing was then adjourned.

Pre-Trial Hearings
The next day, July 30, 2009, Justice Konviser

explained that she adjourned to give Petitioner “a chance to
really think about . . . the dangers and disadvantages of selfrepresentation.”

H5 Tr. 2:10-16.

She advised, “I’m going to

tell you that if you really want to represent yourself, I’m
going to let you do that.

That’s your right.”

Id. 2:17-19.

Justice Konviser then explained that Petitioner had two options:
he could either proceed as his own attorney or she would assign
new counsel.

Id. 54:25-55:4.

Petitioner stated, “Yes, I’ll

15

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take another one.”
Andreadis.

Id. 5:5.

Justice Konviser relieved

Id. 5:6-7.
At the next pre-trial hearing, on October 2, 2009,

Petitioner’s fourth lawyer, Martin Goldberg, informed Justice
Konviser that Petitioner wanted to proceed pro se at trial.
H6 Tr. 2:21-22.

After once again confirming Petitioner

understood the disadvantages of proceeding pro se, the judge
granted Petitioner’s request to represent himself, with Goldberg
to be present at trial as an “advisor.”
D.

Id. 15:2-17.

Trial
Petitioner opted for a bench trial.

The trial

commenced in front of Justice Danny Chun on March 2, 2010.
Petitioner began the trial representing himself — delivering the
defense’s opening statement and cross-examining Officer Rothman
himself, among other things.

At the start of the second day,

however, Mr. Goldberg told Justice Chun that Petitioner again
wanted legal representation.

Trial Tr. 88:19-89:8.

Justice

Chun confirmed with Petitioner that he no longer wanted to
proceed pro se, and Mr. Goldberg resumed representation for the
remainder of trial.
1.

Id.
The State’s Case

The State presented the following evidence in its
case-in-chief.

Sarine Gabay testified that she lived near the

Carvel and was awoken in the early hours of October 4, 2007 by a
16

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loud noise.

Trial Tr. 214:24-215:13.

She observed through her

window that the Carvel was surrounded by shattered glass and saw
a person leave the store carrying something.

Id. 216:1-217:10.

Ms. Gabay called 911 to report the burglary and reported the
direction in which the suspect was heading, which matched the
path Petitioner traveled.

Id. 216:17-18, 217:21-218:5.

Officers Rzonca and Rothman testified to the
circumstances of the stop and arrest, as they did at the
suppression hearing, but their rendition of which officers
stopped the Petitioner first diverged somewhat from their
suppression-hearing testimony.

At trial, they testified that

the unidentified officers from the 60th Precinct reached
Petitioner simultaneously or first.

Rzonca testified that

“there was a plainclothes unit from the 60 Precinct that came up
behind [Petitioner], and we pretty much simultaneously pulled up
on him,” id. 168:3-5, but that the 60th Precinct officers might
have arrived a “couple of seconds before us,” id. 171:1-3; see
also 180:9-11 (it was a “[m]atter of seconds”).

Rothman

testified that by the time he and Rzonca got out of the car,
Petitioner “was already stopped, with his hands on the back of
[an] unmarked police car” from the 60th Precinct.

Id. 36:22-25. 4

4
Compare Rothman’s testimony at the suppression hearing, in which he
stated that when he and Rzonca stopped Petitioner, “another patrol car had
pulled up, so we walked him to that patrol car with our hands on him.” H1
Tr. 14:2-4.

17

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Rzonca could not remember who told Petitioner to “stop” — it
could have been either him, Rothman, or the 60th Precinct
officers.

Id. 186:23-25.

Neither Rothman nor Rzonca knew the

60th Precinct officers’ names.

Id. 61:18-19, 62:12-15 (Rothman);

170:17-23 (Rzonca).
Petitioner, still proceeding pro se at this point,
asked Rothman a number of questions about the alleged
identification procedure.

Rothman denied asking the Carvel

owner to identify the perpetrator, id. 57:23-58:2; 59:16-22,
denied making a report concerning the description of the
perpetrator from speaking to anyone at the scene, id. 58:10-16,
and denied putting Petitioner in a “lineup,” id. 74:25-75:13.
Pursuing his theory — advanced in opening argument — that the
officers “covered” up the identification procedure “by saying
that they took me to the 60 [sic] Precinct for half an hour,”
id. 19:5-10, Petitioner asked Rothman whether he had had to log
Petitioner in or out of the 60th Precinct.

Rothman replied

simply, “No.” Id. 64:11-14.
The owner of the Carvel, Patrick Aceto, also
testified.

He stated that around 1:30 in the morning of October

4, 2007, his alarm company alerted him of the break-in; he then
went to the Carvel store, arriving between 1:45 and 2:00 a.m.
Id. 102:20-103:12.

On cross-examination, Aceto testified that

he did not recall any officer asking him to “look at anybody at
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that time,” and that he was not asked to “look at pictures of
anybody” or at a “lineup.”

Id. 113:10-13; 113:23-114:3.

Aceto

went on to testify that he had never seen Petitioner before the
day of his testimony.

Id. 108:25-109:3; 116:5-6.

The State again called Detective Baughan, who
transcribed Petitioner’s oral statement, id. 128:17-130:10, and
ADA Giannotti, who interviewed Petitioner during his videotaped
confession, id. 201:15-25; 204:9-11.

The State introduced the

videotaped confession and played it in its entirety.
207:10.

Id. 206:2-

Although Petitioner had claimed, in his opening

argument, that the videotape was “altered, tampered with,” id.
19:20-22, ADA Giannotti testified that the videotape “accurately
represent[ed] the conversation that took place” on October 4
between him and Petitioner, id. 206:9-15, and that there were no
“additions, deletions or alterations of any kind,”

id. 206:16-

18.
Detective Baughan testified that Petitioner told her
he stole the cash register because he wanted to go back to jail.
Id. 129:7-8.

She denied “suggest[ing] to him perhaps that he

should enter a program that might be of some use to him[.]”
140:1-6.

19

Id.

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2.

The Defense Renews Its Request to Suppress
Evidence

After Rothman testified at trial that officers from
the 60th Precinct reached Petitioner first, defense counsel moved
to reopen the suppression hearing on the ground that Rothman and
Rzonca had lied about arresting him themselves.
89:12-91:5.

Trial Tr.

Counsel argued that Rothman and Rzonca had told a

“totally different stor[y]” at the suppression hearing — namely,
that they stopped Petitioner before the 60th Precinct vehicle
arrived.

Id. 89:17-90:6.
The court denied the application to reopen the

suppression hearing.

Trial Tr. 90:7.

Defense counsel then

moved to “suppress everything because the wrong officers
testified at the hearing.”
was also denied.

Id. 91:13.

Id. 90:20-91:2.

That application

Justice Chun stated that the

defense had an opportunity to cross-examine Rothman while he was
on the stand and “confront him with the alleged or apparent
inconsistencies,” but Petitioner “was going pro se and he either
chose not to, or he deliberately did not, or he neglected to.
Either way, the opportunity has come and gone.”

Id. 91:14-23.

After Rzonca’s testimony on the third day of trial,
defense counsel again moved for the court to “grant the
suppression motion” because “the wrong officers testified at the

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hearing.”

Id. 198:3-7.

That request was also denied.

Id.

198:8.
3.

Petitioner’s Testimony

Petitioner took the stand; he was the defense’s only
witness.

He testified that at around 1:30 a.m. on October 4,

2007, he was walking from a 7-11 store to the picnic benches at
Carvel, and when he was about a half-block away from the Carvel,
he heard its siren go off.

Trial Tr. 236:12-237:22.

He was

carrying a cup of coffee, a suitcase, and a backpack.
247:23-25.

Outside of the Carvel at that time were three

teenagers and a “female” who was “walking the dogs.”
237:23-238:10.

Id.

An unmarked police car then pulled up and two

detectives in plain clothes arrested him.
241:6-18.

Id.

Id. 238:20-24;

After being detained in the unmarked car for about

five to ten minutes, he saw a van pull up to the Carvel, which
picked up two of the teens.

Id. 240:2-14.

He testified that

these detectives then took him to the 61st Precinct station — not
the 60th Precinct, as the State’s witnesses claimed.
241:6-18.

Id.

At the 61st Precinct, he used information he overheard

on the radio in the detectives’ patrol car to craft his
confession, because Detective Baughan promised in return to help
him get into a drug treatment program.

Id. 242:14-244:4.

Towards the conclusion of his direct testimony,
Petitioner repeated his claim that he had never seen Rothman or
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Rzonca before the suppression hearing.
also id. 273:23-274:1.

Id. 240:21-241:5; see

Petitioner did not mention anything

about the alleged identification procedure during his direct
testimony, despite having presented the theory in his opening
argument.

Id. 19:5-7 (stating, in his opening argument, “these

cops . . . [t]hey put me in a lineup — show-up lineup”).
On cross-examination, Petitioner testified about the
alleged “showup.”

He stated that unnamed detectives brought him

to the front of the Carvel, where they “[t]ried to get me []
identified as the person who went inside that place,” id.
265:24-266:1; and brought the “two kids” and “the individual
that brought them back to the store” (presumably the owner,
based on prior testimony) 5 “down to try and identify me,” id.
263:12-17.

Petitioner also stated that “when they went and got

the individual to identify me — when the cop went and got the
person to try to identify me as the person who stole the cash
register, the female” — presumably the woman walking her dog —

5
At the suppression hearing, Petitioner had testified that he thought
it was the Carvel owner that drove the two teens in the van. H3 Tr. 7:148:11. And at trial, he testified that “the individual that brought [the two
kids] back to the store” drove a van, Trial Tr. 263:12-23, and that he
believed the van driver was “affiliated with the Carvel,” id. 239:13-16.

22

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“told the officer I didn’t have no cash register in my
possession.”

Id. 284:12-16.
4.

Conviction and Sentencing

Trial concluded on March 9, 2010.

On that same day,

before returning the verdict, Justice Chun gave himself a
“missing witness charge as to the anti-crime officers [from the
60th Precinct] not being called,” and he drew “the inference that
if they were called, they may have testified somewhat
unfavorabl[y] to the People.”

Trial Tr. 322:18-25.

The judge

then found Petitioner guilty of burglary in the third degree,
criminal mischief in the fourth degree, petit larceny, and
criminal possession of stolen property in the fifth degree.

Id.

324:1-7.
The case proceeded to sentencing on April 23, 2010.
There, Justice Chun found that Petitioner qualified as a
“persistent felony offender” under Section 70.01 of the New York
Penal Code due to his criminal history, which included prior
felony convictions for grand larceny, burglary, and attempted
burglary.

Sentencing Tr. 5:21-7:16.

In light of this

designation, the judge sentenced Mr. Jackson to a term of
imprisonment of fifteen years to life.
E.

Id. 10:19-23.

Direct Appeal and Post-Conviction Relief
Petitioner appealed the judgment of conviction to the

Appellate Division.

On appeal, his counsel argued the trial
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court violated Petitioner’s right to self-representation at the
suppression hearing.

See ECF No. 7-7 at 16-21.

Petitioner also

submitted a pro se supplemental brief, claiming that the
prosecution had withheld Brady material including the names of
the 60th Precinct officers who he claims arrested him and
evidence of the alleged identification procedure.
7-7 at 45-54.

See ECF No.

He also argued that the State knew Officers

Rothman and Rzonca testified falsely at the hearing (in that
they claimed they were the ones who arrested Petitioner), and
the trial court erred in denying his request to reopen the
suppression hearing in light of this false testimony.

The

Id.

Appellate Division affirmed his conviction, People v. Jackson,
947 N.Y.S.2d 613 (N.Y. App. Div. 2012), and Petitioner was
denied leave to appeal to the New York Court of Appeals, People
v. Jackson, 20 N.Y.3d 1100 (2013).
On May 7, 2013, Petitioner filed a pro se petition in
this District for a writ of habeas corpus.
No. 13-CV-3043 (E.D.N.Y.) (SLT), ECF No. 1.

Jackson v. Perez,
By order dated

September 25, 2013, however, Judge Townes granted Petitioner
permission to withdraw that petition in order to exhaust his
ineffective assistance of counsel claim in state court.

Id.,

ECF No. 10.
Petitioner then moved to vacate his conviction
pursuant to New York Criminal Procedure Section 440.10 in the
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Supreme Court, Kings County based on the ineffective assistance
claim.

That motion was denied on June 27, 2014, People v.

Jackson, Ind. No. 9802/07 (N.Y. Sup. Ct. June 27, 2014), ECF No.
7-8 at 69, and on December 5, 2014, he was denied leave to
appeal to the Appellate Division, People v. Jackson, Ind. No.
9802/07 (N.Y. App. Div. Dec. 5, 2014), ECF No. 7-8 at 77.
On March 17, 2015, Petitioner filed the instant
petition for a writ of habeas corpus.

Petition, ECF No. 1.

Petitioner asserts four grounds for relief:

First, the state

court deprived him of his constitutional right to selfrepresentation at the suppression hearing.

Second, the

prosecution violated its Brady obligations by failing to
disclose, among other things, the names of the purported
eyewitnesses to the burglary who denied that Petitioner
committed it; Petitioner also claims, relatedly, that the
prosecutors failed to correct false testimony and altered his
videotaped confession.

Third, his counsel rendered ineffective

assistance at the suppression hearing and at trial by failing to
investigate and interview the exculpatory eyewitnesses and the
unidentified officers from the 60th Precinct who allegedly
questioned them.

Fourth, the state court failed to reopen the

suppression hearing following the officers’ testimony at trial,
in violation of the Due Process Clause of the Fourteenth
Amendment.
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This Court held oral argument (but not an evidentiary
hearing) on the petition on October 26, 2020.
IV.

Standard of Review

28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), governs an
application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court.

Under the

AEDPA, a petitioner challenging a determination that was
“adjudicated on the merits” in state court must demonstrate that
the state decision “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), or was “based on an unreasonable determination of
the facts presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2).

A violation of constitutional rights must be

demonstrated by a preponderance of the evidence, Epps v. Poole,
687 F.3d 46, 50 (2d Cir. 2012), while a petitioner must rebut
the presumption that the state court correctly determined a
factual issue by clear and convincing evidence, 28 U.S.C.
§ 2254(e)(1).
A legal conclusion by a state court is “contrary to”
clearly established federal law under Section 2254(d)(1) if it
“applies a rule that contradicts the governing law set forth in
the [Supreme Court’s] cases or if it confronts a set of facts
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that are materially indistinguishable from a decision” of the
Supreme Court, yet “arrives at a result different from [that]
precedent.”

Price v. Vincent, 538 U.S. 634, 640 (2003) (citing

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (internal
quotations omitted)).

And a decision involves an “unreasonable

application” of federal law under the same sub-section “if 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.”

Williams,

529 U.S. at 413.
A “federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.

Rather, it is the

habeas applicant’s burden to show that the state court applied
[that case] to the facts of his case in an objectively
unreasonable manner.”

Price, 538 U.S. at 641 (cleaned up).

Because the petition was filed pro se, the Court
construes it liberally.

Thompson v. Choinski, 525 F.3d 205, 209

(2d Cir. 2008).
V.

Discussion

A. Ground One: Denial of Right to Self-Representation
Petitioner’s first asserted ground for relief is that
the trial court violated his right to self-representation by
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declining to allow him to proceed pro se for what amounted to
one day of his pretrial suppression hearing.
without merit.

This claim is

Petitioner cannot establish even a momentary

violation, as he cites no “clearly established” Supreme Court
precedent forbidding a trial court from so briefly postponing
consideration of a criminal defendant’s request to proceed pro
Moreover, as the state court noted, he waived the request

se.

before the court had a chance to decide it.
The Sixth Amendment guarantees a criminal defendant
the right to self-representation.
U.S. 806, 819–21 (1975).

Faretta v. California, 422

A criminal defendant may invoke this

right only by a “knowing, voluntary, and unequivocal waiver of
the right to appointed counsel.”

Johnstone v. Kelly, 808 F.2d

214, 216 (2d Cir. 1986) (discussing Faretta, 422 U.S. at 83536).
At the end of the first day of the suppression
hearing, Petitioner asked to proceed pro se.

He now alleges

that Justice Konviser violated his rights when she denied this
request “without conducting an appropriate inquiry.”
at 3.

Petition

On direct appeal, the Appellate Division found that

Petitioner’s “initial request to proceed pro se was not
unequivocal because it was made in the context of expressing
dissatisfaction with counsel’s failure to highlight certain
evidence at the suppression hearing, and did not reflect an
28

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affirmative desire for self-representation.”

People v. Jackson,

947 N.Y.S.2d 613, 613-14 (N.Y. App. Div. 2012) (internal
quotations and citations omitted).

The appellate court went on

to hold that “[i]n any event, the defendant abandoned his
request by subsequently acting in a manner indicating his
satisfaction with counsel.”

Id. at 614.

Notwithstanding the state court’s finding,
Petitioner’s initial assertion, “I am going pro se, your Honor,”
does appear unequivocal even though it was made in the context
of expressing dissatisfaction with his lawyer.

See Wilson v.

Walker, 204 F.3d 33, 38 n.3 (2d Cir. 2000) (“Even assuming that
[the petitioner’s] principal reason for seeking to proceed pro
se was dissatisfaction with [his counsel’s] representation and
that [the petitioner] might have been satisfied with a
substitution of counsel, his requests were clear and
unequivocal.”).

“[A] defendant is not deemed to have

equivocated in his desire for self-representation merely because
he expresses that view in the alternative, simultaneously
requests the appointment of new counsel, or uses it as a threat
to obtain private counsel.”

Williams v. Bartlett, 44 F.3d 95,

100 (2d Cir. 1994).
Despite the Appellate Division’s partial reliance on
this observation, the denial of Petitioner’s Sixth Amendment
claim was not contrary to, or an unreasonable application of,
29

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clearly established federal law.

Petitioner cites no Supreme

Court case holding that a judge must stop all proceedings and
decide immediately whether to grant a request to proceed pro se,
and this Court is aware of none.

Faretta does not require it.

Instead, Faretta requires the defendant’s decision to be
knowing, voluntary, and unequivocal, 422 U.S. at 835-36; and
given this requirement, district courts routinely direct
defendants considering self-representation to spend some time
thinking about the risks inherent in that course.

Second

Circuit case law — which can guide the Court in determining what
constitutes “an unreasonable application” of “clearly
established law,” see Wilson v. McGinnis, 413 F.3d 196, 199 (2d
Cir. 2005) — supports the notion that self-representation need
not begin instantaneously.

The Second Circuit has affirmed the

denial of a habeas petition where it was apparent the defendant
and judge both considered the pro se request “open for
discussion,” even though the judge’s initial reaction “could be
construed as a ‘clear denial.’”

Wilson, 204 F.3d at 38; see

also United States v. Barnes, 693 F.3d 261, 272 (2d Cir. 2012)
(no violation where the judge made clear “at the first pretrial
conference following the court’s receipt of [defendant’s]

30

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request to proceed pro se” that the court would “have to have a
hearing” on the “application to represent himself”).
Like in Wilson, Petitioner’s request to proceed pro se
remained “open for discussion” even though Justice Konviser
declined to grant it on the spot.

She did not categorically

deny Petitioner’s request on January 20, 2009.

When Petitioner

stated, “I am going pro se, your Honor,” Justice Konviser
answered, “You are not going pro se unless I say you are going
pro se.

Who’s the Judge in this courtroom?”

This conditional

denial is best read, in context, as a response to Petitioner’s
unilateral declaration of a right that must be granted by the
court to become effective.

It was also made at what would have

been the end of the suppression hearing, had Justice Konviser
not decided, sua sponte, to call for Rzonca’s testimony on the
following day.
Petitioner then waived the request.

“[G]iven the

court’s failure to enter a clear and conclusive denial, it was
incumbent upon [Petitioner] to reassert his desire to proceed
pro se” when proceedings resumed the next day.

Barnes, 693 F.3d

at 273 (quoting Wilson, 204 F.3d at 38) (cleaned up).

Instead,

he let Mr. Vogel represent him the next day, throughout Officer
Rzonca’s testimony, without raising the issue.

See Wilson, 204

F.3d at 39 (finding petitioner waived his right to selfrepresentation in part because of Petitioner’s “apparent
31

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cooperation” with counsel); cf. McKaskle v. Wiggins, 465 U.S.
168, 182 (1984) (“Even when [a defendant] insists that he is not
waiving his Faretta rights, a pro se defendant's solicitation of
or acquiescence in certain types of participation by [standby]
counsel substantially undermines later protestations that
counsel interfered unacceptably.”).

And at the end of Rzonca’s

testimony, Vogel reported that Petitioner was “not sure” about
his representation request, and that he wanted some time to
“think about” it.
amounts to waiver.

This equivocal conduct, taken together,
See Barnes, 693 F.3d at 272 (“Where there

has been no clear denial of the request to proceed pro se and
the question of self-representation [i]s left open for possible
further discussion, the defendant’s failure to reassert his
desire to proceed pro se and his apparent cooperation with his
appointed counsel . . . constitute[s] a waiver of his previously
asserted Sixth Amendment right to proceed pro se.” (internal
quotations omitted)).
Even so, Justice Konviser still initiated an inquiry
into whether Petitioner’s waiver of counsel was knowing, and
again left the request open for further discussion when she told
him after the second day of suppression-hearing testimony to
“think about it.”

H1 Tr. 136:3-5.

Then, on the next hearing

date, February 17, 2009, for reasons unclear on the record,
Petitioner outright abandoned the request — confirming with
32

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Justice Konviser that he wanted new counsel, rather than to
represent himself.

Justice Konviser replaced Vogel with

Andreadis, who represented Petitioner at the reopened
suppression hearing on June 11, 2009.
It bears noting that Justice Konviser also considered
Petitioner’s later pro se requests of July 29 and 30, 2009, and
indeed granted Petitioner the right to proceed pro se on October
2, 2009.

Petitioner began the trial pro se, but turned back to

counsel after the first day.
For these reasons, the Court finds that the state
court did not act contrary to, or unreasonably apply, clearly
established federal law in rejecting Petitioner’s Sixth
Amendment claim.
B.

Ground Two: Prosecutorial Misconduct
Petitioner alleges next that the State engaged in

misconduct by failing to disclose exculpatory evidence under
Brady v. Maryland, 373 U.S. 82 (1967), and failing to correct
false testimony.

Both claims arise primarily from Petitioner’s

theory that the testifying officers were not the ones who
arrested him, and that the officers who did would have testified
to the exculpatory lineup they allegedly conducted.
Petitioner’s Br. at 4; see also Petition at 10.

He also claims

the State failed to identify the true 911 caller and to correct
the testimony of Sarine Gabay, because the 911 call records show
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that the call came from a telephone registered to someone named
“Mier Gabay,” not Sarine Gabay.

Finally, he alleges that the

State doctored his videotaped confession, because the tape
played at trial did not show him requesting an attorney or
describing the exculpatory identification procedure.
The Court considers the merits of these misconduct
claims, despite the Respondent’s contention that they are
procedurally barred. 6

I apply the deferential AEDPA standard,

given that the state court rejected these claims on the merits. 7
Applying that standard, the claims for relief on prosecutorial
misconduct grounds must be denied, for the reasons that follow.

I reach the merits of Petitioner’s prosecutorial misconduct claims
despite the Appellate Division’s conclusion that they were “largely
unpreserved.” People v. Jackson, 947 N.Y.S.2d 613 (N.Y. App. Div. 2012)
(citations omitted). Respondent urges that this determination constitutes an
independent and adequate state-law bar to habeas review. Respondent’s Br. at
5-6. However, to preclude habeas review, a state court’s reliance on a
procedural bar must be “unambiguous,” and “when in doubt, courts should
presume that the state court adjudicated the claim on the merits.” Garner v.
Lee, 908 F.3d 845, 859 (2d Cir. 2018). Numerous courts in this circuit have
held that the ambiguous phrase “largely unpreserved” does not preclude habeas
review. See, e.g., Castaldi v. Poole, No. 07-CV-1420, 2013 WL 789986, at *3
(E.D.N.Y. Mar. 1, 2013).
6

In addition to labelling Petitioner’s prosecutorial misconduct claims
“largely unpreserved,” the Appellate Division found them to be “without
merit.” People v. Jackson, 947 N.Y.S.2d 613 (N.Y. App. Div. 2012). Although
the Appellate Division provided no reasoning in support of this finding, this
phrase still qualifies as an “adjudication on the merits” for the purposes of
28 U.S.C. § 2254(d). See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)
(“Nothing in the phrase ‘adjudicated on the merits’ [in 28 U.S.C. § 2254(d)]
requires the state court to have explained its reasoning process.”).
7

34

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1.

Applicable Law
a.

Brady v. Maryland

The prosecution has a constitutional obligation to
disclose exculpatory evidence that “is material either to guilt
or to punishment.”

Brady, 373 U.S. at 87.

This obligation

“covers not only exculpatory material, but also information that
could be used to impeach a key government witness.”

See United

States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Giglio
v. United States, 405 U.S. 150, 154 (1972)).

Exculpatory

evidence is considered “material” only “if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.”

United States v. Bagley, 473 U.S. 667, 682 (1985).
b.

Use of False Testimony

To challenge a conviction based on a prosecutor’s use
of false testimony, a defendant must establish that “(1) there
was false testimony, (2) the Government knew or should have
known that the testimony was false, and (3) there was ‘any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.’”

35

United States v. Helmsley,

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985 F.2d 1202, 1205–06 (2d Cir. 1993) (quoting United States v.
Agurs, 427 U.S. 97, 103 (1976)).
2.

Failure to Turn Over Witness Statements
Regarding the Alleged Identification
Procedure

The Petitioner’s claims regarding the exculpatory
identification procedure do not provide a basis for habeas
relief, because Petitioner has not adequately established a
likelihood that the procedure actually occurred.

See, e.g.,

Mannino v. Graham, No. 06-CV-6371, 2009 WL 2058791, at *9
(E.D.N.Y. July 15, 2009) (“[T]o establish a Brady violation, a
petitioner must initially establish that the evidence sought, in
fact, existed.”) (internal quotations omitted).

The only

evidence suggesting that an identification procedure occurred
was Petitioner’s testimony at trial.

There are many reasons in

the record, however, to doubt Petitioner’s claim.

Accordingly,

his testimony does not constitute the “clear and convincing
evidence” required to overcome the presumption that the state
court’s factual determination was correct.

See 28 U.S.C.

§ 2254(e)(1).
First, one of the supposed Brady witnesses identified
by the Petitioner — the owner of the Carvel store, Patrick Aceto
— actually did testify, and he denied any recollection that
police officers conducted, or he participated in, the purported
identification procedure.

Compare Trial Tr. 113:10-114:3 (Mr.
36

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Aceto testifies that he was not asked to “look at any pictures
of anybody” or to “look at a lineup”), with Petitioner’s Reply
Br. at 11 (contending that the Carvel owner was among the
exculpatory witnesses at the “showup”).

Mr. Aceto testified

that he arrived at the Carvel store after the burglary had
occurred, id. 102:20-103:12, and thus was never in a position to
identify the culprit.

Indeed, Aceto stated that he had never

seen Petitioner before the trial.

Id. 108:25-109:1; 116:5-6.

This testimony from a largely disinterested witness directly
contradicts Petitioner’s Brady argument.
Second, neither of the arresting officers recalled any
on-scene identification procedure, and two state judges found
their testimony credible.
Third, the state court not only found that the
officers’ testimony was credible; it also ruled that
Petitioner’s rendition of the “show-up” was not.

Justice

Konviser found explicitly that Petitioner’s suppression hearing
testimony — including about the circumstances of his arrest —
was “incredible and unworthy of belief.”

H4 Tr. 7:23-25.

And

Justice Chun necessarily rejected Petitioner’s testimony about
the “show-up” in convicting him.

Had Justice Chun found it

credible that multiple eyewitnesses — perhaps as many as seven —
all said that they saw the perpetrator of the robbery, and all
denied that Petitioner was him, it is difficult to envision how
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he could then go on to conclude that the Petitioner was guilty
beyond a reasonable doubt.

See Vera v. Woods, No. 06-CV-1684,

2008 WL 2157112, at *9 (E.D.N.Y. May 21, 2008) (a federal habeas
court must “resolve all issues of credibility in favor of” the
verdict) (citing United States v. Reyes, 157 F.3d 949, 955 (2d
Cir. 1998)).

A state court’s credibility findings “are entitled

to great deference” on habeas review.
F.3d 57, 68 (2d Cir. 2005).

DeBerry v. Portuondo, 403

Here, Petitioner has not carried

the heavy burden of producing clear and convincing evidence to
overcome the presumption that the state court’s factual
determination was correct.

See 28 U.S.C. § 2254(e)(1).

Without establishing the existence of the information
alleged, there can be no Brady violation.

See, e.g., Bullock v.

Grassiano, No. 13-CV-5081, 2013 WL 5774870, at *9 (E.D.N.Y. Oct.
24, 2013) (a court “cannot find an unreasonable application
of Brady where there is nothing but conjecture as to whether
such material even exists”) (collecting cases); Morris v.
Kikendall, No. 07-CV-2422, 2009 WL 1097922, at *6 (E.D.N.Y. Apr.
23, 2009) (“[N]othing in the state court record provides
credible evidence that the [exculpatory evidence] ever existed
and petitioner's uncorroborated testimony at trial, which was
considered by the jury, does not provide a basis for habeas
relief.”); Russell v. Rock, No. 08-CV-1894, 2009 WL 1024714, at
*4 (E.D.N.Y. Apr. 15, 2009) (“[T]here is no indication in the
38

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record that the claimed exculpatory [] evidence even exists, and
thus this evidence cannot form the basis for a Brady claim.”).
Therefore, the alleged identification procedure provides no
basis for habeas relief.
3.

Failure to Identify the 60th Precinct
Officers and Turn Over the “Log Sheet”

Petitioner also claims the State violated Brady by
withholding the names of the 60th Precinct officers, who would
have testified to the exculpatory lineup.

However, without

sufficient evidence that the lineup actually occurred,
Petitioner cannot establish that these officers’ testimony would
have been favorable.
For the same reasons, Petitioner’s claim that the
State violated Brady by not disclosing the 60th Precinct “log in
and log out sheet” also fails.

Petition at 10.

At trial,

Petitioner claimed in his opening argument that Officers Rothman
and Rzonca “covered [up]” the alleged identification procedure
“by saying that they took me to the 60 Precinct for half an
hour” before transporting Petitioner to the 61st Precinct.
Tr. 19:5-10.

Trial

Petitioner presumably believes that the log sheet

would have supported his version of events.

However, this claim

falters for the same reasons discussed above; without
establishing that the exculpatory identification procedure
occurred, it cannot be the basis of a Brady violation.
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4.

Failure to Correct the Testimony of the 61st
Precinct Officers

Petitioner alleges that Officers Rothman and Rzonca
falsely testified at the suppression hearing and trial to the
circumstances surrounding his arrest because they were not the
arresting officers.

Petition at 7-8, 11; Petitioner’s Br. at

10; see also Trial Tr. 273:19-274:1 (testifying that he had
never seen Rothman or Rzonca before trial).

In light of their

extensive testimony at the suppression hearing and at trial,
however, as well as the respective judges’ findings that they
were credible, the Court finds that the Appellate Division’s
rejection of this claim was neither an unreasonable
determination of the facts nor an unreasonable application of
federal law.
Petitioner asserts other false-testimony claims
against Rothman and Rzonca because of some relatively minor
inconsistences between their testimony at the suppression
hearing and trial.

In particular, Petitioner challenges the

State’s failure to correct Rothman and Rzonca when they
testified at the suppression hearing that they initially stopped
Petitioner (when, according to their testimony at trial, 60th
Precinct officers had apprehended Petitioner moments earlier).
This is a minor point, however; and the suppression-hearing
testimony on this issue was more overlapping than contradictory.
40

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At the suppression hearing, Rzonca testified that when they
approached Petitioner, “simultaneously the 60 Anticrime Unit
pulled up on the scene as well.”

H1 Tr. 102:9-14; see also

106:3-4 (“The 60 Crime sergeant and Anticrime Unit were on the
scene.”).

Rothman testified that when they stopped Petitioner,

“another patrol car had pulled up.”

Id. 14:1-4.

And at trial,

the officers testified that “there was a plainclothes unit from
the 60 Precinct that came up behind [Petitioner], and we pretty
much simultaneously pulled up on him,” Trial Tr. 168:3-5
(Rzonca), but that the 60th Precinct officers might have arrived
a “couple of seconds before us,” id. 171:1-3 (Rzonca), and that
by the time Rothman and Rzonca got out of the car, Petitioner
was “already stopped,” id. 36:22-25 (Rothman).
Minor differences in recollection regarding the
relative times of arrival of the two sets of NYPD officers do
not amount to perjury.

See, e.g., United States v. Monteleone,

257 F.3d 210, 219 (2d Cir. 2001) (“Simple inaccuracies or
inconsistencies in testimony do not rise to the level of
perjury.”); United States v. Sanchez, 969 F.2d 1409, 1415 (2d
Cir. 1992) (“Differences in recollection alone do not add up to
perjury.”); Torres v. Ercole, 06-CV-0674, 2009 WL 4067281, at
*15 (S.D.N.Y. Nov. 24, 2009) (denying habeas relief on false
testimony claim because “any discrepancy between [the witness’s]
testimony at the first trial and at the Huntley hearing resulted
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from his lack of recollection”), aff'd 421 F. App’x 6 (2d Cir.
2011).

On these facts, Petitioner has not established that the

officers’ testimony was materially false.
5.

Failure to Produce the 911 Call Record and
to Correct the Testimony of Sarine Gabay

Petitioner also claims the prosecution failed to
produce the “prior statement” that Sarine Gabay (the 911 caller
who testified at trial) made to the police.

Petition at 10.

The Court understands this allegation to refer to Sarine Gabay’s
911 call record; however, the 911 call log was, in fact,
produced to Petitioner before trial.
also H1 Tr. 6:25-7:4.

Respondent’s Br. at 9; see

Petitioner disputes this because the name

shown on the call record is “Mier Gabay.”
7.

Petitioner’s Br. at

This argument, however, defies the common-sense conclusion

that persons with the same last name often live together and
share a phone line or bill.

For the same reason, the Court

finds Petitioner’s additional claim that Sarine Gabay falsely
testified that she was the 911 caller, Petition at 3, 10, to be
without merit.
6.

Alteration of the Videotaped Confession

Petitioner alleges that the prosecution introduced an
altered version of his videotaped confession into evidence.
claims that the complete tape would have shown (a) the
detectives denying his request for an attorney and (b)
42

He

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Petitioner explaining that he was arrested by two detectives in
front of the Carvel and that eyewitnesses were unable to
identify him as the perpetrator.
Petitioner’s Br. at 29.

Petition at 10, 13;

However, the record reveals that the

video was played in its entirety at trial.
207:10.

Trial Tr. 206:16-

And ADA Giannotti testified at trial that no

“additions, deletions or alterations of any kind” had been made
to the video.

Id. 206:16-18.

Petitioner claims ADA Giannotti’s

testimony was false, but there is no support in the record for
that claim.

See, e.g., Brown v. Menifee, No. 99-CV-1258, 2004

WL 1810341, at *6 (E.D.N.Y. Aug. 9, 2004)

(denying petitioner’s

prosecutorial misconduct claim where there was no evidence that
the State witness’s testimony was false or that the alleged
police-communication tape existed); Morris, 2009 WL 1097922, at
*15 (“[T]here is absolutely no basis in the record to conclude
that the government destroyed or suppressed any evidence (such
as a video or logbook), nor any basis to conclude that the
government tampered with evidence. . . .”).

In addition, this

claim is inconsistent with Petitioner’s admission at the
suppression hearing that he did not ask for a lawyer during the
videotaped confession.
*

*

H3 Tr. 49:15-50:4.
*

*

*

For these reasons, the Appellate Division’s decision
that the prosecutorial misconduct claims were without merit was
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not predicated on an unreasonable determination of the facts nor
an unreasonable application of federal law.
C.

Ground Three: Ineffective Assistance of Counsel
Petitioner alleges that the attorneys representing him

at the suppression hearing and trial violated his Sixth
Amendment right to effective assistance of counsel because they
failed to pursue his theories related to the alleged exculpatory
witnesses, the 911 call, and Petitioner’s written and videotaped
confessions.

The appropriate inquiry on habeas review is

whether the state court’s ineffective-assistance determination
was contrary to, or an unreasonable application of, Strickland
v. Washington, 466 U.S. 668 (1984).
U.S. 362, 390 (2000).

See Williams v. Taylor, 529

Pursuant to Strickland, an individual

claiming ineffective assistance (1) “must show that counsel’s
performance was deficient,” such that “in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance,” and
(2) “that the deficient performance prejudiced the defense” in
the sense that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.”

Bennett v. United States, 663 F.3d

71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 687).
“[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
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reasonable professional judgment.”

Strickland, 466 U.S. at 690.

Combined with the deference built into the AEDPA, habeas review
of ineffective assistance claims becomes “doubly deferential.”
Yarborough v. Gentry, 540 U.S. 1, 6 (2003).
Petitioner does not establish that the state court’s
decision to deny his ineffective assistance claims on Section
440 review was an unreasonable application of Strickland or
based on an unreasonable determination of the facts. 8
First, as the state Supreme Court noted, certain of
Petitioner’s claims are contradicted by the record.

Petitioner

claims his counsel failed to move to suppress his confessions as
involuntary and in violation of Miranda, Petitioner’s Br. at 4,
28; but the record of the suppression hearing clearly indicates
defense counsel did move to suppress on this basis pursuant to
People v. Huntley, 15 N.Y.2d 72 (1965).

See, e.g., H1 Tr. 3:24-

4:2.
With respect to the 911 call, Petitioner asserts that
counsel failed to:

investigate the 911 recording contents or

interview Sarine Gabay, Petitioner’s Br. at 3; challenge the
testimony of Sarine Gabay, id. at 17; interview Mier Gabay, id.

8 Also, pursuant to Second Circuit precedent, the state Supreme Court’s
application of New York’s “meaningful representation” standard in evaluating
Petitioner’s ineffective assistance of counsel claims was not contrary to the
Strickland standard. See, e.g., Eze v. Senkowski, 321 F.3d 110, 123-24 (2d
Cir. 2003).

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at 7; and assert at trial that Mier Gabay made the 911 call, id.
at 17.

The Supreme Court found these claims to be “unsupported

speculation proffered solely by the defendant,” and concluded
that “it is evident from the record as a whole that the
defendant’s speculation is inaccurate.”

People v. Jackson, Ind.

No. 9802/07 (N.Y. Sup. Ct. June 27, 2014), at 4.

As set forth

above, there is no basis to conclude that someone other than
Sarine Gabay made the 911 call.

In addition, the record shows

that the 911 call was produced to Petitioner’s counsel before
trial.

H1 Tr. 6:25-7:4.
With respect to the videotaped confession, Petitioner

asserts that counsel failed to:

introduce into evidence a

complete copy of the videotaped statement, Petitioner’s Br. at
14, 31; investigate and cross-examine ADA Giannotti regarding
whether the videotape was altered, Petitioner’s Br. at 3, 22; or
object to ADA Giannotti’s testimony that the videotape played at
trial was complete and accurate, Petition at 7.

The Supreme

Court found these claims to be “contradicted by the record” and
“unreasonable,” and concluded that defense counsel’s inaction
therefore “could be attributed to tactical trial decisions.”
People v. Jackson, Ind. No. 9802/07 (N.Y. Sup. Ct. June 27,
2014), at 4-5.

Once again, this Court finds no reason to

believe the videotape was altered, and the record shows that the
entire videotape was indeed admitted.
46

Trial Tr. 206:16-207:10.

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Therefore, counsel’s decision not to pursue this line of
questioning was well within the bounds of professional judgment.
See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (“The
failure to include a meritless argument does not fall outside
the wide range of professionally competent assistance to which
Petitioner was entitled.” (internal quotations omitted)).
Finally, Petitioner claims that his counsel was
ineffective for failing to investigate and interview the
unidentified officers from the 60th Precinct and the eyewitnesses
who allegedly participated in the exculpatory identification
procedure.

Petitioner’s Br. at 3.

The Appellate Division found

these claims to be without merit, relying in part on an
affidavit from trial counsel Martin Goldberg, dated October 17,
2013, in which he averred that he did not believe that any
“show-up identification” occurred.

ECF No. 17.

Mr. Goldberg’s

doubts are eminently reasonable for the reasons stated in
Section V.B.2, above, that call Petitioner’s allegations about
the identification procedure into doubt.
Given that Petitioner has not shown by clear and
convincing evidence that the identification procedure occurred,
he cannot establish that counsel exercised unreasonable
professional judgment by failing to expend additional efforts
locating the alleged participants.

“Under Strickland . . .

‘strategic choices made after less than complete investigation
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are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.
In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.’”

Hinton v. Alabama, 571

U.S. 263, 274 (2014) (quoting Strickland, 466 U.S. at 690–91).
The state court’s decision to deny Petitioner’s
ineffective assistance claims was not an unreasonable
application of Strickland or based on an unreasonable
determination of the facts.
D.

Ground Four: Failure to Reopen the Suppression
Hearing
Petitioner alleges that the state court deprived him

of due process and a fair trial when it denied his motion — made
mid-trial — to reopen the suppression hearing.

Petition at 15.

Defense counsel moved to reopen the hearing following Rothman’s
trial testimony that officers from the 60th Precinct stopped and
arrested Petitioner, which Petitioner claimed contradicted
Rothman’s and Rzonca’s testimony at the suppression hearing that
they were the arresting officers.
This claim, however, is not cognizable on habeas
review.

Petitioner is not alleging a constitutional violation,

but is instead challenging a decision that the trial court made
on state-law grounds.

See, e.g., McCrary v. Lee, No. 12-CV48

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2867, 2016 WL 1029493, at *3 (E.D.N.Y. Mar. 15, 2016) (“[T]he
state court’s denial of Petitioner’s request to reopen the
suppression hearing constituted a state-law evidentiary ruling
not within the scope of federal habeas review.”); Woodard v.
Chappius, No. 13-CV-6123, 2014 WL 122359, at *7 (W.D.N.Y. Jan.
13, 2014) (“[Petitioner’s] claim regarding the denial of his
motion to reopen the suppression hearing presents solely a
matter of state law.”), aff'd 631 F. App'x 65 (2d Cir. 2016).
It is axiomatic that “it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions.”

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

In any event, the Appellate Division found the trial
court had not abused its discretion in refusing to reopen the
suppression hearing, pursuant to Section 710.40(4) of the New
York Criminal Procedure Law, because Petitioner “failed to show
that these officers would have testified to new facts, not
discoverable with reasonable diligence before the determination
of the motion, that would have affected the court’s ultimate
determination of the issue of probable cause.”
Jackson, 97 A.D.3d 693, 694 (2012).

People v.

Section 710.40(4) is

founded on a presumption that a criminal defendant “know[s] the
circumstances of his or her own arrest and therefore is capable
of eliciting evidence of those circumstances at a pretrial

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hearing.”

People v. Velez, 829 N.Y.S.2d 209, 212 (N.Y. App.

Div. Feb. 6, 2007).
In addition to requesting to reopen the suppression
hearing, defense counsel also moved twice during trial to
suppress evidence, arguing in support that the arresting
officers from the 60th Precinct did not testify at the
suppression hearing.

To the extent Petitioner’s habeas claim is

premised on the argument that these motions should have been
granted, and the evidence excluded at trial, it is precluded by
Stone v. Powell, 428 U.S. 465 (1976).

In Stone, the Supreme

Court held that “where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial.”

Id. at 494; see also

Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992)
(“[F]ederal courts have approved New York’s procedure for
litigating Fourth Amendment claims . . . .”).

Following Stone,

the Second Circuit limited habeas review of Fourth Amendment
claims to two scenarios: (1) where “the state [] provided no
corrective procedures at all to redress the alleged fourth
amendment violations” or (2) where “the state [] provided a
corrective mechanism, but the defendant was precluded from using
that mechanism because of an unconscionable breakdown in the
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underlying process.”

Capellan, 975 F.2d at 70.

The focus of

the inquiry into whether there was an “unconscionable breakdown”
in the state corrective process is on “the existence and
application of the corrective procedures themselves” rather than
on the “outcome resulting from the application of adequate state
court corrective procedures.”

Id. at 71.

Petitioner makes no showing that there was “an
unconscionable breakdown in the underlying process” here.

A

two-day Dunaway / Mapp / Huntley hearing was held, at which two
officers and one detective from the 61st Precinct testified.

The

officers, who were subject to cross-examination, testified that
officers from the 60th Precinct were at the scene
“simultaneously,” that Petitioner was placed in the back of the
60th Precinct car, and that he was first taken back to the 60th
Precinct.

Petitioner had ample opportunity at this hearing to

inquire into the identity and role of the 60th Precinct officers.
Indeed, defense counsel asked on cross examination if Rothman
knew the names of those officers.

The court then issued a

reasoned ruling addressing each of Petitioner’s claims, and in
fact granted his motion to suppress the keys.

See, e.g., Hicks

v. Bellnier, 43 F. Supp. 3d 214, 231 (E.D.N.Y. 2014)
(“Petitioner would be hard-pressed” to establish such “an
unconscionable breakdown” where “the trial court held an
evidentiary hearing, allowed Petitioner to present a case in
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support of his motion, and issued a reasoned ruling that there
was reasonable suspicion to stop Petitioner and that the
resulting evidence would be admissible at trial”).
When Petitioner moved to reopen the suppression
hearing so that he could testify, that request was granted, and
the court heard an additional day of testimony on the
suppression issue.

Thereafter, the court again issued a

reasoned opinion summarizing and addressing Petitioner’s version
of events, ultimately finding them “unworthy of belief.”

In

addition, post-trial, Petitioner took advantage of state appeal
procedures.

See, e.g., Singh v. Miller, 104 F. App'x 770, 772

(2d Cir. 2004) (finding no unconscionable breakdown occurred
where petitioner raised his Fourth Amendment claims at a
suppression hearing and on appeal).
Petitioner is therefore not entitled to habeas relief
on this ground.
VI.

Evidentiary Hearing

Petitioner requests an evidentiary hearing on all
grounds.

Petition at 20.

In particular, he seeks to “develop

the evidence necessary to establish that petitioner was denied
due process and that he was denied the right to counsel.”
Petitioner’s Br. at 19.

However, 28 U.S.C. § 2254(e)(2)(A)

precludes an evidentiary hearing because Petitioner has not
shown that his claims rely upon “a new rule of constitutional
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law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or a factual
predicate that could not have been previously discovered through
the exercise of due diligence.”

Id.

Moreover, a district court

is not required to hold an evidentiary hearing “if the record
refutes the applicant’s factual allegations.”
Landrigan, 550 U.S. 465, 474 (2007).

Schriro v.

Therefore, the Court

denies Petitioner’s request for an evidentiary hearing in its
entirety.
VII. Conclusion
For the reasons stated, the petition for a writ of
habeas corpus is denied.

Because Petitioner has not made a

substantial showing of the denial of a constitutional right, no
certificate of appealability will issue.
§ 2253(c).

See 28 U.S.C.

The Court certifies pursuant to 28 U.S.C.

§ 1915(a)(3) that any appeal would not be taken in good faith
and in forma pauperis status is therefore denied for purposes of

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an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45

(1962).
The Clerk of the Court is directed to mail a copy of
this Order to the pro se Petitioner.
SO ORDERED.

_/s Eric Komitee____________
ERIC KOMITEE
United States District Judge
Dated:

December 4, 2020
Brooklyn, New York

54