Miller/Hyman v. People of the State of NY et al

Filing 22

MEMORANDUM AND ORDER: In line with the foregoing, the writ of habeas corpus is denied, and the petition is dismissed. Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall no t issue. See 28 U.S.C. § 2253(c)(2). The Court certifies,pursuant to 28 U.S.C. § 1915(a), that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis is denied for the purpose of any app eal. See Coppedge v. United States^ 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of Court is directed to mail a copy of this Memorandum and Order to petitioner, to enter judgment accordingly, and to close this case. So Ordered by Judge Eric N. Vitaliano on 3/27/2019. (Almonte, Giselle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

JERRELL MILLER,aka JERRELL
MILLER/HYMAN,
MEMORANDUM & ORDER

Petitioner,

15-CV-2741 (ENV)(LB)

-againstTHE PEOPLE OF THE STATE OF NEW YORK,
SUPERINTENDENT OF G.M.C.F.,

Respondents.
X

VITALIANO,D.J.

Jerrell Miller has filed a pro se petition for a writ of habeas corpus, directed at his state

court conviction, pursuant to 28 U.S.C. § 2254.' See Pet, Dkt. 1. For the reasons set forth
below,the writ is denied and the petition is dismissed.
Background

L

The Robberies

Miller's convictions arose out of a series of bank robberies in Queens in December

2009.^ At approximately 4:30 p.m. on December 11, he approached teller Alex Goncharenko at
the Bank of America branch located at 107-26 Continental Avenue. See Dkt. 13-1 ("Record")at
1. Miller handed Goncharenko a note that read,"I want $2,000 dollars, if not, I will wait until

'Miller also filed an unauthorized "amended" petition that includes the same claims as his initial

filing, set forth in virtually identical language. See Am.Pet., Dkt. 19. Since this amended

petition is not actually amended in substance, it is dismissed as duphcatwe.
^ Because Miller was convicted,see Fepp/e V. Miller, 109 A.D.3d 842,971 N.Y.S.2d 63(2d ^

Dep't 2013)(denying appeal), the Court recites the facts in the light most favorable to the jury s
verdict,see Garbutt v. Conway,668 F.3d 79,80(2d Cir. 2012).

you come out." Id. As Goncharenko walked away from the teller window, Miller ran out ofthe
bank, without receiving any money. Id. The bank had taken a photograph of Miller at the teller
window, which it turned over to investigators. Id.

Later that day, at around 5:15 p.m.. Miller tried a more aggressive approach at the Capital
One branch located at 119-01 Metropolitan Avenue. R. at 3. He gave teller David Conneely a

note that stated,"I want $2,000 dollars. I have a gun. If not I'll wait until you come out." Id.
Whether it was the mention of a gun or that he stayed at the window or for some other reason,

this time Miller succeeded. Conneely handed him $1,179, and Miller left the bank. Again, a

photograph taken of Miller at the teller window was given to the police. Id.
Miller struck a third time on December 21, at the Apple Bank branch located at 102-29

Queens Boulevard. R. at 7. His note to teller Irina Mikhaylova upped the ante:"I want $3,000.

I have a gun. It [.s/c] not I will wait until you come outside. No dye packs," the note read. Id.
Mikhaylova turned over $2,500,and Miller left. Id. This encounter, like the others, was
captured by a camera at the teller station. Id.

After a brief hiatus. Miller dove back into his crime spree. His next strike came on

December 26, at the Chase Bank branch located at 175-62 Hillside Avenue. R. at 5. He passed a
note to teller Jana Bhujvan demanding money and warning that he carried a gun. Id. Bhujvan

handed Miller $3,000 and the demand note. Then,in familiar fashion. Miller left, but was caught
on camera once more. Id.; see also id. at 245.

He was arrested on December 30,2009. R. at 67. In addition to the photographs taken of

him at the banks, police recovered three ofthe four demand notes, lifting fingerprints that
matched Miller's from two ofthem. Id. at 246. Upon questioning by investigators. Miller
admitted that he wrote the notes, was, indeed, the man pictured in the photographs, and had

committed the crimes. Id.\ see also id. at 1-8,
II.

Indictment and Pre-Trial Proceedings

In April 2010, Miller was charged with one count of robbery in the first degree, two

counts ofrobbery in the third degree, and one count of attempted robbery in the third degree. R.

at 45. The first page ofthe indictment listed each of these charges as well as the corresponding
section of New York Penal Law("NYPL")offended. Id Pages two and three ofthe indictment
stated the counts individually and set forth the pertinent supporting facts. Id. at 46-47.

In preparation for trial, defense counsel advanced a full panel of pre-trial motions,

seeking a bill of particulars, inspection of proposed evidence and the disclosure of documents

and photo exhibits. R. at 9-14. Miller chipped in a pro se motion to dismiss the indictment. Id.
at 15. On May 17, 2010,the trial court entered an order that embraced the fulsome disclosure

proposed by the People and ordered the prosecution to provide a bill of particulars detailing

categorical information as covered by New York's criminal procedures. In the same omnibus
order, the court denied Miller's motion to dismiss,finding a sufficient showing on each essential
element ofeach charge to support indictment. A/, at 110-11. The trial court later denied Miller s
motion to reconsider its denial of dismissal. The trial court would go on to rebuff Miller's

repeated efforts demanding reconsideration right up until the opening of trial. Id. at 134-35.
III.

Trial and Anneal

Following a jury trial in Queens County Supreme Court, Miller was convicted, on

November 14,2011,of one count of robbery in the second degree, two counts ofrobbery in the

third degree, and one count of attempted robbery in the third degree. R. at 172,180. Although
Count One was charged as first-degree robbery, the jury found Miller guilty ofthe lesser

included charge of robbery in the second degree, apparently accepting his affirmative defense

that the "weapon" used during the robbery was not a real gun. Id. at 180. On December 15,
2011, Miller was sentenced, concurrently, to a prison term of 15 years, plus 5 years of postrelease supervision. Id. at 187.

Miller appealed to the Appellate Division, Second Department, arguing that the

indictment was jurisdictionally defective because it "failed to allege the defendant committed

acts constituting every material element ofthe crime" and "[t]he counts in the indictment failed

to cite the applicable sections ofthe Penal Law and sufficiently track[]the language to afford
the defendant fair notice ofthe charge against him." R. at 238. Elaborating on his claim, he

argued that an essential element ofrobbery is "the use or [threat of] immediate use of physical
force to compel a person to deliver up the property," which in his case was based on the act of

handing a note to each bank teller threatening to use immediate force. Id. at 238. Miller faulted
the indictment for alleging robbery without making any reference to the notes. Id. at 239.

Unmoved by the argument, on September 11,2013,the Second Department denied Miller s

appeal on the merits, holding that "the indictment was notjurisdictionally defective, as it cited
the applicable statutes and sufficiently tracked the language thereof to give [Miller] fair notice of
the charges against him."^ Id. at 277.

While his direct appeal to the Second Department was pending. Miller sought a state writ
oi habeas corpus upstate in Franklin County Supreme Court, contending anew that the
indictment had been defective. R. at 188. On November 30, 2012,that court denied the petition

sua sponte on the ground that Miller was required to raise the argument presented in his petition

3 People V. Miller, 109 A.D.3d 842, 842,971 N.Y.S.2d 63(2d Dep't 2013).

on direct appeal or in a New York Criminal Procedure Law § 440 motion prior to petitioning for
state habeas relief. Id. at 188-89. Miller appealed to the Appellate Division, Third Department,

which affirmed the decision on July 29,2013. Id. at 221-22. Miller did not seek leave to appeal.
See Opp'n Mem. at 7-8, Dkt. 12-1.

On August 16,2013, Miller filed his first federal habeas petition, which, in light of his

then-pending state court direct appeal,the Court dismissed without prejudice for failure to
exhaust his claims in state court. See Miller v. People^ No. 13-CV-4673(ENV),Dkt. 7.

Paralleling his federal court activity. Miller sought leave to appeal the Second Department's

decision to the New York Court of Appeals, which denied his leave application on May 6,2014."^
R. at 286. Miller filed the instant petition on May 8,2015. His principal argument is, as it has

been from the start, that the indictment was constitutionally defective because it did not give him
fair notice of the charges, in violation of the Sixth Amendment. Pet. at 5.
Standard of Review

Post-conviction federal habeas relief is governed by the Anti-terrorism and Effective

Death Penalty Act of 1996("AEDPA"),Pub. L. No. 104-132,110 Stat. 1214, which provides
that a writ of habeas corpus shall not issue with respect to any claim of a prisoner in state

custody that was adjudicated on the merits in state court unless the state court's decision(1)"was
contrary to, or involved an unreasonable application of,clearly established Federal law, as
determined by the Supreme Court ofthe United States," or,(2)"was based on an unreasonable
determination ofthe facts in light ofthe evidence presented in the State court proceeding." 28

"People V. Miller,23 N.Y.3d 965, 11 N.E.3d 722,988 N.Y.S.2d 572(2014).

U.S.C. § 2254(d); see Gutierrez v. McGinnis, 389 F.Sd 300, 304(2d Cir. 2004)(describing this
standard as"AEDPA deference"). This deferential review is accorded to any state court decision

disposing ofa state prisoner's federal claim on the merits, regardless of whether that court gives
reasons for its determination or refers to federal law in its decision. Harrington v. Richter, 562

U.S. 86, 98-99,131 S. Ct. 770,178 L. Ed. 2d 624(2011).

"Section 2254(d)reflects the view [of Congress] that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal." Harrington, 562 U.S. at 102-03 (citation and internal quotations

omitted). With its mission targeting extreme malfunctions in a state criminal proceeding,
AEDPA review "demands that state-court decisions be given the benefit ofthe doubt." Hardy v.

Cross,565 U.S. 65,66,132 S. Ct. 490,181 L. Ed. 2d 468(2011)(citation omitted). Where

AEDPA deference applies,"[a] state court's findings offact are 'presumed to be correct unless

rebutted 'by clear and convincing evidence.'" Drake v. Portuondo,553 F.3d 230,239(2d Cir.
2009)(quoting 28 U.S.C. § 2254(e)(1)).

Given these ground rules, habeasjunspmdQnce is well-cabined. Emblematic ofthis

understanding,for AEDPA purposes,"'clearly established federal law'... refers to the holdings,

as opposed to the dicta;' of Supreme Court decisions that are controlling law "as ofthe time of
the relevant state court decision." Williams v. Taylor,529 U.S. 362,412,120 S. Ct. 1495,146 L.

Ed. 2d 389(2000). Moreover, a state court decision is "contrary to clearly established federal
law," within the meaning of§ 2254(d), if it contradicts relevant Supreme Court precedent or
arrives at a different conclusion based on "materially indistinguishable" facts. Id. at 405-06. A

state court decision is classified as one resting on an "unreasonable application" offederal law if
it "identifies the correct governing legal principle from [the Supreme] Court's decisions but

unreasonably applies that principle to the facts ofthe prisoner's case." Id. at 413. Even
erroneous state court decisions, then, if deemed reasonable, will survive habeas review. Id. at
411.

But,there is a caution: the state court decision need not be "so far off the mark as to

suggestjudicial incompetence" before habeas relief may be granted. Francis S. v. Stone, 221

F.3d 100,111 (2d Cir. 2000)(citation omitted). "A federal court may reverse a state court ruling

only where it was 'so lacking in justification that there was...[no] possibility for fair-minded

disagreement.'" Vega v. Walsh,669 F.3d 123,126(2d Cir. 2012)(quoting Harrington, 562 U.S.
at 103). Still, as the Supreme Court has underscored, if the AEDPA "standard is difficult to meet

[before federal habeas relief may be awarded]— and it is — that is because it was meant to be.
Burt V. Titlow, 571 U.S. 12,20, 134 S. Ct. 10,187 L. Ed. 2d 348(2013)(citation and internal
quotations omitted).
Discussion

Miller argues that the indictment was insufficient for the following reasons:(1)it did not

allege every essential element ofthe crimes charged, omitting allegations as to the threat ofthe
immediate use of physical force during the robberies;(2)Count One failed to allege "how and

[in] what way" Miller displayed a pistol or revolver; and(3)"the counts in the indictment did not
cite applicable sections ofthe Penal Law." Pet. at 5-6. He also contends, summarily,that the
Second Department's decision was contrary to several specific Supreme Court cases. Id. at 6-8.
In his base salvo. Miller presents the state court denial of his appeal as an "unreasonable

determination ofthe facts", rather than an unreasonable application of clearly established federal
law. He rests his attack on the contention that "[t]he state court did not read the facts of

defendant's brief correctly" in reaching its decision to deny his challenge to the indictment. Pet.

at 8. He argues that "the state court should have procedurally made a finding offact but

neglected to do so," ruling without holding an evidentiary hearing. Id. at 10. However,"[t]he

sufficiency of an indictment is a question oflaw," not fact. United States v. Stringer, 730 F.3d
120, 123(2d Cir. 2013). The issue before the Court, then, is whether the state court
unreasonably applied clearly established federal law.

"Generally, a claim of an insufficient state indictment is not reviewable by a federal
habeas court unless the indictment falls below basic constitutional standards."^ Mackenzie v.
Portuondo,208 F. Supp. 2d 302,313(E.D.N.Y. 2002). The Sixth Amendment guarantees a

criminal defendant the right "to be informed of the nature and cause ofthe accusation" against
him. U.S. Const, amend. VI. The Supreme Court has explained the level of detail required to

protect this right, stating in Hamling v. United States that an indictment is constitutionally
sufficient "if it, first, contains the elements ofthe offense charged and fairly informs a defendant

ofthe charge against which he must defend, and,second, enables him to plead an acquittal or
conviction in bar offuture prosecutions for the same offense." 418 U.S. 87,117,94 S. Ct. 2887,

41 L. Ed. 2d 590(1974)(citations omitted);see also DeVonish v. Keane, 19 F.3d 107,108(2d

Cir. 1994)(per curiam)(indictment must inform defendant ofcharges and give "enough detail
that he may plead double jeopardy in a future prosecution based on the same set of events")

(citation omitted). In sum,due process is satisfied if, for each of its counts, an indictment

^ There is language in petitioner's papers that suggests that he takes strong exception to the
indictment as violative of New York's Criminal Procedure Law. But, with savvy, he does not

appear to raise those exceptions on this petition. Had he done so,they would

j!

cognizable. See, e.g., Velazquez v. Poole,614 F. Supp. 2d 284,331 (E.D.N.Y. 2007)(ho mg
claim for failure to comply with New York Criminal Procedure Law § 200.50 not cognizable on
federal habeas review).

provides "notice of'the time, place, and essential elements of the crime.'" Roman v. Napoli, No.

08-CV-6561 (MAT),2010 WL 4922627, at *8(W.D.N.Y. Dec. 2,2010)(citation omitted).
An indictment's statement ofthe offense may rely on the language ofthe relevant

criminal statute,"as long as 'those words ofthemselves fully, directly, and expressly, without

any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense

intended to be punished.'" DeVonish^ 19 F.3d at 108(quoting Hamling,418 U.S. at 117). In
furtherance ofthis understanding, the Second Circuit has "consistently upheld indictments that
'do little more than to track the language ofthe statute charged and state the time and place (in

approximate terms) ofthe alleged crime.'" United States v. Walsh, 194 F.3d 37,44(2d Cir.

1999)(citation omitted). Moreover, quite critically, even where an indictment is deficient, due
process is satisfied so long as the criminal defendant "receives actual notice ofthe charges

against him," which may be attained through a bill of particulars or pre-trial discovery. Padilla
V. Brady,No. 13-CV-7908(JPO),2015 WL 394090, at *9(S.D.N.Y. Jan. 29,2015)(citation
omitted)(collecting cases)(adopting R&R);see also United States v. McLean,528 F.2d 1250,

1257(2d Cir. 1976)(recognizing that "particular facts needed in particular cases are obtainable
by bills of particulars or discovery")(citation omitted).

Stated in other words, an indictment need not provide every conceivable factual detail of
an offense to meet the fair notice requirement. Notwithstanding petitioner's protestations, that

requirement was satisfied. Recapitulating with closer scrutiny. Miller was charged with one
count of robbery in the first degree under NYPL § 160.15 (4), two counts ofrobbery in the third

degree under § 160.05, and one count of attempted robbery in the third degree under §§ 110 and
160.05. R. at 45. The first page ofthe indictment lists these statutory sections, by codification

number,and the accompanying section titles; each count repeats the title and essential elements

ofthe charged offense along with a factual recitation providing the basis for the respective

charge. For example,the first page ofthe indictment lists "§ 160.15-4 Robbery in the First

Degree (1)." Id. Count One, on the following page, charges Miller with "the crime ofrobbery in
the first degree," arising out of his conduct on December 21, 2009, whereby he "forcibly
stole ... a sum of United States currency from Irina Mikhaylova for Apple Bank,and in the
course ofthe commission of the crime or of immediate flight therefrom he displayed what

appeared to be a pistol or revolver." Id. at 46. The other three charges,for third-degree robbery
and attempted third-degree robbery, are recounted in the same fashion, setting forth the time,

place, and facts of each offense and tracking the relevant statutory language regarding forcible
stealing.

Petitioner's first argument seems to stem from his misreading ofthe applicable penal

code section. He is agitated that the indictment failed to recite what he believes is an essential

element of robbery, in that it did not specifically allege that he threatened the immediate use of

physical force during the robberies. Pet. at 5-6. This misunderstanding tends to explain his
related objection that the prosecution pursued a different legal theory at trial, namely,that the
People argued, without charging that offense, that Miller threatened the immediate use of
physical force upon each ofthe tellers. The indictment, on the other hand, he says, had alleged
only that he "forcibly stole" from the tellers. Pet. at 12.

Miller correctly perceives that the two formulations are different, but the conduct
described falls within the same section ofthe penal law. The distinction separating them has no

legal significance. In short,"forcible stealing" is the use offorce or threat of the immediate use
offorce in the course of larceny. NYPL defines robbery as "forcible stealing." N.Y. Penal Law

§ 160.00;see also id. §§ 160.05 (defining third-degree robbery), 160.10(defining second-degree

10

robbery), 160.15 (defining first-degree robbery). "Forcible stealing" occurs when a person
in the course of committing a larceny ... uses or threatens the immediate use of
physical force upon another person for the purpose of:(1)Preventing or
overcoming resistance to the taking ofthe property or to the retention thereof
immediately after the taking; or(2)Compelling the owner ofsuch property or

another person to deliver up the property or to engage in other conduct which aids
in the commission of the larceny.

N.Y. Penal Law § 160.00. As a result, where each count ofthe indictment alleges that Miller

"forcibly stole certain property," it thereby implicitly alleges that he used or threatened the use of
force in the course ofthe robbery—^because that is included in the definition offorcible stealing.

Similarly, the prosecution's argument at trial that Miller threatened the immediate use of

physical force is neither a constructive amendment of nor variance from the indictment s

allegations that he forcibly stole; it is merely a completely accurate restatement ofthe kind of
conduct that falls squarely within the definition of"forcible stealing under New York law.
To the extent that Miller bases his argument on his view that the indictment did not

reference the manner and means of how he conveyed the threat ofthe use offorce, he relies on

an overly rigid interpretation of constitutional fair notice requirements. The fair notice standard
is met when the charging instrument sets forth the acts the prosecution claims establish the
defendant's violation of particular laws. It is a standard the People met. Not only did the

indictment give Miller notice ofthe dates, times, places, and primary conduct charged, but that

notice was amplified through pre-trial disclosures and was refined further by a bill of particulars.
Specifically, in response to Miller's demand for a bill of particulars, as ordered by the
trial court, the People provided the exact times, dates, and locations of the alleged offenses, then
referred him to the corresponding criminal complaints that detailed the robberies. R. at 64-65.
In the criminal complaint related to Count One, Detective Michael Devecchis provided a sworn

account of his investigation, including information gleaned from the statement of bank teller
11

Irina Mikhaylova, documentary evidence, and Miller's own admissions. Mikhaylova informed
Detective Devecchis that "between 2:00 p.m. and 2:10 p.m." on December 21,2009,an

individual entered Apple Bank,"approached her teller window and handed her a note which
stated 'I want $3,000 dollars. I have a gun. It

not I will wait until you come outside. No

dye packs.'" Id. at 7. Mikhaylova told Detective Devecchis that she handed the individual

"approximately $2,000 dollars in United States currency and that the individual then fled the
bank." Id. Detective Devecchis obtained the demand note from the bank and presented it to

Miller, who admitted to writing the note and carrying out the robbery as described by

Mikhaylova. Id. Miller also confirmed to Detective Devecchis that"a still picture taken from
inside the bank at approximately 2:00 p.m. on December 21st, 2009,is of himself." Id. The

criminal complaints corresponding to the other counts describe the other robberies in similar
step-by-step detail, relying on the same combination of documentary evidence, witness
statements, and Miller's admissions. See R. at 1-6. In addition to the criminal complaints, the

District Attorney disclosed the substance of Miller's statements to Detective Devecchis, in which
Miller admitted to the robberies, and offered to make available to Miller surveillance videos. Id.
at 65,67.

With the supervisory imprimatur ofthe trial court, the quantity of disclosure and the

amplification of the indictment in the bill of particulars more than sufficiently provided Miller
the fair notice the Sixth Amendment requires. Furthermore, Miller's pro se motion to dismiss, in
which he asserted that the indictment "failed to establish the act was pursued through a note

demanding the cash," demonstrates that Miller was completely aware ofthe particulars ofthe

charged offenses even though the indictment did not mention every factual detail. R. at 21. In
the same motion, in fact, he crafted an affirmative defense regarding the notes, arguing that

12

"[t]he implied statement of possession of a firearm in the note[s] was not a threat to use physical
force," and, even if it was, his phrasing did not convey a threat of"immediate" use offorce, but

of potential use offorce at some point in the future. Id. at 22. As shown by the indictment,the
substantial pre-trial discovery, and Miller's formulation of defenses responding to the

prosecution's theory of the case. Miller's contention that he lacked actual notice ofthe charges

against him is meritless.^ See Mackenzie^ 208 F. Supp. 2d at 313-14(fair notice provided by
indictment stating time, place and "essential elements" ofcrimes plus government s pre-trial
disclosures).

Miller's second challenge concerns Count One's reference to his display of"what

appeared to be a pistol or revolver" during the December 21 robbery. He argues that the
indictment should have alleged "how and [in] what way defendant displayed" a firearm. Pet. at

6. However,to prove the crime offirst-degree robbery under § 160.15,the prosecution is

required to show only that the defendant displayed what appeared to be a firearm. See N.Y.
Penal Law § 160.15(4). A specific manner of display is not a required element ofthe crime, nor

is the manner of display a factor in distinguishing between different degrees ofrobbery; nor is it
an affirmative defense under § 160.15."^ See N.Y.Penal Law §§ 160.10,160.15. More

importantly here,"nothing in the Constitution entitles Petitioner" to "factual details as to the

6 On a related note. Miller also argues that "the counts in the indictment did not cite applicable
sections ofthe Penal Law." Pet. at 6(emphasis added). As discussed above,that cjaim is

factually bogus. The recitation in the indictment ofthe sections of NYPL upon which the
charges are grounded more than adequately satisfies all commands ofthe Constitution.
This section does provide for the affirmative defense that the firearm "was not a loaded weapon
from which a shot... could be discharged," which Miller successfully invoked at

in the jury's reduction of Count One to second-degree robbery. See N.Y. Penal Law § 160.15
(4).

13

specific acts he allegedly engaged in." Bowman v. Ercole, No. 09-CV-4801 (RJH)(THK),2010
WL 6620879, at *27(S.D.N.Y. Sept. 1, 2010)(emphasis omitted), Ri&R adopted, 2011 WL

1419614(S.D.N.Y. Apr. 11,2011);see also Rodriguez v. Smith, No. lO-CV-8306(KMK)(LMS),
2015 WL 6509153, at *6-8(S.D.N.Y. Oct. 28,2015)(rejecting argument that indictment on

sexual abuse charges was defective because it "did not specify the type of sexual contact

Petitioner allegedly had with the victim" where it tracked language of statute, disclosed initials
of victim, and stated "approximate date and location" of offense). Accordingly, this argument,
too, is without merit.

Finally, Miller argues that the Second Department's ruling regarding the sufficiency of
the indictment was contrary to the Supreme Court's decisions in United States v. Resendiz-

Ponce,549 U.S. 102, 127 S. Ct. 782,166 L. Ed. 2d 591 (2007), and Neder v. United States, 527

U.S. 1,119 S. Ct. 1827,144 L. Ed. 2d 35(1999). Pet. at 6-8. In Resendiz-Ponce,the Court held
that an indictment for illegal reentry was not defective where it alleged that the defendant

"attempted to enter the United States" after his deportation. Resendiz-Ponce, 549 U.S. at 107.
Even though the indictment did not state an overt act that was a substantial step in the
commission ofthe offense, the word "attempt" implicitly satisfied that element, since

"attempt... connote[s] action rather than mere intent...[and] encompasses both the overt act
and intent elements." Id. Resendiz-Ponce did not raise the bar set by the Court in Hamling; it

simply applied the Hamling analysis to the indictment before it. See id. at 108(indictment's
reference to "attempt" coupled with "time-and-date specification" of charged conduct satisfied

Hamling), Insofar as Miller challenges his indictment for alleging "forcible stealing" but not the
threat ofthe use offorce, Resendiz-Ponce actually weighs against his argument, by establishing
that an indictment is not deficient where it implicitly alleges an essential element of an offense.

14

As for Neder, it is just inapposite. In Neder^ the Supreme Court held, first, that a district

court's failure to instruct the jury as to the materiality offalse statements to tax fraud charges
constituted harmless error, and, second, that "materiality offalsehood is an element ofthe federal

mail fraud, wire fraud, and bank fraud statutes." Neder^ 527 U.S. at 20,25. The questions of

proper jury instruction and the required elements offederal fraud statutes are utterly unrelated to

any issue concerning whether a state law indictment charging state law robbery has provided fair
notice as required by the Sixth Amendment.

At bottom,the state court's rejection of Miller's challenge to the sufficiency ofthe

indictment was neither contrary to, nor an unreasonable application of, clearly established federal

law as determined by the Supreme Court. On the contrary, the indictment not only met, but

surpassed, the constitutional requirement offair notice. Accordingly,the writ must be denied.

15

Conclusion

In line with the foregoing, the writ of habeas corpus is denied, and the petition is
dismissed.

Since petitioner has not made a substantial showing of the denial of a constitutional right,
a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c)(2). The Court certifies,

pursuant to 28 U.S.C. § 1915(a), that any appeal from this Memorandum and Order would not be
taken in good faith and, therefore, informa pauperis is denied for the purpose of any appeal. See
Coppedge v. United States^ 369 U.S. 438,444-45, 82 S. Ct. 917,8 L. Ed. 2d 21 (1962).
The Clerk of Court is directed to mail a copy of this Memorandum and Order to

petitioner, to enter judgment accordingly, and to close this case.
So Ordered.

Dated: Brooklyn, New York
February 27,2019
s/ Eric N Vitaliano
ERIC N. VITALIANO

United States District Judge

16