King v. Capra

Filing 12

MEMORANDUM AND ORDER, In line with the foregoing, the writ of habeas corpus is denied, and the petition is dismissed. Since King has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issu e. 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 betaken in good faith and, therefore, in forma pauperis is denied for the purpose of any appeal. S ee 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. (Certificate of Appealability Denied re: 1 Petition for Writ of Habeas Corpus) Ordered by Judge Eric N. Vitaliano on 4/17/2019. C/M Fwd. for Judgment. (Galeano, Sonia)

filed

" 200 5 ^

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

»

X

BROOKLYN OFF/CE

JAMIR KING,
Petitioner,

MEMORANDUM & ORDER

-against15-CV-7403(ENV)(LB)
MICHAEL CAPRA,

Respondent.
X

VITALIANO,D.J.

Jamir King 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 Dkt. 1 ("Pet."). For the reasons set forth
below,the writ is denied and the petition is dismissed.
Background^
I.

The Shooting

In the early morning hours on September 26,2010, Otis Moore and James Drew were

shot while standing outside at the Redfem Housing Project on Hassock Street in Far Rockaway,

Queens. See Dkts. 8-1-8-6 ("Trial Tr."). Cadisha Davis witnessed the incident. Trial Tr. at 244.
According to Davis, King, a member ofthe Crips gang, instigated an argument with Moore,an

alleged member ofthe rival Bloods. Id. at 247-49. King walked away and Moore followed him;
suddenly,shots were fired. Id. at 249-51,254. As Davis ran from the scene, she saw King

pointing a gun at Moore as Moore lay bleeding on the ground. Id. at 252,254-55. Drew, who

'In light of King's conviction, the Court recites the facts in the light most favorable to the
verdict. See Garbutt v. Conway,668 F.3d 79, 80(2d Cir. 2012).
1

happened to be standing nearby, was hit by two stray bullets. Id. at 394. Both men survived the
shooting.
II.

Trial and Post-Conviction Proceedings

King was arrested on September 28,2010. In March 2012, he was tried before ajury in
Queens County Supreme Court on two counts each of attempted murder in the second degree,
assault in the first and second degree, and criminal possession ofa weapon in the second degree.

On March 16, 2012, King was found guilty of assault in the first degree as to Moore and on both

possession counts. He was found not guilty on the remaining counts. Id. at 530-32; see also Pet.
at 28-30(attaching verdict sheet). King was sentenced to 25 years for the assault conviction and
15 years for the possession convictions, to run concurrently,followed by five years of postrelease supervision. Dkt. 8-6 at 111 ("Sentence Tr.") at 8-9.

King took his direct appeal to the Appellate Division, Second Department, arguing that

(1)the evidence was insufficient to establish guilt and,therefore, the verdict was against the
weight of the evidence;(2)he was denied a fair trial because the trial court had permitted the
prosecutor to impeach his own witness; and(3)he was denied a fair trial by certain comments

made by the prosecutor on summation that positioned him as an unsworn witness. Dkt. 8

("Defendant-Appellant's Br.") at 19,24, 33. On July 16,2014,the Appellate Division affirmed

the judgment of conviction, rejecting all three grounds on the merits, including the summation
argument, which the court had found was unpreserved for appellate review. People v. King, 119
A.D.3d 819,989 N.Y.S.2d 315(2nd Dep't 2014). On October 29, 2014,the New York Court of

Appeals denied King's application for leave to appeal. People v. King,24 N.Y.3d 1003,21
N.E.3d 573 (2014).

On December 10, 2014, King filed his first pro se petition for a writ oferror coram nobis.

alleging ineffective assistance of appellate counsel in relation to his direct appeal. Dkt. 8-1 at 15

("Dec. 10, 2014 Aff."). He complained that his appellate counsel did not consult him about
issues to be included in his brief, and, as a result, had failed to raise several viable arguments—

namely, that King's waiver of counsel at several pre-trial hearings was improper; that expert

testimony about gang membership should not have been admitted at trial; and that the prosecutor

had improperly injected his opinion into the summation, thus acting as an unsworn witness. Id.
at 5-6; see also Dkt. 8-1 at 21 ("Dec. 10,2014 Mem. of Law")at 3-6. On May 13,2015,the

Appellate Division denied the writ. People v. King^ 128 A.D.3d 851,7 N.Y.S.3d 906(2nd Dep't

2015). King did not seek leave to appeal the denial to the Court of Appeals, nor did he end his
quest for a state court remedy.

On July 1, 2015, King filed a second pro se petition for a writ of error coram nobis, again

alleging ineffective assistance of appellate counsel. Dkts. 8-1 at 120, 8-2("July 1,2015 Aff.").
This time, he argued that his appellate counsel should have raised a claim for ineffective
assistance of trial counsel, based on the latter's failure to object to the admission of a verdict

sheet listing the statutory elements ofthe crimes charged. Id. On December 26, 2015,the

Appellate Division denied this writ as well. People v. King, 134 A.D.3d 958,20 N.Y.S.3d 539
(2nd Dep't 2015). Once more. King did not seek leave to appeal the denial to the Court of

Appeals. But, several days later, on December 28,2015, he timely brought the instant habeas
petition.
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

U.S.C. § 2254(d); see Gutierrez v. McGinnis,389 F.3d 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).

Circumscription ofthe power of district courts to grant federal habeas reliefto state

prisoners is exactly what Congress intended. "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, habeas jurisprudQnce 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 offthe 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 fairminded
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,ifthe 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

I.

Sufficiencv of the Evidence

King asserts that his conviction was based upon insufficient evidence, because the State's

"main eyewitness gave testimony that was so filled with inconsistencies and contradictions [that]
it could not have been relied upon." Pet. at 15. This argument was raised, unsuccessfully, on

direct appeal to the Appellate Division, which held that the evidence was "legally sufficient to

establish the [petitioner's] guilt beyond a reasonable doubt." King, 119 A.D.3d at 819.

Generally, in evaluating challenges to sufficiency ofthe evidence, a reviewing court must
consider "whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements ofthe crime beyond a reasonable

doubt." Jackson v. Virginia, 443 U.S. 307, 319,99 S. Ct. 2781,61 L. Ed. 2d 560(1979).

Where, as here, the state court addressed a claim on the merits, a "t\vice-deferential" standard of

review applies, under which the federal habeas court may not overturn the state court "unless the
decision was objectively unreasonable." Parker v. Matthews,567 U.S. 37,43,132 S. Ct. 2148,
183 L. Ed. 2d 32(2012)(internal quotation marks omitted); see also Cavazos v. Smith, 565 U.S.
1, 2, 132 S. Ct. 2, 181 L. Ed. 2d 311 (2011)("A reviewing court may set aside the jury's verdict

on the ground ofinsufficient evidence only if no rational trier offact could have agreed with the
jury.")

King fails to meet that standard here. At trial, eyewitness Cadisha Davis testified that she

saw King arguing with Moore,then heard gxmshots and saw King pointing a gun at Moore. Trial
Tr. at 247-55. She also testified that, several days after the shooting, she asked King why he had

shot Moore,and he responded,"you know how we give it up." Id at 257-58. King challenges

her testimony,focusing on the fact that Davis did not recall what the shooter was wearing and
her hesitation in answering certain questions. Pet. at 15-16. However,these purported
weaknesses in her testimony do not undermine the jury's findings.

Beyond that, the jury verdict was fiirther supported by the testimony of witness Floyd
Johnson, who stated that he saw King and Moore talking just before hearing a gunshot. Trial Tr.

at 296-97. Though he did not know who fired the shot, Johnson stated that he saw King holding

"something black in his hands" with "a little light" coming from it, then saw a "flash" near King,

and King running away after the shooting. Id. at 298,319. King's arresting officer testified that
King had told him his victims would not come forward against him. Id. at 385. In addition,
Officer Donnell Myers testified as to the rivalry between the Crips and Bloods, which gave
context to the argument the witnesses observed between King and Moore as well as the
witnesses' fear of retribution for testifying against gang members and the potential effect ofthat
fear on their testimony.

Petitioner, obviously, embraces the exculpatory testimony given by Drew that he was not
the shooter, id. at 397, and Moore's testimony that he did not see who shot him, id. at 409. Drew
also testified that he did not see King at the scene the night ofthe shooting, but multiple

witnesses placed King at the scene. Id. at 397. Moore testified that he passed out after being
shot and did not remember whether he had been speaking to anyone just before the shooting. Id.

at 408-10. At bottom, their testimony, regardless how exculpatory the nature, did not necessarily

preclude the jury from crediting Davis and Johnson. The jury could have reasonably inferred
that Drew and Moore's testimony was affected by memory loss,fear ofretribution, and/or the

desire not to be seen as cooperating with law enforcement. The short of it is that, in this light,

the Appellate Division's rejection of King's legal sufficiency challenge was not objectively
unreasonable, and this claim must be dismissed.

II.

Impeachment ofthe State's Witness

King next argues that the trial court erred in allowing the prosecution to impeach its

witness, Floyd Johnson, which,in his view, violated New York Criminal Procedure Law § 60.35
and "deprived [him] of his due process right to a fair trial on properly admitted evidence only."
Pet. at 17. At trial, Johnson testified, somewhat confusingly, that "for the shots being fired, I
would have to take the fifth because I would be incriminating myself." Trial Tr. at 298. He also

stated that during the shooting he saw a light emitted from King's hand, like "a little light" from

a "cell phone." Id. The prosecutor subsequently impeached Johnson based on his prior grand
jury testimony and a prior written statement. Id. at 304, 314-15. Reviewing King's challenge to
the impeachment on direct appeal, the Appellate Division found that the trial court committed no
error, because "[cjontrary to the defendant's contention, the witness's testimony tended to

disprove the People's case and affirmatively damaged the People's position," thus complying
with § 60.35. King, 119 A.D.3d at 819-20; see also N.Y. Crim. Proc. Law § 60.35(1)(allowing
party to impeach own witness through prior statement where witness "gives testimony upon a
material issue of the case which tends to disprove the position of such party").

First off, claims for violations of state law are not cognizable on federal habeas review,
which concerns violations of"the Constitution or laws or treaties ofthe United States." 28

U.S.C. § 2254(a); see also Pulley v. Harris,465 U.S. 37,41,104 S. Ct. 871,79 L. Ed. 2d 29

(1984)("A federal court may not issue the writ on the basis of a perceived error of state law.").
To prevail on a constitutional evidentiary challenge, a petitioner "must show that the error was so

pervasive as to have denied him a fundamentally fair trial." Collins v. Scully, 755 F.2d 16,18
(2d Cir. 1985).

Assuming the state courts misinterpreted New York's rules of evidence. King cannot

morph the claimed error into a constitutional violation here, since the Constitution "places no
restrictions on a prosecutor's ability to impeach his own witness." Dunston v. Griffin, No. 16-

CV-821 (BMC),2016 WL 1255727, at *4(B.D.N.Y. Mar. 29,2016);see also Fed. R. Evid. 607

("Any party, including the party that called the witness, may attack the witness's credibility.").

Accordingly, its resolution by the state courts not being contrary to any precedent declared by the
Supreme Court, this claim must be dismissed.

III.

Unsworn Witness Rule

King claims that the was deprived ofa fair trial because the prosecutor acted as an

unsworn witness by remarking upon the witnesses' credibility during summation. He singles out

the following comments:(1)"You can credit" and "you are going to credit" Cadisha Davis's

testimony, Trial. Tr. at 461;(2)Davis is the "only one that's fully credible in telling you what
happened," id. at 475;(3)"Otis Moore was untruthful when he testified," id. at 467; and(4)
"[Moore] is a Blood member," id. at 463-64. King did not lodge an objection to any ofthese
comments at trial. But, he also complains ofone comment to which his trial counsel did object,

albeit in a general manner: the objection as to the prosecutor's comment that Johnson was "not

being truthful when he testified," which objection the trial court overruled, instructing the jury
that the prosecutor's statement was argument, not evidence. Id. at 471-72.

This argument ran into a dead end on direct appeal to the Appellate Division, which ruled

that King had failed to preserve his challenges to the first group of comments under New York's
contemporaneous objection rule, and even as to the latter comment, because "he registered only a
general one-word objection." King, 119 A.D.3d at 820(citing N.Y. Crim. Proc. Law § 470.05).
As a finishing touch, the Second Department noted that "[i]n any event, the remarks were fair
response to defense counsel's summation or fair comment on the evidence." Id.
A federal habeas court will not review a claim rejected by a state court if the decision

"rests on state law ground that is independent ofthe federal question and adequate to support the

judgment." Beard v. Kindler, 558 U.S. 53,55, 130 S. Ct. 612, 175 L. Ed. 2d 417(2009)(quoting
Coleman v. Thompson,501 U.S. Ill,729, HIS.Ct. 2546, 115 L. Ed. 2d 640(1991)). The

contemporaneous objection rule constitutes an independent and adequate state law ground,
Kozlowski V. Hulihan,511 F. App'x 21,25(2d Cir. 2013), and the state court s conclusion that

a petitioner's claim was ^impreserved' is sufficient to establish" that the state court relied upon it,
Boydv. Griffin, No. ll-CV-324(JFB),2014 WL 1797477, at *9(E.D.N.Y. May 7,2014). Since
the Appellate Division plainly stated that King failed to comply with the contemporaneous
objection rule, this claim is procedurally barred.

"To overcome a procedural bar, petitioner must'demonstrate cause for the default and

actual prejudice as a result ofthe alleged violation offederal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage ofjustice,"' i.e., that he is actually

innocent. Boyd,2014 WL 1797477, at *9(quoting Coleman,501 U.S. at 750). To establish
cause for default, a defendant must show that"some objective factor external to the defense

impeded efforts to comply with the State's procedural rule

"Coleman,501 U.S. at 753

(quotation omitted). To establish actual prejudice, the error "must have resulted in substantial
disadvantage, infecting [the] entire trial with error of constitutional dimensions." Gutierrez v.

Smith, 702 F.3d 103,112(2d Cir. 2012)(quotation marks and citation omitted). As one might
surmise, actual innocence is "extremely rare" and should be applied as a ground for excusing

procedural default "only in 'extraordinary' cases." Davis v. Woods,No.05-CV-3414(ENV),
2010 WL 3747669, at *6(E.D.N.Y. Sept. 17,2010)(citation omitted).

Strangely but not surprisingly, petitioner does not demonstrate cause for his failure to

contemporaneously object at trial to most ofthe comments he now decries. Indeed, his counsel
objected to several other comments made during the State's summation and even made an oral
motion for mistrial based on two ofthose objections. See Trial Tr. at 465,467,476,478-79.

Moreover, given the responsive nature ofthe prosecutor's comments,and the trial court's

instructions to the jurors regarding their role as fact-finders, see id. at 472,480-81, King fails to

show actual prejudice, much less that "the prosecutors' comments so infected the trial with

10

unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright,
477 U.S. 168,181,106 S. Ct. 2464,91 L. Ed. 2d 144(1986)(internal quotation marks omitted);
see also United States v. Young,470 U.S. 1,12-13,105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)

(noting that "ifthe prosecutor's remarks were 'invited,' and did no more than respond [to
defense counsel's comments]...such comments would not warrant reversing a conviction").

As a result, this claim must be dismissed.^
IV.

Ineffective Assistance of Appellate Counsel

Lastly, King asserts that his appellate counsel was ineffective because she failed to

challenge his conviction on the basis that(1)his waiver ofthe right to counsel during a pre-trial
hearing was not made knowingly,intelligently and voluntarily;(2)a gang expert's trial
testimony including "[testimonial] out-of-court statements by witnesses" violated the
Confrontation Clause; and(3)the trial court should have apprised defense counsel that the

verdict sheet included the statutory elements ofthe crimes charged before submitting it to the
jury. Pet. at 19-21.

As a foundational matter. King has not exhausted the ineffective assistance claim. A

habeas petitioner "must present [the substance of his] federal constitutional claims to the highest
court ofthe state before a federal court may consider the merits of the petition, which requires

the petitioner to "fairly apprise[]" the state court that he "is raising a federal constitutional claim

^ Additionally, King appears to misunderstand the concept ofthe attorney as"unswom witness,
which occurs when an attorney "subtly impart[s] to the jury his first-hand knowledge ofthe
events without having to swear an oath or be subject to cross examination. United States v.
Locascio,6 F.3d 924,933(2d Cir. 1993). King points to no comments by the prosecutor
pertaining to any first-hand knowledge of events presented at trial.
11

and ofthe factual and legal premises underlying the claim." Grey v. Hoke,933 F.2d 117,119

(2d Cir. 1991). To the point. King alleged ineffective assistance of appellate counsel in his two

coram nobis petitions, both of which were denied by the Appellate Division in 2015, but he did
not seek leave to appeal those decisions to the New York Court of Appeals. See Rodriguez v.
Uhler, No. 15-CV-9297(GBD)(DF),2017 WL 9807068, at *6(S.D.N.Y. Oct. 23,2017)

(petitioner must exhaust claim for ineffective assistance of appellate counsel by seeking leave to

appeal denial of coram nobis petition to the Court of Appeals), R&R adopted,2017 WL 1633568

(S.D.N.Y. Apr. 3,2018). However,since his window to appeal has closed. King "no longer has
'remedies available in the courts ofthe State' within the meaning of28 U.S.C. § 2254(b)." Grey

V. Hoke,933 F.2d 117,120(2d Cir. 1991). Thus,the Court deems this claim exhausted, but
finds that consideration of it on federal habeas review is procedurally barred. Hawkins v. Lape,

No. 08-CV-2669(BMC),2009 WL 890549, at *4(E.D.N.Y. Mar. 30,2009).

As explained above,a federal court may only reach the merits of a procedurally barred
claim ifthe petitioner can show cause for the default and prejudice, or actual innocence. King
states that he did not appeal the denial of his first coram nobis petition because he did not know
he could; as to the second petition, he incorrectly asserts that it is still pending. See Pet. at 11,

13-14. However, a petitioner's "pro se status and ignorance ofthe law do not constitute cause,"
Davis,2010 WL 3747669,at *16, and King has not come forward with evidence of actual

innocence. Accordingly, AEDPA does not permit the lifting ofthe procedural bar to review, and
the claim is lost.

Even assuming arguendo that the bar could be lifted, upon merits review, the Court finds

that King cannot overcome the "doubly deferential" standard applicable to ineffective assistance
claims brought pursuant to § 2254(d)(1). Knowles v. Mirzayance, 556 U.S. 111,123,129 S. Ct.

12

1411,173 L. Ed. 2d 251 (2009). Ineffective assistance claims are governed by Strickland v.

Washington,466 U.S. 668,688,104 S. Ct. 2052,80 L. Ed. 2d 674(1984), which requires habeas
petitioners to show that "counsel's representation fell below an objective standard of
reasonableness," and that "but for counsel's unprofessional errors, the result ofthe proceeding
would have been different." Id. at 688,693-94.

Under Strickland,"appellate counsel is not obligated to raise every non-ffivolous claim;

instead, appellate counsel has the discretion to select among the claims at issue to maximize the
likelihood ofsuccess on appeal." Cardova v. Lavalley, 123 F. Supp. 3d 387,402(E.D.N.Y.

2015)(citation omitted). King's counsel made a robust effort to challenge his conviction,

extensively briefing several different grounds for appeal. Her decision not to raise the additional

arguments King seeks to assert here is entitled to deference, and, moreover, demonstrated sound
judgment.^ In other words, a full Strickland review would not salvage this claim. It is

^ As to King's first argument,the record reflects that his waiver of counsel at several pre-trial
hearings in 2011 was made knowingly, voluntarily, and intelligently after sufficient inquiry by
the trial court, as required under Faretta v. California,422 U.S. 806, 835,95 S. Ct. 2525,45 L.
Ed. 2d 562(1975), and its progeny. See Dkt. 8-1 at 70-75("May 10, 2011 Hr'g Tr."); id. at 78,
82-85 ("July 27,2011 Hr'g Tr."); id. at 98("Aug. 9,2011 Hr'g Tr."). Second,the trial court did
not err in admitting the testimony ofthe gang expert. Officer Myers,see Trial Tr. at 364-66, who
did not offer any testimonial, out-of-court statements to prove the truth of specific allegations
against King. Crawford v. Washington,541 U.S. 36,53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004)(finding that the Confrontation Clause prohibits the "admission oftestimonial statements
of a witness who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination"); see also United States v. Escobar,462 F.
App'x 58,62(2d Cir. 2012)(affirming admission ofexpert testimony where "there is no
evidence that [the expert] communicated any out-of-court testimonial statements to the jury ).
Third, when the trial court asked the parties ifthey had examined the verdict sheet. King's trial
counsel responded that he had seen the verdict sheet and had no objection. Trial Tr. at 428.
Regardless, King's complaint that the verdict sheet "included statutory elements ofthe crimes
charged," see Pet. at 21, does not identify any violation offederal law, and the Court finds none.
13

dismissed.
Conclusion

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

Since King 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 ofthis Memorandum and Order to

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

Dated: Brooklyn, New York
April 17, 2019

/s/ USDJ ERIC N. VITALIANO
ERIC N. VITALIANO

United States District Judge

14