Reaves v. Superintendent

Filing 7

MEMORANDUM DECISION AND ORDER that the petition is denied and the case is dismissed. A certificate of appealability will not issue as the petition fails to raise any substantial issues. The Court certifies pursuant to 28:19l5(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917 (1962). ( Ordered by Judge Brian M. Cogan on 6/15/2016 ) c/m *Forwarded for jgm. (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------KEVIN REAVES,
Petitioner,
- against SUPERINTENDENT, FIVE POINTS
CORRECTIONAL FACILITY,
Respondent.
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MEMORANDUM
DECISION AND ORDER
16-cv-2221 (BMC)

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COGAN, District Judge.
Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254 on his state court conviction
for second degree attempted murder and second degree criminal weapons possession, for which
he was sentenced to concurrent terms of imprisonment totaling 21 years. The facts will be set
forth below as necessary to address each of petitioner’s points of error but, to summarize, this
was a gang-related shooting in which petitioner shot and severely wounded a former member of
a rival gang, Iesa Britt, recognizable by his gang tattoos, for intruding on the turf of petitioner’s
gang. Although Britt got a good look at petitioner prior to being shot, Britt initially declined to
cooperate with the police. Nevertheless, a couple of months after the shooting, he picked
petitioner’s picture out of a mug book and then identified petitioner in a lineup and subsequently
at trial.
Each of the claims raised in the petition is addressed below. None of them have merit
and the petition is therefore denied.

I. Claims Rejected on Direct Appeal
A. Photographic Identification and Resulting Lineup
1. Background
Petitioner asserted in pretrial proceedings and on direct appeal that the prosecution had
failed to meet its burden 1 of showing that Britt’s identification of his picture in the mug book
was not unduly suggestive because: (a) at the suppression hearing, the prosecution had produced
only petitioner’s mugshot, not the entire mug book; and (b) his mugshot was marked “Clarkson
Ave Flat/Bedford” (“Flat” likely referring to Flatbush Avenue), which was near the location of
the shooting; and (c) his mugshot was marked “marihuana,” indicating that he had previously
been arrested for a crime involving marijuana. Because Britt’s identification of petitioner’s
mugshot was only two weeks before his identification of petitioner in the lineup, petitioner
contended that Britt’s lineup and in-court identification of him should have been suppressed.
In rejecting this argument, the suppression court noted that, according to the unrebutted
testimony at the suppression hearing: (a) there were between 50-100 mugshots in the book when
Britt reviewed it, about half of which were African-American (as is petitioner), far more than the
generally-used 6 picture photo array; (b) all of the mugshots were marked to show the prior
crime, some for felonies and some misdemeanors, for which the subject had been arrested; (c)
the mugshots in the book were frequently changed, so it could not be produced at the hearing in
the same condition it was in at the time Britt saw it; (d) all of the mugshots showed the location

1

Although a defendant normally has the burden of proof under New York law to prove that a photographic
identification was unduly suggestive, where the prosecution is unable to produce the photo array, there is a
presumption that it was unduly suggestive which the prosecution must rebut. See People v. Johnson, 106 A.D.2d
469, 482 N.Y.S.2d 563 (2d Dep’t 1984).

2

of the arrest within or near the precinct, and the Britt shooting did not occur on Clarkson
Avenue, but on Parkside Avenue and Flatbush; (e) petitioner was not the only person that Britt
identified; he first identified another mugshot as “Castro,” a person he said “hung out” with the
person who had shot him, who he subsequently picked out as petitioner; (f) there was no
evidence that the detective before whom Britt reviewed the mug book, who was not the detective
investigating the Britt shooting, had done anything to suggest which of the 50-100 pictures Britt
should select; and (g) there was no evidence that Britt knew petitioner’s name, so there was no
basis to find that the pedigree information on the picture, which was present on all of the
mugshots, would have assisted Britt. Accordingly, the suppression court held that the
prosecution had met its burden of demonstrating that the photographic identification was not
unduly suggestive.
Petitioner also contended at his suppression hearing that the lineup identification should
have been suppressed independently because, of the six subjects in the lineup, including him,
only he was wearing a blue bandana; the rest were green, which rendered the lineup unduly
suggestive. (The police had put bandannas on all of the subjects because petitioner had
dreadlocks.) After reviewing color photographs of the lineup, the suppression court rejected this
as well:
Although defense counsel has argued that the defendant’s bandana in the lineup
was a different color from the fillers’ bandanas, it appears that the defendant,
filler four, and filler six are all wearing blue bandanas, and fillers two, three, and
five are wearing green bandanas. Thus, there was nothing particularly distinctive
about the defendant’s bandana.
Based on the ruling of the suppression court, Britt was permitted to testify at trial that he
recognized petitioner and that he had identified him out of the lineup.
The Appellate Division affirmed the suppression court’s ruling, holding:
3

Upon our review of the record of the hearing, we find that the photographic array
was not suggestive. As to the lineup, there is no requirement that a defendant in a
lineup be surrounded by individuals nearly identical in appearance. Here, the
alleged variations in appearance between the fillers and the defendant were not so
substantial as to render the lineup impermissibly suggestive.
People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228, 229 (2d Dep’t 2013) (citations and
quotation marks omitted), leave to app. denied, 22 N.Y.3d 1202, 986 N.Y.S.2d 422 (2014)
(table).
2. Analysis
Because the Appellate Division decided this point on the merits, its decision attracts the
provisions of 28 U.S.C. § 2254(d)(1). That statute requires petitioner to demonstrate that the
state court’s decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” The
decision of a state court is “contrary” to clearly established federal law within the meaning of
§ 2254(d)(1) if it is “diametrically different” from, “opposite in character or nature” or “mutually
opposed” to the relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405, 120
S. Ct. 1495, 1519 (2000) (internal quotation marks omitted). A state court decision involves “an
unreasonable application” of clearly established federal law if the state court applies federal law
to the facts of the case “in an objectively unreasonable manner.” Brown v. Payton, 544 U.S.
133, 141, 125 S. Ct. 1432, 1439 (2005). The Supreme Court has made clear that the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) standard of review is extremely
narrow, and is intended only as “a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal . . . .” Ryan v.
Gonzales,

U.S. ___, 133 S. Ct. 696, 708 (2013) (internal quotation marks omitted). “A state

court’s determination that a claim lacks merit precludes federal habeas relief so long as

4

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington
v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664, 124 S. Ct. 2140, 2149 (2004)). Since Harrington, the Supreme Court has
repeatedly admonished Circuit Courts for not affording sufficient deference to state court
determinations. See, e.g., White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460 (2015) (“This
Court, time and again, has instructed that AEDPA, by setting forth necessary predicates before
state-court judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.’” (quoting Burt v. Titlow, 571 U. S.
___ , 134 S. Ct. 10, 16 (2013))). Moreover, with regard to factual determinations, “a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
“In general, a pretrial photographic identification procedure used by law enforcement
officials violates due process if the procedure ‘is so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.’” Jarrett v. Headley, 802 F.2d 34,
40–41 (2d Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971
(1969)). “It is the likelihood of misidentification which violates a defendant’s right to due
process.” Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381-82 (1972). There is “no
requirement . . . that photos in an array present only individuals who match petitioner’s
appearance in every detail.” Velazquez v. Poole, 614 F. Supp. 2d 284, 300-01 (E.D.N.Y. 2007).
Instead, the Second Circuit merely requires that “[t]he array must not be so limited that the
defendant is the only one to match the witness’s description of the perpetrator.” United States v.
Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990).

5

Here, the Appellate Division affirmed the trial judge’s determination, which included a
factual finding as to the colors of the bandanas in the lineup. This factual determination is
entitled to great deference which “must be sustained unless it is clearly erroneous.” Felkner v.
Jackson, 562 U.S. 594, 598, 131 S. Ct. 1305, 1307 (2011) (internal quotation marks omitted).
Indeed, “[o]n federal habeas review, AEDPA imposes a highly deferential standard for
evaluating state-court rulings and demands that state-court decisions be given the benefit of the
doubt.” Id. (internal quotation marks omitted).
With regard to the mug book, Britt picked petitioner’s photograph out of a minimum of
50 and as many as 100 photographs, about half of which were African-Americans. As the
suppression court observed, the sheer number of photographs and the absence of any suggestive
influence from the police were sufficient indicators of non-suggestiveness. The suppression
court’s ruling and the Appellate Division’s affirmance easily survive habeas review.
With regard to the lineup, I have looked at the color photographs that the suppression
court reviewed, and, if anything, it seems to me that the suppression court was more generous to
petitioner in finding a mix of colors than the photographs themselves suggest. The grainy
photographs are not frontal shots of the lineup, but angle shots down the length of the lineup in
which petitioner is closest to the camera. The wall color behind the lineup participants changes
from blue (behind petitioner) to white to yellow along the length of the lineup, and it seems to
me that besides the changing wall colors affecting the perception of the bandana colors,
alterations in distance, lighting, and shadows are responsible for the apparent subtle difference in
the blue-to-green shades of the bandanas. Certainly, given the deference required for factual
findings under habeas corpus review, there is no basis for me to second guess the state courts’
conclusion that any color differences were not unduly suggestive.

6

B. Admission of Petitioner’s Statements
The suppression court accepted petitioner’s argument that the arresting officer had failed
to properly administer petitioner’s Miranda rights upon his arrest. Nevertheless, the court held
that three post-arrest statements he made could be admitted into evidence because those
statements were not the product of interrogation and petitioner volunteered the statements. The
statements were described in a statutory notice provided to the defense. First, when the arresting
officer advised petitioner that he was to be placed in a lineup, petitioner stated, “I’m not going to
stand in a lineup for a robbery. I’m a drug dealer and a G.” Second, when the arresting officer
responded, “This is for a shooting, not a robbery,” petitioner stated, “The one on Parkside, I saw
the guy from the shooting yesterday.” Third, the arresting officer then asked petitioner, “Do you
want to write a statement?” and petitioner responded, “The guy is ‘street,’ he won’t pick me.”
The Appellate Division affirmed the suppression court’s rulings, holding that
the evidence presented at the suppression hearing supports the Supreme Court’s
determination that the defendant’s spontaneous statements, made after a police
officer arrested him but before Miranda warnings were administered, were not
triggered by any police questioning or other conduct which reasonably could have
been expected to elicit a statement from him.
Reaves, 112 A.D.3d at 747, 976 N.Y.S.2d at 230 (internal citations omitted).
Because the Appellate Division decided this issue on the merits, my review is again
subject to AEDPA’s deferential standard set forth above. The controlling Supreme Court
authorities on petitioner’s issue are R.I. v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980), and
Arizona v. Mauro, 481 U.S. 520, 529, 107 S. Ct. 1931 (1987). In Innis, the Supreme Court
defined interrogation as either express questioning or its functional equivalent. See Innis, 446

7

U.S. at 300-01, 100 S. Ct. at 1689. The functional equivalent of express questioning includes
“any words or actions on the part of the police . . . that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” Id. at 301, 1689-90. However, the
Second Circuit has explained that police conduct is not the functional equivalent of interrogation
simply because it struck a responsive chord. See Acosta v. Artuz, 575 F.3d 177 (2d Cir. 2009).
Moreover, although the test of “functional equivalence” is objective, the Supreme Court has
stated that “[o]fficers do not interrogate a suspect simply by hoping that he will incriminate
himself.” Mauro, 481 U.S. at 529, 107 S. Ct. 1936. Finally, it must be noted that in situations
far closer to the line than that presented here, “courts have not endorsed the proposition that
statements by law enforcement officials to a suspect regarding the nature of the evidence against
the suspect constitute interrogation as a matter of law,” and “courts have generally rejected
claims . . . that disclosure of . . . inculpatory evidence possessed by the police, without more,
constitutes ‘interrogation’ under Innis.” Acosta, 575 F.3d at 191 (citations and internal quotation
marks omitted).
Petitioner cannot overcome the deferential review standard under § 2254(d). In many
cases, including Innis itself, the issue was whether statements by the police that resulted in the
defendant making incriminating statements, either before advice of Miranda rights or after their
invocation, constituted the functional equivalent of interrogation. See, e.g., Innis, 446 U.S. at
302-03 (dialogue between two officers in defendant’s presence); Acosta, 575 F.3d at 191-92
(statement informing defendant he was picked out of the lineup); Daniel v. Conway, 498 F.
Supp. 2d 673, 681 (S.D.N.Y. 2007) (transmitted salutation from defendant’s brother and
expression of confidence in inevitability of defendant’s capture); United States v. Heatley, 994 F.

8

Supp. 475, 476–77 (S.D.N.Y. 1998) (statement to defendant that he “knew [the police] were
coming”).
Here, with regard to petitioner’s first statement, the police officer did not ask petitioner
any questions. He simply told him he was taking him to a lineup. There is nothing wrong with
informing petitioner where he was going; it was a completely innocuous statement that does not
invite a response, much less an incriminating one. Petitioner’s response was entirely voluntary
and not the result of anything that could be called an interrogation.
Petitioner’s second statement was in response to the officer correcting petitioner’s
misunderstanding – petitioner thought he was going to a lineup for a robbery; he was not. The
police officer told him so, and told him the crime that was the subject of the lineup. Again, the
police officer asked him no questions and had no reason to believe petitioner would give an
incriminating, or indeed any, response.
Finally, with petitioner talking of his own volition, it was perfectly reasonable for the
police officer to ask petitioner if he wanted to write a statement. He didn’t ask petitioner
anything about the crime. Rather, his question called for a yes or no answer; it was petitioner
who again chose to give a narrative. There was no reason to think the officer was seeking
incriminating statements or any details of the crime itself.
The Appellate Division’s ruling that petitioner voluntarily made the subject statements
was not contrary to or an unreasonable application of any Supreme Court authority.

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C. Denial of Motion for a Mistrial
1. Background
On the evening following jury selection, the prosecutor notified defense counsel that the
police had just located a silent surveillance video of Britt immediately following the shooting. It
did not show the shooting itself, but it showed Britt walking and staggering with great difficulty
until he collapsed on the sidewalk, and showed him then being attended by and talking to police,
fire, and emergency service personnel. In light of the late production, the prosecutor represented
to defense counsel that he would not seek to admit the video nor would any witness refer to it.
Nevertheless, the investigating detective, testifying on direct examination, misunderstood
the prosecutor’s question. The prosecutor asked whether there was video of the “shooting,” and
although the video only showed Britt after the shooting, the detective answered, “yes.” 2 As the
prosecutor tried to clarify that there was no video of the shooting itself, it came out that there was
video of Britt immediately after the shooting.
Defense counsel moved for a mistrial on the ground that the video should have been
turned over prior to trial and defense counsel had not raised it previously based on the
prosecutor’s assurance that it would not be mentioned. The trial court denied the motion subject
to its later review of the video because it saw no prejudice to petitioner in not having a video of
Britt staggering and collapsing after being shot. Instead, it instructed the jury:

2

In the television-inspired view of criminal investigations to which jurors are exposed, prosecutors are often,
sometimes rightfully, concerned that if they do not show juries that the police have exhausted various investigative
techniques – here, looking for surveillance video that would identify the assailant – jurors may take it upon
themselves to find the investigation deficient, and substitute their own judgment for what the police should have
done. It seems clear to me that this was the purpose of the prosecutor’s question, i.e., to show the jury that there was
no video identifying who had shot Britt. And, in fact, there was not, or, at least, the police could not find any.

10

With regard to the video tape it's not going to be played at this trial because it
doesn’t show anything relevant to the case, and you shouldn’t speculate about
what’s on it because you would be seeing something that has nothing to do with
the case. That testimony is stricken from the record.
In the Appellate Division, petitioner contended that the prosecution’s failure to produce
the video violated the New York discovery requirements set forth in N.Y. Crim. Proc. Law §
240.20(1)(e), which pertains to “photograph[s] . . . or other reproduction[s] made by or at the
direction of a police officer, . . .” and § 240.20(1)(g), which pertains to “tapes or electronic
recordings which the prosecutor intends to introduce at trial . . .”, as well as the “open file”
discovery policy of the Kings County District Attorney. From that contention, petitioner further
argued that, in giving a curative instruction instead of declaring a mistrial, the trial court had
abused its discretion under N.Y. Crim. Proc. Law § 240.70(1), which sets forth a list of available
remedies, including “any other appropriate action,” for a discovery violation. Petitioner argued
that if the video had been produced to him prior to trial, he could have more effectively crossexamined Britt, although he did not point to any inconsistencies between Britt’s testimony and
the video.
The Appellate Division held that
[t]he decision to declare a mistrial rests within the sound discretion of the trial
court, which is in the best position to determine if this drastic remedy is necessary
to protect the defendant’s right to a fair trial. Here, while the challenged testimony
was improper, any prejudice therefrom was alleviated by the Supreme Court’s
actions in immediately striking the testimony from the record and providing a
curative instruction to the jury.
Reaves, 112 A.D.3d at 747-48, 976 N.Y.S.2d at 230 (internal citations and quotation marks
omitted).

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2. Analysis
Significantly, in presenting his argument to the Appellate Division, petitioner relied
solely on the statutory provisions of the New York Criminal Procedure Law and the discovery
policy of the Kings County District Attorney, and not on any constitutional obligation to produce
discovery material under Brady v. Maryland, 373 U.S. 82, 83 S. Ct. 1194 (1963). In fact, the
trial court had ruled that this video did not constitute Brady material, and petitioner expressly
conceded that point on appeal, choosing instead to rely exclusively on New York law.
The effect of this formulation of the argument and petitioner’s concession is that the issue
is not cognizable on federal habeas corpus review. It is well established that habeas corpus can
be used only to remedy violations of federal constitutional law, not state law. Whether a state
court has properly applied a statute is not an issue that is reviewable on federal habeas corpus.
“[I]t 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, 112 S. Ct. 475, 480 (1991); see
also Mosby v. O’Meara, No. 12-cv-1543, 2015 WL 4871803, at *6 (N.D.N.Y. Aug. 13, 2015)
(“[T]o the extent that New York state law provides greater protection than federal constitutional
requirements, it defines state law only, and any misapplication of that state law is not cognizable
on federal habeas review.”). For this reason, federal courts decline to hear habeas corpus claims
under N.Y. C.P.L. § 240.70(1). See Lynch v. Graham, No. 10-cv-589, 2011 WL 5154143, at *7
(W.D.N.Y. Oct. 28, 2011) (“Lynch’s claim [for abuse of discretion under N.Y. Crim. Proc. Law
§ 240.70(1)] raises an issue of whether the state court properly applied a statutory rule of
discovery, not an issue of federal constitutional law. As such, it is not cognizable on habeas
review.”); Taylor v. Rivera, No. 07-cv-8668, 2011 WL 4471919, at *29 (S.D.N.Y. April 18,

12

2011) (“To the extent Petitioner intends to raise a claim that the 911 tape should have been
produced under New York state law . . . that claim cannot be reviewed by this Court. . . . [S]ee
also N.Y. Crim. Proc. § 240.70.”).
Petitioner’s claim is therefore rejected.
D. Excusal of Juror
1. Background
On the first day of trial, the court officer reported to the court that juror number one had
“some kind of problem.” The trial court advised the attorneys that it intended to question the
juror (in the presence of both parties) to see what the problem was, and further advised them that,
depending on the problem, it might allow her to continue to sit, and consider releasing her prior
to the commencement of deliberations. Defense counsel did not object to this procedure.
Upon questioning, juror number one advised the court that she had not realized that she
lived so close to the location of the incident, and was concerned that she might recognize family
members of the participants if they entered the courtroom. She would also have to circumvent
the location when she traveled to court to avoid passing by it. The trial court advised her to do
so; it further advised her to inform the court officer, but not the other jurors, if indeed she
recognized anyone who entered the courtroom. Last, it advised her not to act as an
“investigator,” and she agreed she would not. The court then asked the attorneys at sidebar if
they had any additional questions, and the record shows they did not. Defense counsel did not
ask for the juror’s recusal or object to her remaining on the jury.
Just before the presentation of the prosecution’s last witness, the trial court reconsidered
the issue, and indicated that it wanted to ask the juror if her knowledge of the crime scene would

13

influence her evaluation of the evidence. Defense counsel consented to this procedure. The
juror’s responses to the court’s questions were somewhat contradictory. The juror indicated that
she had been influenced “a little bit,” and that it would affect her because she was “just worried.”
But she also testified that she wouldn’t be influenced by living where she could see the crime
scene. She further assured the court that her exposure would not affect her verdict and she had
no doubts about that. After consulting with petitioner, defense counsel moved for her to be
discharged, and the trial court granted the motion.
But on appeal, petitioner argued that the trial court should have discharged the juror
immediately, when the issue first arose, rather than waiting until near the end of the prosecutor’s
case. This was required, according to petitioner, pursuant to N.Y. Crim. Proc. Law § 270.35,
which requires disqualification if the court finds that a juror is “grossly unqualified.” The
Appellate Division held that “[t]he defendant failed to preserve for appellate review his
contention that he was deprived of a fair trial by the Supreme Court’s delay in discharging a
juror who expressed concerns that may have affected her ability to be fair and impartial.”
Reaves, 112 A.D.3d at 748, 976 N.Y.S.2d at 230.
2. Analysis
There are two reasons why I cannot review the merits of petitioner’s claim. First, as
presented to the Appellate Division, it was not a federal constitutional claim. Petitioner simply
argued that the trial court had not appropriately applied the New York Criminal Procedure Law.
Nothing in his argument suggested that there was a federal constitutional claim; the words “due
process” or even “fair trial,” which itself would not even be sufficient to indicate the presence of
such a claim, nowhere appear in the argument. See Daye v. Attorney Gen., 696 F.2d 186, 193

14

(2d Cir. 1982) (en banc). Thus, his argument before me suffers from the same infirmity as his
preceding point – I cannot review questions of New York law.
Second, even if petitioner had presented a federal constitutional claim to the Appellate
Division, its holding that the claim was “unpreserved” means that it is procedurally barred in this
court. A federal court should not address the merits of a petitioner’s habeas claim if a state court
has rejected the claim on “a state law ground that is independent of the federal question and
adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885
(2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991))
(emphasis omitted). When a state court rejects a petitioner’s claim because he failed to comply
with a state procedural rule, the procedural bar may constitute an adequate and independent
ground for the state court’s decision. See, e.g., Coleman, 501 U.S. at 729-30, 111 S. Ct. at 2554;
Murden v. Artuz, 497 F.3d 178 (2d Cir. 2007). State procedural grounds are only adequate to
support the judgment and foreclose federal review if they are “firmly established and regularly
followed” in the state. Lee, 534 U.S. at 376, 122 S. Ct. at 885 (quoting James v. Kentucky, 466
U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984)). If a state court rejects a specific claim on an
adequate and independent state law ground, then a federal court should not review the merits of
the claim, even if the state court addressed the merits of the claim in the alternative. See Harris
v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038, 1044 n. 10 (1989) (“[A] state court need not
fear reaching the merits of a federal claim in an alternative holding. By its very definition, the
adequate and independent state ground doctrine requires the federal court to honor a state
holding that is a sufficient basis for the state court’s judgment, even when the state court also
relies on federal law.”).

15

It is well settled that New York’s contemporaneous objection rule, codified at N.Y.
Crim. Proc. Law § 470.05(2), is an independent and adequate state law ground that ordinarily
precludes federal habeas corpus review. See, e.g., Downs v. Lape, 657 F.3d 97 (2d Cir. 2011).
New York’s contemporaneous objection rule provides that a party seeking to preserve a claim of
error at trial must lodge a protest to the objectionable ruling “at the time of such ruling . . . or at
any subsequent time when the [trial] court had an opportunity of effectively changing the same.”
N.Y. Crim. Proc. Law § 470.05(2). This rule has been interpreted by the New York courts to
require, “at the very least, that any matter which a party wishes” to preserve for appellate review
be “brought to the attention of the trial court at a time and in a way that gave [it] the opportunity
to remedy the problem and thereby avert reversible error.” People v. Luperon, 85 N.Y.2d 71, 78,
623 N.Y.S.2d 735, 739 (1995); see also People v. Hicks, 6 N.Y.3d 737, 810 N.Y.S.2d 396
(2005).
Once it is determined that a claim is procedurally barred under state procedural rules, a
federal court may still review such a claim on its merits if the petitioner can demonstrate both
cause for the default and prejudice resulting therefrom, or if he can demonstrate that the failure
to consider the claim will result in a miscarriage of justice. See Coleman, 501 U.S. at 750, 111
S. Ct. at 2565; Harris v. Reed, 489 U.S. at 262, 109 S. Ct. at 1043. The latter avenue, a
miscarriage of justice, is demonstrated in extraordinary cases, such as where a constitutional
violation results in the conviction of an individual who is actually innocent. See Murray v.
Carrier, 477 U.S. 478, 106 S. Ct. 2639 (1986).
The first avenue, cause for the default and prejudice therefrom, can be demonstrated with
“a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . .
or that ‘some interference by state officials’ made compliance impracticable, . . . [or that] the

16

procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d
825, 829 (2d Cir. 1994) (citing Murray, 477 U.S. at 488, 106 S. Ct. at 2645) (alteration in
original). Although, in some circumstances, ineffective assistance of counsel can constitute
“cause” sufficient to avoid a procedural default, id. at 488-89, 2645-46, the ineffective assistance
claim must itself have been exhausted in the state court. Edwards v. Carpenter, 529 U.S. 446,
451-52, 120 S. Ct. 1587, 1591-92 (2000). To adequately exhaust a claim, a petitioner must have
“fairly presented” the claim to the state court. Daye, 696 F.2d at 191.
As discussed below, petitioner raised numerous claims of ineffective assistance of
counsel in his § 440 and coram nobis motions. However, he never contended that his trial
counsel was ineffective for not seeking disqualification of this juror following the trial court’s
first inquiry of her. 3 He therefore cannot claim ineffective assistance of counsel as the cause for
failing to preserve this argument. Nor does the record admit to any other basis for showing cause
and prejudice for failing to preserve the point. Finally, the excusal of the juror before the end of
the prosecution’s case, instead of at an earlier point, comes nowhere near satisfying the standard
for manifest injustice. Accordingly, my review of this point, even assuming arguendo that it
presents a federal constitutional claim, is procedurally barred.
II. Ineffective Assistance of Trial and Appellate Counsel Claims
Most of the numerous ineffective assistance of trial counsel claims that petitioner raised
in his § 440 motion were “on the record” claims that could have been, but were not, raised on
3

In his § 440 motion, petitioner raised a factually related point – that the trial court’s second inquiry of this juror
that led to her removal was in the robing room, in the presence of both counsel, but outside his presence, and thus he
was deprived of his constitutional right to be present at all material stages of the proceedings. The record showed
that following the robing room conference, defense counsel conferred with petitioner and then moved to remove the
juror, which the trial court granted. The § 440 court held that his claim of not being present was procedurally barred
because the occurrence of the conference outside petitioner’s presence was apparent on the record and the claim
could have been raised on direct appeal. Petitioner never attempted to show ineffective assistance of trial counsel
with regard to this claim and thus, as explained immediately below, cannot show cause and prejudice in this Court to
relieve him of the procedural bar.

17

direct appeal. Accordingly, the § 440 court held, as to these claims, that petitioner was
procedurally barred from raising them in a § 440 motion. This statutory procedural bar is firmly
established and regularly followed under New York law, and would, without more, result in a
procedural bar in this Court. New York law is well settled that, where a claim of ineffective
assistance of counsel is based on errors or omissions that appear on the record, such claims must
be raised on direct appeal or they will be deemed procedurally barred when raised collaterally.
See, e.g., N.Y. Crim. Pro. L. § 440.10(2)(c) (“[T]he court must deny a motion to vacate a
judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying
the judgment to have permitted, upon appeal from such judgment, adequate review of the ground
or issue raised upon the motion, no such appellate review or determination occurred owing to the
defendant’s unjustifiable failure . . . .”); People v. Jossiah, 2 A.D.3d 877, 769 N.Y.S.2d 743 (2d
Dep’t 2003); People v. Hickey, 277 A.D.2d 511, 511, 714 N.Y.S.2d 821, 822 (3d Dept. 2000);
see also People v. Cooks, 67 N.Y.2d 100, 500 N.Y.S.2d 503 (1986). And federal law is equally
well settled that the procedural bar in this context is an adequate and independent state law
ground for the decision that will be recognized on habeas corpus review. See Sweet v. Bennett,
353 F.3d 135, 140-41 (2d Cir. 2003); Acevedo v. Capra, No. 13-CV-5579, 2014 WL 1236763,
at *10 (E.D.N.Y. Mar. 25, 2014) (“The Second Circuit has regularly held that a court’s denial of
a § 440.10 motion on the basis of the movant’s failure to raise an issue on direct appeal is an
independent and adequate state ground barring federal habeas review.”), aff’d, 600 F. App’x 801
(2d Cir. 2015); Collier v. Lee, No. 08-CV-3441, 2011 WL 2297727, at *5 (E.D.N.Y. June 7,
2011).
However, as discussed above, petitioner could obtain relief from the procedural bar for
purposes of federal habeas corpus review if he can demonstrate cause and prejudice, provided

18

that he can show his appellate counsel’s ineffective assistance in failing to raise these ineffective
assistance of trial counsel claims on direct appeal. It is therefore most efficient to start the
analysis with petitioner’s coram nobis motion, in which he raised the ineffectiveness of his
appellate counsel.
The Appellate Division summarily rejected his coram nobis motion on the merits. See
People v. Reaves, 134 A.D.3d 1133, 21 N.Y.S.3d 632 (2d Dep’t 2015) (mem.), leave to app.
denied, 27 N.Y.3d 1005, __ N.Y.S.3d ___ (2016). This disposition warrants the same level of
deference under AEDPA set forth above, requiring petitioner to show that the Appellate
Division’s rejection of his coram nobis motion was contrary to, or an unreasonable application
of, Supreme Court authority.
Petitioner’s showing is doubly difficult because he must meet not only the AEDPA
standard, but the demanding criteria for ineffective assistance of counsel claims set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Petitioner must show that his
appellate counsel's representation in not raising the alleged ineffectiveness of his trial counsel
“fell below an ‘objective standard of reasonableness’ judged by ‘prevailing professional norms.’”
Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (quoting Strickland, 466 U.S. at 688, 104 S.
Ct. at 2064-65). Petitioner must then show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In applying this test, I am to be “highly
deferential” and presume that counsel’s conduct falls within the range of reasonable performance
unless proven otherwise. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Lastly, the law is clear
that, when preparing an appeal, an attorney is not required to raise every non-frivolous argument
even if asked to do so by his client. Jones v. Barnes, 463 U.S. 745, 751-54, 103 S. Ct. 3308

19

(1983) (“Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at
most on a few key issues.”). 4
None of the points that petitioner contends should have been raised on direct appeal
satisfy this difficult standard. They amount to no more than second guessing his trial attorney,
and then second guessing his appellate attorney, each time speculating about what might have
happened had his each of them made a different judgment call at particular phases of the pretrial,
trial, or appellate proceedings.
A. Failure to Call Britt as a Witness at the Suppression Hearing
First, petitioner contends that at his suppression hearing, his trial attorney should have
called Britt as a witness. There is no right to call the identifying witness at a suppression hearing
under New York law; it is a matter of discretion if the hearing court feels the record is
incomplete. See People v. Chipp, 75 N.Y.2d 327, 337-39, 553 N.Y.S.2d 72, 78-79 (1990).
Petitioner contended in his § 440 and coram nobis motions that the suppression court was
sufficiently concerned about the record being incomplete that it would have been allowed, and he
further speculated that had Britt testified, it would have undermined his identification.
Under the doubly-deferential standard of review that applies here, I see neither objective
unreasonableness nor prejudice to defendant from trial counsel’s decision not to seek Britt’s
4

In the state courts, petitioner made much of the fact that he was represented by a lead attorney and an assistant
attorney at trial, and he then retained the assistant attorney to represent him on appeal. He therefore contended that
the appellate attorney had a “conflict of interest,” deterring him from raising ineffective assistance of trial counsel
claims. This does not constitute an independent basis for relief. Either his appellate attorney was constitutionally
ineffective or not, and his possible subjective motivation for not raising ineffectiveness of trial counsel claims is
immaterial. See Rivera v. Miller, No. 05 Civ. 4048, 2006 WL 3230293, at *5 (S.D.N.Y. Nov. 7, 2006) (whether
appellate attorney’s employment at the same agency as the trial attorney created a conflict of interest is irrelevant
where habeas petitioner did not show any adverse effect on his appellate counsel’s performance); Brock v. Donelly,
No. 03 Civ. 2594, 2004 WL 895632, at *9 n.7 (S.D.N.Y. April 26, 2004) (“Although trial and appellate counsel
were both Legal Aid attorneys . . . [a]ppellate counsel clearly had no basis to allege ineffective assistant of trial
counsel given trial counsel's competent performance.”).

20

testimony, and therefore no error in appellate counsel’s decision not to raise a claim of
ineffective assistance. First, the suppression court merely made comments about the record as it
developed during the suppression hearing, and its final decision, rather than its real-time
commentary, reflects its determination that the prosecution ultimately met its burden of proof. 5
Second, as discussed immediately below, Britt’s trial testimony showed that calling him at the
suppression hearing may well have made it worse for petitioner, not better. The Appellate
Division therefore did not unreasonably apply Strickland in determining that appellate counsel
was not objectively unreasonable in failing to raise this point, nor in concluding that petitioner
was not prejudiced by the failure to raise it.
B. Failure to Seek to Reopen the Suppression Hearing
Second, and relatedly, petitioner contends that when his trial counsel heard Britt’s
testimony at trial, he should have moved to reopen the suppression hearing, and his appellate
counsel’s failure to raise that omission as ineffective assistance of trial counsel on appeal
constituted ineffective assistance of appellate counsel. At trial, Britt testified to details of a
conversation with petitioner shortly preceding the shooting that had not come out at the
suppression hearing. Specifically, Britt testified that he and petitioner had discussed Britt
purchasing some marijuana from him. Petitioner therefore contended in his § 440 and his coram
nobis motions that, because his mugshot showed a prior arrest for “marihuana,” his trial counsel
should have moved to reopen the suppression hearing, and his appellate counsel should have
raised trial counsel’s failure to do so. Apparently, petitioner’s argument was that the note on the
photograph would have suggested petitioner’s identity in Britt’s mind because Britt had sought
to buy marijuana from petitioner, thus rendering the mugshot suggestive.

5

See note 1, supra.

21

There is no basis to conclude the trial court would have granted such a motion; no basis
for concluding that Britt’s testimony at trial would have led to a different outcome at the
suppression hearing,;and thus no basis for finding trial counsel ineffective. It is at least arguable
that the testimony solidified rather than impeached Britt’s identification of petitioner, as Britt
also testified that he and petitioner had talked for seven or eight minutes and he had gotten a
really good look at petitioner. There was also nothing hinting at suggestive conduct on the part
of the police. The Appellate Division did not unreasonably apply Strickland in holding that
appellate counsel was not objectively unreasonable in deciding not to raise this point, nor was
petitioner prejudiced by that decision.
Indeed, petitioner sought to use the fact that appellate counsel relied on Britt’s testimony
on appeal as support for his coram nobis motion, but the argument petitioner presented simply
illustrates the discretion afforded appellate counsel. With regard to Britt’s testimony at trial,
appellate counsel had some options, none of which were wonderful: (1) argue that trial counsel
was ineffective for not moving to reopen the suppression hearing; (2) point out, as part of the
broader attack on the suggestiveness of the mug book identification, that Britt’s testimony at trial
further showed that the mugshot was unduly suggestive because it identified petitioner has
having a prior marijuana arrest; or (3) not refer to Britt’s testimony at all, because its greater
detail confirmed the reliability of Britt’s identification.
Appellate counsel chose a middle ground by asserting only (2), notwithstanding the fact
that, under New York law, arguments of suggestiveness are limited to the suppression court
record. Petitioner’s coram nobis motion criticized appellate counsel for not choosing (1) as well
as or instead of (2) but, considering the weakness of the claim, any of the three options, including
choosing either or both of (1) and (2), were well within the discretion afforded appellate counsel

22

under Strickland. As far as the choice appellate counsel actually made, appellate counsel could
reasonably conclude that taking on the difficult burden of showing ineffective assistance of trial
counsel for not seeking to reopen the suppression hearing would detract from his point that the
suppression ruling itself was wrong, and that Britt’s testimony, although not technically
admissible to prove that, might well nudge the Appellate Division on direct appeal, if it was
headed in that direction, to agree.
This is the classic kind of strategic call that appellate counsel has to make. I cannot find
that the Appellate Division, on coram nobis review, unreasonably applied Strickland in allowing
appellate counsel the discretion to make that call.
C. Appellate Counsel’s Decision Not to Challenge the Suppression Court’s “No
Attenuation” Ruling
Petitioner’s coram nobis motion strangely attacked appellate counsel for embracing one
part of the suppression court’s ruling that was in his favor – that the prosecution had failed to
prove attenuation between the photo identification and lineup identification. That is, the
suppression court ruled, in dictum, that the mere fact that 15 days passed between the photo
identification and the lineup identification was insufficient to cure any undue suggestiveness in
the photo identification. Of course, this was an academic point, because the suppression court
also found a lack of undue suggestiveness in the photo identification, but I see no reason why
appellate counsel would want to challenge the “no attenuation” part of the suppression court’s
ruling.
Appellate counsel’s argument, rather, sought to link the two, just as had the suppression
court, so that if he could convince the Appellate Division on direct appeal that the photo
identification was bad, the lineup identification might also fall, like a domino. And if that

23

strategy did not work, his backup strategy was to argue to the Appellate Division that the lineup
identification was suggestive independently because of petitioner’s allegedly different colored
bandana. I cannot see anything wrong with this approach, so I certainly cannot find error in the
Appellate Division’s decision under AEDPA’s deferential standard of review.
D. Failure to Argue that Trial Counsel was Ineffective for Not Viewing the PostShooting Video
In his § 440 motion, petitioner contended that his trial counsel was ineffective for not
viewing the post-shooting video of Britt before acceding to the prosecutor’s agreement to keep it
out and not refer to it, and in his coram nobis motion, petitioner contended that his appellate
counsel was ineffective for not raising his trial counsel’s ineffectiveness on direct appeal.
It is basic to Strickland that at the trial or appellate level, a petitioner has to show
prejudice from his counsel’s omission. This was a silent video of Britt staggering, collapsing,
and then talking to emergency personnel. Nowhere in his § 440 or coram nobis motion did
petitioner specify what trial counsel could have done had he known specifically what was in that
video – and, of course, a video of the victim in extremis after he has been shot is something that
any defense counsel in an attempted murder case would want to keep from the jury as unduly
prejudicial, absent some unusually probative value.
The most that petitioner could say about prejudice in his coram nobis motion is that his
appellate counsel had claimed there would be prejudice because perhaps trial counsel could have
more thoroughly cross-examined Britt. That is just saying that because appellate counsel was
stuck with a weak argument, he should have made a weaker argument. Neither appellate counsel
on direct appeal nor petitioner in his § 440 or coram nobis motion could point to any
inconsistency between Britt’s testimony at trial and the depiction in the video. That may or may

24

not be one reason why petitioner’s argument failed on direct appeal, but it is certainly a reason
why the Appellate Division did not unreasonably apply Strickland in rejecting petitioner’s
argument on coram nobis.
E. Failure to Seek to Challenge Petitioner’s Admissions for Lack of Notice
Under N.Y. Crim. Proc. Law § 710.30(1)(a), the prosecution is required to give a pretrial
notice (“§ 710 notice”) of any statements by a defendant that it intends to use at trial. The
prosecution did so here, giving notice of petitioner’s three statements as described above in
connection with the suppression hearing. However, at the suppression hearing, the testifying
detective to whom petitioner made the statements amplified on the content of petitioner’s first
and second admissions. His complete testimony at the suppression hearing as to those first two
admissions was: “[H]e told me he saw the guy yesterday around. That everyone is saying that he
shot him. I’m a drug dealer. You know how that block [sic]. He came out of town, and he was
trying to hustle and guys were not going to go for that.”
In his § 440 motion, petitioner contended that trial counsel was ineffective for not having
moved at the suppression hearing to have precluded the detective’s testimony on the additional
ground that it was inconsistent with the § 710 notice. In his coram nobis motion, he contended
that his appellate counsel was ineffective for not having raised trial counsel’s ineffectiveness on
direct appeal. 6
A motion by trial counsel objecting to the detective’s testimony on the ground that it
differed from the § 710 notice would have been a long shot. The statute appears to be highly
elastic. First, if a hearing is held on the admissibility of the matters contained in the notice, then
6

The District Attorney’s response to the coram nobis motion appears to have interpreted the motion as additionally
challenging trial counsel’s failure to object to the differences between the hearing testimony and the § 710 notice at
trial (as well as the at the suppression hearing). I don’t read petitioner’s motion that way.

25

any defect is cured because the testimony at the suppression hearing itself provides notice; it
seems the purpose of the statute is mainly to preclude surprise at trial. See e.g., People v.
Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256 (1996). Second, the statute does not require a
verbatim recitation of the admission; the test seems to be whether the admission is “substantially
the same,” and it is not uncommon for police witnesses to give additional content to a witness’s
statement beyond what is provided in the notice. See e.g., People v. Mais, 71 A.D.3d 1163,
1166, 897 N.Y.S.2d 716, 720 (2d Dep’t 2010) (“[T]he County Court should not have precluded
the portion of the defendant's statement to Officer Manzella in which he denied coming from a
house, since the notice provided pursuant to CPL 710.30 informed the defendant of the ‘sum and
substance’ of the conversation sought to be introduced at trial.”). Finally, the New York courts
seem particularly indulgent where the same officer who heard the statements described in the §
710 notice provides the additional testimony as to the contents of the statements at the
suppression hearing, as was the case here. See People v. Coleman, 256 A.D.2d 473, 474, 682
N.Y.S.2d 402, 403 (2d Dep’t 1998) (“To the extent that the CPL 710.30 notice did not include
the entire statement, the remaining part of the statement was made to the same police officer
during the same conversation, in the same location as the statement identified in the CPL 710.30
notice. Therefore, the defendant was given sufficient notice of the statement so as to enable him
to timely move to suppress it.”). These points, particularly the last, are important because, in
fact, at the conclusion of the suppression hearing in the instant case, trial counsel made it clear
that his motion to suppress included “any statement that my client gave . . . [,]” so it is clear that
he moved against the entirety of the testimony about the statements, not just the contents of the
notice.

26

Trial counsel adopted a far more targeted strategy than the purely technical point that
petitioner now says he should have raised. His effort was to show that the detective dissembled
about giving Miranda warnings and then subjected petitioner to a virtual interrogation. Trial
counsel nearly succeeded, convincing the suppression court not to credit the detective’s
testimony that he had administered Miranda warnings, and he lost the motion only because
petitioner’s statements were not the product of interrogation. Under the doubly-deferential
standard of review of the Appellate Division’s coram nobis decision, I cannot find its
determination that trial counsel was neither objectively unreasonable, and that petitioner was not
prejudiced, to itself have been an unreasonable application of Strickland.
F. Failure to Move for Mistrial Based on Prosecutor’s Summation
In his § 440 motion, petitioner contended that the prosecutor committed misconduct
during summation in the following respects: (1) vouching for Britt’s credibility; (2) asking the
jury to infer that the police had searched for a witness that Britt had identified (named “Hunt”),
when there was no evidence to support such a search; (3) vouching for the adequacy of the police
investigation; and (4) appealing to racial biases and stereotypes by asking the jury to infer why
no witnesses in that neighborhood had come forward. Trial counsel made a number of
objections during summation, most of which were sustained with instructions to disregard the
prosecutor’s statement; petitioner contended that trial counsel was ineffective for not seeking a
mistrial. In turn, in his coram nobis motion, he argued that appellate counsel was ineffective for
not raising trial counsel’s ineffectiveness on direct appeal.
Having reviewed the closing arguments in detail, I see no reasonable prospect that a
mistrial motion would or could have been granted. Petitioner’s trial counsel attacked Britt, his
horrendous criminal history, his initial obstruction with the police, and his ultimate identification

27

of petitioner with the utmost of aggressiveness. He also attacked the quality of the police
investigation. The prosecutor, in response, in no way personally vouched for Britt; all that he did
was argue the facts that would support a conclusion that Britt was credible. (For example,
petitioner, in his coram nobis motion, protested the fact that the prosecutor argued to the jury that
Britt was credible because, among other things, he “looked at you straight in the eye.”)
Petitioner’s argument to the Appellate Division in his coram nobis motion effectively advanced a
view that if the prosecutor asked the jury to draw inferences from the evidence, rather than
limiting his argument to the direct evidence itself, that was effectively urging them to put their
faith in him rather than the evidence. That of course is not the law; the prosecutor’s job is to get
the jury to draw reasonable inferences from the evidence to determine a defendant guilty beyond
a reasonable doubt. I saw nothing personal in the prosecutor’s presentation.
This is not to say that the prosecutor made no excessive statements. He did. 7 But they
were few in the context of the entire closing; they were not so prejudicial; trial counsel
immediately objected to them; and the trial court forcefully instructed the jury to disregard them.
Given the limited standard of habeas corpus review, I cannot find that the Appellate Division
unreasonably applied Strickland in concluding that trial counsel was neither objectively
unreasonable nor did petitioner suffer prejudice as a result of the lack of a mistrial motion that
would have been almost certainly denied.

7

For example, the prosecutor’s argument, apparently in another effort to counter what is known as the “CSI effect,”
that the jury could infer that no witnesses had come forward because any who had seen the shooting were afraid,
probably was too much because there was nothing in the record to support it. However, I reject petitioner’s
argument that this was an appeal to racism. The evidence showed that petitioner had shot Britt because he was a
former member of a rival gang who just happened to be in the wrong place. It is not an unfair inference that a
witness who actually posed a threat to the shooter might be at equal risk. That has nothing to do with race; whether
it is the Mafia or the Green Dragons, the possibility of gang retaliation against witnesses is not farfetched.

28

G. Failure to Preserve “Mode of Proceedings” Error
Petitioner’s final claim of ineffective assistance of appellate counsel is that his appellate
counsel on direct appeal should have raised his trial counsel’s failure to object to the alleged
mishandling of a note from the jury.
There were a total of three exhibits admitted into evidence at trial. They were not
initially sent back to the jury at the beginning of deliberations. However, the parties stipulated
on the record that if the jury requested them, the trial court could send the exhibits back without
prior notice to the parties. Specifically, the trial court asked: “If the jury asks to see any
evidence[,] do both sides consent to sending the evidence without going back on the record?”
Both sides had responded affirmatively.
After a recess, the trial court advised the parties that it had received two notes from the
jury on forms apparently provided to the jury to submit notes. The form for these notes had a
line near the bottom, above which was typed, “DO NOT WRITE BELOW THIS LINE.” On the
first note, above the line, the jury had requested to see “all three pieces of evidence.” Below the
line, an unidentified person, perhaps a juror, had written, and then scratched out, “numbers 1, 2,
and 3.”
The trial court advised the parties that in response to this note, it had sent back the three
exhibits, and that subsequently, it had received the second note, in which the jury announced that
it had reached a verdict.
In his § 440 motion, petitioner contended that his attorney should have moved for a
mistrial based on the trial court’s submission of the exhibits to the jury. In his coram nobis

29

motion, he contended that his appellate counsel was ineffective for not having raised this
ineffective assistance of trial counsel claim on direct appeal. His argument was that the parties’
stipulation only encompassed specific requests for evidence, and that the scratch out below the
line rendered the request ambiguous, obligating the trial court to clarify the jury’s request before
responding to the note.
The argument was frivolous when raised in the state courts and has even less merit here,
given the narrow standard of federal habeas corpus review. There was nothing ambiguous about
the note. “[A]ll three exhibits” could only mean the three exhibits admitted into evidence and
nothing else. The scratch below the line could only mean that someone realized that they had
written below a line that said “do not write below this line” and so they did what they could to
fix that. Strickland does not require either trial counsel or appellate counsel to take positions so
absurd that they diminish their credibility to a court, and the Appellate Division did not
unreasonably apply Strickland on coram nobis in rejecting petitioner’s claim.
H. Failure to Investigate Eyewitness Account
This is the only point that was procedurally proper in petitioner’s § 440 motion, as it
pertained to an issue outside of the trial record and thus could not have been raised on direct
appeal.
During discovery, petitioner’s counsel obtained a police report of an interview with a
potential witness whose name was redacted from the report. The police officer wrote that the
witness was walking behind an unknown black male near the time and at the location of the
incident when the unknown black male approached two other black males. She overheard the

30

approaching black male say, “I’ll hit you up tonight.”8 The witness did not know any of the
three men and did not get a good look at them, but thought one of them was “possibly” wearing
all black. The males stopped in front of 271 Parkside Avenue and the witness continued
walking. She then heard numerous shots coming from behind her and immediately sought cover.
She eventually noticed the victim crossing Flatbush Avenue, holding his waist as if he had been
hurt.
Petitioner contended that his trial counsel was ineffective for not investigating this report
because it might have led to evidence that exonerated him. At the very least, he argued, the
witness might have impeached Britt, who had not testified that the assailant had said “I’ll hit you
up,” or that one of the three men was wearing all black, and it might have suggested that there
were two shooters.
The § 440 court rejected petitioner’s argument on the merits. It assumed, arguendo, that
the witness had seen the encounter just before the shooting and that it was Britt who she
observed crossing Flatbush after the shooting, but found that (a) petitioner had failed to submit
any evidence, as required under N.Y. Crim. Proc. Law § 440.30(4)(b), to show that his counsel
had not, in fact, investigated this witness; (b) the report itself showed that the witness did not see
who had fired the shots or even whether the shots were fired by more than one person, and that
she did not get a “good look” at the person; and (c) the witness’s account was not significantly
inconsistent with Britt’s account, and, indeed, could have corroborated Britt’s trial testimony that
he had a conversation with petitioner preceding the shooting, a conversation that he had not
originally disclosed to the police but to which he testified at trial. It therefore held that:

8

This is a slang expression which means, in effect, “I’ll contact you in the near future.” See Urban Dictionary,
http://www.urbandictionary.com/define.php?term=hit%20you%20up .

31

[T]here is nothing in this account that would establish that the defendant was
prejudiced by the absence of this person as a defense witness at trial (Strickland v.
Washington, 466 U.S. 668 [1984]) or that the purported failure to attempt to
locate and speak with this witness deprived the defendant of meaningful
representation. . . .
Accordingly, even assuming trial counsel did not attempt to ascertain what this
witness actually did or did not see, such conduct does not rise to the level of
ineffective representation warranting vacating the judgment.
(internal quotation and citation omitted).
Because the § 440 court decided petitioner’s motion on the merits, my review is again
constrained by the deference required under AEDPA. Petitioner’s argument cannot thread the
double needle required first by Strickland’s narrow standard of review and then by AEDPA’s
further restriction on habeas corpus review.
First, as to objective unreasonableness of counsel, petitioner had the burden of proof to
show that his counsel had not, in fact, investigated this witness, and he offered nothing to show
that. The most he could argue was that “upon information and belief,” his counsel had not
investigated, because he could not find a request for the witness’s name in the file. As the § 440
court pointed out, the statute requires that “[i]f the motion is based on the existence or
occurrence of facts, the motion papers must contain sworn allegations therefore, whether by the
defendant or by another person or persons.” N.Y. Crim. Proc. Law § 440.10(1)(a). The record
that petitioner submitted to the § 440 court was consistent with the possibility that trial counsel
had attempted to investigate the witness but had been unable to find her; or had found her and
concluded that her testimony would be neutral; or had found her and concluded that her
testimony would be harmful. As shown below, it was also possible that, upon reviewing the
statement, trial counsel determined that nothing good for petitioner could come of this witness,
and that if the prosecution was not calling her (and it had not disclosed that it was), then he was
not going to rouse her either. Petitioner offered the § 440 court no way to know, and thus it had
32

no basis to conclude that petitioner’s trial counsel engaged in objectively unreasonable conduct.
Its conclusion therefore withstands review under AEDPA’s deferential standard.
As to Strickland’s second prong, requiring petitioner to show prejudice, he again offered
the § 440 court nothing to show what likely would have happened had his attorney investigated
this witness (assuming, arguendo, the he did not undertake such an investigation). Many cases
recognize that “a petitioner’s speculative claim about the testimony of an uncalled witness is
accorded little weight in federal habeas review.” Muhammad v. Bennett, No. 96 Civ. 8430, 1998
WL 214884, at *1 (S.D.N.Y. April 29, 1998) (citing Warren v. Brunell, No. 95-CV6565L, 1997
WL 67828, at *4 (W.D.N.Y. Feb. 11, 1997); Minor v. Henderson, 754 F. Supp. 1010, 1019
(S.D.N.Y. 1991); see also Campbell v. United States, No. 14 CV 438, 2015 WL 1062176, at *10
(S.D.N.Y. March 9, 2015); Yik Man Mui v. United States, No. 99 CV 3627, 2013 WL 6330661,
at *25 (E.D.N.Y. Dec. 5, 2013) (a petitioner raising failure to investigate witness as basis for
ineffective assistance claim “must produce evidence explaining what the witness would have
testified about and that the witness would have actually testified”).
If anything, both the police report itself and the trial record suggest that this witness could
have made things worse for petitioner. Britt testified that, prior to the shooting, he had a
conversation with petitioner. Specifically, although he did not testify that petitioner told him,
“I’ll hit you up,” he did testify that he talked to petitioner about buying marijuana, and that
shortly thereafter, petitioner then proceeded to shoot Britt.
Britt’s testimony did not contradict the witness’s statement to police. Assuming, as
petitioner does, that the individuals that witness overheard included the shooter, Britt’s testimony
corroborated the witness’s statement to the police that there were three individuals present –
himself, petitioner, and Britt’s friend Hunt. The only differences between the witness’s

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statement as told to the police and Britt’s testimony at trial were the specifics of the
conversation, and the witness’s statement that “possibly” one of the three individuals she saw
was wearing all black, whereas Britt testified that petitioner was wearing a gray hoodie. That is
far from damning impeachment. The rest of her statement would have corroborated Britt in all
material respects. There is nothing that would enable me to find that the § 440 court
unreasonably applied Strickland in finding a lack of prejudice.
CONCLUSION
The petition is denied and the case is dismissed. The Clerk is directed to enter judgment
accordingly. A certificate of appealability will not issue as the petition fails to raise any
substantial issues. The Court certifies pursuant to 28 U.S.C. § 19l5(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917 (1962).
SO ORDERED.

Digitally signed by Brian M.
Cogan
______________________________________
U.S.D.J.
Dated: Brooklyn, New York
June 15, 2016

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