Solorzano v. People of the State of New York et al

Filing 11

MEMORANDUM DECISION AND ORDER. The petition for writ of habeas corpus is denied in its entirety. The case is dismissed. A certificate of appealability will not be issued. See 28 U.S.C. § 2253(c). Ordered by Judge Ann M. Donnelly on 7/22/2019. (Greene, Donna)

FILED
IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT

5 JUL^2019 5

EASTERN DISTRICT OF NEW YORK

^

BROOKLYN OFFICE

DINO SOLORZANO,
Petitioner,
MEMORANDUM

- against-

DECISION & ORDER
THE PEOPLE OF THE STATE OF NEW

16-CV-04363(AMD)

YORK and ATTORNEY GENERAL ERIC T.

SCHNEIDERMAN,

Respondents.
X

ANN M.DONNELLY,United States District Judge:

The pro se petitioner, currently incarcerated at Otisville Correctional Facility, petitions
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 12, 2009, following a jury
trial in Queens County, New York, the petitioner was convicted of one count of Assault in the
First Degree(N.Y. Penal Law § 120.10[1]), two counts of Assault in the Second Degree(N.Y.

Penal Law §§ 120.05[1, 2]), and one count of Criminal Possession of a Weapon in the Fourth
Degree(N.Y. Penal Law § 265.01[2]). The petitioner claims he was denied due process by the
state court's resettlement of the trial record on the subject ofjury notes and whether trial counsel
had the opportunity to weigh in on the court's response. (ECF No. 1-3 at 1.) The petitioner also

asserts that his trial lawyer and his appellate counsel were ineffective. {Id.) For the reasons that
follow, the petition for a writ of habeas corpus is denied.
FACTUAL BACKGROUND^

1.

Overview

In the early morning hours of January 29,2008, the petitioner got into an argument with

' Because the petitioner was convicted, I summarize the facts in the light most favorable to the verdict.
Garbutt V. Conway, 668 F.3d 79, 80(2d Cir. 2012).
1

his father, Domingo Solorzano, and repeatedly hit him in the head and body with a baseball bat,
causing serious brain injury. The victim has not regained consciousness and is in a vegetative
state.

Uniformed police officers arrested the petitioner, but did not interview him or advise him

of his constitutional rights. (ECF No. 8-5 at 430:1-12,435:19-25.) Later that day, the assigned
detective took the petitioner from Central Booking to the 112th Precinct, and advised him of his
Miranda rights, which the petitioner waived. (Jd. at 429:23-25,435:19-25,453:2-14,454:6-

458:25.) He admitted that he hit his unarmed father in the head with a bat because he thought
that his father had abused his mother, Zenelia Solorzano. {Id. at 429:23-25, 464:22-469:7.)
The petitioner was charged with one count of Assault in the First Degree(N.Y. Penal
Law § 120.10[1]),two counts of Assault in the Second Degree(N.Y. Penal Law §§ 120.05[1,
2]), and one count of Criminal Possession of a Weapon in the Fourth Degree(N.Y. Penal Law §
265.01[2]), a misdemeanor. (ECF No. 8-8 at 920:1-926:5.)
11.

Suppression Hearing
Prior to trial, the petitioner's counsel moved to suppress his statements to detectives. On

December 2,2008, and January 13,2009, Judicial Hearing Officer Joan O'Dwyer held a

combined Huntley/Mapp/Dunaway hearing. {See ECF No. 8-3 at 2:1-3.) Detective Schettini
and Officer Kenneth Mantone testified for the prosecution. {Id. at 2:24-3:5, 29:14-19.)
Officer Mantone, a patrol officer in the 108th Precinct, learned ofthe assault around

12:00 a.m. on January 19, 2008, and went to 50-28 48th Street in Queens County. {Id. at 30:331:14.) He asked the petitioner, who was leaning against a parked car, what he was doing; the

petitioner responded,"I hit him in the head twice and in the arm twice." {Id. at 32:5-24.) Officer
Mantone arrested the petitioner, and retrieved the petitioner's bat and vouchered it. {Id. at 33:1-

8, 34:10-35:2.)

Detective Schettini was first assigned to the petitioner's case in the afternoon of January
19, 2008, when an assistant district attorney told him about the assault and informed him that the
victim might not survive. {Id. at 3:20-4:6.) The assistant district attorney asked Detective
Schettini to "enhance the case" by questioning the petitioner. {Id.) Detective Schettini and his
partner. Detective Naqvi, picked the petitiojier up from Central Booking, and took him to an
interview room in the 112th Precinct Detective Squad. {Id. at 4:25-5:15, 6:12-19.) Detective
Schettini,joined by Detective Wilkowski from the Queens Homicide Squad, advised the

petitioner of his constitutional rights from a form; the petitioner said that he understood his rights

and agreed to answer questions. {Id. at 6:20-9:17.)^ Detectives Schettini and Wilkowski asked
him questions, wrote down each question, and the petitioner wrote out his answers. {Id. at 24:1025:5.) The petitioner also wrote a statement in which he admitted that he hit his father in the
head v^th a bat because he believed his father was abusing his mother. {Id. at 9:15-20,11:1113:23,21:4-24:6.)

The petitioner's lawyer cross-examined Detective Schettini about the petitioner's
statements that he "spoke to the police because [he] knew [they would] help [him], where no one
else would" and that he did not"have an attorney, nor did [he] ask to have one." {Id. at 13:2414:11.) Counsel established that Detective Schetteni did not know if the petitioner had requested
an attorney, spoken to an attorney, or had been advised of his rights before the detective picked
him up from Central Booking. {Id. at 15:12-16:6.)
The petitioner's lawyer asked the court to suppress the petitioner's statements to the

detectives, arguing that the police delayed the petitioner's arraignment when they took him from

^ The petitioner initialed each question and answer, and signed the Miranda form. {Id. at 7:12-23, 8:89:17,20:3-25.)

Central Booking to the precinct to take a statement from him, which counsel claimed violated the

petitioner's right to counsel. {Id. at 49:6-20.) The judge denied the petitioner's motion to
suppress. See People v. Solorzano, 94 A.D.3d 1153, 1154(2d Dep't 2012).
III.

The Trial

a. The Prosecution's Case

The prosecution called nine witnesses: Karla Solorzano, Sylvia Solorzano, Chris Catter,

Officer Mantone, Officer Jason Wolf, Detective Schettini, Minerva Sanchez, Dr. Hang Byun,
and EMT Elis Joseph. The prosecution established the following facts.
On the evening of January 18, 2008,the petitioner was with Chris Catter and Edwin

Clavigo near his house in Queens, New York.^ (ECF No. 8-5 at 384:23-385:25.) At one point,
the petitioner's parents, Domingo and Zenalia Solorzano, left their house {Id. at 387:1-389:7),
and retumed about a half hour later; Mrs. Solorzano was now limping and holding on to her

husband. {Id. at 389:23-390:2, 391:5-25.) The petitioner walked over and demanded,"What did

you do to her?" {Id. at 392:12-24.) He argued with his father, retumed to his friends, and told
them that his father hit his mother and "prostituted" her. {Id. at 393:8-394:3.) The petitioner
then went back to his house. {Id. at 394:11-13, 395:9-15.)
Meanwhile, his sister, Karla, and her partner, Minerva Sanchez, were in the basement

apartment ofthe Solorzanos' house. {Id. at 489:20-21,494:6-15.) They heard yelling from the
first floor. {Id. at 495:15-496:2.) Sanchez heard the petitioner yell,"I have a gun. Do you want

to see my gun? I'm going to blast you." {Id. at 496:5-9.) Karla went upstairs while Sanchez
waited in their apartment. {Id. at 497:2-10.) The petitioner yelled that Domingo Solorzano was

^ The petitioner lived with his parents in their home.(ECF No. 8-4 at 278:18-280:14.) The petitioner's
sister Karla Solorzano lived in the basement apartment with Minerva Sanchez, and another sister, Sylvia
Solorzano lived across the street. {Id.)

"beating up,""raping," and "prostituting" their mother. (ECF No. 8-4 at 288:16-25.) Mr.

Solorzano ordered the petitioner to leave the house, but the petitioner went into his parents'
room, retrieved a bat, and repeatedly hit his father on the head and arms until the older man
collapsed, (/c?. at 289:11-294:25.)

Sanchez heard Karla scream "at the top of her lungs," and ran upstairs, calling 911 on the
way up. (ECF No. 8-5 at 497:12-17,498:2-4.) The petitioner walked past her on his way out of
the house. (Jd. at 498:2-10.) Karla was screaming, and Domingo Solorzano was on the floor;
"blood [was] dripping down" a "huge gash" on his head. {Id. at 500:4-501:4.) Chris Catter
heard a scream, looked through the door, and saw Domingo Solorzano lying on the floor. {Id. at

395:15-20.) The petitioner told Catter that he thought he killed his father with a bat, but that "it
was self-defense" because his father was hitting his mother. {Id. at 396:12-21.) The petitioner

did not mention that his father had a weapon. {Id. at 396:20-397:1, 408:24-409:1.) At one point,
the petitioner tried to come back inside, but Karla pushed back on the door, and he went back
outside. {Id. at 502:1-503:25.) The petitioner's mother was on the kitchen floor; she had a
bruise on her face and was slurring her words. {Id. at 505:18-506:18.)

Shortly thereafter. Officer Kenneth Mantone and his partner Officer Jason Wolf

responded to Sanchez's 911 call, and saw the petitioner leaning on a parked car in front ofthe
house. {Id. at 413:23-415:13.) The petitioner, who did not appear to be injured, mumbled that
his father was "pimping" his mother, and said,"I hit him twice in the arm and twice in the head."
{Id. at 416:12-20.) The officers handcuffed the petitioner, and put him in the police car. {Id. at
416:21-417:15.)

Meanwhile, Sanchez went across the street, and told Sylvia Solorzano, the petitioner's

other sister, that her father was hurt. {Id. at 356:16-20.) Sylvia saw her brother in handcuffs, and

yelled,"What the T'did you do?"{Id. at 357:2-6.) The petitioner responded,"Daddy was
prostituting mommy." {Id. at 357:7-9.) Sylvia walked in the house and saw her father
"vomiting" and "bleeding from his head profusely." {Id. at 359:17-25.) Her mother had "an old

green bruise on her cheek," which Sylvia had seen earlier that day. {Id. at 362:21-363:7.)
When other officers arrived. Officers Mantone and Wolf went into the house and found a

"chaotic scene." {Id. at 441:14-19.) Mr. Solorzano was "bleeding profusely" from his head, and
his daughters were trying to stop the bleeding. {Id. at 441:6-19.) The petitioner's mother was
"unsteady on her feet" and had watery, bloodshot eyes and alcohol on her breath. {Id. at 442:1621.) She was getting in the way ofthe paramedics, so Officer Wolftook her to another room.
{Id. at 443:11-444:5.)

Later that day, an assistant district attorney asked Detective Schettini to investigate the

assault. {Id. at 450:12-15.) At around 6:00 p.m., he and Detective Naqvi took the petitioner to

the 112th Precinct. {Id. at 451:6-453:3.) After the detective"* advised the petitioner of his
constitutional rights, the petitioner wrote out a three-page statement in which he described his
suspicion that his father was beating his mother. {Id. at 457:10-464:25.) He wrote that he "grew
confused over the last two years not knowing who is bothering her. Possibly bums or street

people, and how finally seeing her on the floor with a mark,[he] decided [to] call [his] sister to
call cops, but then [he] felt on her face ...threatened and blanked out." {Id. at 466:19-24.) The
petitioner "got thinking" that Mr. Solorzano "could hurt[him] or [his mother]. So,[he] got a bat
and one source of abuse would realize that pain is not pleasant, [^/c] He is 250 pounds. My

mom is 115 pounds." {Id. at 466:25-467:6.) The petitioner. Detective Wilkowski, and Detective
Schettini signed the statement. {Id. at 467:7-9.)

Detective Wilkowski was also in the room.

Detective Schettini then wrote out a series of questions to which the petitioner wrote out
answers:

Question: Did you see your father hit your mother today?
Answer: I saw a mark that wasn't present jfive minutes and when him [j/c] trying to
covering it up.

Question: Do you remember how many times you hit your father with a bat?
Answer: I hit him in the arm, and then he tried getting the bat. So,I hit him and I hit his
head once. He fell and hit his head on the tile.

Question: Where did you get the bat from.
Answer: I found it—I found it in a near hallway.

Question: What was your father doing when you approached him with the bat?
Answer: He was ready to get a weapon or maybe throw something at me. He was
standing.

Question: Did you see your father with a weapon?
Answer: No,I didn't.

{Id. at 467:21-468:16.)
Dr. Hang Byun,a neurosurgeon, treated Domingo Solorzano at Elmhurst General

Hospital; Mr. Solorzano's skull and eye socket were fractured, and there were multiple blood

clots in his brain. (ECF No. 8-6 at 543:16-24.)^ He had brain surgery to remove the clots, and
additional surgeries over the next few months. {Id. at 546:20-551:6.) At the time ofthe trial in
2009, Mr. Solorzano was in a "vegetative state." {Id. at 552:8-12.)

b. The Defense Case

Zenelia Solorzano and the petitioner testified for the defense.
Mrs. Solorzano testified that in the years leading up to January 19, 2008, Mr. Solorzano
was drinking heavily and frequently subjected her to "sexual abuse." {Id. at 584:2-585:4. 588:6-

^ Counsel established on cross-examination that Mr. Solorzano had a blood alcohol content of.16 when

he was admitted to the hospital. {Id. at 556:2-18.)
7

14.)^ On January 19, Mr. Solorzano demanded sex from Mrs. Solorzano, and raped her when
she refused. (Jd. at 590:6-19, 589:20-591:13.) The two started drinking, and eventually left the
house to buy more beer. {Id. at 592:9-12.) As they headed home, Mr. Solorzano accidentally
stepped on his wife's foot, and she started limping. {Id. at 592:13-593:14.) The petitioner saw
that his mother seemed to be in pain and could not"walk right"(ECF No. 8-7 at 736:8-10), and
confronted his father, who "didn't even care in the slightest bit." {Id. at 738:6-9.) The
petitioner's mother told him to go with his friends, so he left. (ECF No. 8-6 at 594:25-595:5.)
Mrs. Solorzano testified that her husband continued to drink, and when she asked him to

stop, he elbowed her in the face, and she fell to the floor. {Id. at 595:9-596:25.) At that point,
the petitioner walked into the house, and saw his mother on the kitchen floor with a "big mark on
her face," and his father laughing. (ECF No. 8-7 at 740:2-19.) The petitioner called to his sister
Karla, and told her to call the police because "Daddy's hitting mommy." {Id. at 741:14-742:6.)

He helped his mother up, and asked his father what he had done. {Id. at 597:1-13.) The
petitioner's father responded with "vulgar" language, told the petitioner to "[g]et out of here,"

and threatened to kill him. {Id. at 597:16-22.) The petitioner "got scared," and thought his father
"was going to go get something," so he retrieved a baseball bat from his parents' room, and
returned to the kitchen. (ECF No. 8-7 at 743:16-18.)

Mrs. Solorzano and the petitioner gave different descriptions of what happened next.
Mrs. Solorzano claimed that Mr. Solorzano grabbed a large, kitchen knife, and started waving it

at her, threatening to "kill anyone." (ECF No. 8-6 at 597:23-599:20.) According to Mrs.
Solorzano, her husband threw the knife at the petitioner, who "blocked it." {Id. at 605:22-606:1.)

Mr. Solorzano tried to grab at the bat, and he and the petitioner struggled "like two wild

^ At the time ofthe assault, Mr. Solorzano had been unemployed for three months. {Id.)
8

animals." {Id. at 606:9-25.)

The petitioner did not see a knife, but"was so scared [he] felt like something was thrown
at [him]." (Tr. 744:13-15.) He felt his father's "big energy come at" him so he swung the bat.
(Tr. 744:18-19.) Mrs. Solorzano tumed to put the knife away, and when she turned back, her

husband was on the floor, bleeding from his head. (Tr. 606:9-25, 615:24-616:9.)
The petitioner claimed not to remember the details of what happened next, or much of his
interactions with the police. (Tr. 744:20-746:18, 752:21-753:1.) He acknowledged writing a
statement later that day, but said that he was "in shock." (Tr. 747:3-749:23.)
The EMTs took Mr. Solorzano to the hospital, and Mrs. Solorzano and one of her

daughters went by taxi. She wrote out a brief statement because, even though she "didn't have
the mind"to do so, a detective insisted. (Tr. 609:3-610:3, 704:4-16.) She wrote,"Never has my
husband, Domingo, hit me," and that she "believe[d] that [her] son ... needs to be evaluated to

see if he is using any drugs." (Tr. 629:8-22, 630:23-631:20.)^ Mrs. Solorzano did not tell the
police, the EMTs,the assistant district attorney, or the grand jury that her husband threw a knife

or that he had sexually assaulted her. (Tr. 626:2-19, 638:12-20.)^ In fact, Mrs. Solorzano told
the grand jurors that she never saw her husband with a weapon,testimony she characterized as a
"mistake" at trial. (Tr. 654:2-20, 710:3-20.)
Mrs. Solorzano testified that she was "divided" between her husband and son, and would

"give [her] life" to have her husband healthy and her son out ofjail. (Tr. 608:11-12.)

' Solorzano claims that her daughter Karia directed her to include this statement. (Tr. 630:23Mrs.
631:20.)

^ She testified that she did not mention these details because no one asked her about them. (See Tr.
641:3-654:20.)

c. Jury Deliberations and Verdict

Judge Lewis charged the jury on March 11, 2009. The jury sent three notes on the first
day of deliberations. The jury requested "all ofthe exhibits in evidence," which the court

provided. (Tr. 946:5-10.) In a second note, they asked for "the charges in writing," which Judge

Lewis told the jury they could not have. (Tr. 946:11-15.)^ The third note asked for "the
elements ofthe charges again." (Tr. 946:16-17.) Judge Lewis re-read the elements ofthe
charges to the jury. (Tr. 946:18-960:7.) While the record does not reflect that Judge Lewis
discussed the notes with counsel, neither lawyer objected to the way the judge handled the notes,

nor did they claim not to have seen the notes before Judge Lewis responded to them. The next
day, March 12, 2009,the jury found the petitioner guilty of Assault in the First Degree,two
counts of Assault in the Second Degree, and Criminal Possession ofa Weapon in the Fourth
Degree. (Tr. 964:16-967:8.)
d. Sentence

On May 21,2009, Judge Lewis sentenced the petitioner to concurrent determinate prison

terms of 12 years on the first degree assault,6 years on each ofthe second degree assaults, and 1

year on the misdemeanor weapons possession count; he also imposed concurrent five-year terms
of post-release supervision on the three assault counts.(EOF No. 8-8 at Tr. 21:5-24.)

PROCEDURAL HISTORY

I.

Direct Appeal and Resettlement of the Record

The petitioner, represented by counsel, appealed his conviction to the Appellate Division,
Second Department. {See EOF No.8 at 1-34.) The petitioner claimed that his written statement

'
Under New York law, a court cannot provide jurors with a written copy ofthe charge unless both sides
consent.

10

was involuntary and should have been suppressed because the detective questioned him "more
than 18 hours after his arrest, for the express purpose of'enhancing' the prosecution's case." He
also argued that the trial judge responded to the jury's notes without giving counsel the
opportunity to respond, in violation ofPeople v. O'Rama,78 N.Y. 2d 270(1991). (Id. at 22, 27.)
On July 5,2011,the prosecution asked the court to hold the appeal in abeyance so that

the trial judge could consider the prosecution's motion to resettle the record on the question of
the judge's handling ofthe jury's notes. (ECF No. 8-1 at 113.) As part oftheir application to

Judge Lewis,the prosecution included an affirmation from the trial assistant district attorney, in
which he described his specific recollection of seeing the notes and discussing them with Judge
Lewis and counsel before Judge Lewis responded to them. In addition, the petitioner's trial
lawyer submitted the following affirmation:

I've read the provided transcript sections. Although I don't specifically recall our
conversation, it would seem unlikely that we hadn't discussed the note and the
Court's response prior thereto, especially given our high level ofcommunication
during trial and my policy of reading and commenting thereupon prior to the
Court's response.

(ECF No. 8-1 at 102-03.) Finally, Judge Lewis' court clerk affirmed that the judge's "custom

and practice" in the 19 years she had worked with him was to show "all jury notes to the
attorneys and invit[e] discussion" before he responded to the jury's questions. (Id.)
Judge Lewis granted the State's motion to resettle the record "to the extent that the record
reflects that the attorneys were shown the notes from the jury, but not any specific dialogue"

among the court and the attorneys. (ECF No. 8-1 at 100-03.) Citing the prosecutor's
recollection and the statements of defense counsel and the court clerk. Judge Lewis found that

resettlement was "appropriate in order to conform the record to the truth." (Id. at 102-03.)

The prosecution then filed its response, in which it based its arguments on the resettled

11

record. The petitioner's appellate lawyer moved to strike all references to the resettlement order,

arguing that the resettlement motion was untimely, and that resettlement was not appropriate
under the circumstances. (ECF No. 8 at 58-76.)

On April 24, 2012,the Appellate Division unanimously affirmed the petitioner's
conviction. People v. Solorzano, 94 A.D.3d 1154(2d Dep't 2012.) The Appellate Division
rejected the petitioner's argument that his statements should have been suppressed, concluding

that the petitioner's right to counsel had not attached, and there was no evidence that the delay in
arraignment was designed to deprive the petitioner of his right to counsel. (ECF No. 8-1 at 3-4.)
The court also rejected the petitioner's argument about the trial court's response to the jury's
notes as "unpreserved" citing People v. Starling, 85 N.Y.3d 509, 516(1995)(complaint about a
jury note is "unpreserved and unreviewable" where trial counsel failed to lodge a

contemporaneous objection). {Id. at 4.) The Appellate Division also denied the motion to strike
the portions ofthe prosecution's brief that referenced the resettlement order. {Id.)
The petitioner's application for leave to appeal to the Court of Appeals was denied on
August 8,2012. People v. Solorzano, 19 N.Y.3d 1001 (2012).
IL

Writ of Error Coram Nobis

The petitioner filed pro se a motion for a writ of error coram nobis, arguing that his

appellate counsel was ineffective. {See ECF No. 8-1 at 24.) The Appellate Division denied the
petitioner's motion on October 30,2013,finding that the petitioner "failed to establish that he
was denied the effective assistance of appellate counsel." People v. Solorzano, 110 A.D.3d 1107

(2d Dep't 2013). On January 17, 2014,the Court of Appeals denied the petitioner's pro se
motion for leave to appeal. People v. Solorzano,22 N.Y.3d 1091 (2014).

12

III.

440.10 Motion

The petitioner moved before Judge Lewis to set aside his conviction pursuant to C.P.L.
§ 440.10, arguing that his trial counsel was ineffective, and that Judge Lewis should not have
granted the prosecution's motion to resettle the record without a hearing. (ECF No. 8-1 at 7082.) The petitioner claimed he had new evidence in the form of a letter from his trial attorney
stating that he did not have a specific recollection of a discussion about the jury notes. (ECF No.

8-1 at 68-69.) The petitioner also argued that his statements should have been suppressed
because they were taken in violation of his constitutional rights. {Id. at 83-86.)
In a written decision dated January 15,2016, and issued nuncpro tune to December 8,
2015, Judge Lewis denied the motion. (ECF No. 8-1 at 160-64.) Judge Lewis found that the

petitioner failed to establish that his trial counsel was ineffective; the court held that counsel
"clearly demonstrated that he was familiar with and able to employ the basic princip[les] of
criminal law and procedure," and in any event, the alleged errors were not so serious that they

constituted a violation ofthe right to counsel, or that the petitioner was prejudiced "in light ofthe

overwhelming evidence against him."{Id. 162.) The court rejected the petitioner's suppression
claim because evidence about the claim was "all on the record" and could have been raised on

direct appeal. {Id. at 163.) Judge Lewis also rejected the petitioner's challenge to the
resettlement order because the Appellate Division had already decided the issue. {Id.)
The Appellate Division denied the petitioner's application for leave to appeal on March
11, 2016. (ECF No.8-2 at 6.) On June 8,2016,the Court of Appeals denied the petitioner's

application for leave to appeal. (ECF No.8-2 at 7.)
IV.

Habeas Petition

The petitioner claims that his trial and appellate lawyers were ineffective, and that the

13

trial court's resettlement decision denied him due process.
LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996("AEDPA")requires a
federal court reviewing a state prisoner's habeas petition to give deference to a state court's
decision on the merits. 28 U.S.C. § 2254(a). The federal court may not issue a writ of habeas

corpus unless the state court's decision was "contrary to, or involved an unreasonable application
of, clearly established Federal law" or 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 also
Johnson v. Williams, 568 U.S. 289,292(2013); Chrysler v. Guiney, 806 F.3d 104, 116-17(2d
Cir. 2015).

For the purposes offederal habeas review,"clearly established law" means "the holdings,
as opposed to the dicta, of[the Supreme] Court's decisions as ofthe time ofthe relevant statecourt decision." Williams v. Taylor, 529 U.S. 362,412(2000). A state court decision is
"contrary to" or an "unreasonable application of clearly established law ifthe decision: (1)is
contrary to Supreme Court precedent on a question oflaw;(2)arrives at a conclusion different

than that reached by the Supreme Court on "materially indistinguishable" facts; or(3)identifies
the correct governing legal rule but unreasonably applies it to the facts ofthe petitioner's case.
Id. at 412-13, The court reviews the last reasoned state court decision. Ylst v. Nunnemaker, 501

U.S. 797,804(1991);

Stinson, 229F.3d 112,118(2d Cir. 2000). The state court's

factual determinations are presumed to be correct, and the petitioner bears the burden of
rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A petitioner can seek federal habeas corpus relief only after he exhausts state court
remedies, and gives the state courts a fair and full opportunity to review the merits of the

14

claim. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838,842(1999). In other
words, a petitioner must present "the essential factual and legal premises of his federal

constitutional claim to the highest state court capable ofreviewing it." Jackson v. Conway,763
F.3d 115,133(2d Cir. 2014)(quoting Rosa v. McCray,396 F.3d 210,217(2d Cir. 2005)).
DISCUSSION

L

Evidentiary Hearings

The petitioner argues that he was denied due process when Judge Lewis granted the
prosecution's motion to resettle the record without a hearing. (ECF No. 1 at 7; ECF No. 1-3 at

14-16.) He also claims that he was entitled to an evidentiary hearing on his C.P.L. § 440.10
claim that he had newly discovered evidence on the resettlement issue. (ECF No. 1-3 at 18,24.)
These claims are not cognizable in a federal habeas proceeding. Corchado v. Rabideau,

576 F, Supp. 2d 433,443(W.D.N.Y. 2008)("[F]ederal habeas relief is not available to redress
alleged procedural errors in state post-conviction proceedings."(internal quotation marks and
citations omitted)). The petitioner does not cite, and the Court has not found, any federal case
that requires a state court to conduct an evidentiary hearing when a party requests resettlement of

the record. See Ciochenda v. Artus, No.06-CV-5057, 2009 WL 1026018, at *6(S.D.N.Y. Apr.
9, 2009).

Nor does the state court's decision not to hold an evidentiary hearing on the petitioner's
440.10 motion warrant habeas relief. Under New York's Criminal Procedure Law,state courts

may deny a C.P.L. § 440.10 motion on the merits without a hearing if"[t]he moving papers do
not allege any ground constituting legal basis for the motion." C.P.L. § 440.30(4)(a). "Whether

or not to hold a hearing on a motion to vacate judgment upon the ground of newly discovered
evidence is discretionary with the court to which the motion is addressed." People v.

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Crimmins, 343 N.E.2d 719(N.Y. Ct. App. 1975), overruled on other grounds by People v.

Jones, 26 N.E.3d 754(N.Y. Ct. App. 2014)(citations omitted). A hearing is not required "where
the court is able to reach its conclusion on the papers alone," because to do so "would serve no

end ofjustice but would only protract futile litigation." Id. (citations omitted). In this case,
Judge Lewis reached a determination on the papers alone, which "was proper under New York
State law, and did not did not violate clearly established Supreme Court precedent or Federal
law." Rustici v. Philips,497 F. Supp. 2d 452,469(E.D.N.Y. 2007), aff'd sub nom. Rustici v.
Phillips, 308 F. App'x 467(2d Cir. 2009).
II.

Resettlement of the Record

The petitioner also challenges the way Judge Lewis addressed the jury's notes, and
argues that his decision to resettle the record violated his constitutional rights. (ECF No. 1 at 67; ECF No. 1-3 at 14-16, 21.)

The petitioner's claim about Judge Lewis' response to the jury's notes is procedurally
barred; because his attorney registered no objections to the procedure, the Appellate Division
held that the petitioner's argument was "unpreserved." See Butler v. Cunningham,313 F. App'x
400,401 (2d Cir. 2009)("The New York court's finding that [the petitioner]'s claim
was unpreserved for appellate review is an independent and adequate state ground that bars a
federal court from granting habeas relief."); Williams v. Artus,691 F. Supp. 2d 515, 524
(S.D.N.Y. 2010)("The Court of Appeals for the Second Circuit has acknowledged that New

York's contemporaneous objection rule ...is a firmly established, independent, and adequate
state ground that bars habeas review ofthe merits of a constitutional claim."). Nor has the

petitioner shown "cause for the default and actual prejudice as a result ofthe alleged violation of
federal law, or demonstrate[d] that failure to consider the claims will result in a fundamental

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miscarriage ofjustice." Azaz v. Artus, No. 09-CV-3857,2011 WL 9368971, at *8(E.D.N.Y.
Nov. 2, 2011), report and recommendation adopted. No.09-CV-03857,2012 WL 5289519
(E.D.N.Y. Oct. 19, 2012);

also Powell v. Graham,No. lO-CV-1961,2013 WL 37565, at *8

(E.D.N.Y. Jan. 3, 2013)(same); Severino v. Phillips, No.05-CV-475,2008 WL 4067421, at *8
(S.D.N.Y. Aug. 25,2008)(same).
Moreover, the petitioner's claims are premised on alleged violation of New York's
laws—^the handling ofthe jury's notes pursuant to C.P.L. § 310.30 and whether to grant a motion

to resettle the record. "[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(1991);see
also Cornado v. Bellnier, No. lO-CV-5265,2012 WL 6644637, at *5-6(S.D.N.Y. Sept. 20,

2012)
("A claim premised on a violation of[C.P.L. §] 310.30 does not allege a violation ofa
federally protected right."). Accordingly, the plaintiffs claim is not cognizable upon federal
habeas review. In any event, the trial judge's factual determination—^that the prosecutor's
affirmation and the statements of defense counsel and the court clerk provided sufficient reason

to resettle the record—is presumed to be correct, and the petitioner has not satisfied his burden of
rebutting that presumption by clear and convincing evidence. See Williams v. Artus, No.05-CV2479, 2006 WL 3694549, at *6(E.D.N.Y. Dec. 13,2006)(rejecting claim that trial court erred

by resettling the record without conducting an evidentiary hearing because petitioner failed to
rebut presumption of correctness with clear and convincing evidence).
III.

Ineffective Assistance of Trial Counsel

The petitioner argues that his trial lawyer was ineffective in two respects:(1)by failing to
argue that the detectives advised him of his rights only after securing a confession, in violation of
Miranda v. Arizona, 384 U.S. 436(1966)and Missouri v. Seibert, 542 U.S. 600(2004), and(2)

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by not objecting to what the petitioner claims were errors in the trial court's response to the
jury's notes. (ECF No. 1 at 8; ECF No. 1-3 at 32.)

The petitioner raised both of these claims in his § 440.10 motion. (ECF No. 9-3 at 11832.) Judge Lewis rejected his claims about counsel's failure to make certain arguments at the
suppression hearing and to object to the court's response to the jury's note since sufficient facts

appeared on the record so that the issues could have been raised on direct appeal. (ECF No. 8-1
at 162-63.) The court held that the petitioner could have raised these claims on direct appeal,
"but unjustifiably failed to do so." {Id. at 163.) Thus,these claims are procedurally barred from

habeas review. Yampierre v. Phillips, No.05-CV-2249, 2010 WL 744526, at *5(E.D.N.Y. Mar.

1, 2010)("§ 440.10(2)(c) is a 'firmly established eind regularly followed' state procedural rule
that can serve as an adequate bar to merits review of a claim of ineffective assistance of trial

counsel."(internal quotation marks and citation omitted)).
Citing Strickland v. Washington, 466 U.S. 668 (1984), Judge Lewis rejected the

petitioner's ineffective assistance claim, finding that trial counsel "clearly demonstrated that he
was familiar with and able to employ all the basic princip[les] of criminal law and procedure."
(ECF No. 8-1 at 162.) Moreover,the court held that the petitioner failed to show that the alleged
errors were so serious that the petitioner was denied his Sixth Amendment right to counsel, or

that there was prejudice "in light ofthe overwhelming evidence against him." {Id.)
In order to prevail in this Court, the petitioner must show that Judge Lewis' decision was
"contrary to, or involved an unreasonable application of, clearly established Federal law," or was
"based on an unreasonable determination ofthe facts in light ofthe evidence presented in the

State court proceeding." 28 U.S.C. § 2254(d).

Strickland V. Washington governs claims of ineffective assistance ofcoimsel. The

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Supreme Court has advised that the relevant inquiry—^whether the state court's determination

that counsel rendered effective assistance was an unreasonable application ofclearly established
law—is "different from asking whether defense counsel's performance fell below Strickland's
standard," Harrington^ 562 U.S. at 101. A state court must be granted a "deference and latitude
that are not in operation when the case involves a review under the Strickland standard itself."

Id. A federal court"must determine what arguments or theories supported, or ... could have
supported,the state court's decision," and must then determine "whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
decision" ofthe Supreme Court. Id. at 102. The standard was "meant" to be an exacting one; a
state habeas petitioner must demonstrate that the state court's decision was "so lacking in
justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement." Id. at 102-03.
Ofcourse, the Strickland standard is high, and requires that a petitioner challenging his
attorney's performance overcome the "strong presumption" that counsel's performance fell

within "the wide range of reasonable professional assistance." Strickland,466 U.S. at 689.
Because a claim ofineffective assistance "can fimction as a way to escape rules of waiver and

forfeiture and raise issues not presented at trial,...the Strickland standard must be applied with
scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity ofthe very adversary
process the right to counsel is meant to serve." Harrington, 562 U.S. at 105 (citations omitted).

Thus,an evaluation of counsel's performance is "highly deferential," and the court"must
indulge a strong presumption that counsel's conduct falls within the wide range ofreasonable

professional assistance." Strickland,466 U.S. at 689. The relevant inquiry focuses "on the
fiindamental fairness ofthe proceeding whose result is being challenged." Id. at 696. The

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"central concern is not with grading counsel's performance but with discerning whether, despite
the strong presumption of reliability, the result of the particular proceeding is unreliable because
of a breakdown in the adversarial process that our system counts on to produce just
results." United States v. Aguirre, 912 F.2d 555, 560(2d Cir. 1990)(internal quotations and
citation omitted).

Under Strickland^ the petitioner must establish that his counsel's performance was "so
deficient that,'in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.'" Gonzalez v. United States^ 722 F.3d 118,
130(2d Cir. 2013)(quoting Strickland,466 U.S. at 690). A habeas court must "strongly

presume that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment, a presumption that is overcome only through a
showing that counsel failed to act reasonably considering all of the circumstances." Jackson,
162> F.3d at 152(internal quotation marks and citations omitted).

The petitioner must also establish that his counsel's "deficient performance prejudiced
the defense" such that "there is a reasonable probability that, but for counsel's unprofessional
errors, the result ofthe proceeding would have been different." Strickland, 466 U.S. at 687,694.
"A reasonable probability is one that is sufficient to undermine confidence in the outcome, which

requires a substantial, notjust conceivable, likelihood of a different result." Jackson,763 F.3d at
153(intemal quotation marks and citation omitted). "Counsel's errors must be 'so serious as to

deprive the defendant ofa fair trial, a trial whose result is reliable.'" Harrington v. Richter, 562
U.S. 86,104(2011).

a. First Strickland Prong: Reasonableness
The petitioner has not established that his trial counsel's representation fell below an

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objective standard of reasonableness. As Judge Lewis noted, the petitioner's lawyer
demonstrated at trial that "he was familiar with and able to employ all the basic princip[les] of
criminal law and procedure." (ECF No. 8-1 at 162.) Indeed, a review ofthe trial record
demonstrates that counsel was a zealous advocate who pursued a reasonable, if ultimately
unsuccessful, strategy.

Counsel's arguments at the suppression hearing—that detectives delayed his arraignment
to violate his right to counsel—^were reasonable under the circumstances ofthe case. Contrary to

the petitioner's claims, there was no evidence that the detectives waited to advise the petitioner
of his right until after he confessed. Because the record does not support a Seibert Claim,
counsel could not have been ineffective for failing to make one. See, e.g., Duncan v.

Fischer, 410 F. Supp. 2d 101,110(E.D.N.Y. 2006){Missouri v. Seibert is not applicable where
"[tjhere is no indication that the police ... adopted any strategy to avoid Miranda^).
Equally unavailing is the petitioner's argument that his counsel was ineffective because
he did not object to the claimed "mode of proceeding error"—^the judge's response to the jury's
note. "New York courts find a mode of proceedings error in this situation only where counsel is

not given meaningful notice and an opportunity to object." Pitre v. Griffin, No. 16-CV-6258,
2016 WL 7442653, at *6(E.D.N.Y. Dec. 26, 2016). The record, as resettled by the trial judge,
establishes that there was no error, and that Judge Lewis discussed the jury notes with the parties

before responding to the jury. Since there was no error, counsel could not have been ineffective
for failing to object on that basis.
b. Second Strickland Prong: Prejudice

Even if counsel had been ineffective, there was no prejudice. The evidence against the

petitioner was powerful: witnesses saw him attack his unarmed father, an attack he admitted to

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the police, and which the jury found was notjustified. There is no probability that the jury
would have acquitted the petitioner had his lawyer utilized a different strategy.
***

Accordingly, Judge Lewis' decision was neither contrary to nor an unreasonable

application of clearly established Supreme Court law. The petitioner's request for habeas relief
on this basis is therefore denied.

IV.

Ineffective Assistance of Appellate Counsel

The petitioner also faults his appellate lawyer for mishanding the resettlement claim; the
petitioner says counsel should have argued that detectives denied the petitioner his right to
counsel. (ECF No. 1 at 9-10; ECF No. 1-3 at 33-37.)

The petitioner made the same claims to the Appellate Division in a motion for writ of
error corum nobis. The Appellate Division denied the motion on the merits, finding that the

petitioner "failed to establish that he was denied the effective assistance ofappellate counsel."
People V. Solorzano, 110 A.D.3d 1107(2d Dep't 2013)(citing Jones v. Barnes,463 U.S. 745
(1983);People v. Stultz, 2 N.Y.3d 277(2004)). Thus,in this proceeding,the petitioner must
show that the Appellate Division's decision was "contrary to, or involved an unreasonable

application of, clearly established Federal law" or was "based on an unreasonable determination
ofthe facts in light ofthe evidence presented in the State court proceeding." 28 U.S.C.
§ 2254(d).

a. First Strickland Prong: Reasonableness
I

Resettlement ofthe Record

The petitioner argues that appellate counsel "acted egregiously when he failed to object
to the untimeliness ofthe prosecution's CPLR 5525 motion;" he asserts that his appellate lawyer
agreed to the State's request for a C.P.L.R. § 5525 resettlement of the record, and permitted the
22

prosecution to circumvent the proper appellate procedure. (ECF No. 1 at 9-10; ECF No. 1-3 at
35.) He says that counsel should have demanded an evidentiary hearing on the resettlement
motion. (ECF No. 1-3 at 37.)

In fact, appellate counsel did object to the resettlement motion, both before Judge Lewis
and in the Appellate Division. Counsel eirgued that resettlement was not appropriate imder the
circumstances, that the trial court was not the appropriate court for the motion, and urged the
Appellate Division to strike the portion ofthe State's brief that was based on the resettled record.

Counsel also moved for leave to appeal the Appellate Division's denial of his motion to strike.
Finally, appellate counsel cannot be faulted for the court's decision to grant the motion without a
hearing.

a.

Right to Counsel

The petitioner also argues that his appellate counsel should have argued that the
detectives questioned him after his right to counsel attached. (ECF No. 1-3 at 33-34.) This
argument is meritless.
In New York,"the right to counsel attaches, of course, once the criminal action has been

commenced ... or earlier if there has been significantjudicial activity." People v. Samuels^ 49

N.Y.2d 218,221 (1980). The filing of a felony complaint commences a criminal action. Id. The

petitioner argues that the felony complaint was filed before he made his written statements, but
the record does not include any evidence to support that claim. Appellate counsel could not have

been ineffective for failing to make that argument. Claudio v. Scully, 982 F.2d 798,803(2d Cir.
1993)(applying Strickland to ineffective assistance of appellate coimsel claims).
What counsel did argue was that the police deliberately delayed the petitioner's

arraignment to take a statement fi-om him, which can in certain circumstances violate New

York's right to counsel rules. The Appellate Division rejected the petitioner's arguments,
23

finding that the petitioner's right to counsel had not attached, and there was no evidence that the

delay was designed to deprive the petitioner of his right to counsel and obtain an involuntary
confession.

b. Second Strickland Prong: Prejudice
Because counsel was not ineffective, there was no prejudice. Accordingly, the Appellate
Division's decision was neither contrary to nor an unreasonable application of clearly established

Supreme Court law. The petitioner's request for habeas relief on this basis is therefore denied.
CONCLUSION

The petition for writ of habeas corpus is denied in its entirety. The case is dismissed. A
certificate of appealability will not be issued. See 28 U.S.C. § 2253(c).

SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
July 22,2019

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