Boyd v. Saunders

Filing 13

MEMORANDUM AND ORDER, For the foregoing reasons, the petition is denied.Because petitioner has not made a substantial showing of the denial of any constitutional right, no certificate of appealability will be issued. 28 U.S.C. § 2253(c); see Sla ck v. McDanielf 529 U.S. 473 (2005). Pursuant to 28 U.S.C. §1915(a)(3), the court certifies that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Copp edge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment, servea copy of this Memorandum and Order and the judgment on the pro se petitioner, note service on the docket, and close the case. (Certificate of Appealability Denied re 1 Petition for Writ of Habeas Corpus) Ordered by Judge Kiyo A. Matsumoto on 10/25/2018. c/m Fwd. for Judgment. (Galeano, Sonia)

FILED
IN CLERK'S OFFICE
WS DISTRICT COURT E.D.N.Y.

■k OCX 2 6 2018

UNITED STATES DISTRICT COURT
EASTERN

5

DISTRICT OF NEW YORK
■X

BROOKLYN OFFICE

GERARD BOYD,

Petitioner,

MEMORANDUM & ORDER

16-CV-4885 (KAM)

-againstWARREN CARDIN SAUNDERS,

Respondent.
■X

MATSUMOTO, United States District Judge:

On August 29, 2016, petitioner Gerard Boyd

(''petitioner") brought the above-captioned pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254

("Section

2254") challenging his conviction of criminal possession of a
weapon and resisting arrest both in the second degree.
EOF. No.

1,

Petition for Writ of Habeas Corpus

August 29, 2016. )
is

(See

("Pet."), filed

For the reasons discussed below, the petition

denied.
BACKGROUND

I.

Crimes of Conviction and Criminal Charges

On September 4, 2012, petitioner was arrested for,
inter alia, possessing a handgun and resisting arrest.

As

disputed by petitioner and described by the arresting officer,
petitioner was observed with a handgun, and when the officers

—

attempted to retrieve the handgun and arrest petitioner,

petitioner resisted.

(ECF No. 7-2, Exhibit B, Hearing

Transcript ("Hearing Tr."), at 11-13.^)

During the incident,

petitioner threw the handgun through the open door of 312 East
29th Street in Brooklyn, New York.

(Id. at 9, 11-13.)

Police

officers retrieved the handgun and found that it was loaded and

operable.

(Id. at 14.)

The Kings County District Attorney

charged petitioner with the following crimes:

(1) criminal

possession of a weapon in the second degree;(2) criminal
possession of a weapon in the third degree;(3) criminal

possession of a weapon in the fourth degree; (4) resisting
arrest; and (5) obstruction of governmental administration in

the second degree.

(ECF No. 7-4, Exhibit E, The People's

Appellate Brief ("People App. Br.") at 2.)
II.

The Suppression Hearing

On May 20, 2013, a pretrial suppression hearing was
conducted in Kings County Supreme Court before Judge Riviezzo

regarding the legality of petitioner's arrest and search, and at

which petitioner sought the suppression of the handgun described
above.

(ECF No. 7-2, Hearing Tr.)

The People presented one

witness. New York City Police Officer, Devin Long.

(Id. at 3.)

Petitioner was represented by Herman Walz ("defense counsel"),

1 Citations to the state court record refer to the internal pagination and not
the page number assigned by the Electronic Case Filing {"ECF") system.

who cross-examined Officer Long.

According to Officer Long, on September 4, 2012, he

was on patrol with two other police officers, Officer Mehmood
and Sergeant Aidiniou.

(Id. at 5.)

All three officers were in

uniform, in an unmarked patrol car in Brooklyn.

(Id. at 5, 16.)

Officer Long testified that at approximately 12:25 a.m., they
responded to a ^^shots-fired" call and within a few seconds they
arrived at the corner of East 29th Street and Clarendon Road.

(Id. at 5.)

At that corner, the officers encountered a large

house party with approximately 100 people.

(Id. at 6, 28.)

The

officers circled the block a few times, which took about one

minute, and when they returned to the corner, the officers

observed a group of five black males, including petitioner,
walking up the block away from the party.

(Id. at 6, 28-29.)

Officer Long further testified that he observed the

petitioner detach himself from the group "about four houses down
from the party area."

(Id. at 6, 29, 43.)

Petitioner then

walked into a driveway and behind parked car, at which point
petitioner "pull[ed] out a chrome firearm."

(Id. at 6-7.)

On

cross-examination. Officer Long testified that "prior to when

[he and the other officers] approached [petitioner], [Officer
Long] had only seen [petitioner] pull out a shiny object from
his waistband," which "appeared to look like a gun."
57-58.)

(Id. at

Officer Long and Sergeant Aidiniou exited their

vehicle, and Officer Long witnessed petitioner bang on a closed

apartment door at 312 East 29th Street, Brooklyn, New York, and
scream, ^^Open [] the fucking door."

{Id. at 8-9.)

Officer Long

and Sergeant Aidiniou ''approach[ed] [petitioner and] tried to

get control of the guy with the firearm by holding his hand[.]"
(Id. at 11.)

When they tried to grab the firearm away from

petitioner, Devonte Boyd, petitioner's nephew, appeared and
"tried to grab the firearm from Gerard Boyd, tried to grab the
muzzle of the firearm."

(Id. at 11-12.)

Officer Long and

Sergeant Aidiniou pushed Devonte Boyd away, but then "a black
male . . . opened the door [on which petitioner was banging],"

and petitioner "threw the gun inside the door."
54.)

(Id. at 12, 53-

Officer Long "tried to enter [] the apartment, but [the

man in the apartment] quickly closed the door," and Officer

Long's hand was "stuck in the door."

(Id. at 12.)

According to

Officer Long, the door never "shut completely," and he was able
to force it fully open.

(Id. at 12-13.)

After Officer Long

opened the door, he retrieved the firearm from inside the
apartment.

(Id. at 13.)

After Officer Long's testimony, defense counsel argued
that the gun should be suppressed because Officer Long had no
right to follow and approach petitioner, and the officer lacked
probable cause to seize and search petitioner.

(Id. at 68-70.)

Defense counsel contended that the ''police officers went out of

their way to target a group of individuals," including

petitioner, "based on nothing other than the fact that they[]
[were] male and black, walking from a party that was already

investigated."

{Id. at 68.)

Defense counsel also argued that

Officer Long's statement regarding when he saw petitioner pull

out a gun was not credible because it contradicted his own grand
jury testimony on that subject.

(Id. at 69, 72.)

In response, the prosecution argued that it met its
burden, there was probable cause for the stop-and-frisk, and the
seizure of the gun was a valid.

(Id. at 70-72.)

At the conclusion of the hearing. Judge Riviezzo found
on the record that Officer Long was credible.

She held that

when Officer Long "saw what he reasonably believed to be a gun"

in petitioner's hand, the officer "had reasonable suspicion to
approach" petitioner.

(Id. at 73, 76.)

The court also held

that Officer Long had probable cause to arrest petitioner and
seize the handgun "inside of the door" when Officer Long

approached petitioner and saw that petitioner "had a gun in
plain view in his hand."
Ill.

(Id. at 76.)

Trial, Verdict, and Sentence

Petitioner proceeded to a trial by jury, which found
petitioner guilty of criminal possession of a weapon in the
second degree and resisting arrest.

(EOF. No. 7-3, Exhibit C,

Trial Transcript at 590.)

On July 11, 2013, the trial court

sentenced petitioner to concurrent prison terms of five years
for one count of second-degree criminal possession of a weapon

and one year for one count of resisting arrest, and to five

years of post-release supervision.

(ECF No. 7-3, Exhibit C,

Sentencing Transcript at 8-9.)
IV.

State Court Appeals

Through appellate counsel, petitioner appealed his

judgment of conviction to the New York Supreme Court, Appellate
Division, Second Division (the ''Appellate Division").

On

appeal, petitioner argued, in relevant part, that Officer Long's
testimony at the suppression hearing was "implausible" and
"likely designed to veil an illegal stop and frisk."

(ECF. No.

7-4, Exhibit D, Petitioner's Appellate Brief ("Pet. App. Sr.")
at 20-25.)

In the brief, petitioner included a footnote citing

to Floyd V. City of New York, 813 F. Supp. 2d 417, 447 (2014)
for "[t]he idea that these officers were effectuating an illegal
stop is not one without precedent."

(Id. at 25 n.4.)

Petitioner also argued that the People failed to prove beyond a
reasonable doubt that he possessed a weapon and that the verdict

was against the great weight of the evidence.

(Id. at 26-34.)

On December 17, 2014, the People opposed petitioner's

appeal and argued that petitioner's conviction should be
affirmed.

(ECF. No. 7-4, People App. Br.)

The People contended

that the argument that Officer Long's hearing testimony was
incredible as a matter of law was partially unpreserved for

appellate review under C.P.L. § 470.05 and that the record
supported the hearing court's crediting of Officer Long's
testimony.

(Id. at 20-28.)

Second, the People argued that

petitioner's claim of insufficient evidence was unpreserved for
appellate review and meritless.

(Id. at 29-34.)

Additionally,

the People contended that the jury's verdict was not against the
weight of the evidence.

(Id.)

Petitioner responded through counsel on January 12,
2015, and addressed the People's arguments that his claims were

unpreserved and meritless.

(EOF. No. 7-4, Exhibit F,

Petitioner's Reply Appellate Brief (^'Pet. App. Reply Br.").)

On

September 20, 2015, petitioner filed a pro se ''supplemental"
brief.

(EOF. No. 7-4, Exhibit G, Petitioner's Pro Se

Supplemental Appellate Brief ("Pro Se Br.").)

In his

supplemental brief, petitioner argued that his conviction should
be reversed or, in the alternative, his sentence should be
modified because (1) he was denied effective assistance of

counsel (id. at 2-5); (2) his discovery rights were violated due

to the People's non-disclosure of the 911 tapes (id. at 6-11);

(3) his "liberty rights" were violated due to racial profiling
(id. at 12-18); and (4) his sentence was harsh and excessive
(id. at 20-24).

Petitioner based his ineffective assistance of

counsel claim on defense counsel's advice that petitioner not

testify and defense counsel's failure to:

investigate the crime

scene, interview the owner of the building neighboring the
arrest location, interview other witnesses, conduct an

investigation pertaining to the circumstances of petitioner's
arrest, and obtain copies of the 911 tapes and radio runs.

{Id.

at 2-5.)

In its response to petitioner's supplemental brief,

the People argued: (1) petitioner failed to establish a claim
for ineffective assistance of counsel; (2) petitioner's

discovery claim was unpreserved and without merit;

{3} petitioner's racial profiling claim was not supported by the
record; (4) petitioner's claim that the police officers were not
credible was without merit; and (5) the trial court did not

abuse its discretion in sentencing petitioner.

(ECF. No. 7-4,

Exhibit H, The People's Response to Petitioner's Supplemental
Brief.)

The Appellate Division affirmed the judgment of the

Supreme Court of Kings County on February 17, 2016.
Boyd (Boyd I), 136 A.D.3d 935 (N.Y. App. Div. 2016).

People v.
Petitioner

appealed the Appellate Division's decision to the Court of
Appeals.

In his application for leave, petitioner argued,

through counsel, that leave should be granted because Officer
Long's testimony at the suppression hearing was not credible.

8

(ECF No. 7-4, Exhibit J, Criminal Leave for Application to the

Court of Appeals {''Pet. Leave App.").)

The Court of Appeals

denied petitioner leave to appeal on May 10, 2016.

Boyd (Boyd II), 60 N.E.Sd 1203 (N.Y. 2016).

People v.

Petitioner timely

filed the instant petition on August 29, 2016.

(ECF No. 1,

Pet.)
STANDARD OF REVIEW

I.

Deferential Standard of Review

A writ of habeas corpus filed by an individual in

state custody is governed by, inter alia, the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA").

Section 2254 of

AEDPA provides that a district court shall issue a writ of
habeas corpus for an individual in state custody "only on the

ground that he is in custody in violation of the Constitution or
law or treaties of the United States."

28 U.S.C. § 2254(a).

Section 2244 provides that a one-year statute of limitations
applies to "an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court."
28 U.S.C. § 2244(d)(1); see generally 2Q U.S.C. § 2244(d).
A district court may grant a writ of habeas corpus for

claims that were adjudicated on the merits in state court and
the adjudication produced a decision that was "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United

States."

28 U.S.C. § 2254(d)(1).

''A state court

^adjudicate[s]' a state prisoner's federal claim on the merits
when it (1) disposes of the claim ^on the merits,' and (2)
reduces its disposition to judgment."

Sellan v. Kuhlman, 261

F.3d 303, 312 (2d Cir. 2001) (brackets in original) (citing 28
U.S.C. § 2254(d)(1)); see also Reznikov v. David, Nos. 05-CV1006 (RRM), 05-CV-1008 (RRM), 2009 WL 424742, at *3 (E.D.N.Y.

Feb. 20, 2009) (''Under AEDPA, a proper merits adjudication

requires only that (a) a federal claim be raised, and (b) that
it be disposed of on substantive, rather than procedural

grounds.").

"When a state court [adjudicates a federal claim on

the merits], a federal habeas court must defer in the manner

prescribed by 28 U.S.C. § 2254(d)(1) to the state court's
decision on the federal claim - even if the state court does not

explicitly refer to either the federal claim or to relevant
federal case law."

Sellan, 261 F.3d at 312.

Clearly established federal law is limited to the

jurisprudence of the Supreme Court at the time of the relevant
state court decision.

Cir. 2005).

Howard v. Walker, 406 F.3d 114, 122 (2d

The "contrary to" and "unreasonable application"

clauses are analyzed independently.

Stultz v. Artus, No. 04-CV-

3170 (RRM), 2013 WL 937830, at *5 (E.D.N.Y. Mar. 8, 2013).

A

state court's decision is contrary to federal law "if the state

court arrives at a conclusion opposite to that reached by [the

10

Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set

of materially indistinguishable facts."

Williams v. Taylor, 529

U.S. 362, 413 (2000) (O'Connor, J., concurring and writing for

the majority in this part).

An unreasonable application of law

occurs when ''the state court identifies the correct governing

legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the
prisoner's case."

Id.

Unreasonableness is measured

objectively, and requires "a 'higher threshold' than
'incorrect. "
'

Stultz, 2013 WL 937830, at *5 (quoting Knowles

V. Mirzayance, 556 U.S. Ill, 123 (2009)).

The state court's

application must have "[s]ome increment of incorrectness beyond
error. . . .

great[.]"
2000).

[H]owever, . . . the increment need not be

Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.

If a district court determines a state court's

application of law was unreasonable, "it must next consider
whether such error was harmless."

Stultz, 2013 WL 937830, at *5

(citations and internal quotations omitted).

Apart from a state court's unreasonable or contrary

application of federal law, a district court may grant a writ of
habeas corpus when the state court decision "was based on an
unreasonable determination of the facts in light of the evidence

presented in the State court proceeding."

11

28 U.S.C. §

2254(d)(2).

State court determinations of facts are presumed

correct, however, and the petitioner bears the burden of

''rebutting the presumption of correctness by clear and

convincing evidence."

28 U.S.C. § 2254(e)(1).

A district court

"may overturn a state court's application of federal law only if
it is so erroneous that there is no possibility fairminded

jurists could disagree that the state court's decision conflicts
with [Supreme Court] precedents."

Nevada v. Jackson, 569 U.S.

505, 508-09 (2013) (per curiam) (citations and internal

quotation marks omitted).

A federal court "cannot grant habeas

relief where a petitioner's claim pursuant to applicable federal
law, or the U.S. Constitution, has been adjudicated on its
merits in state court proceedings in a manner that is not

manifestly contrary to common sense."

Santone v. Fischer, 689

F.3d 138, 148 (2d Cir. 2012) (quoting Anderson v. Miller, 346
F.3d 315, 324 (2d Cir. 2003)).
II.

Exhaustion Requirement

A district court shall not grant a writ of habeas

corpus unless "the applicant has exhausted the remedies
available in the courts of the State."

2254(b)(1)(A).

28 U.S.C. §

To satisfy this requirement, a prisoner must

have "fairly presented to an appropriate state court the same
federal constitutional claim that he now urges upon the federal
courts," Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001)

12

{citation and internal quotation marks omitted), either in the

form of ''explicit constitutional argument" or by "alleging facts
that fall 'well within the mainstream of constitutional

litigation,' " Levine v. Comm^r of Corr. Servs., 44 F,3d 121,
124 (2d Cir. 1995).

Fair presentation includes a request for

discretionary review in the state's highest appellate court.
See 0'Sullivan v, Boerckel, 526 U.S. 838, 847-48 (1999);

Galdamez v, Keane, 394 F.3d 68, 74 (2d Cir. 2005).

If a petitioner includes both exhausted and

unexhausted claims in his petition, a district court may allow

the petitioner to return to state court to exhaust his claims,
amend and resubmit the petition to include only exhausted

claims, or deny the petition on the merits.

See McKethan v.

Mantello, 292 F.3d 119, 122 (2d Cir. 2002); 28 U.S.C. §

2254(b)(2).

"[P]lainly meritless" claims should be denied on

the merits rather than for failure to exhaust.

544 U.S. 269, 277 (2005).

Rhines v. Weber,

In limited circumstances, the

district court may stay a mixed petition until the claims have
been properly presented to the state court.
Ill.

Id. at 277-78.

Procedural Bar

Pursuant to the adequate and independent state ground
doctrine, federal habeas review is precluded if the last state

court to render judgment clearly and expressly states that its
judgment rests on a state procedural bar.

13

Jones v. Duncan, 162

F. Supp. 2d 204, 210 (S.D.N.Y. 2001) (citing Jones v. Vacco, 126
F.3d 408, 415 (2d Cir. 1997)).

A petitioner may overcome this

bar by demonstrating either ^^cause for the default and actual

prejudice" or ''that failure to consider the claims will result
in a fundamental miscarriage of justice."
501 U.S. 722, 750 (1991).

Coleman v. Thompson,

Default requires evidence of an

objective factor, external to the defense, that explains why the
claim was not previously raised, and prejudice can be inferred

when the claim, if proven, would bear on the petitioner's guilt

or punishment.
(2d Cir. 1999).

See id.; Restrepo v. Kelly, 178 F.3d 634, 638
A fundamental miscarriage of justice requires a

showing of actual innocence.

Murray v. Carrier, All U.S. 478,

496 (1986).
IV.

Pro Se

In the instant action, petitioner is proceeding pro

se.

A pro se petitioner's pleadings are held to "less stringent

standards than formal pleadings drafted by lawyers," Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation
marks omitted), and are construed "to raise the strongest

arguments that they suggest," Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted).

"Nonetheless, a pro se [litigant] is not exempt from compliance
with relevant rules of procedural and substantive law."

Rivera

V. United States, No. 06-CV-5140 (SJF), 2006 WL 3337511, at *1

14

(E.D.N.Y. Oct. 4r 2006) (citing Faretta v. California, 422 U.S.
806, 834 n.36 (1975)).

Petitioner's papers are evaluated

accordingly.
DISCUSSION

On August 29, 2016, petitioner filed this timely

petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 seeking to vacate his conviction.^

(EOF. No. 1, Pet.)

petition contains exhausted and unexhausted claims.

The

As

discussed in detail below, because the court finds petitioner's
unexhausted claims to be without merit, the court does not stay

or dismiss the petition.

Construing the petition liberally,

petitioner raises three claims - a Fourth Amendment suppression
claim, ineffective assistance of counsel, and a Brady violation
- which the court addresses below.

For foregoing reasons, the

petition is denied.
I.

Fourth Amendment Claim

A.

Legal Standard
Federal habeas relief is not available on a Fourth

Amendment claim "where the State has provided an opportunity for

full and fair litigation of [the] claim[.]"
428 U.S. 465, 482 (1976).

Stone v. Powell,

Thus, "once it is established that a

petitioner has had an opportunity to litigate his [] Fourth
2 Petitioner has been released from custody and is currently on parole until
February 6, 2020; however, this does not moot his habeas petition. See
Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); U.S. v. Wiltshire, 772 F.3d
976, 979 (2d Cir. 2014).

15

Amendment claim {whether or not he [] took advantage of the

state's procedure), the court's denial of the claim is a
conclusive determination that the claim will never present a
valid basis for federal habeas relief."

F.3d 129, 134 (2d Cir. 2002).

Graham v, Costello, 299

There are only two circumstances

in which a habeas court may review a Fourth Amendment claim:
(1) ''if the state provides no corrective procedures at all to
redress Fourth Amendment violations;" or (2) if the state has

provided a corrective mechanism, but the defendant was
"precluded from utilizing that mechanism because of an
unconscionable breakdown in the underlying process."

Gates v.

Henderson, 568 F.2d 830, 840 (2d Cir. 1977); accord Capellan v.
Riley, 975 F.2d 67, 70 (2d Cir. 1992).
B.

Application
Petitioner's Fourth Amendment claim fails.

The Second

Circuit and courts within the Circuit have "repeatedly upheld

New York's procedures for litigating Fourth Amendment Claims as
facially valid."

Lopez v. Lee, No. ll-cv-2706 (JG), 2011 WL

6068119, at *9 (E.D.N.Y. Dec. 7, 2011) (collecting cases).

For

this reason, courts within this Circuit have almost uniformly

held that challenges to New York state court rulings as to the
reach of the exclusionary rule are not reviewable under Stone v.

Powell.

Breazil v. Superintendent Artis, No. 15-cv-1912 (BMC),

2015 WL 9581816, at *12 (E.D.N.Y. Dec. 30, 2015) (collecting

16

cases).

Petitioner requested and received a suppression

hearing, at which he was represented and his attorney crossexamined the sole witness and presented oral argument to the
court.

The state court heard the evidence, denied the

suppression motion, and stated its reasons on the record.

Thus,

petitioner cannot show there were no corrective mechanisms.
Therefore, to warrant review of his Fourth Amendment

claim, petitioner must demonstrate ^'an unconscionable breakdown"
in the underlying process.

To allege an unconscionable

breakdown, a petitioner must assert that ^^no state court . . .

conducted a ^reasoned method of inquiry into relevant questions
of fact and law,' or any inquiry at all," into the Fourth
Amendment claim.

Shaw v. Scully, 654 F. Supp. 859, 864

(S.D.N.Y. 1987) (citation omitted).

Construing the petition

liberally, petitioner argues two bases for an unconscionable
breakdown.

First, petitioner argues there was an unconscionable
breakdown because the suppression hearing court failed to

consider the ''implication of the decision in" Floyd v. City of
New York, 813 F. Supp. 2d 417 (S.D.N.Y. 2014) with respect to

racial profiling in stop and frisks.
32.)

(EOF No. 1, Pet. at 29-

As an initial matter, this claim is unexhausted because

petitioner did not present it to the state court.

Daye v.

Attorney General of State of N.Y., 696 F.2d 186, 191 (2d Cir.

17

1982) (en banc).

Defense counsel's passing mention that the

''police officers went out of their way to target a group of
individuals based on nothing other than the fact that they[]

[were] male and black, walking from a party that was already

investigated" does not suffice.
68.)

(ECF No. 1-2, Hearing Tr. at

The footnote in petitioner's brief to the Appellate

Division mentioning Floyd does not correct the problem.

No. 7-4, People App. Br. at 25 n.4.)

(ECF

Moreover, petitioner did

not mention the issue of racial profiling at all in his request

for leave to file an appeal with the New York Court of Appeals.
(ECF No. 7-4, Pet. Leave App.)

Nonetheless, unexhausted claims may be deemed

exhausted and procedurally barred if the state court in which

the petitioner would be required to present his claim would
refuse to hear it on procedural grounds.

Bullock v. Grassisno,

No. 13-CV-5081 (BMC), 2013 WL 5114Q10, at *4 (E.D.N.Y. Oct. 24,

2013) (citing Gray v. Netherland, 518 U.S. 512, 162 (1991)).
That is the case here.

Petitioner cannot seek collateral review

of this racial profiling claim in state court because there were
sufficient facts on the record for petitioner to raise the

racial profiling claim on direct appeal, but he declined to do
so.

See N.Y. Crim. Proc. Law ("CPL") § 440.10(2)(c).

Thus,

petitioner's racial profiling claim is deemed exhausted and
procedurally barred.

18

Even if petitioner's claim were not procedurally
barred, it would nonetheless fail.

In support of his claim that

the suppression hearing court's failure to address petitioner's
racial profiling claim constituted an unreasonable breakdown,
petitioner merely parrots the language of unconscionable
breakdown without asserting any facts indicating that the state
courts failed to conduct a sufficient inquiry into his Fourth

Amendment claim of racial profiling.

Petitioner's claim is

insufficient to establish an unconscionable breakdown.

See

Smith V. Pearlman, No. Ol-CV-5835 (JG), 2003 WL 21738602, at *2

(E.D.N.Y. July 15, 2003) (denying petitioner's Fourth Amendment
claim that his search and seizure rested on improper racial

profiling because he made no argument that the state court
failed to conduct a reasoned inquiry into his claim).

Thus,

Stone V. Powell precludes review of petitioner's Fourth
Amendment racial profiling claim.

Second, petitioner argues an unconscionable breakdown
occurred because Officer Long's testimony at the suppression

hearing was insufficient to support probable cause and because
the court afforded the testimony ^^undue deference."
Pet. at 27, 32-35.)

(EOF No. 1,

Petitioner raised the credibility claim on

his direct appeal, and the Appellate Division rejected it,

finding that the hearing court's credibility determinations were
entitled to great deference and supported by the evidence.

19

Boyd

I, 136 A.D.3d at 936.

Petitioner raised a similar argument in

his leave for appeal to the Court of Appeals, and leave was

denied.

Boyd II, 60 N.E.3d 1203.

Similarly, this court will

not disturb the hearing court's credibility findings.

Factual

findings of a state court are presumed correct, and the

petitioner bears the burden of rebutting that presumption.

28

U.S.C. § 2254(e)(1); Cotto v. Herbert, 331 F.3d 217, 233 {2d

Cir. 2003).

The presumption is ''particularly important" with

respect to credibility determinations.

Cotto, 331 F.3d at 233.

Petitioner has not offered any reasons why the presumption is

inappropriate here.

Thus, the court will not disturb the

suppression hearing judge's credibility determination.

Moreover, petitioner fails to explain how this credibility issue
rises to the level of an unconscionable breakdown.

Thus, the

court finds that petitioner's Fourth Amendment claim, to the
extent it can be characterized as such, regarding Officer Long's
testimony is precluded.

For the above-stated reasons, petitioner's Fourth
Amendment claims are denied.

II.

Ineffective Assistance of Counsel

Petitioner argues that he received ineffective
assistance of counsel for two reasons.

44.)

(EOF No. 1, Pet. at 35-

First, counsel did not request 911 tapes and radio reports

and, relatedly, did not request sanctions for the People's

20

failure to submit those materials to the defense.

40.)

{Id. at 35-

Second, counsel did not initiate an investigation as to

important fact witnesses.
A.

(Id. at 40-44.)

Legal Standard

Under the Sixth Amendment, a criminal defendant is

afforded ''the right . . . to have the Assistance of Counsel for
his Defense."

U.S. Const, amend. VI.

This right does not

guarantee a defendant "perfect counsel," but rather effective
assistance of counsel.

Constant v. Martuscello, 119 F. Supp. 3d

87, 142 (E.D.N.Y. 2015) (citations and internal quotation marks
omitted), aff'd, 677 F. App'x 727 (2d Cir. 2017).
To establish a claim of ineffective assistance of

counsel, a petitioner must satisfy the two-pronged test
announced in Strickland v. Washington, 466 U.S. 688, 691 (1984).

A petitioner must show that: (1) counsel's performance was
deficient, meaning that it "fell below an objective standard of
reasonableness," and (2) "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceedings would be different."

Id. at 688, 694.

The two

prongs may be addressed in either order, and, moreover, the
court is not required "to address both components of the inquiry
if the defendant makes an insufficient showing on one."
697.

21

Id. at

''Reasonableness" under the performance prong is

measured by "prevailing professional norms."

Id. at 688.

Generally, "there is a strong presumption that counsel's actions
'might be considered sound trial strategy.' " Stultz, 2013 WL
937830, at *7 (quoting Strickland, 466 U.S. at 688-89).

The

court presumes counsel acted reasonably where "counsel is
prepared and familiar with the relevant facts and legal

principles[.]"

Brown v. Phillips, No. 03-cv-0361 (DOT), 2006 WL

656973, at *8 (E.D.N.Y. Mar. 12, 2006) (citation and quotation
marks omitted).

Under the prejudice prong, a "reasonable

probability" is one "sufficient to undermine confidence in the
outcome."

Strickland, 466 U.S. at 694.

"A court hearing an

ineffectiveness claim must consider the totality of the evidence

before the judge or jury," id. at 695, and the petitioner must
"affirmatively prove prejudice arising from counsel's allegedly
deficient representation," Carrion v. Smith, 549 F.3d 583, 588
(2d Cir. 2008) (citations and internal quotation marks omitted).

"[T]he standard for judging counsel's representation
is a most deferential one."

105 (2011).

Harrington v. Richter, 562 U.S. 86,

Due to the heightened deference under AEDPA, "[a]

federal court reviewing a state court's determination regarding
ineffective assistance of counsel has been characterized as

'doubly' deferential by the Supreme Court."

Constant, 119 F.

Supp. 3d at 143 (quoting Harrington, 562 U.S. at 105).

22

Thus,

'Mw]hen § 2254(d) applies, the question is not whether counsel's
actions were reasonable" but rather ''whether there is any

reasonable argument that counsel satisfied Strickland's
deferential standard."
B.

Harrington, 562 U.S. at 105.

Application
Petitioner raises claims of ineffective assistance of

defense counsel based on defense counsel's alleged failure to

obtain the 911 tape and failure to interview and investigate

important fact witnesses.

(ECF No. 1, Pet. at 35-44.)

In his

pro se supplemental brief to the Appellate Division, petitioner
raised an ineffective assistance of counsel claim based on,

among other things, defense counsel's alleged failure to request
911 tapes and "to interview other (unnamed) potential witnesses
in the area of the crime."

(ECF. No. 7-4, Pro Se Br. at 2.)

The Appellate Division found that petitioner's claims to this
effect were "based, in part, on matter appearing on the record

and, in part, on matter outside the record[.]"
A.D.3d at 936.

Boyd I, 136

Petitioner did not raise ineffective assistance

of counsel in his request for leave for appeal.

For the reasons

discussed below, petitioner's record and non-record claims are
denied.

1.

Record-Based Claims

To the extent petitioner's claim alleging ineffective
assistance of counsel on the basis of counsel's failure to

23

request the 911 tape is record based, it is unexhausted,

procedurally barred, and meritless.^

A claim is record-based

"when a reviewing court could conclude that defendant's counsel
was ineffective simply by reviewing the trial record without the
benefit of additional background facts[.]"

Chatmon v. Mance,

No. 07-CV-9655 (KMK) (GAY), 2011 WL 5023243, at *9 n.5 (S.D.N.Y.

Oct. 20, 2011).

A record-based claim may be brought on direct

appeal in the New York state court system.

McDowell v. Heath,

No. 09-CV-7887 (RO) (MHD), 2013 WL 2896992, at *4 (S.D.N.Y. June

13, 2013).

Under New York law, if a criminal defendant fails to

raise a record-based claim on direct appeal, before both the

Appellate Division and the Court of Appeals, he is not permitted
to otherwise collaterally attack his conviction with that claim.
Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2011) (citing GPL §§
440.10(2)(c), 450.10); see also Bossett v. Walker, 41 F.3d 825,

829 (2d Cir. 1994) (explaining exhaustion requires raising the
claim in application for leave to appeal to the Court of
Appeals).

Petitioner's claim regarding defense counsel's alleged

failure to request the 911 tapes is record-based and, therefore.

^ The Appellate Division did not specify which of petitioner's claims were
record-based and which were not.

Nonetheless, the court does not evaluate

petitioner's claim regarding counsel's alleged failure to interview and

investigate witnesses as record-based because it involves defense counsel's
strategic decisions, which are generally not amendable to resolution based on
the record. Griffin v. Suffolk Cnty., No. 13-cv-4375 (JFB), 2013 WL 6579839,
at *3 n.3 (E.D.N.Y. Dec. 16, 2013) (collecting New York state cases).

24

was required to be raised on direct appeal.

Although petitioner

raised the claim in his pro se supplemental brief to the

Appellate Division, he did not raise it in his request for leave
to appeal to the Court of Appeals.

Therefore, petitioner's

record-based allegations are ''subject to an adequate and
independent state procedural bar, and, as a consequence, are

exhausted and procedurally defaulted for the purposes of federal
habeas review."

Jones v. Brandt, No. 09-cv-1035 (SAS), 2013 WL

5423965, at *8 (S.D.N.Y. Sept. 26, 2013) (finding a petitioner's
ineffective assistance of counsel claim procedurally barred

because the petitioner brought his one appeal as of right but
did not raise the ineffective assistance of counsel claim in

that appeal).

Although procedurally barred claims may be

reviewed on habeas if the petitioner demonstrates either default

and prejudice or makes a showing of actual innocence, petitioner
demonstrates neither here.

Therefore, petitioner's record-based

claims are procedurally barred.

Assuming, arguendo, petitioner's ineffective
assistance of counsel claim regarding the 911 tape were not

procedurally barred from review in this court, the court would
nonetheless deny it as meritless.

From the record, it appears

that petitioner's claim is baseless.

The People provided copies

of the 911 call, sprint report, and 911 certification report

pursuant to open file discovery.

25

(ECF No. 7-1, Exhibit A, Open

File Discovery.)

Additionally, the Assistant District Attorney

Lawrence Mottol state in an affirmation dated January 11, 2013,

that the People had submitted to the defense, inter alia,

recordigns of 911 calls and radio reports.

(ECF No. 7,

Affidavit in Opposition to Petition for a Writ of Habeas Corpus
^ 6.)

Moreover, even if defense counsel had not requested or

received the tapes, petitioner has not demonstrated that such
failure satisfies either the performance or prejudice prong of
the Strickland test.

2.

Non-Record Based Claims

To the extent petitioner's ineffective assistance of

counsel claims regarding defense counsel's alleged failure to

request the 911 tape and to interview witnesses are not recordbased claims, they are unexhausted and meritless.

''To properly

exhaust an ineffective assistance of trial counsel claim that

relies on evidence outside the pretrial and trial record . . .

the petitioner must raise it as part of a motion to vacate

judgment under GPL § 440.10 and then seek leave to appeal to the
Appellate Division."

Griffin, 2013 WL 6579839, at *3.

440.10 does not have a statute of limitations.

GPL §

See GPL §

440.10(1) (providing a defendant may bring a motion to vacate an
entry of judgment "[a]t any time after the entry of a
judgment").

26

As noted above, the Appellate Division found that

petitioner's ineffective assistance of counsel claims were
''based, in part, on matter appearing on the record and, in part,
on matter outside the record[.]"

Boyd I, 136 A.D.Sd at 936.

The Appellate Division advised that a "CPL [§] 440.10 proceeding
is the appropriate forum for reviewing the claim in its
entirety."

Id.

Petitioner, however, never pursued a CPL §

440.10 proceeding.

Accordingly, petitioner's non-record based

claims are unexhausted.

Carpenter v. Unger, Nos. lO-cv-1240,

12-CV-957 (GTS) (TWD), 2014 WL 4105398, at *25 (N.D.N.Y. Aug.

20, 2014) (finding the petitioner's ineffective assistance of
counsel claims unexhausted because they were not record based

and the petitioner did not raise them in a Section 440.10
motion); Anthoulis v. New York, No. ll-cv-1908 (BMC), 2012 WL
194978, at *4-5 (E.D.N.Y. Jan. 23, 2012) (same).

Although unexhausted claims may require dismissal of
the entire petition or a stay of the petition, neither of those

resolutions is appropriate here because petitioner's unexhausted
ineffective assistance of counsel claims are meritless.

Strickland requires a petitioner to satisfy both a performance
prong and a prejudice prong in order to prevail on an
ineffective assistance of counsel claim.

at 684, 698.

Strickland, 466 U.S.

With respect to the 911 tapes, at a minimum,

petitioner's claim is meritless as he cannot satisfy at least

27

the prejudice prong because even if his counsel did fail to
request the 911 tapes from the People, the record demonstrates

that the 911 tapes and radio reports were provided to counsel.
Therefore, counsel's alleged failure to request the 911 tapes
did not prejudice petitioner.
Petitioner's claim that defense counsel failed to

interview or investigate ''important fact witnesses," including
the individual who lived in the building adjacent to the

location of petitioner's arrest, fails to satisfy the

performance prong.

As a general matter, "[a]ctions or omissions

by counsel that might be considered sound trial strategy do not
constitute ineffective assistance."

McKee v. United States, 167

F.3d 103, 106 {2d Cir. 1991) (citations and internal quotation
marks omitted).

A counsel's "failure to call a witness for

tactical reasons of trial strategy does not satisfy the standard
for ineffective assistance of counsel."

313 F.3d 741, 743 (2d Cir. 2002).

United States v. Eyman,

This holds true even where an

interview might have yielded exculpatory information.

United

States V. Best, 219 F.3d 192, 201 (2d Cir. 2000) ("[C]ounsel's
decision as to whether to call specific witnesses - even ones

that might offer exculpatory evidence - is ordinarily not viewed
as a lapse in professional representation[.]" (citation and
internal quotation marks omitted)).

Here, although defense

counsel has not submitted a statement explaining his decisions

28

whether or not to call, interview, or investigate certain

witnesses, it is clear that petitioner's claims regarding those
decisions are insufficient.

Moreover, according to petitioner,

defense counsel called several defense witnesses at trial.

(ECF

No. 1, Pet. at 21-26.)

Furthermore, petitioner cannot definitively state that
counsel failed to interview at least one of the witnesses

petitioner argues defense counsel should have interviewed.

(ECF

No. 1, Pet. at 41 ("However, up until the time of trial, it was
and remains unclear . . . whether counsel conferred with this

potential witness.").)

Assuming counsel did not investigate or

interview witnesses petitioner considers "important," such a
failure would not warrant relief here.

Petitioner identifies

only one potential witness with any degree of specificity - the
neighbor to the location where petitioner was arrested - and
argues this individual should have been interviewed because

"according to information and belief, [the neighbor] possessed a
surveillance system which captured the incident."

(Id. at 40.)

However, petitioner provides no basis upon which the court could
infer that the "surveillance system," if there was one, actually

captured the incident, and, if it did, that it would produce
exculpatory evidence.

Thus, petitioner fails to establish any

prejudice stemming from defense counsel's alleged failure.
Moreover, to the extent counsel did not interview this

29

individual for strategic reasons, the court finds such a
decision does not constitute a constitutionally deficient

performance.

For example, if the surveillance footage did in

fact exist, counsel could have opted not to obtain or present it
in the event it was more inculpatory than exculpatory.

With respect to the other, unidentified witnesses,
there is no indication that interviews with or investigations of

them would uncover any relevant, let alone exculpatory, evidence

or change the result of trial.

See Davis v. Walsh, No. 08-cv-

4659 (PKC), 2015 WL 1809048, at *11 {E.D.N.Y. Apr. 21, 2015)

{denying ineffective assistance claim where counsel did not
interview a witness and there was no basis for finding that an

interview would have yielded exculpatory evidence).

Therefore,

petitioner's ineffective assistance of counsel claim regarding
uninterviewed witnesses is meritless.

For the above stated reasons, the court denies all of

petitioner's claims of ineffective assistance of counsel.
Ill.

Brady claim

A.

Legal Standard

In a criminal matter, the prosecution has the

obligation to disclose exculpatory evidence to the defendant.
Brady v. Maryland, 373 U.S. 83 (1967); Giglio v. United States,
405 U.S. 150, 154 (1972).

A Brady violation consists of three

factors: (1) ''[t]he evidence at issue must be favorable to the

30

accused, either because it is exculpatory or impeaching;"
(2) ''that evidence must have been suppressed by the State,

either willfully or inadvertently;" and (3) "prejudice must have
ensued."

Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material and prejudice results if "there is a

reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different."

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

Nondisclosure merits relief only if it "undermines confidence in

the outcome of the trial."

Kyles v. Whitly, 514 U.S. 419, 434

(1995) (citation and internal quotation marks omitted).
B.

Application

Construing the petition liberally, petitioner asserts

a claim pursuant to Brady regarding the People's alleged failure
to turn over the 911 tape.

(EOF No. 1, Pet. at 37-39.)

This

claim is unexhausted, procedurally barred, and meritless.

Petitioner did not raise a Brady claim in his direct appeal in

the state court system, nor did he initiate a GPL § 440.10

proceeding regarding his Brady claim.
unexhausted.

Thus, his Brady claim is

Regardless, his claim is meritless because, as

discussed above, it appears from the record that the People

produced the very evidence petitioner claims it failed to
disclose.

Even if the People had failed to provide petitioner

with the 911 tape, petitioner has provided no basis to believe

31

that the 911 tape, which purportedly relayed a ''shots fired"

message, contained exculpatory or impeaching evidence that would
have led to a different result at trial.

Thus, petitioner's

Brady claim is denied.
CONCLUSION

For the foregoing reasons, the petition is denied.

Because petitioner has not made a substantial showing of the
denial of any constitutional right, no certificate of

appealability will be issued.
McDanielf 529 U.S. 473 (2005).

28 U.S.C. § 2253(c); see Slack v.
Pursuant to 28 U.S.C. §

1915(a)(3), the court certifies that any appeal from this Order
would not be taken in good faith, and therefore in forma

pauperis status is denied for the purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

See
The

Clerk of Court is respectfully directed to enter judgment, serve

a copy of this Memorandum and Order and the judgment on the pro
se petitioner, note service on the docket, and close the case.
SO ORDERED.

Dated:

October 25, 2018

Brooklyn, New York
/s/
KIYO A. MATSUMOTO

United States District Judge
Eastern District of New York

32