Pitre v. Griffin
MEMORANDUM DECISION AND ORDER. 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 U.S.C. § 19l5(a)(3) t hat 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). The Clerk is directed to enter judgment accordingly. Ordered by Judge Brian M. Cogan on 12/26/2016. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against SUPERINTENDENT GRIFFIN,
DECISION AND ORDER
16 Civ. 6258 (BMC)
COGAN, District Judge.
Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, setting aside his
conviction for second degree murder and first degree drug possession, for which he was
sentenced to consecutive terms of 25 years to life and 23 years, respectively. This was the result
of his second trial; the first trial, which was only on the murder charge, resulted in a hung jury.
The murder and drug indictments were thereafter consolidated, resulting in the conviction that is
the subject of this action.
The facts will be set forth below as necessary to address each of petitioner’s points of
error, but to summarize, the crimes arose out of an argument on the street where a witness,
Jacinto Sanchez, saw petitioner stab the victim, Sarid Morgan, to death, and then moments later,
two other individuals, Shatia Rodriguez and Shawn Autry, who knew the victim, heard petitioner
boast about it. Sanchez called 911 and the police arrived almost immediately. Rodriguez
identified petitioner, who was still on the scene, as the assailant, and the police gave chase when
petitioner fled to his apartment. The police forcibly entered petitioner’s apartment after he
attempted to deflect them and then refused to let them in to his apartment. Once inside, the
police found a large, sales-quantity volume of heroin. Sanchez and Autry both picked petitioner
out of a lineup and confirmed their identification of petitioner at trial.
Petitioner raises four points of error: (1) ineffective assistance of appellate counsel for
failing to raise several arguments; (2) Confrontation Clause violations resulting from the use of
testimony from petitioner’s first trial and the live testimony of a DNA expert that did not conduct
the DNA analyses about which he was testifying; (3) insufficient evidence to sustain either the
murder or drug convictions; and (4) violation of petitioner’s due process rights when the trial
court allowed both a father and his daughter to serve on the jury. Each of these points is either
procedurally barred from habeas corpus review or without merit and, accordingly, the petition is
Ineffective Assistance of Appellate Counsel
In his habeas petition, petitioner asserts that his appellate counsel was ineffective because
he failed to challenge: (1) the trial court’s decision to consolidate the drug and murder charges;
(2) the use of a witness’s testimony from the first trial as violating his right to confrontation
under the Sixth Amendment; and (3) the trial court’s failure to meaningfully respond to a jury
note. Petitioner had previously brought a coram nobis motion challenging his conviction on the
ground that his appellate counsel omitted these three strong arguments on direct appeal in favor
of two weaker arguments. 1 The Appellate Division summarily denied this motion on the merits.
The habeas corpus petition also asserts a fourth ineffective assistance of appellate counsel claim – that trial counsel
was ineffective for failing to challenge the seating of a juror who was the father of a juror who had already been
seated. That claim was not raised in petitioner’s coram nobis motion and thus is unexhausted. However, petitioner
had asserted in his pro se brief on direct appeal that this was a statutory and due process violation. The Appellate
Division rejected that claim as unpreserved because petitioner’s trial counsel had not objected, and alternatively held
that the claim was without merit. People v. Pitre, 108 A.D.3d 643, 644, 968 N.Y.S.2d 585, 587 (2d Dep’t 2013),
leave to app. denied, 23 N.Y.3d 966, 988 N.Y.S.2d 574 (2014). I address this claim below. However, as to using it
as a basis for an unexhausted claim of ineffective assistance of appellate counsel, it plainly fails. Even if appellate
counsel had raised the claim that petitioner says he should have raised, we know that it would have been rejected on
the merits based on the Appellate Division’s alternative holding. Petitioner, thus, suffered no prejudice. Therefore,
People v. Pitre, 133 A.D.3d 792, 19 N.Y.S.3d 189 (2d Dep’t 2015), leave to app. denied, 26
N.Y.3d 1148, 32 N.Y.S.3d 63 (2016).
Since the Appellate Division rejected this claim on the merits, my review of that decision
attracts the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2254(d). AEDPA provides for habeas corpus relief only if the state court’s adjudication
of the claim was (1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States;” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Id. 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” to, 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 held that the 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,
133 S. Ct. 696, 708 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 786
(2011)). State court decisions must “‘be given the benefit of the doubt,’” Felkner v. Jackson, 562
U.S. 594, 598, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v. Lett, 559 U.S. 766, 773, 130 S.
Ct. 1855, 1862 (2010)), and “even a strong case for relief does not mean that the state court’s
notwithstanding that the claim against petitioner’s appellate counsel is unexhausted, I reject it as plainly without
merit as well. See Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005).
contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102, 131 S. Ct. at 786. Indeed,
in Harrington, the Supreme Court went so far as to hold that a habeas court may only “issue the
writ in cases where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme Court’s] precedents.” Id. This standard of “no possibility”
of disagreement among “fairminded jurists” as to the existence of legal error is arguably the
narrowest standard of judicial review in the law. Moreover, the Supreme Court has expressed a
lack of patience with lower courts that view its pronouncements as permitting a substantial
measure of flexibility in applying this standard. See Parker v. Matthews, 132 S. Ct. 2148 (2012).
To show a Sixth Amendment violation of effective assistance of appellate counsel,
petitioner must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984). First, he must show that counsel’s performance fell below “an objective
standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S. Ct. at
2064-65. The court must apply a “strong presumption of competence” and “affirmatively
entertain the range of possible reasons [petitioner’s] counsel may have had for proceeding as
they did.” Cullen v. Pinholster, 563 U.S. 170, 196, 131 S. Ct. 1388, 1407 (2011) (citation and
internal quotation marks omitted). Second, the petitioner must demonstrate 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 669, 104 S. Ct. at 2055-56. “The likelihood
of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112, 131
S. Ct. at 792.
Although Strickland speaks to ineffective assistance of trial counsel claims, it is equally
applicable to claims of ineffective assistance of appellate counsel. See Aparicio v. Artuz, 269
F.3d 78, 95 (2d Cir. 2001); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). “On appeal,
counsel is not required to argue every non-frivolous issue; rather, the better strategy may be to
focus on a few more promising issues so as not to dilute the stronger arguments with a multitude
of claims. . . . [I]nadequate performance is established only if counsel omitted significant and
obvious issues while pursuing issues that were clearly and significantly weaker.” King v.
Greiner, 210 F. Supp. 2d 177, 182 (E.D.N.Y. 2002) (citing Jones v. Barnes, 463 U.S. 745, 75153, 103 S. Ct. 3308, 3312-14 (1983)). But a petitioner may not rebut the presumption of
effective assistance by simply arguing that appellate counsel’s decision to raise certain issues,
and not others, constitutes ineffectiveness. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Appellate counsel is not required to “press nonfrivolous points . . . if counsel, as a matter of
professional judgment, decides not to present those points.” Jones, 463 U.S. at 751, 103 S. Ct. at
3312; see also Knowles v. Mirzayance, 556 U.S. 111, 127, 129 S. Ct. 1411, 1422 (2009) (“The
law does not require counsel to raise every available nonfrivolous defense”). A petitioner must
prove that there is a reasonable probability that the unraised claims would have succeeded.
King, 210 F. Supp. 2d at 182-83 (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).
A. Consolidation of Murder and Drug Chargers
As noted above, petitioner’s first trial, which resulted in a hung jury, was only on the
murder charge. Apparently, the prosecution had intended to try the drug charge separately
thereafter had petitioner been convicted. But after the mistrial on the murder charge, the
prosecution apparently moved to consolidate the charges. (I have to say “apparently,” because
there is no such motion in the record, but it is a solid inference for reasons shown below.)
Petitioner, in his coram nobis motion to the Appellate Division, argued that his appellate
counsel was ineffective for not including a challenge to the trial court’s decision to allow a single
trial on both the murder and drug charges in his brief on direct appeal. He annexed a letter to his
brief that he had received from appellate counsel, prior to filing his brief on direct appeal, in
which appellate counsel assured petitioner that, “I will argue that it was improper for the court to
grant the District Attorney’s motion to consolidate the homicide and drug charges and to permit
them to be tried together before one jury.” However, the brief that appellate counsel filed
contained no such argument. This was the essence of petitioner’s ineffective assistance
In response to petitioner’s coram nobis motion attacking appellate counsel’s failure to
raise the point that he had said he would raise, the District Attorney primarily argued that the
trial judge acted within his discretion in ordering consolidation. This response did not address
the issue of why appellate counsel didn’t at least make the argument, except, I suppose, by
implicitly suggesting that appellate counsel was not objectively unreasonable and that petitioner
was not prejudiced by counsel’s decision not to pursue the argument. But by focusing only on
the discretion involved in making a decision to permit consolidation, the District Attorney
missed the point.
The better argument, to which the District Attorney alluded to only obliquely, was to
point out that, in fact, trial counsel had made a deliberate strategic decision to withdraw his
opposition to consolidation, and consolidation had therefore occurred on consent. In the
beginning of the second trial, the trial judge, noting that only the murder case had been tried
before, asked, “Let me just clarify one thing. Since the last trial, another indictment was voted, a
class A2 felony,” to which petitioner’s trial counsel responded, “The other indictment, Judge,
existed at the time of the first trial. They chose to go forward with the homicide first. Since that
trial the cases have been consolidated.” The trial court responded, “So they will be tried
together,” and both attorneys confirmed that this was correct. In this manner, the attorneys
effectively stipulated to the consolidated indictment without any ruling at all.
Further, as part of the District Attorney’s opposition to the coram nobis motion, the
District Attorney submitted an affidavit from a colleague of petitioner’s Legal Aid appellate
lawyer (why it was not submitted by petitioner’s appellate lawyer himself is not explained),
stating that after petitioner’s appellate lawyer had expressed his intention to raise the
consolidation issue in the letter that petitioner submitted, he had written petitioner a subsequent
letter. In that subsequent letter (which the affidavit merely summarized as opposed to quoting or
attaching as an exhibit), petitioner’s appellate lawyer apparently advised him that he had spoken
to petitioner’s trial attorney, who informed him that the defense had waived the opposition to
consolidation as “a matter of strategy.”
The affidavit then explained that trial counsel had informed appellate counsel that “after
the People told [trial] counsel that they would try the drug possession case first if the court
denied consolidation, counsel determined that it would be better for the defense to have the
charges tried together”) (emphasis added). Thus, based on the affidavit, it appears that
petitioner’s trial attorney advised petitioner’s appellate attorney that he had consented to
consolidation, and withdrew his motion opposing consolidation, to avoid having the drug
possession charge tried first, as the District Attorney had threatened.
Petitioner’s trial counsel apparently (again, I have to say “apparently”) concluded that a
consolidated trial on both the drug and murder charges was preferable to having the murder trial
subsequent to the drug trial because: (1) there was a better chance of getting a “split” verdict, i.e.,
a conviction on the less serious drug charge but an acquittal on the murder charge, if the charges
were tried together; and (2) he did not want to risk having petitioner go into a murder trial after
having been convicted of major drug possession arising out of the same incident, especially
since, as ultimately occurred, petitioner wanted to testify on his own behalf. Although I am
drawing these inferences from the brief language quoted above in the affidavit, I do not think
that this is any great stretch, as it would be a fairly straightforward trial strategy once the District
Attorney advised that he was going to try the drug charge first if the charges were not
The District Attorney’s opposition to the coram nobis motion, however, failed to capture
this point and instead argued that appellate counsel’s decision not to challenge the trial court’s
ruling was reasonable because the trial court had acted within its discretion. Again, this
argument missed the mark; appellate counsel was reasonable in not challenging the trial court’s
“ruling” because trial counsel had consented to the consolidation and thus there was no trial
court ruling to challenge – there was merely acquiescence in defense counsel’s strategy. 2
Although both petitioner’s and the District Attorney’s arguments on coram nobis
misstated the real issue, the Appellate Division’s summary order, denying the motion on the
Prior to bringing his coram nobis motion, petitioner had brought a §440 motion, contending that his trial counsel
was ineffective because he never opposed the prosecutor’s motion to file a consolidated indictment. The §440 court
denied the motion, accepting the District Attorney’s arguments that the claim was procedurally barred because it
should have been raised on direct appeal, and, alternatively, that the claim had no merit because, as evidenced by an
exhibit to the District Attorney’s opposition, petitioner’s trial counsel had indeed filed a motion opposing
The District Attorney, again giving the court an inaccurate picture of what had occurred, never told the §440 court
that trial counsel had later withdrawn that motion and consented to consolidation. Arguably, petitioner’s §440
motion could have been seen in a different light if the District Attorney had disclosed the complete story because, in
fact, his attorney did do what petitioner accused him of doing – failing to oppose, albeit by consenting to,
consolidation – he just didn’t do it in the way petitioner accused him of doing it.
Petitioner has not challenged his trial counsel’s consent to consolidation – the issue he unsuccessfully raised in his
§440 motion – in this habeas corpus proceeding. Even if he did, and even without the procedural bar, habeas corpus
relief would not be warranted because, as described above, the threat of trying the drug case first in the absence of
consolidation formed a reasonable strategic basis for trial counsel’s change of decision, thus bringing it within the
standard tolerated under Strickland. But there is an irony in the fact that petitioner lost the merits of his §440 motion
because his trial counsel had in fact opposed consolidation, and then lost his coram nobis motion because his trial
counsel had later consented to consolidation. I frankly do not understand, and cannot condone, the District
Attorney’s failure to give either of the state courts the complete picture of what had occurred.
merits and finding no error in appellate counsel’s decision to back away from his initial letter to
petitioner and not contend that the trial court had erred in consolidating the charges, is obviously
correct without even considering the restrictive review standard under AEDPA. There was no
way that appellate counsel had a colorable argument challenging the trial court’s “ruling” to
consolidate, which was how petitioner characterized the issue, because the trial court’s
consolidation was on consent as the result of a strategic decision by trial counsel. The Appellate
Division’s decision to deny coram nobis relief was therefore neither contrary to, nor an
unreasonable application of, any Supreme Court authority.
B. Use of Testimony from First Trial
At petitioner’s first trial, a witness named Sean Autry testified that he had been walking
with his girlfriend, Shatia Rodriguez, who was going to buy illegal drugs, when they observed
petitioner standing in a doorway performing a lewd act on himself. When Autry and Rodriguez
returned and passed by petitioner again a few minutes later, petitioner made inappropriate
remarks to Rodriguez. After Autry reprimanded him, petitioner, according to Autry, said, “don’t
misunderstand, I am just enjoying myself, I just killed somebody and got away with it.”
Rodriguez then observed the stabbing victim, who she and Autry knew, lying nearby in
the street, and they tried to assist and console the victim. The police then arrived. When
Rodriguez pointed out petitioner, who was still at the scene, to the police, petitioner fled. Autry
confirmed that he picked petitioner out of a lineup that same day.
In petitioner’s second trial, Autry refused to testify. He did not invoke his right against
self-incrimination; he simply insisted that he did not want to be involved. The trial judge placed
Autry on the stand, swore him in, appointed a lawyer to consult with him (who, one can infer
from the colloquy, advised him that he had no right not to testify unless he could invoke his Fifth
Amendment privilege, which he did not), ordered him to testify, and warned him that he would
be held in contempt and likely serve additional jail time if he continued to refuse to testify.
(Autry was already in custody on unrelated charges.) Autry, however, remained steadfast. Over
defense counsel’s objection, the Court then granted the prosecutor’s motion to read Autry’s
testimony from the first trial, as summarized above, into the record.
In his coram nobis motion, petitioner argued that the use of Autry’s testimony from the
first trial violated his right to confrontation under the Sixth Amendment, and that his appellate
counsel was ineffective for not raising that issue on appeal. However, his appellate counsel’s
decision not to raise this point on appeal was perfectly reasonable under the Strickland standard
governing claims of ineffective assistance of counsel, and thus the Appellate Division’s denial of
this claim was clearly reasonable under the deferential AEDPA standard of review.
First, it does not appear that trial counsel preserved the point as no objection to using the
prior testimony appears in the record. Petitioner’s trial counsel merely requested that the trial
court make it clear to the jury that petitioner had nothing to do with Autry’s non-availability,
which it did. Thus, if appellate counsel had raised this argument, it would have been rejected as
Second, the reason there was no objection was likely that the law is clear that a witness
who flatly refuses to testify is deemed unavailable (cf. Fed. R. Civ. 804(a)(2) (“A declarant is
considered to be unavailable as a witness if the declarant . . . refuses to testify about the subject
matter despite a court order to do so.”), and the admission of the prior testimony of an
unavailable witness that has previously been cross-examined by a defendant in a case in which
his interest was substantially the same – here, petitioner’s first trial – does not violate the
defendant’s right to confrontation because he has already confronted the witness. See Giles v.
California, 554 U.S. 353, 358, 128 S. Ct. 2678, 2682 (2008) (“The [Sixth] Amendment
contemplates that a witness who makes testimonial statements admitted against a defendant will
ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his
prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine
him.”); Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374 (2003) (“Where
testimonial evidence is at issue . . . the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination.”) (emphasis added);
California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 1938 (1970) (“We also think that [the
witness’s] preliminary hearing testimony was admissible as far as the Constitution is concerned
wholly apart from the question of whether respondent had an effective opportunity for
confrontation at the subsequent trial. For [the witness’s] statement at the preliminary hearing
had already been given under circumstances closely approximating those that surround the
typical trial.”). Thus, there was no merit to this claim on coram nobis at all.
C. Trial Court’s Failure to Meaningfully Respond to a Jury Note
During deliberations, ten minutes before a lunch break, the trial court received a note
from the jury asking for a readback of a portion of two witness’s testimony. The court attempted
to extract the requested testimony, but while it was doing so, about 90 minutes later, it received
another note: “The jury has come up with a verdict. We would like to decline prior requests of
hearing any testimony.”
The trial court read both notes to the attorneys in open court, and then directed that the
jury be brought back in. There was clearly a pause, although of unknown duration, while that
occurred, but neither attorney said anything. The jury entered the courtroom, and the Clerk
noted on the record that they were present and properly seated. The trial court inquired if the
attorneys waived the reading of the jury roll, and both attorneys responded affirmatively. The
trial court then read both notes to the jury, and expressed its view, as the second note had
requested, that the “last note controls.” It then received the verdict by individually polling the
In his coram nobis motion, petitioner contended that the trial court had committed what
he called a “mode of proceedings error,” because it failed to advise the jury, as soon as it
received the first note, that it would proceed to extract the requested testimony, and that it failed
to read the requested testimony to the jury before receiving its verdict. Petitioner further
contended that his appellate counsel was ineffective for not raising this claim on direct appeal.
It is obvious that petitioner had attempted to classify this incident as a “mode of
proceedings” error because his counsel never objected to the procedure that the trial court used,
and under New York practice, an error classified as a “mode of proceedings” error does not
require preservation for appeal. See People v. Gray, 86 N.Y.2d 10, 21, N.Y.S.2d 173, 176
Even though petitioner tried to squeeze his claim into a mode of proceedings error to
avoid the procedural bar, the substance of his argument was that the trial court’s failure to
provide the jury’s readback requests, or, at least, to “meaningfully respond” to the jury’s first
note, provided a derivative basis for challenging his appellate counsel as ineffective. This
argument was sufficiently convoluted that his appellate counsel cannot be faulted on federal
habeas corpus review for choosing not to raise it. This is especially so because of the double
level of deference arising from the combination of Strickland and AEDPA.
First, the transcript clearly establishes that petitioner’s counsel had sufficient notice of the
jury note before the trial court received the verdict and could have objected, both before the jury
was brought in or even at sidebar once it was brought in, to receiving the verdict without first
addressing the note. Petitioner’s counsel, however, chose to simply stand by and waive the roll
call of the jury. 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. See People v. Mack, 27
N.Y.3d 534, 541, 36 N.Y.S.3d 68, 74 (2016). Thus, petitioner’s effort to characterize the
exchange as a mode of proceedings error would likely have failed as a matter of New York law.
Second, petitioner’s “mode of proceedings” claim was all the more likely to fail because,
of all the cases where this jury question/verdict scenario has occurred, and it seems to occur with
some regularity, see, e.g., People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315 (2015); People v.
Silva, 24 N.Y.3d 294, 998 N.Y.S.2d 154 (2014); People v. Lourido, 70 N.Y.2d 428, 522
N.Y.S.2d 98 (1987); People v. Murphy, 133 A.D.3d 690, 20 N.Y.S.3d 127 (2d Dep’t 2015);
People v. Sorrell, 108 A.D.3d 787, 969 N.Y.2d 198 (3d Dep’t 2013); People v. Cornado, 60
A.D.3d 450, 874 N.Y.S.2d 463 (1st Dep’t 2009); People v. Williams, 221 A.D.2d 246, 634
N.Y.S.2d 459 (1st Dep’t 1995), this is the only case I have seen where the jury affirmatively
withdrew its request in the first note by an affirmative direction in the verdict note. The jury’s
express announcement as to its intent to abandon its prior request would have greatly weakened
any argument appellate counsel might have made that the trial court should have proceeded on a
different path, because to comply with the request in the first note would have meant
disregarding the direction in the second note.
Third, shortly after the New York Court of Appeals denied leave to appeal the Appellate
Division’s decision rejecting petitioner’s coram nobis motion, the New York Court of Appeals
held that a trial court’s failure to respond to a jury note prior to receiving another note
announcing that a verdict has been reached does not itself constitute a mode of proceedings error.
Therefore, if counsel did not object to the non-response, the claim is unpreserved for appeal. See
Mack, 27 N.Y.3d at 542, 36 N.Y.S.3d at 75. In Mack, the Court of Appeals made clear that a
court should follow a two-step process when it receives a jury note: (1) give counsel notice that a
note has been received; and (2) meaningfully respond to the note. Failure to follow either one of
these steps does not constitute a mode of proceedings error unless defense counsel is deprived of
the opportunity to object to either step. Indeed, the facts in Mack are materially
indistinguishable from the instant case. Thus, not only was petitioner’s appellate counsel
objectively reasonable in choosing not to raise this argument – he was somewhat prescient.
There is, therefore, no basis for finding constitutional error in the Appellate Division’s
rejection of petitioner’s arguments on coram nobis.
DNA Analysis Confrontation Clause Claims
At the second trial, the prosecution called a criminalist, Dr. David Fisher, from the Office
of the Chief Medical Examiner, who was certified as an expert in forensic biology and DNA
analysis. Dr. Fisher made a comparison of several DNA profiles generated by different analysts
in the Medical Examiner’s Office.
As a control sample, Dr. Fisher used the DNA profile of the victim, Morgan, which was
generated from blood collected during his autopsy. Dr. Fisher compared the control sample to
DNA analyses done on several blood stains found on petitioner’s shirt and jeans, which the
police had collected from petitioner at the time of his arrest. Dr. Fisher concluded that one of the
stains on petitioner’s jeans contained a mixture of DNA from the victim and an unidentified
individual, and a second stain on petitioner’s jeans contained only the victim’s DNA.
On cross-examination, Dr. Fisher acknowledged that he had reached the same
conclusions as Dr. Lansky, another analyst who worked under Dr. Fisher and previously
rendered a report making the same comparisons, but Dr. Fisher maintained that he had done an
independent analysis and reached his own conclusions. Dr. Fisher prepared a chart using the
results of the underlying DNA analyses to explain to the jury how he reached his conclusion that
the victim’s DNA was on the clothing identified as belonging to petitioner. Significantly,
however, neither the DNA reports nor Dr. Lansky’s analysis were received in evidence.
In his pro se brief on direct appeal, petitioner contended that the prosecution’s exclusive
reliance on Dr. Fisher, and failure to call the analysts who had participated in creating the DNA
profiles from the victim’s blood and the blood stains on petitioner’s jeans, violated his rights
under the Confrontation Clause. Petitioner argued that the documents upon which Dr. Fisher
relied were testimonial because the sole purpose in creating the DNA analyses was for the
prosecution of petitioner. The Appellate Division held:
The DNA profiles were not testimonial, but rather, were merely raw data that,
standing alone, did not link the defendant to the crime. The connection of the
defendant to the crime was made by the testimony of police officers establishing
that the defendant was wearing the subject jeans when arrested, and of the DNA
expert, who testified that, based on his analysis, the two subject DNA profiles
Pitre, 108 A.D.3d at 644, 968 N.Y.S.2d at 587.
Because the Appellate Division decided this issue on the merits, my review is again
subject to the deferential standard under AEDPA described above. The relevant Supreme Court
authority on this issue is Williams v. Illinois, 132 S. Ct. 2221 (2012), which was decided after
petitioner’s trial but about a year before the Appellate Division affirmed his conviction. In
Williams, a plurality of the Court rejected a Confrontation Clause challenge to the testimony of
an expert witness who had relied on DNA testing done by an unaffiliated laboratory, in which he
had no involvement, to perform his own DNA analysis.
There were two bases for the plurality’s opinion. First, it held that since the laboratory
report was not admitted into evidence, but merely testified to by the expert as the basis of his
opinion, it was not offered for the “truth of the matter asserted” and thus could not give rise to a
Confrontation Clause violation. Second, since the defendant had not yet been identified as a
suspect at the time that the DNA testing was performed, the Court held that even if the report had
been admitted into evidence, it would not pose a Confrontation Clause problem because the
report was prepared primarily for investigative rather than prosecutorial purposes. Justice
Thomas, concurring only in the judgment, actively disagreed with both bases for the plurality’s
decision, but provided a fifth vote on a completely different basis. Justice Thomas thought that
there was no Confrontation Clause violation because the laboratory report “lacked the requisite
formality and solemnity to be considered testimonial for purposes of the Confrontation Clause.”
Id. at 2255 (Thomas, J., concurring).
My colleague Judge Block has perceptively observed that Williams is a particularly thin
reed upon which to seek habeas corpus relief. See Washington v. Griffin, 142 F. Supp. 3d 291,
295 (E.D.N.Y. 2015). Because the Supreme Court was so badly fractured in its rationales, Judge
Block has explained that it would be difficult to find that there is “clearly established federal law,
as determined by the Supreme Court,” as required under 28 U.S.C. § 2254(d)(1), against which a
state court decision could be found deficient. Id. at 296-97. Indeed, in her dissent, Justice Kagan
expressed that “[t]he five Justices who control the outcome of today’s case agree on very little.”
Williams, 132 S. Ct. at 2277 (Kagan, J., dissenting). Judge Block also noted that the Second
Circuit, even on direct review, has lamented that “Williams does not, as far as we can determine .
. . yield a single, useful holding relevant to the case before us. It is therefore for our purposes
confined to the particular set of facts presented in that case.” Id. at 295-96 (quoting United States
v. James, 712 F.3d 79, 95 (2d Cir. 2013). 3
Nor does this case fall squarely within the Supreme Court’s earlier Confrontation Clause
precedents of Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705 (2011), and MelendezDiaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009), such that the state court’s decision
to permit Dr. Fisher’s testimony can be found to be unreasonable. First, in each of those cases,
the underlying laboratory reports, upon which the non-participating expert had based his opinion,
were admitted into evidence. Here, however, the reports were never entered into evidence or
shown to the jury. Second, the nature of each report in Melendez-Diaz and Bullcoming was
incriminating on its face. See Bullcoming, 564 U.S. at 653, 131 S. Ct. at 2710 (lab report
showed a blood-alcohol level above legal limit); Melendez-Diaz, 557 U.S. at 308, 129 S. Ct. at
2530-31 (lab report confirmed that substance was cocaine). In contrast, the DNA analyses upon
which Dr. Fisher relied in petitioner’s case said nothing about whether petitioner was guilty or
innocent on their own; it took an expert on the witness stand, who was subject to cross
examination, to interpret the results and tie various pieces of evidence together to inculpate
petitioner. Indeed, the plurality in Williams acknowledged that a DNA report is not “inherently
inculpatory.” 132 S. Ct. at 2228.
These are sufficient distinguishing factors such that I cannot find that the state court’s
decision to allow Dr. Fisher’s testimony was contrary to or an unreasonable application of this
Any argument that the state court unreasonably applied Williams because, unlike the defendant in Williams,
petitioner had been a suspect at the time the underlying DNA analyses were performed fails. The plurality’s finding
that, since the defendant was not in custody or a suspect, the primary purpose of the laboratory report was to catch a
rapist, not prosecute the defendant, was only essential to its alternative holding – that even if the report had been
admitted into evidence it would not have violated the Confrontation Clause. Here, Dr. Lansky’s report was not
introduced into evidence, and thus the fact that petitioner was a suspect when the DNA analyses were completed is
murky area of federal law. As Justice Kagan expressed in her dissent, Williams leaves this area
of the law muddled, and AEDPA requires reasonable clarity if habeas relief is to be granted.
Here, petitioner had the opportunity to cross-examine the only expert that expressed an
opinion to the jury tying the victim’s DNA to petitioner’s clothing. Dr. Fisher unequivocally
denied relying on anything but the data in the DNA samples extracted by lab technicians. To the
extent Dr. Fisher lacked specific knowledge of whether the underlying tests upon which his
opinion depended were properly performed, that was an area which petitioner’s counsel could,
and did, exploit as a basis to argue that the jury should discount Dr. Fisher’s opinion. At this
point in the development of the law on the right to confrontation over DNA testing, no Supreme
Court precedent requires more. 4
Petitioner’s represented brief on direct appeal raised four points that the Court combined
into two: (1) the verdict on the murder charge was (a) based on insufficient evidence and (b)
against the weight of the evidence; and (2) the verdict on the drug charge was (a) based on
insufficient evidence and (b) against the weight of the evidence. Addressing both points
together, the Appellate Division held that:
The defendant’s challenge to the legal sufficiency of the evidence supporting his
convictions is unpreserved for appellate review since he failed to move for a trial
order of dismissal specifically directed at the errors he now claims. In any event,
viewing the evidence in the light most favorable to the prosecution, we find that it
was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt.
Petitioner also alleges that the admission of Autry’s testimony in the second trial violated his rights under the
Confrontation Clause. That claim is unexhausted because he did not raise it in state court, other than as the
predicate for his claim that appellate counsel was ineffective for not raising it on appeal. However, because it is an
on-the-record claim that could only be raised on direct appeal, and petitioner has no opportunity for a further direct
appeal, the claim is deemed exhausted and procedurally barred. See Reyes v. Keane, 118 F.3d 136, 139 (“[A] claim
is procedurally defaulted for the purposes of a federal habeas review ‘where the petitioner failed to exhaust state
remedies and the court to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred.’”) (quoting Coleman v. Thompson, 501
U.S. 722, 735 n.1, 111 S. Ct. 2546, 2557 n.1 (1991)). In addition, as the analysis on his claim for ineffective
assistance of appellate counsel set forth above demonstrates, the claim is without merit.
Moreover, in fulfilling our responsibility to conduct an independent review of the
weight of the evidence, we nevertheless accord great deference to the jury’s
opportunity to view the witnesses, hear the testimony, and observe demeanor.
Upon reviewing the record here, we are satisfied that the verdict of guilt was not
against the weight of the evidence.
Pitre, 108 A.D.3d at 644, 968 N.Y.S.2d at 586-87.
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. 772, 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 procedural 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.”) (emphasis
In the instant case, when the prosecution rested, defense counsel made a general motion
to dismiss without stating any grounds other than “failure to make out a prima facie showing.”
At the close of the case, after the defense had called its own witnesses, defense counsel made an
equally general motion stating only that “the People failed to meet their burden. . . .”
It is as firmly established and as regularly followed in New York practice as it could be
that these kinds of generalized statements preserve nothing for review on appeal. See People v.
Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173 (1995). To properly preserve a legal sufficiency
challenge for appellate review, “a defendant must move for a trial order of dismissal, and the
argument must be specifically directed at the error being urged.” People v. Hawkins, 11 N.Y.3d
484, 492, 872 N.Y.S.2d 395, 399 (2008) (internal quotation marks and citation omitted).
General motions to dismiss do not preserve unstated arguments. See, e.g., id.; Gray, 86 N.Y.2d
at 20, 629 N.Y. S.2d at 176 (“The chief purpose of demanding notice through objection or
motion in a trial court, as with any specific objection, is to bring the claim to the trial court’s
attention. A general motion fails at this task. As a practical matter, a general motion to dismiss
is often no more helpful to the Trial Judge than would be a motion predicated on an erroneous
ground.”) (internal citations omitted).
In other words, defense counsel cannot simply state that the prosecution has failed to
make its case; he must refer specifically to the element or elements that he claims are missing
from the proof that has been introduced so that the trial judge does not have to comb through the
record and do his work for him. The specific deficiencies identified by defense counsel, if
rejected by the trial court, are preserved and form the basis for the argument on appeal. See
Holguin v. Lee, No. 13-cv-1392, 2016 WL 1030129, at *4 (S.D.N.Y. March 10, 2016); Bethea v.
Walsh, No. 09-cv-5037, 2016 WL 258639, at *39 (E.D.N.Y. Jan. 19, 2016); Brito v. Phillips,
485 F. Supp. 2d 357, 361-63 (S.D.N.Y. 2007). Here, the motions made by defense counsel
preserved nothing and thus the Appellate Division properly invoked a procedural bar.
Once a federal court determines that a claim is procedurally barred under state procedural
rules, it may still review such a claim on its merits if the petitioner can demonstrate both cause
for the default and prejudice resulting therefrom, or 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, 489
U.S. at 262, 109 S. Ct. at 1043. The latter avenue, a miscarriage of justice, is reserved for
extraordinary cases, such as where a constitutional violation results in the conviction of an
individual that is actually innocent. See Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639
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
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, see Murray, 477 U.S at 488-89, 106 S. Ct. at
2645-46, the ineffective assistance claim must itself have been exhausted in the state court.
Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S. Ct. 1587, 1591-92 (2000).
Here, although petitioner raised several claims of ineffective assistance of trial counsel
and ineffective assistance of appellate counsel, he never contended that trial counsel was
ineffective for failing to preserve any legal insufficiency claims. He therefore cannot rely on
ineffective assistance of trial counsel as cause to excuse his procedural default.
In any event, such a claim could not succeed, for petitioner was not prejudiced by the
general motion made by trial counsel. In fact, defense counsel’s argument in petitioner’s
represented brief on direct appeal only nominally raised an “insufficient evidence” claim.
Virtually the entire argument on appeal was directed towards an “against the weight of the
evidence” claim, which was logical considering that defense counsel had, indeed, placed
contradictory evidence before the jury and had drawn the jury’s attention to the credibility issues
with parts of the prosecution’s case.
It may be that trial counsel decided not to make a more specific insufficient evidence
motion at trial appellate counsel decided not to include a thorough insufficient evidence claim in
his brief because there was, in fact, plenty of evidence that, if accepted, would satisfy the
prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt: (1) an eyewitness,
Sanchez, identified petitioner, both in court and in a lineup on the same day as the crime, as the
person that he saw pulling a knife out of the victim’s chest; (2) two other witnesses, Rodriguez
and Autry, heard petitioner boast about stabbing the victim immediately after it occurred; (3) the
police, arriving almost immediately after the stabbing and directing petitioner to halt, had to
chase petitioner because he took off for his apartment; (4) the police, after breaking into
petitioner’s apartment, found a huge quantity of high potency heroin throughout, some of which
was packaged for sale, plus drug sale paraphernalia, and a utility bill showing that petitioner was
the account holder of the apartment; (5) petitioner admitted during police questioning that he had
“f—d up” and “crossed the line”; and (6) blood found on petitioner’s jeans matched the victim’s
Petitioner did cast doubt on some of the prosecution’s evidence. He pointed out that the
police never found the murder weapon or any trace of the victim’s blood in his apartment,
despite Sanchez’s, the eyewitness, testimony that there was blood on the knife and petitioner’s
hand when he withdrew the knife from the victim’s chest. He also noted that when Sanchez
described the perpetrator to the police, he indicated that the person had no tattoos, scars, or facial
hair (which petitioner had and Sanchez could have seen because petitioner had been naked from
the waist up, although Sanchez thought he had on a light shirt), and that Sanchez had been
unable to identify him in court during petitioner’s first trial. Finally, petitioner asserted that
Rodriguez and Autry were lying about his boast for various reasons. The prosecution, however,
had arguments responding to each of these points.
As can be seen, this was a case for the jury and petitioner’s represented brief on appeal
sensibly focused heavily on the “weight of the evidence” rather than legal insufficiency, and paid
only lip service to the latter. Of course, a challenge to the weight of the evidence is not
reviewable on a federal habeas corpus petition as it presents only an issue of state law. See
Mobley v. Kirkpatrick, 778 F. Supp. 2d 291, 311 (W.D.N.Y. 2011) (“Federal courts routinely
dismiss claims attacking a verdict as against the weight of the evidence on the basis that they are
not federal constitutional issues cognizable in a habeas proceeding.”) (citing, inter alia, Ex parte
Craig, 282 F. 138, 148 (2d Cir. 1922) (holding that “a writ of habeas corpus cannot be used to
review the weight of evidence. . . .”)); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y.
2001) (“A weight of the evidence argument is a pure state law claim grounded in New York
Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due
process principles. . . . Accordingly, the Court is precluded from considering the claim.”)
(internal quotation marks and citations omitted).
In sum, petitioner’s weight of the evidence claim is not cognizable, his legal insufficiency
claim is procedurally barred, and there is neither cause, prejudice, nor manifest injustice that
would support setting aside the procedural bar.
IV. Father-Daughter Jurors
Finally, in his habeas corpus petition, petitioner asserts that he was deprived of due
process of law because the trial court allowed a father and his daughter to be seated on the jury,
even though his trial counsel had failed to object. In his pro se brief on direct appeal, petitioner
argued that New York Criminal Procedure Law § 270.20(1)(c) made this improper.
The daughter had been seated first and was challenged for cause, but that challenge had
nothing to do with her father, who at that point remained only a prospective juror. The challenge
as to the daughter was ultimately overruled. Then, when the father was subsequently questioned,
he disclosed that his daughter had already been seated. There was discussion among counsel and
the court, both on and off the record, about the unusual fact that a father and daughter were
seated on the same jury, but no challenge was raised.
The Appellate Division held that petitioner’s claim was “unpreserved for appellate
review because the jurors’ relationship was exposed during voir dire, but the defendant chose not
to challenge it” and alternatively that “the prospective jurors’ relationship was not one that
implicates CPL 270.20(1)(c).” Pitre, 108 A.D.3d at 644, 968 N.Y.S.2d at 587.
Perhaps the most basic principle of federal habeas corpus law is that a petitioner must
first exhaust his federal constitutional claims in state court to obtain review of those claims in
federal court. This principle is codified in AEDPA, as it was in its immediate predecessor
statutes. But even before the enactment of a statutory mandate, it had been firmly established
that federal courts should exercise their discretion to not entertain an application for a writ of
habeas corpus until the state court has had an opportunity to review a petitioner’s federal
constitutional claims, which they have been deemed fully competent to do. See, e.g., Picard v.
Connor, 404 U.S. 270, 92 S. Ct. 509 (1971); Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734 (1886).
The exhaustion requirement recognizes that although the States surrendered an aspect of
their sovereignty in signing onto the federal constitution and agreeing to habeas corpus review,
this federal power should be sensitively invoked, as it interferes with the States’ right to
administer their own criminal law and protect their citizens from criminal conduct, as well as
their ability to measure the prosecution of that conduct against the demands of the U.S.
Constitution. “We have consistently adhered to this federal policy, for ‘it would be unseemly in
our dual system of government for a federal district court to upset a state court conviction
without an opportunity to the state courts to correct a constitutional violation.’” Picard, 404 U.S.
at 275, 92 S. Ct. at 512 (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 590 (1950)).
Therefore, to examine petitioner’s claim that the Appellate Division’s ruling denied him
due process of law under the Fourteenth Amendment of the U.S. Constitution, I must first
determine whether he has exhausted this federal constitutional claim. To exhaust a federal
constitutional claim, a petitioner must “fairly present” the claim to the highest state court
available to him by either citing the “chapter and verse” of the federal constitutional provision on
which he relies, or invoking any of several argumentative devices that implicitly rely upon a
provision of the U.S. Constitution. See Daye v. Attorney General of New York, 696 F.2d 186
(2d Cir. 1982) (en banc).
This case tests the rationale of the Second Circuit’s decision in Reid v. Senkowski, 961
F.2d 374 (2d Cir. 1992), which, although a per curiam opinion, is the most frequently cited
authority in the Second Circuit for the liberal standard of exhaustion applied in this Circuit. In
Reid, the petitioner’s pro se supplemental brief to the Appellate Division challenged the trial
court’s refusal to give a missing witness charge under New York law, and relied exclusively on
New York case law to make that argument. The Appellate Division held that the claim – along
with several others that were undifferentiated – was “either unpreserved for appellate review or
without merit.” Id. at 377.
On Reid’s petition for a writ of habeas corpus, the district court found that the missing
witness charge claim had been briefed entirely as a matter of New York law and thus no federal
claim had been exhausted. The Second Circuit disagreed, finding that the following references
in the petitioner’s brief were sufficient to fairly present, and therefore exhaust, a claim that the
failure to give a missing witness charge deprived petitioner Reid of his right to due process under
the Fourteenth Amendment to the U.S. Constitution: (1) the petitioner “framed the first question
on appeal as ‘[w]hether appellant’s right to due process of law was violated by the trial court’s
refusal’ to provide a missing witness jury charge”; and (2) the petitioner’s point heading to this
argument cited to the Fourteenth Amendment of the U.S. Constitution. Id. at 376. Because the
Appellate Division’s “either/or” disposition of several issues without differentiation was unclear
as to whether it had applied a procedural bar to the missing witness charge claim, the Second
Circuit proceeded to examine the claim on the merits, which it ultimately rejected.
Petitioner’s pro se brief to the Appellate Division in the instant case, although involving a
state criminal procedure statute rather than state case law, has close similarities to the petitioner’s
pro se brief in Reid. Here, the entirety of petitioner’s argument was directed at the state statute.
He discussed its history, its purpose, and how its purpose would be thwarted by allowing a father
and daughter to serve together on the jury. Indeed, his concluding paragraph stated: “This issue
presents a novel question of statutory interpretation, and Pitre invites the Court to explicate
whether the father and daughter relationship rendered them grossly unsuitable for jury service
upon the same jury panel in violation of the language set forth in the statute regarding
consanguinity.” (emphasis added).
There were, however, scattered references, actual or at least arguable, to the U.S.
Constitution in his pro se brief. First, the preliminary statement described the brief as presenting
“two constitutional issues,” one of which was “based upon [an error] by the Court in allowing
[the father and daughter jurors] to serve upon the same jury panel,” that petitioner asserted was
in “violation of Pitre’s rights to Due Process of Law (USCA 14th Amen). . . .” Second, the point
heading characterized the issue as:
Whether the Court violated appellant’s right to the Due Process of Law when it
allowed jurors Dariana Jacquez and Gilberto Jacquez (Father and Daughter), to
serve upon the same jury panel after the issue was brought to the Court’s attention
on the record, before the commencement of defendant-appellant’s trial and the
Court possessed adequate remedy pursuant to Criminal Procedure Law Statute §§
270.20(1)(c), 270.35(1 ) to correct the potential for any prejudice.
Beyond these references, petitioner’s brief also asserted that: “At a minimum, the consanguinity
alone triggered a manifest presumption of bias and a constitutional duty on the part of the trial
judge to investigate the underlying language of the legislatives [sic] intent.” 5
Comparing the references in petitioner’s pro se Appellate Division brief here to those in
Reid, Reid compels me to conclude that petitioner has exhausted his federal constitutional claim.
Petitioner also included a “cf.” cite, without discussion, to Remmer v. United States, 350 U.S. 377, 76 S. Ct. 425
(1956), which concerned the need to conduct a hearing when a juror is subjected to an outsider’s attempt to bribe
him. That case, however, could not have alerted the Appellate Division to any federal constitutional issue, as it was
based on the Supreme Court’s supervisory power over the lower federal courts, not on any provision of the U.S.
Constitution. See Young v. Herring, 938 F.2d 543, 558 n.7 (5th Cir. 1991).
B. Procedural Bar
Notwithstanding the exhaustion of this claim, the Appellate Division’s holding that the
claim was unpreserved constitutes a procedural bar to review in this Court unless petitioner can
show cause and prejudice to excuse the procedural bar or manifest injustice. See Coleman, 501
U.S. at 750, 111 S. Ct. at 2565. As explained above, although a claim of ineffective assistance of
counsel can constitute cause to excuse a procedural bar, the claim of ineffective assistance of
counsel must have itself been exhausted by following proper state procedure to preserve such a
claim. See Edwards, 529 U.S. 446, 120 S. Ct. 1587. Failure to follow proper state procedure,
resulting in the denial of the ineffective assistance claim on procedural grounds, will preclude
habeas corpus review of both the ineffective assistance claim and the claim that has been barred,
unless, of course, the petitioner can also show cause and prejudice, or manifest injustice for his
failure to properly raise the ineffective assistance of counsel claim. Id. at 451-454, 120 S. Ct.
Applying Edwards to the instant case, petitioner has no grounds to overcome the
procedural bar. Since, as the Appellate Division noted, his attorney’s failure to object to seating
the father and daughter on the same jury was evident on the record, New York procedure
required petitioner to raise his attorney’s ineffectiveness, as well as the alleged error itself, on
direct appeal. See N.Y. Crim. Proc. § 440.10(2)(c); People v. Cooks, 67 N.Y.2d 100, 103, 500
N.Y.S.2d 503, 505 (“The purpose of [§ 440.10(2)] . . . is to prevent [§ 440.10] from being
employed as a substitute for direct appeal when defendant was in a position to raise an issue on
appeal.”); see also Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (“New York law requires
a state court to deny a motion to vacate a judgment based on a constitutional violation where the
defendant unjustifiably failed to argue the constitutional violation on direct appeal despite a
Petitioner did not do this. Instead, he later brought a motion pursuant to New York
Criminal Procedure Law § 440 claiming that his trial counsel was ineffective for not making the
objection at trial. Predictably, the § 440 court rejected that claim as procedurally barred because
it should have been raised on direct appeal, and, alternatively, as without merit. Further, as noted
above, although petitioner filed a coram nobis motion claiming that his appellate counsel was
ineffective for failing to raise certain arguments on direct appeal, this was not one of them.
Petitioner has therefore failed to properly raise his claim of ineffective assistance of counsel
based on his attorney’s failure to preserve this point. He has shown no other basis for cause and
prejudice, or manifest injustice.
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
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). The Clerk is directed to enter judgment accordingly.
Digitally signed by Brian M.
Dated: Brooklyn, New York
December 26, 2016
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