Smith v. Keyser

Filing 12

MEMORANDUM AND ORDER: For the reasons set forth above, the instant petition for a writ of habeas corpus is denied and this action is dismissed. A certificate of appealability shall not issue because Smith has not made a substantial showing of the de nial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Clerk of Court is directed to enter judgment in accordance with this Memorandum and Order, mail a copy of the judgment and this Memorandum and Order to Smith, note the mailing on the docket sheet, and close this case. Ordered by Chief Judge Roslynn R. Mauskopf on 1/11/2021. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RORY SMITH,
MEMORANDUM AND ORDER
17-CV-557 (RRM)

Petitioner,
-againstWILLIAM KEYSER, JR., Superintendent,
Sullivan Correctional Facility,

Respondent.
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ROSLYNN R. MAUSKOPF, Chief United States District Judge.
Rory Smith, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, asserting that his February 7, 2012, conviction for attempted murder in the
second degree and assault in the third degree was unconstitutional. For the reasons set forth
below, Smith’s petition for a writ of habeas corpus is denied and this action is dismissed.
BACKGROUND
On July 27, 2010, Smith punched George McDuffie in the face, breaking the bones
around his eye. (Resp’t Resp. to Order Show Cause (“Resp’t Resp.”) (Doc. No. 9) at 1–2.) 1 On
August 10, 2010, Smith shot at McDuffie eleven times, hitting McDuffie in his hand, arm, and
leg. (Id. at 2.) McDuffie escaped on his motorcycle and called 911. (Id.) Smith was
subsequently charged with attempted murder in the second degree, N.Y. PENAL LAW §§ 110.00,
125.25(1), assault in the first degree, § 120.10(1), attempted assault in the first degree, §§
110.00, 120.10(1), and two counts each of assault in the second degree, § 120.05(2), assault in
third degree, § 120.10, criminal possession of a weapon in the second degree, § 265.03(3),
(3)(1)(b), and criminal possession of a weapon in the fourth degree, § 265.01(1), (2).

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Unless otherwise noted, all page numbers correspond to ECF pagination.

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A. Pretrial Hearing
On January 30, 2012, the trial court held a pretrial evidentiary hearing. (Trial Tr. Ex. 3 to
Resp’t Resp. (“Ex. 3”) (Doc. No. 9-3) at 44–66.) At the hearing, the People sought to have the
court admit into evidence two phone calls made by Smith while detained on Rikers Island to be
used in its case-in-chief; the prosecution additionally stated that it possessed other phone calls
made by Smith while at Rikers Island (collectively the “Rikers calls”), which it intended to use
to impeach the defendant should the opportunity present itself. (Ex. 3 at 47.) One of these
impeachment calls involved an uncharged crime and therefore required the prosecution to seek a
Sandoval ruling. 2
The first call the People sought to introduce (the “Ratchet Call”), took place on
December 2, 2010. In that call, Smith said that he was “thankful [to be] alive still” because he
could have been on the “other side of the ratchet.” (Ex. 3 at 49.) The “ratchet,” the People
argued, is “common vernacular for gun in Bedford Stuyvesant,” which it claimed it could prove
through the testimony of a detective. (Id.) The prosecution argued that this call was an
admission of guilt because “[what] he is talking about is the event that got him into jail.” (Ex. 3
at 49–50.) The defense argued that “any indicia of guilt by Mr. Smith … [was] speculative at
best.” The court agreed and excluded the Ratchet Call. (Ex. 3 at 51.)
The second call (the “Statement Call”) occurred on September 14, 2010. In that call,
Smith asked Tamika Daniels, Smith’s domestic partner, to instruct Darlene Powell, an
eyewitness, to “take a couple of dollars and make [George McDuffie] sign a statement, and say it
wasn’t me.” (Ex. 3 at 52.) The People argued that this was an admission of guilt; however, the

A Sandoval ruling is a New York trial court’s determination as to whether the government will be permitted to
inquire into a criminal defendant’s prior conviction(s) in the event that the defendant testifies at trial. See People
v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (N.Y. 1974); see also Harris v. Kuhlmann, 346
F.3d 330, 337 (2d Cir. 2003) (describing the nature of a “Sandoval” ruling).
2

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defense argued that the statement was not an admission of guilt because, on the call, Smith also
stated that “me and him had a fist fight, but now he is realizing it wasn’t me because I didn’t
shoot him…. [McDuffie] is only saying that because he don’t like me.” (Id.) The court
admitted this call, finding that it was probative and an admission in two regards. (Ex. 3 at 56.)
First, Smith was instructing the individual on the phone to contact Powell, whom Smith was
prohibited from contacting both directly and indirectly by an outstanding order of protection.
(Id. at 52–53.) Second, Smith was attempting to instruct a witness to change his testimony. (Id.
at 53.)
The defense requested that, if the Statement Call be admitted, a separate Rikers call,
placed on September 13, 2010, be admitted as well under the “doctrine of completeness.” (Id. at
55.) In the September 13 call, Smith stated “I didn’t shoot nobody.” (Id.) The defense argued
that this call showed “clear indication from Mr. Smith that he was not involved in the shooting”
and that taking the Statement Call out of context “is clearly prejudicial.” (Id.) The court found
that there was no nexus between the two statements, that the September 13 statement was selfserving, and denied the defense’s application to admit the September 13 call. (Id.)
The trial court then conducted a Sandoval hearing to determine the admissibility of
Smith’s prior convictions and other uncharged crimes as impeachment material should the
defendant testify. (Ex. 3 at 57–66.) Turning to Smith’s prior convictions, the prosecution sought
permission to cross-examine Smith on the following prior crimes: a 2006 false impersonation
conviction and a 1992 conviction for criminal possession of a controlled substance in the fourth
degree. (Id. at 57–60.) Defense counsel argued that the 1992 conviction was remote and
prejudicial, and the 2006 conviction was likewise prejudicial. (Id. at 62–64.) The trial court

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ruled that the 1992 drug conviction was too remote but allowed the prosecution to question
Smith on his conviction for false impersonation. (Id. at 64–65.)
Additionally, the prosecution sought to have the court admit into evidence a September 7,
2010, Rikers call (the “Forgery Call”) should the defendant testify. (Id. at 60–63.) In this call,
Smith told his aunt that he had a “legitimate way to get money right now. The check is not fully
in my name. So, but it’s in a male’s name. I have the I.D. and all of that. I can’t sign nothing
over.” (Id. at 61.) The trial court found these statements too speculative and prohibited the
prosecution from inquiring about the Forgery Call. (Id. at 65–66.)
B. Voir Dire
The prosecution used nine peremptory challenges and the defense used two of their
fifteen available challenges. (Ex. 3 at 188, 194, 198.) Although two individuals indicated some
concern with the use of a gun in the case, defense counsel did not move to strike them. For
example, the defense did not strike Ms. Brown, who stated that “guns really scare[] me” and
whose cousin had died in a shootout the year before, but who maintained that she would “try
[her] best in this case” and would be fair. (Ex. 3 at 133.) Similarly, the defense did not strike
Mr. Chiu, who stated that he did not “like the people [who] carry guns except the police” but
who maintained that he would “try [his] best” to be fair. (Ex. 3 at 135–36.)
C. The People’s Case
Although twelve witnesses testified for the prosecution at trial, only two of them –
Powell and McDuffie – were eyewitnesses to the assault and the shooting. The first witness,
Powell, the mother of McDuffie’s daughter and a tenant at 656 MacDonough Street where both
events happened, was compelled to testify by a material witness order. (Trial Tr. Ex. 4 to Resp’t
Resp. (“Ex. 4”) (Doc. No. 9-4) at 11–13.) As to the assault that occurred on July 27, Powell
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testified that she was arguing with her first-floor neighbor, Tamika Daniels, Smith’s girlfriend,
when McDuffie appeared with their daughter and also began arguing with Daniels. (Id. at 52–
54.) Eventually, as the argument grew more heated, Smith came out of the apartment and joined
the argument. (Id. at 54.)
As they moved from the building stoop to the street, Powell testified that Smith walked
away only to return to hit McDuffie in the eye from behind. As McDuffie struggled to walk up
the steps back into the apartment building, Smith “came up the steps and started hitting him
again.” (Id. at 57–58.) Powell testified that the building superintendent, Marlon Prescott, who
also witnessed the fight, called the police. On cross-examination, Powell testified that it was
McDuffie who called Smith out to fight on August 27, but that Smith punched McDuffie from
behind and McDuffie did not return the punch because he could not see. (Id. at 91, 97–99.)
As to the shooting on August 10, Powell testified that she woke up because she heard
gunshots. From her apartment windows, Powell observed Smith “shooting at [McDuffie]” while
McDuffie was on his motorcycle. (Id. at 60–61.) She further testified that “[a]s George was
riding past, [Smith] was shooting. (Id. at 62.) He was going down the steps, like, to keep
shooting as he was going. Then he ran back in the building” and ran back out and left in his van.
(Id.) Powell testified that she called police. (Id.) She later identified Smith at a lineup at the
police precinct. (Id. at 71.) On cross-examination, Powell testified that she could see Smith
shooting from the doorway of the building from two windows in her apartment even though one
window had an air conditioner and the other window had window guards. (Id. at 105–06.)
The prosecution called several police officers to testify as to the two events. Officer
Seymour testified that she responded to “an assault in progress” on July 27, 2010, and “took a
complaint report.” (Trial Tr., Ex. 6 to Resp’t Resp. (“Ex. 6”) (Doc. No. 9-6) at 112, 115.) At the

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scene, Officer Seymour spoke to the super, McDuffie, and two adult females. (Ex. 6 at 113.)
However, the prosecution was not able to produce the police report or any documentation for the
July 27, 2010, incident, indicating that it was lost. (Trial Tr., Ex. 5 to Resp’t Resp. (“Ex. 5”)
(Doc. No. 9-5) at 103.)
Officer Wing testified that he arrived on the scene on August 10, 2010, found spent shell
casings at 656 MacDonough Street, and spoke to Powell and Daniels. (Ex. 6 at 12–14, 18.) On
cross-examination, Wing testified that he did not speak to Powell in person, but over the phone,
and that she said she heard yelling, not gunshots. (Id. at 22–24.)
Officer Riviezzo, who was part of the evidence collection team dispatched to the scene
on August 10, testified that he collected eleven 9-millimeter shell casings and a portion of a
bullet from the front of, or near the vicinity of, 654 MacDonough Street. (Ex. 4 at 129–30.) On
cross-examination, Riviezzo testified that he did not look for bullet impact marks or look for the
remaining bullets. (Id. at 141.)
The prosecution then called Sergeant Blackmon who testified that he responded to
several calls related to the shooting, including McDuffie’s call. (Id. at 148–49.) Blackmon
testified that he observed McDuffie with “his hands bleeding” from “what appeared to be a
gunshot wound to his hands” and that McDuffie’s motorcycle windshield and gas tank side was
damaged. (Id. at 150, 160.) Blackmon also testified that “11 shell casings” were found in front
of 656 MacDonough Street. (Id. at 151.) On cross-examination, Blackmon testified that he
could not recall if the damage to the motorcycle “came as a result of any gun fire.” (Id. at 170.)
Blackmon also testified that although McDuffie did not identify the person who shot him, he
provided a description and an address for the shooter. (Id. at 153, 166, 170–72.)

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Officer Kwok testified that he rode McDuffie’s motorcycle to the precinct and observed
“a couple of bullet holes in it” and a flat tire. (Ex. 6 at 98.) Detective McDonald testified that he
spoke to McDuffie at Kings County Hospital and that McDuffie identified the shooter as Rory
Smith. (Id. at 28–29.) He further testified that they conducted surveillance and spoke to Daniels
in order to find Smith and that Smith was apprehended on August 30, 2010. (Id. at 31–39.)
Detective McDonald also testified that he conducted a lineup and that McDuffie, Powell
and Prescott all identified Smith and that Smith was arrested. (Id. at 40–46.) On crossexamination, McDonald testified that Smith admitted to having a fight with McDuffie but denied
shooting him. (Id. at 62.)
Detective Heaney, an expert in ballistics, testified that the shell casings came from the
same gun because they “all had the same type of markings” and determined that the shell casings
came from a semi-automatic 9-millimeter Luger pistol. (Id. at 78, 81.) On cross-examination,
Detective Heaney testified that he made a mistake in indicating that there were twelve casings
when there were only eleven. (Id. at 91–93.)
The prosecution also called Regina Ward, a tech tape 911 operator, to authenticate the
911 calls regarding the shooting on August 10. (Ex. 5 at 6–16.) Ward testified that the caller
who made the first 911 call hung up. (Id. at 21.) Amy Lowe, an investigator with the New York
City Department of Corrections, was called to authenticate the calls made while Smith was
detained on Rikers Island and explained that all inmate calls are recorded. (Ex. 6 at 141–44.)
Lowe further testified that inmates are notified that the phone calls are recorded through posters
around the phones, in the inmate handbook, and on the recording on the receiver. (Id. at 144.)
Ciara Pack, employed by T-Mobile, testified that she provided information pursuant to a
subpoena for a prepaid account created on August 10, 2010. (Id. at 134–36.) On cross-

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examination, Pack testified that once a prepaid phone is purchased it can be passed on to another
person and there is no way for T-Mobile to know who is using the phone. (Id. at 137–38.)
The prosecution then called George McDuffie, the victim of the assault and the shooting.
He testified that he only knew Smith from seeing him at 656 MacDonough Street where his
daughter lived with her mother and did not know his name. (Ex. 5 at 43.) McDuffie testified
that on July 27, he was at 656 MacDonough Street to take his daughter to the dentist and became
involved in an argument that Powell was having with the first-floor neighbor, Daniels. (Id. at
45–49.)
McDuffie testified that Powell did not want Daniels cursing at their daughter for looking
into her first-floor window. (Id.) Eventually Daniels’s husband, Smith, came out of their
apartment and started arguing with McDuffie too. (Id. at 50–51.) McDuffie testified that they
went down the stairs in front of the building and continued arguing but that Smith then “walked
off, walked down the block.” (Id. at 54.) As he was talking to the super, McDuffie testified that
Smith “came behind me and punched me” in the eye two times. (Id. at 56.) McDuffie further
testified that he could not see and that Smith continued to punch him from behind before leaving
again. (Id. at 57–58.) McDuffie testified that he spoke to the police, but declined an ambulance.
(Id. at 59.) Later, his face “started to swell up” and he could not open his jaw and he went to the
hospital where he was diagnosed with an eye fracture that would require surgery. (Id. at 61,
64−66.)
McDuffie also testified that he was outside of Powell’s apartment building on the
morning of August 10 after his work shift finished, when Smith arrived in his van, looked at him,
and entered the building. McDuffie testified that Smith “came right back out,” went straight to
him, and accused him of taking his son’s bike. (Id. at 59–61.) According to McDuffie, Smith

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also said that he hated him and that McDuffie would “bleed soon.” Smith then walked back to
the building only to emerge shooting at him from the top of the stairs. (Id. at 72–74.) McDuffie
testified that bullets grazed his hand, arm and leg and also hit his motorcycle. (Id. at 75.)
McDuffie was able to start his motorcycle with some difficulty because the tire was flat and
leave the scene, with Smith still shooting at him. (Id. at 75–76.) McDuffie parked his
motorcycle a few blocks away, walked to a laundromat, and called police. (Id. at 76–79.)
McDuffie also testified that he had initially called the police when Smith first approached, but
hung up because Smith had walked away. (Id. at 80–81, 150.)
McDuffie testified that he told police the shooter was the “guy from the building” but he
did not know his name. (Id. at 83.) He also identified Smith from a lineup at the precinct. (Id.
at 85.) On cross-examination, McDuffie testified that he could see who was standing on the
stairs from Powell’s windows, but not if the person was standing “all the way back.” (Id. at 118–
19.) McDuffie also disputed that he instigated the fight with Smith on July 27, testifying that
Smith “walked down the stairs first” and called him out to fight. (Id. at 137–38.) McDuffie
reiterated that Smith punched him from behind, that he turned toward the steps but could not see,
and that Smith continued to punch him on his back and head while on the steps. (Id. at 140–41.)
The prosecution’s final witness, Adeola Koiki, the emergency medical technician who
tended to McDuffie’s wounds on August 10, testified that McDuffie was “bleeding from his
wrist, his left arm and his right leg,” and that he concluded that McDuffie had been shot. (Trial
Tr., Ex. 7 to Resp’t Resp. (“Ex. 7”) (Doc. No. 9-7) at 11–12, 18.)
D. The Defense Case
Defense counsel attempted to call Kevin Hinkson, who would have contradicted Powell’s
earlier testimony that she could see Smith shooting from the doorway of the building because it

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was not visible from her window. (Ex. 7 at 26–28.) The trial judge did not allow Hinkson to
testify, finding that it “would be an improper attempt to have a layperson testify as to an
opinion.” (Id. at 31.) Defense counsel objected and argued that his client was being deprived of
his right to present a defense. (Id. at 32–33.)
Defense counsel called Chorn Grandison, a neighbor, who testified that he knew
McDuffie, Smith, Powell, and Daniels and that he witnessed the argument and fight on July 27.
(Id. at 34–39.) Grandison testified that McDuffie was “screaming at Tamika” and that McDuffie
instigated the fight with Smith. (Id. at 41.) On cross-examination, Grandison testified that
McDuffie never hit Smith and that Smith only threw one punch at McDuffie. (Id. at 48–49.)
Defense counsel then called Smith who testified that on July 27, he heard McDuffie
“yelling at Tamika” and he came out of the apartment and that McDuffie invited him to fight.
(Id. at 61–63.) Observing that McDuffie was bigger than he, Smith swung at him as soon as they
reached the bottom of the steps. (Id. at 63.) Smith also testified that he could not recall where he
was on August 10, but that he did not shoot at McDuffie or “anyone at any time.” (Id. at 66–67.)
Smith also testified that he worked odd maintenance jobs and produced a song, that he was
convicted of false impersonation when he “told a police officer a wrong name because [his]
license was suspended,” and denied that he tried to bribe McDuffie or Powell. (Id. at 56.) On
cross-examination, however, Smith testified that on July 27, he didn’t throw the first punch
because McDuffie “started swinging and I beat him to it” and that Smith was “facing him
directly” when he hit McDuffie in the face. (Id. at 108–09.)
The prosecution then questioned Smith regarding nine Rikers calls, which included the
three calls – the Forgery Call, the Statement Call, and the Ratchet Call – ruled upon in the
pretrial/Sandoval hearing. (Ex. 7 at 113–16, 127–35.) The prosecution inquired about a call

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placed September 6, 2010, (hereafter, the “Charges Call”), where Smith told Daniels that
McDuffie “pressed charges … for the fight, but the police be pressing charges for the other
stuff.” (Ex. 7 at 112–14.) This call was introduced in response to Smith’s testimony that
McDuffie refused to press charges for the assault. (Id.) Defense counsel did not
contemporaneously object to the prosecution’s use of this call.
The prosecution also inquired about calls placed on September 6, 2010, (the “Driving
Call”); September 11, 2010, (the “First Clothes Call”), and September 14, 2010, (the “Second
Clothes Call”). (Ex. 7 at 114–15, 121–22, 127–30.) In the Driving Call, Daniels told Smith that
he was “caught up driving [Tamika’s] car” and Smith claimed: “what happened is the only way
I’m back in contact with her.” (Id. at 121–22.) In both the First and Second Clothes calls, Smith
and Daniels discussed arrangements to have Daniels pick up clothes from a woman named
Tisha’s residence and deliver them to either his grandmother’s residence or Daniel’s residence.
(Id. at 114–15, 127–30.) Defense counsel did not contemporaneously object to any of these calls
being used by the prosecution.
Additionally, the prosecution inquired about two separate calls, both placed on
September 15, 2010. In the first call (the “Fifth Amendment Call”), between Smith and Daniels,
Smith stated that he hadn’t testified to the grand jury though he had wanted to, stating “I was
pleading the fifth on the shooting in the first place.” (Ex. 7 at 130–33.) Smith claimed that he
did not recall saying that he was intending to plead the fifth, and that he fired his previous
attorney for waiving his right to testify before the grand jury without his consent. (Id.) Defense
counsel did not contemporaneously object to the prosecution’s use of this call.
On the second call (the “Income Call”), between Smith and Daniels, Smith told Daniels
that women would pay him “thirty or forty to drop them there and pick them up.” (Id. at 78–82.)

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This call was introduced in response to Smith’s testimony that his only source of income was
through music production and “odd jobs,” which included minor sheet rocking, flooring, and
garbage handling. (Id. at 75–82.) Defense counsel contemporaneously objected to the
prosecution’s use of this call; however, the court overruled the objection, reprimanded defense
counsel in camera for making frivolous objections, and noted that the prosecution’s use of the
call was proper because it adversely affected Smith credibility by showing that he was “either …
acting as a pimp or lying to the woman he’s living with about his activities.” (Id at 81, 92.)
On re-direct, Smith explained that on one of the calls he attempted to set up an alibi with
Tamika Clark, a friend, because he spent a lot of time at her home and she may have known
where he was on August 10. He also explained that he did not pay McDuffie or Powell to
change their testimony and only mentioned it to Daniels “out of desperation.” (Id. at 142–42.)
E. The Verdict and Sentence
Justice Del Giudice submitted to the jury only three of the counts charged in the
indictment – assault in the third degree, attempted murder in the second degree, and attempted
assault in the first degree – and he directed the jury to consider the attempted assault in the first
degree only if it found defendant not guilty of the murder count. On February 7, 2012, the jury
found Smith guilty of assault in the third degree and attempted murder in the second degree.
(Trial Tr., Ex. 8 to Resp’t Resp. (“Ex. 8”) (Doc. No. 9-8) at 143.) On March 8, 2012, Justice Del
Giudice adjudicated Smith a second felony offender and sentenced him to one year’s
imprisonment for the assault in the third degree and 23 years’ imprisonment for the attempted
murder in the second degree, plus five years post-release supervision. (Ex. 8 at 156, 164–65.)

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F. Direct Appeal
On appeal, Smith’s appellate counsel raised four points on his behalf. First, appellate
counsel argued that Smith’s due process rights were violated when the prosecutor improperly
cross-examined Smith about phone calls that were ruled inadmissible by the trial court in the
pretrial Sandoval hearing. (Br. Def.-Appellant, Ex. 1 to Resp’t Resp. (Doc. No. 9-1) at 40–62.)
Second, appellate counsel raised ineffective assistance of counsel, faulting defense counsel’s
lack of preparation, his use of pejorative language to describe Smith, his failure to effectively
challenge prospective jurors, and his failure to request effective limiting instructions after the
Rikers calls were introduced. (Id. at 56–73.) Third, appellate counsel argued that the trial court
deprived Smith of his right to present a defense when it did not allow an investigator to testify as
to what could be seen from Powell’s bedroom. (Id. at 74–78.) Fourth, appellate counsel argued
that the 23-year sentence was excessive. (Id. at 78–80.)
In their response, the People argued that the claim regarding the phone calls were
unpreserved for appellate review, that Smith received effective assistance of counsel, and that his
sentence was not excessive. The People conceded that Smith should have been allowed to call
the investigator as part of his defense, but claimed that this error was harmless.
In a Decision and Order issued on September 30, 2015, a divided panel of the Appellate
Division affirmed Smith’s judgment of conviction. People v. Smith, 131 A.D.3d 1270 (N.Y.
App. Div. 2015). The majority found that Smith was not deprived of a fair trial because the
evidence of Smith’s guilt was overwhelming and any errors that were made during the trial were
harmless. Id. at 1273. It further noted “that many of the alleged errors complained of by the
defendant are not errors at all or are unpreserved for appellate review, as the defendant failed to
object to them at trial when any error could have been corrected by the trial court.” Id.

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Although defense counsel did not object to the alleged errors, the Appellate Division found that
“such inaction did not deprive the defendant of the effective assistance of counsel.” Id. at 1274–
75 (citing Strickland v Washington, 466 US 668 (1984)). It also found that the sentence was not
excessive. Id. at 1275.
The Honorable Sylvia O. Hinds-Radix dissented. Justice Hinds-Radix found that Smith
was deprived of a fair trial when the court refused to allow Smith’s investigator to testify and
when it altered “the Sandoval ruling to permit cross-examination of the defendant about alleged
misconduct which was not authorized by the Sandoval ruling and/or explicitly precluded by
the Sandoval ruling after the defendant had already taken the stand.” Id. at 1279. The dissent
also found that questioning Smith “about a telephone conversation that he had with his girlfriend
wherein he stated he wanted to testify before the grand jury but had not,” “was highly prejudicial
and in violation of the defendant’s constitutional right against the use of his post arrest silence to
impeach his credibility” as were certain comments made by the prosecutor during summation.
Id. at 1280. Leave to appeal to the New York Court of Appeals, raising all of the same grounds
raised in his brief, was denied on March 2, 2016. People v. Smith, 27 N.Y.3d 969 (2016).
G. The Instant Petition
On January 24, 2017, Smith commenced this timely action by placing his petition for a
writ of habeas corpus in his prison mailbox. Smith raises the same grounds raised by appellate
counsel on his direct appeal. (Pet. (Doc. No. 1).) Smith additionally argues that the prosecution
improperly used his right to remain silent against him at trial by discussing the Fifth Amendment
Call, and the court improperly excluded him from sidebar discussions where the
pretrial/Sandoval rulings regarding the Rikers calls were modified. (Pet. at 8.) This Court

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granted Smith’s application to proceed in forma pauperis and ordered Respondent to show cause
as to why a writ of habeas corpus should not issue. (Order to Show Cause (Doc. No. 7).)
Respondent filed a response that the writ should not be granted because Smith’s claim
concerning the phone calls was procedurally barred, the state court’s decision was not contrary to
or an unreasonable application of federal law, Smith received effective assistance of counsel, and
the length of Smith’s sentence did not present a federal claim. (Resp’t Resp.)
In his reply (Pet’r Reply. Br. (Doc. No. 11)), Smith reiterates the arguments made on his
direct appeal and argues that he was denied a fair opportunity to make an informed decision to
take the stand because the prosecution did not seek an advanced ruling regarding, nor disclose
the substance of, the six Rikers calls not discussed in the pretrial hearing. (Id. at 10.) Smith
further argues that the prosecution’s use of the Rikers calls improperly prejudiced him by
attacking his character. (Id. at 14–15.)
STANDARD OF REVIEW
A federal court may review a petition for a writ of habeas corpus only to the extent that
the petitioner has “exhausted the remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A); see also Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). This means that
each legal and factual allegation underlying a claim must first have been fairly presented to a
state court. Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991). A petitioner may obtain
federal habeas review of a procedurally defaulted claim only where petitioner demonstrates
either “cause for the default and prejudice,” or that “failure to consider the claims will result in a
miscarriage of justice (i.e., the petitioner is actually innocent).” Aparicio v. Artuz, 269 F.3d 78,
90 (2d Cir. 2001) (citing Coleman, 501 U.S. at 748–50).

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Under 28 U.S.C. § 2254(d), “[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless the adjudication of
the claim –
(1) resulted in 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; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254. “‘Clearly established Federal law’ means ‘the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.’”
Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)). A decision is “contrary to” clearly established Federal law “if the state court arrives
at a conclusion opposite to that reached by [the 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, 529 U.S. at 413. A decision is an “unreasonable application”
of clearly established Federal law if a state court “identifies the correct governing legal principle
from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a]
prisoner’s case.” Id.
Not all federal constitutional errors require automatic reversal. Chapman v. California,
386 U.S. 18, 22 (1967). The Supreme Court has divided constitutional errors into two classes:
trial errors and structural errors. United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006).
Trial errors are those which occur “during the presentation of the case to the jury,” and may “be
quantitatively assessed in the context of other evidence presented in order to determine whether
its admission was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279,
16

307–08 (1991). Structural errors are “structural defects in the constitution of the trial
mechanism, which defy analysis by ‘harmless-error’ standards.” Id. at 309.
“[A]n error is harmless unless it ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993)). “[W]hen a state court determines that a constitutional
violation is harmless, a federal court may not award habeas relief under § 2254 unless the
harmlessness determination itself was unreasonable.” Fry, 551 U.S. at 119 (citing Mitchell v.
Esparza, 540 U.S. 12 (2003)). “And a state-court decision is not unreasonable if ‘fairminded
jurists could disagree on its correctness.’” Spencer v. Capra, 788 F. App’x 21, 23 (2d Cir. 2019)
(quoting Davis, 576 U.S. at 269).
In addition, federal courts have no authority to review state court decisions that rest upon
“independent and adequate” state law grounds. Lee v. Kemna, 534 U.S. 362, 375 (2002); see
also Green, 414 F.3d at 294 (“A federal habeas court lacks jurisdiction to evaluate questions of
federal law decided by a state court where the state court judgment ‘rests on a state law ground
that is independent of the federal question and adequate to support the judgment.’”) (quoting
Coleman v. Thompson, 501 U.S. 722, 729 (1991)). Generally, a state law ground will be
considered adequate to preclude habeas review if it is “firmly established and regularly followed
by the state in question.” Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Garcia v.
Lewis, 188 F.3d 71, 77 (2d Cir. 1999)). Federal habeas review is foreclosed when the state court
expressly relied on the petitioner’s procedural default at trial as an independent and adequate
state law ground. Green, 414 F.3d at 294; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

17

DISCUSSION
A. Denial of Right to Present Defense
Smith alleges that the trial court deprived him of his right to present a defense when it
failed to allow his investigator to testify. (Pet. at 5.) Specifically, Smith alleges that the
investigator would have testified that it was impossible to see the doorway or the steps from the
third-floor window, which contradicted the testimony of the prosecution’s eyewitness, Darlene
Powell. (Id.) Smith argues that the trial court’s ruling deprived him of his right to present a
defense in violation of the Sixth and Fourteenth Amendments of the United States Constitution.
(Id.) This claim was fairly presented to the state court in Smith’s direct appeal and in Smith’s
request for leave to appeal to the New York Court of Appeals.
The People conceded and the Appellate Division agreed that “the Supreme Court should
not have denied [Smith’s] request to introduce evidence from a private investigator” but that “the
error was harmless.” Smith, 131 A.D.3d at 1273. The Appellate Division found that the
investigator’s testimony would have refuted only a portion of Powell’s testimony and because
Powell was cross-examined by defense counsel “that issue was before the jury for
consideration.” Smith, 131 A.D.3d at 1273. The claim was thus adjudicated on the merits, and
Smith is entitled to habeas relief only if he can demonstrate that the state court adjudication
“resulted in a decision that was based upon an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding,” or “resulted in 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), (2).
A trial court’s erroneous exclusion of a defense witness is a trial error subject to harmless
error review. Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (finding that the exclusion of

18

testimony is a trial error “subject to lenient harmless error review.”). Here, the exclusion of the
investigator’s testimony did not have a substantial and injurious effect or influence in
determining the jury’s verdict against Smith. Even if defense counsel had been successful in
impeaching part of Powell’s testimony with the investigator’s testimony, McDuffie’s testimony
and the ballistic evidence would have remained unimpeached. See, e.g., Zimmerman, 492
F.Supp.2d at 193–94 (finding the exclusion of two witnesses harmless because their limited
testimony would not have altered the jury’s verdict). Smith’s guilt was established through the
testimony of the victim, George McDuffie, and eyewitness Darlene Powell, both of whom knew
Smith. McDuffie identified Smith as the person who shot him and Powell testified that she could
see Smith firing a gun at McDuffie from her third-floor window. (Ex. 4 at 61–62; Ex. 5 at 73–
74.) Smith’s investigator would have testified that neither the doorway nor the stoop was visible
from Powell’s windows. (Ex. 6 at 61–62; Ex. 7 at 26–27.) However, Powell also testified that
Smith continued to fire while he “was going down the steps” and that Smith “walked down some
of the front steps toward the gate.” (Ex. 4 at 62, 69.) McDuffie and Powell’s testimony was
corroborated by “the shell casings the police found that led from the doorway to the street.”
Smith, 131 A.D.3d at 1272. Although Powell may not have had a clear view of the entire
shooting, there was no dispute as to whether she could see the street from the window and
therefore could see Smith as he continued to shoot at McDuffie. Powell also testified that she
saw Smith run into the building, run back out, and leave the scene in a van. (Ex. 4 at 62, 113.)
The only part of Powell’s testimony that the investigator would have refuted was whether Powell
could see Smith shooting from the doorway or the stoop, an area of questioning which was
covered by Smith’s defense counsel on cross-examination. (Ex. 4 at 104–06, 122–23.)

19

Moreover, unlike Powell, McDuffie had a clear view of Smith and he identified Smith as the
shooter. (Ex. 5 at 73–74.)
Even if the Court found that the trial court wrongfully precluded the investigator’s
testimony and committed constitutional error, the Court agrees with the Appellate Division’s
holding that the error was harmless. Accordingly, Smith’s claim that he was deprived of his
constitutional right to present a defense fails on the merits.
B. Denial of Right to Due Process and a Fair Trial
Smith alleges that he was denied due process and a fair trial in violation of the Fifth,
Sixth, and Fourteenth Amendments. (Pet. at 7–8.) Specifically, Smith alleges that the trial court
erroneously permitted the prosecutor to attack his credibility and character by questioning him
regarding the nine Rikers calls and failed to issue a limiting instruction to counteract this error.
(Id. at 7–8.) Smith argues that the prosecution’s use of the Fifth Amendment Call violated his
right to remain silent and encouraged the jury to draw impermissible inferences. (Br. Def.Appellant at 7; Criminal Leave Appl. at 8; Pet. at 7.) Additionally, Smith argues that he was
deprived of due process by being excluded from the sidebar discussions where the court altered
its initial pretrial/Sandoval rulings. (Pet. at 7; Pet’r Reply Br. at 10.)
i.

Procedural Bar

The Appellate Division held that “many of the alleged errors complained of by the
defendant are not errors at all or are unpreserved for appellate review, as the defendant failed to
object to them at trial when any error could have been corrected by the trial court.” Smith, 131
A.D.3d at 1273. The Second Circuit has held that generalized language that does not identify
which claims are unpreserved does not effectuate a procedural bar. See Fama v. Comm’r of
Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000) (“[W]hen a state court uses language such as ‘the

20

defendant’s remaining contentions are either unpreserved for appellate review or without merit,’
the validity of the claim is preserved and is subject to federal review.”). Here, the Appellate
Division did use generalized language, but it likewise provided specificity as to certain claims –
i.e., claims regarding errors that “the defendant failed to object to … at trial.” Smith, 131 A.D.3d
at 1273.
The New York State procedural rule regarding contemporaneous objections, N.Y. CRIM.
PROC. LAW § 470.05(2), states that all parties must make a specific contemporaneous objection
at trial in order to preserve an issue for appellate review. See Gonzalez v. Cunningham, 670 F.
Supp. 2d 254, 261 (S.D.N.Y. 2009) (The “Second Circuit recognizes New York’s
contemporaneous objection rule as an independent and adequate state procedural rule barring
habeas review.”). This rule is an independent and adequate state law ground that, if violated,
serves as a procedural bar to preclude habeas review. Downs v. Lane, 657 F.3d 97, 102 (2d Cir.
2011); Whitley, 642 F.3d at 286–87. Smith admits that his attorney failed to “object to the
prosecutor’s misuse of the calls” and “failed to request any limiting instructions.” (Pet. at 8.)
Therefore, Smith’s claims regarding several of the Rikers calls were unpreserved for appellate
review.
Smith’s defense counsel did not contemporaneously object to the Fifth Amendment Call,
the First Clothes Call, the Second Clothes Call, the Driving Call, or the Charges Call. However,
out of these five unobjected calls – although petitioner has repeatedly contested the prosecution’s
use of all nine Rikers calls – only the Fifth Amendment Call has been argued as being
prejudicial. (Br. Def-Appellant at 46.) The remaining four Rikers calls – the Alibi Call, the
Forgery Call, the Ratchet Call, and the Income Call – were contemporaneously objected to at
trial, raised on direct appeal, and therefore preserved.

21

The Appellate Division regarded errors that were unobjected to at trial as unpreserved.
The Fifth Amendment Call was unobjected to and therefore was expressly regarded as
unpreserved by the Appellate Division, which effectuates a procedural bar. Thompson v. Griffin,
No. 14-CV-1641 (DLI), 2019 WL 1368995, at *4 (E.D.N.Y. Mar. 25, 2019) (quoting Butler v.
Cunningham, 313 F. App’x 400, 401 (2d Cir. 2009) (summary order) (“When a state court
concludes that a claim is unpreserved for appellate review, this is ‘an independent and adequate
state ground that bars a federal court from granting habeas relief.’”) Additionally, the argument
that Smith was deprived of due process by being excluded from the sidebar discussions regarding
the pretrial/Sandoval rulings was neither raised on direct appeal nor contemporaneously objected
to and is likewise procedurally barred.
A petitioner can overcome this bar only if he can “demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750.
To establish “cause” for the default, a habeas petitioner must show that “some objective factor
external to the defense” impeded the petitioner’s ability to present the claim. Coleman, 501 U.S.
at 753. Examples of such a scenario would be “that the factual or legal basis for a claim was not
reasonably available to counsel … or that some interference by officials … made compliance
impracticable.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To establish
“prejudice,” a petitioner must show that “‘there is a reasonable probability’ that the result of the
trial would have been different” absent the alleged constitutional violation. Stickler v. Greene,
527 U.S. 263, 289 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Here, Smith makes no argument of cause or prejudice sufficient to overcome this
procedural bar. Nevertheless, even if Smith’s unpreserved claims could be reviewed by this
Court on the merits, they would be denied.

22

ii.

Harmless Error Review

Smith argues that the trial court erred when it allowed the prosecutor to use the Rikers
calls, two of which had been excluded in the pretrial hearing, in cross-examining Smith, and
erred when it failed to issue a limiting instruction to the jury to counteract this error. The
Appellate Division held that two calls, the Income Call and the Forgery Call, were properly
admitted as impeachment material and relevant to credibility, respectively. Smith, 131 A.D.3d at
1274. The Appellate Division further held that “[o]ther phone calls made by the defendant from
Rikers Island were properly admitted to show the defendant’s consciousness of guilt,” but failed
to identify precisely which calls were included in this category. Id. The Appellate Division then
provided a catch-all, holding: “To the extent that the court’s admission of other phone calls made
by the defendant was error, the error was harmless.” Id. This harmlessness determination was
not itself unreasonable; therefore, petitioner’s habeas petition must be denied on these grounds.
Without deciding this issue, there may have been error involved in the prosecution’s use
of the Rikers calls. The Ratchet Call “had been excluded prior to trial … and [arguably] nothing
in [Smith’s] direct testimony justified [the prosecution’s] use of the call.” (Pet’r Reply Br. at
13.) Additionally, the prosecution’s use of the Fifth Amendment Call is concerning. The
Forgery Call, like the Ratchet Call, was explicitly excluded by the trial court during the pretrial
hearing but nevertheless used by the prosecution during cross-examination. (Ex. 3 at 65–66.)
Though Smith may be correct in asserting that the “prosecutor’s use of most of the calls violated
the ban on the use of extrinsic evidence to impeach on collateral matters,” this Court is not
weighing these errors’ impact on the trial in the first instance, but rather whether the Appellate
Division reasonably determined the errors were harmless. The Appellate Division held that:
The evidence as to the identity of the defendant as the perpetrator in both instances
was overwhelming. The testimony of both the complainant and Powell, and their
23

respective familiarity with the defendant, established the identification of the
defendant as the perpetrator beyond a reasonable doubt []. As to the assault, the
defendant did not deny that the incident occurred; rather, his testimony that the
complainant was the aggressor and that he was defending himself was rejected by
the jury. Immediately after the shooting incident, both the complainant and Powell
identified the defendant as the perpetrator to the police and identified him at trial as
the individual who shot at and who had, on the earlier date, assaulted the
complainant …. The complainant testified at the trial that the defendant assaulted
him during the first incident and, thereafter, on August 10, he saw the defendant
and spoke to him before the defendant told the complainant he hated him and
intended to kill him. The complainant testified that, after he heard the gunshots, he
realized he was bleeding, looked over his shoulder and saw the defendant firing a
gun at him …. Powell also testified that the defendant was the person who, during
the first incident, assaulted the complainant, and who shot at and wounded the
complainant during the second incident. Powell was familiar with the defendant
because she had spent time with both Daniels and the defendant in their apartment
…. Powell’s testimony that she could see the defendant shooting from the doorway
was corroborated by the path of shell casings the police found that led from the
doorway to the street …. The contention of our dissenting colleague that the
evidence was not overwhelming ignores the physical evidence that corroborated
the testimony of the witnesses.
Smith, 131 A.D.3d at 1272–73.
The majority did not individualize its harmlessness analysis to every call used by the
prosecution, instead opting to blanketly categorize all the “other calls” as harmless. Smith, 131
A.D.3d at 1274. And undoubtedly, reasonable minds may differ on whether the remaining, nonerroneous evidence was “overwhelming” as the Appellate Division majority described it.
However, it is precisely because “fairminded jurists could disagree on [the] correctness” of the
harmlessness determination that proves the Appellate Division’s determination was not itself
unreasonable. Spencer v. Capra, 788 F. App’x 21, 23 (2d Cir. 2019). Thus, habeas relief must
be denied on these claims.
Smith also makes two other arguments that likewise fail. First, Smith asserts that the
prosecution’s use of the Fifth Amendment call violated his right to remain silent. (Pet. at 7.)
Second, he argues that the trial court’s admission of the Rikers calls is compounded by the fact

24

that he was not permitted to attend the sidebar discussions where the court modified its
pretrial/Sandoval rulings that initially excluded two of the Rikers calls. (Pet. at 7; Pet’r Reply
Br. at 10.)
Mentioning a defendant’s post-Miranda silence at trial is subject to harmlessness review.
See Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding that reference to post-Miranda silence
is a constitutional trial error), superseded by statute on other grounds, Antiterrorism and
Effective Death Penalty Act, Pub. L. No. 104–132, 110 Stat. 1214 (1996), as recognized in
Gutierrez v. McGinnis, 389 F.3d 300 (2d Cir. 2004). Thus, since the Appellate Division, as
discussed above, held that any errors were harmless – and this conclusion is not itself
unreasonable – this claim fails on the merits as well.
Additionally, it is not a federal constitutional violation for a defendant to be absent from
sidebar discussions addressing purely legal questions, such as the admissibility of evidence. See
Wilson v. Bennett, 188 F. Supp. 2d 347 (S.D.N.Y. 2001) (finding no Confrontation Clause
violation where defendant was not present for sidebars addressing admissibility of evidence on
cross-examination); see also Persaud v. Mantello, 99-CV-1861 (NG), 2002 U.S. Dist. LEXIS
12079, at *5 (E.D.N.Y. July 2, 2002) (“[T]here is no constitutional right to be present at sidebar
conferences dealing only with legal questions.”) (citing United States v. Rubin, 37 F.3d 49, 54
(2d Cir. 1994)). Thus, habeas relief is likewise denied on this claim.
C. Ineffective Assistance of Counsel
Smith alleges that he was deprived of effective assistance of counsel in violation of the
Sixth and Fourteenth Amendments. (Pet. at 7, 9–11.) Specifically, Smith alleges that his
defense counsel: (i) failed to object to the Rikers calls or request a limiting instruction, (ii) failed
to challenge two prospective jurors and only used two peremptory challenges, (iii) failed to

25

present a defense to the top charge of attempted murder in the second degree and instead focused
on the lesser count of assault in the third degree, (iv) displayed a lack of understanding of the
applicable law, (v) failed to review the victim’s medical records so as to impeach the victim’s
testimony, and (vi) used inflammatory and derogatory language. (Id. at 7, 9–11.) The Appellate
Division held that defense counsel’s failure to object did not deprive Smith of the effective
assistance of counsel and that “the record reveals that defense counsel otherwise provided
meaningful representation.” Smith, 131 A.D.3d at 1274 (citing Strickland v. Washington, 466
U.S. 668 (1984)).
“Because the state appellate division adjudicated the petitioner’s ineffective assistance
claim on the merits, … the issue for this court is whether the state court unreasonably applied the
Strickland standard.” Davis v. Mantello, 42 F. App’x 488, 491 (2d Cir. 2002) (citing Lindstadt v.
Keane, 239 F.3d 191, 198 (2d Cir. 2001); Loliscio v. Goord, 263 F.3d 178, 193 (2d Cir. 2001)).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged
test for deciding ineffective assistance claims. To satisfy the first prong, “the defendant must
show that counsel’s representation fell below an objective standard of reasonableness” and “must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 688–89. To satisfy the second prong, a
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.” Id. at 694. The
Supreme Court defines “reasonable probability” as “a probability sufficient to undermine
confidence in the outcome.” Id. As the Second Circuit has stated, “[t]he level of prejudice the
defendant need demonstrate lies between prejudice that ‘had some conceivable effect’ and

26

prejudice that ‘more likely than not altered the outcome in the case.’” Linstadt, 239 F.3d at 204
(quoting Strickland, 466 U.S. at 693).
Moreover, the Supreme Court has emphasized that when a petitioner brings a claim
for ineffective assistance of counsel, “AEDPA review is doubly deferential, because counsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Woods v. Etherton, 136 S.Ct. 1149, 1151
(2016); Burt v. Titlow, 571 U.S. 12, 15 (2013) (explaining that the doubly deferential standard of
review must give “both the state court and the defense attorney the benefit of the doubt”).
In arguing that his attorney provided ineffective assistance of counsel, Smith alleges that
his lawyer failed to object to the use of the Rikers calls to impeach him, failed to request a
limiting instruction, failed to challenge two jurors during voir dire, and focused his defense on
the lesser count of assault. These claims can be attributed to defense counsel’s trial strategy,
which is entitled to the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Acevedo v. Capra, 600 F. App’x 801, 802–03 (2d Cir.
2015). “Actions or omissions by counsel that ‘might be considered sound trial strategy’ do not
constitute ineffective assistance.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)
(quoting Strickland, 466 U.S. at 689); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (“counsel
must have ‘wide latitude’ in making tactical decisions”) (citing Strickland, 466 U.S. at 489).
Smith has failed to overcome the “strong presumption” that his counsel’s failure to
object, failure to request a limiting instruction, or failure to challenge two jurors “derived …
from trial strategy.” Acevedo, 600 F. App’x at 802–03. Indeed, “decisions such as when to
object and on what grounds are primarily matters of trial strategy and tactics, and thus are
virtually unchallengeable absent exceptional grounds for doing so.” Broxmeyer v. United

27

States, 661 F. App’x 744, 748 (2d Cir. 2016) (quoting United States v. Cohen, 427 F.3d 164, 170
(2d Cir. 2005)). Smith cannot prevail on this claim simply because he disagrees with the specific
trial tactics his attorney used. Smith’s argument that his attorney focused on the assault charge
rather than the attempted murder charge was also a trial strategy entitled to deference. “When
counsel focuses on some issues to the exclusion of others, there is a strong presumption that he
did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1,
5 (2003) (citing Strickland, 466 U.S. at 690).
Smith’s argument that his defense counsel “displayed a lack of understanding of law as it
applied” is not supported by the record. Smith’s attorney referred to the incorrect standard only
once during the trial and he apologized to the court for doing so. (Ex. 7 at 147.) Furthermore,
the record reflects that defense counsel made sound objections and arguments at Smith’s pretrial
hearings and at trial. Defense counsel obtained a favorable Sandoval ruling, (Ex. 3 at 62–79,)
effectively cross-examined the People’s witnesses, requested an adverse inference charge, (Ex. 6
at 153–55,) called an eyewitness who testified that Smith did not instigate the fight, (Ex. 7 at 34–
43,) sought to put on an investigator to refute the testimony of an eyewitness, (Ex. 7 at 25–31,)
and made both an opening statement and a summation that urged the jury to reject the testimony
of the eyewitnesses and to find Smith not guilty. (Ex. 4 at 41–42; Ex. 8 at 17–46.) Furthermore,
defense counsel repeatedly argued to have Smith’s bail status reinstated. 3 (Ex. 4 at 2–4; Ex. 6 at
2–3; Ex. 7 at 49–51.) Defense counsel also argued at sentencing that Smith had not received a
fair trial because he was not allowed to call a witness to challenge Powell’s testimony and argued
for a lesser sentence. (Ex. 8 at 149–51, 159–62.)
Smith was out on bail during the initial pretrial proceedings, but the trial judge revoked his bail when Smith
showed up to court 15 minutes late after a lunch break. (Ex. 3 at 206–08.)

3

28

Smith’s argument that his attorney failed to review McDuffie’s medical records in which
McDuffie “stated he was not sure if the gun was a regular gun or a BB gun,” and used derogatory
language, such as “perp,” “punk,” “philanderer,” and “pigeon” in reference to Smith, do not
support his claim of ineffective assistance of counsel. See Edwards v. Greiner, No. 03-CV-6124
(NGG), 2006 WL 2355845, at *10 (E.D.N.Y. Aug. 15, 2006) (“Petitioner’s claim that his
counsel at sentencing was ineffective for making comments that undermined his purported plea
for leniency and disparaged his client is without merit because his counsel’s comments at
sentencing, considered in their totality, were not professionally unreasonable.”). Smith has failed
to show how defense counsel’s purported errors would have changed the outcome of the trial,
especially given the testimony of two eyewitnesses and the ballistics evidence supporting his
conviction. Defense counsel’s conduct was not outside the wide range of professional competent
assistance. Nor were counsel’s errors, if any, “so serious that counsel was not functioning as
‘counsel’ guaranteed by the Sixth Amendment.” See Strickland, 466 U.S. at 687. The Appellate
Court found that Smith’s defense counsel “provided meaningful representation,” Smith, 131
A.D.3d at 1274, and the Court does not find that conclusion unreasonable. Accordingly, Smith
fails to establish that he received ineffective assistance of counsel.
D. Excessive Sentence
Smith alleges that his sentence of 23 years’ incarceration and five years of post-release
supervision exceeds the 25-year statutory maximum for attempted murder in the second degree
in violation of the Eighth and Fourteenth Amendments. (Pet. at 12.) The Appellate Division held
that the sentence imposed was not excessive. Smith, 131 A.D.3d at 1275.
As an initial matter, this claim is unexhausted because any constitutional challenges to
Smith’s sentencing were not “fairly presented” to the state courts on direct appeal. Smith’s

29

appellate brief presented a challenge to his sentence in terms of state law, specifically arguing
that N.Y. CRIM. PROC. § 470.15(3)(c) permits the state court to modify the sentence “in the
interest of justice” and he did not challenge his sentence at all in his leave application. (Br. Def.
Appellant; Criminal Leave Appl., Ex. 2 to Resp’t Resp. (Doc. No. 9-2).) It is well-established
“that a petitioner’s reliance on a state procedural law granting courts discretionary authority to
reduce sentences does not fairly present a federal constitutional claim in state court.” Bell v.
Ercole, 631 F. Supp. 2d 406, 418 (S.D.N.Y. 2009) (collecting cases); White v. Keane, 969 F.2d
1381, 1383 (2d Cir. 1992) (per curiam) (holding that a claim is unexhausted where a petitioner
alleges his prison sentence violated a federal constitutional right but failed to assert the claim
first in state court). Therefore, this claim is unexhausted.
Furthermore, even if addressed on its merits, Smith’s claim of excessive punishment fails
because his sentence fell within the range permitted under New York State law. See White, 969
F.2d at 1383 (“No federal constitutional issue is presented where … the sentence is within the
range prescribed by state law.”) Smith was convicted of attempted murder in the second degree
– a class B violent felony, see N.Y. Penal Law § 70.02(a)(1) – and assault in the third degree – a
class A misdemeanor, see N.Y. Penal Law § 120.00. He was sentenced to concurrent
determinate terms totaling 23 years’ imprisonment and five years of post-release supervision.
(Ex. 8 at 164–65.) Smith was sentenced as a second felony offender pursuant to N.Y. Penal Law
§70.06(6)(a), which provides in relevant part:
When the court has found, pursuant to the provisions of the criminal procedure
law, that a person is a second felony offender and the sentence to be imposed on
such person is for a violent felony offense, as defined in subdivision one of
section 70.02, the court must impose a determinate sentence of imprisonment the
term of which must be fixed by the court as follows:
(a) For a class B violent felony offense, the term must be at least
eight years and must not exceed twenty-five years ….

30

N.Y. Penal Law § 70.06(6). Prior to April 1, 2019, the maximum term for a class A
misdemeanor was one year. See NY Penal Law § 70.15(1).
Smith’s 23-year sentence with five years of post-release supervision fell within the range
permitted by New York law. See Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); Dotsenko v.
Joseph, No. 18-CV-1640 (WFK), 2019 WL 4917952, at *5-6 (E.D.N.Y. Oct. 4, 2019) (rejecting
petitioner’s Eighth Amendment excessive sentence claim because sentence fell within New
York’s sentencing guidelines); Ocasio v. Brown, No. 09-CV-6592T (MAT), 2011 WL 1988787,
at *2 (W.D.N.Y. May 23, 2011) (rejecting petitioner’s claim that the imposition of a five-year
period of post release supervision combined with his term of imprisonment exceeded the
statutory maximum prison term in violation of his federal constitutional rights); Frazier v.
Marshall, No. 08-CV-1737 (RRM), 2012 WL 3800828, at *8 (E.D.N.Y. Sept. 2, 2012)
(“sentence was appropriately based on [petitioner’s] classification as a second felony offender”);
Thigpen v. Brown, No. 06-CV-3110 (NG) (VVP), 2008 WL 5110890, at *13 (E.D.N.Y. Dec. 2,
2008) (“When a sentence imposed is within the range prescribed by law, ‘a claim of excessive
punishment does not present a constitutional question necessary for habeas corpus reversal.’”)
(quoting Underwood v. Kelly, 692 F.Supp. 146, 152 (E.D.N.Y. 1988)). Thus, Smith suffered no
federal constitutional violation and his excessive sentence claim is denied.
CONCLUSION
For the reasons set forth above, the instant petition for a writ of habeas corpus is denied
and this action is dismissed. A certificate of appealability shall not issue because Smith has not
made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
The Clerk of Court is directed to enter judgment in accordance with this Memorandum and

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Order, mail a copy of the judgment and this Memorandum and Order to Smith, note the mailing
on the docket sheet, and close this case.
SO ORDERED.
Dated: Brooklyn, New York
January 11, 2021

Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
Chief United States District Judge

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