Harris v. Great Meadow

Filing 15

MEMORANDUM DECISION AND ORDER. The petition for a writ of habeas corpus is denied in its entirety. The case is dismissed. A certificate of appealability will not be issued. See 28 U.S.C. § 2253(c). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. Ordered by Judge Ann M. Donnelly on 3/2/2020. (Greene, Donna)

FILED
IN CLERK'S OFRCE

US DISTRICT COURT E.O.RY.

5 ISdiWl X 2020 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN OFFICE

X

FRED HARRIS,
Petitioner,

MEMORANDUM
DECISION & ORDER

- againstGREAT MEADOW CORRECTIONAL

17-CV-00760(AMD)

FACILITY,

Respondent.
X

ANN M.DONNELLY,United States District Judge:

The pro se petitioner, currently incarcerated at Great Meadow Correctional Facility,
petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. I.) The petitioner
was convicted after ajury trial of Attempted Murder in the Second Degree, Assault in the First

Degree, and Criminal Possession of a Weapon in the Second Degree. He was sentenced to an
aggregate term of thirty years, which the appellate court later reduced to twenty-five years.
The petitioner makes multiple challenges to his conviction. He faults the way the trial
judge conducted jury selection, says that the judge should not have removed the petitioner from

the courtroom, complains about the jury instructions, and criticizes the court's suppression
decision—^which was favorable to the petitioner. The petitioner also attacks the sufficiency of
the evidence and argues that the prosecutor made improper comments in summation. Finally, he

says that his trial and appellate lawyers were ineffective, and that he was not competent to stand

trial.^ For the reasons that follow, the petition is denied.

'
Federal courts do not re-examine determinations of state courts on state law issues raised in a habeas

petition, but can consider federal constitutional or statutory claims. See Guerrero v. Lamanna,325 F.
Supp. 3d 476, 483(S.D.N.Y. 2018)(citing 28 U.S.C. § 2254(a)). A federal court reviewing a petitioner's
detention determines whether the detention is unconstitutional. Therefore, I do not consider the

petitioner's state constitutional claims.
1

FACTUAL BACKGROUND^
I.

Overview

On the night of May 24,2009, Deshawn Leggett and Gary Walls, Sr. were driving in
Brooklyn with family members,including two small children, when the petitioner shot Walls in

the face. Walls survived the shooting, but suffered serious and disfiguring injuries, which
required multiple surgeries. Part ofthe shooting was captured on videotape; the police identified
and arrested the petitioner about a month after the shooting. (ECF.No. 9-1 at 306-310; 388-

390.) While the petitioner was in custody on Rikers Island, he made recorded telephone calls in
which he admitted that video recordings showed him "pointing a hammer" but "[did not]show
[him]shooting ... you can't see the main shit." {Id. at 413,657.)

The petitioner was charged with Attempted Murder in the Second Degree(N.Y. Penal
Law §§ 110.00,125.25[1]), Assault in the First Degree(N.Y. Penal Law § 120.10[1]), and

Criminal Possession ofa Weapon in the Second Degree(N.Y. Penal Law § 265.03[3]). {Id. at
602.)

Prior to trial, the petitioner moved to suppress his post-arrest statements. (ECF No. 14.)
The Honorable Joel Goldberg granted the motion. {Id at 1308:13-25.)
11.

The Trial

A. The Prosecution's Case

The petitioner's trial began on January 18,2011. The prosecution called seven witnesses:
Deshawn Leggett, Gary Walls, Kumardatt Persaud, Dr. William White, Willard Fulton, Officer

Erik Malak,and Detective Rodrigo Fonteboa. The prosecution established the following facts.

^ Because the petitioner was convicted, the facts are summarized in the light ihost favorable to the verdict.
See Garbutt v. Conway^ 668 F.3d 79, 80(2d Cir. 2012).
2

On the evening of May 24,2009, Gary Walls and his cousin Deshawn Leggett were
driving home from a Memorial Day barbecue in Harlem. Leggett was driving and their two
children and another friend, Lonnie Kimbrough, were in the back seat. (ECF No.9-1 at 253:8-

14,434:1-20.) When they reached Brooklyn, they stopped at the comer of Humboldt and Moore

Street and called a friend who lived in the area. {Id. at 253:12-14, 434:7-9.) Leggett noticed a
group of people standing on the sidewalk close to the rear passenger side of their car. {Id. at

261.) A light-skinned black man—later identified as the petitioner's co-defendant. Powerful

Williams—^was "staring" at the car. {Id. at 269:23-24.)^ The group split up,and some ofthem,
including Williams, headed into 130 Moore Street, but Williams continued to look at the car.

{Id. at 271:4-272:19,280-281,438-439,439:22-440:19.)

About a minute later. Walls and Leggett heard gunshots. {Id. at 281:13-22, 441:3-12.)
As Leggett drove towards the rear entrance ofthe building,the petitioner scame from the rear
door, extended his arm and fired at the car, shooting Walls in the face. {Id. at 288:1-20,340:2125.)

The bullet shattered Walls' nose and jaw and lodged in the base of his skull under his

right ear. {Id. at 233:1-23.) Walls told Leggett,"I'm hit in my face ... drive off. Drive off."

{Id. at 106:19-20,260:15-26.) Leggett immediately drove Walls to the emergency room at
Woodhull Hospital.

at 446:5-8.)

About an hour after the shooting. Detective Rodrigo Fonteboa went to the emergency

room to speak with Walls and the two other men in the car. {Id. at 305-306.) Following those
conversations, Detective Fonteboa retumed to Bushwick Houses to search for evidence. {Id. at
306:9-22.) He noticed surveillance cameras near the location ofthe shooting. {Id. at 307:17-

^ Williams pleaded guilty to Attempted Murder in the Second Degree and was sentenced to five-and-ahalf years in Jail. (ECF Np;9-2 at 766.) The trial judge precluded any mention ofthe plea.
3

308:2.) He collected the video footage on May 27,2009 from Kumardatt Persaud, a

representative ofthe New York City Housing Authority. {Id. at 480-481, 483-484.)

The video from 130 Moore Street showed the petitioner and Williams going into 130
Moore Street and walking towards the back ofthe building {Id. at 427-428), and the petitioner
stepping outside ofthe building while Williams held the door. The petitioner raised his arm,
fired a gun, and went back inside. {Id. at 338-345.) The petitioner and Williams walked to 140
Moore Street; video shows the petitioner in the lobby, his face clearly visible, wearing a white tshirt, white baseball cap, and black pants, the same clothing worn by the shooter. {Id. at 347:22348:9, 383:20-386:8.)

Detective Fonteboa identified the petitioner as the shooter, and Powerful Williams as the

man that Walls and Leggett saw right before the shooting. {Id. at 389:6-390:11,413:10.)
Detective Fonteboa issued wanted cards for the petitioner and Williams. {Id. at 389:13-18.)
On June 17,2009, Officer Erik Malak was on patrol near 130 Moore Street when he saw

the petitioner, whom he recognized from the wanted card, walking into 130 Moore Street. {Id. at
420:7-423:25.) He and his partner followed the petitioner to a sixth-floor apartment. The
officers radioed their lieutenant, who arrived with two other officers. They knocked on the
apartment door; the woman who answered let them search the apartment. The officers found the

petitioner hiding in a bedroom and arrested him. {Id. at 424:18-429:23.)
While the petitioner was awaiting trial in Rikers Island, he made recorded telephone calls
in which he spoke about the shooting. He admitted that the surveillance video showed him

"pointing a hammer" but "[djon't show me shooting ... you can't see the main shit." {Id. at

596:16-17,462:6-8,465:15-16.)'* He also admitted that the video showed him holding a gun, but
not firing it. {Id. at 462:2-22,465:5-23,468-470.)

Walls was transferred to Bellevue Hospital, where he had surgery to reconstruct his face,
nose, and cheekbone. {Id. at 446:17-18.) Surgeons wired hisjaw shut and inserted metal plates
and bars under his eye, mouth and nose. {Id. at 447:1-10.) He also had surgery to repair his eye.
{Id. at 447:3-25.) Walls could not work or eat solid food for a month and a half. {Id. at 447:3450:3.)

The petitioner interrupted the trial multiple times; he shouted out in front ofthe jury and
argued with his attorney and with the judge. Judge Goldberg warned that he would remove the

petitioner, but the petitioner continued to interrupt the proceedings. Judge Goldberg directed
court officers to take the petitioner to a holding cell behind the courtroom, but the petitioner
shouted so loudly that he could be heard in the courtroom. {Id. at 398:21-22.) When the

petitioner refused to say whether he would comply with the court's directives, wanted to be kept
in the back—^where he could hear the proceedings—or return to the holding cells, the judge had
him taken down to the holding cells. {Id. at 399-401.) Judge Goldberg noted the petitioner

"appeared to understand every word that [the court] was saying. It is not that he was incapable
ofimderstanding what I was saying." {Id. at 401:24-402:4.)
B. The Defense's Case

The petitioner testified in his own defense.^ On the day ofthe shooting, he heard
gunshots while he was in the back of 130 Moore Street. {Id. at 546:17-23.) He admitted that the

At trial. Detective Fonteboa testified that "hammer" is slang for gun. {Id. at 525:19-23.)

^ Defense counsel told the court that he had advised the petitioner not to testify because "it is not in his
best interest to testify at this trial," and that the petitioner "is going against my advice." {Id. at 536:1215.) In addition, counsel alerted the court that he could not ask the petitioner individual questions, but
was compelled to ask the petitioner to describe what happened in narrative form. {Id. at 538:11-16.)

surveillance videos from inside 130 Moore Street showed him and Williams. He also

acknowledged that he was holding something and pointing it; he claimed, however, that the item
was not a gun, but a cloth which he held as though it were a gun in order to scare offthe real
shooter. {Id. at 546:24-547:19; 559:9-560:25.)

At several points during the trial, the petitioner told Judge Goldberg he wanted a new
lawyer; he complained that counsel was "not working in [his] best interest" because counsel
would not make the arguments or call the witnesses that the petitioner wanted. (ECF No. 9-6 at

980-982.)^ Judge Goldberg denied the application.^
C. Verdict and Sentencing

The jury convicted the petitioner of all charges. At the March 8,2011 sentencing
proceeding. Judge Goldberg described the petitioner as "a dangerous, dangerous person," whose
testimony was "absurd" and "an insult to everybody in this courtroom and an insult to justice."
(ECF No.9-1 at 750:18-25.) Judge Goldberg sentenced the petitioner to a prison term totaling
thirty years: concurrent terms oftwenty-five years on the attempted murder and assault charges,
and fifteen years on criminal possession ofa weapon, with five years ofthat sentence to run

consecutive to the twenty-five-year term. {Id. at 751:4-752:15.) Judge Goldberg resentenced the

petitioner on April 15, 2011. {Id. at 755-756.) Citing People v. Bacalocostantis, 148 A.D.2d
842,843(1989),in which the Third Department held that"a sentence split so that it is half
concurrent and half consecutive is not within the parameters ofPenal Law § 70.25(1)," Judge
Goldberg resentenced the petitioner to an aggregate term ofthirty years: consecutive fifteen-year

determinate terms for the attempted murder and weapon possession counts, to run concurrently

^ For example,the petitioner wanted counsel to call an expert witness to establish that someone had
tampered with the surveillance tape. Counsel refused, based on his years ofexperience with "computers
and digital editing." (ECF No.9-6 at 980:9-981:11.)

'
Trial counsel was the petitioner's second appointed attorney.

with a twenty-five year determinate term for the assault count, and 5 years' post-release
supervision, {Id. at 755:3-758:25.)
PROCEDURAL HISTORY

The petitioner, represented by counsel, appealed his conviction to the Appellate Division,
Second Department. {See ECF No. 9-2.) The petitioner claimed that the trial court should not

have excused prospective jurors on the basis of hardship without questioning them individually.
{Id. at 782-92.) The petitioner also challenged the jury charge, maintaining that the judge
amended the indictment—^which charged the petitioner with intending to kill or injure Gary
Walls—^by instructing the jury that the prosecution did not need to prove that the petitioner
intended to kill or injure any specific person. {Id. at 792-801.) The petitioner also challenged his
sentence as excessive and argued that the consecutive prison terms were illegal. {Id. at 801-05.)
The Appellate Division affirmed the petitioner's conviction, rejecting the petitioner's
complaints about the juiy charge and the jury selection process as both unpreserved and
meritless. People v. Harris, 115 A.D.Bd 761,762(2d Dep't 2014). The Appellate Division

modified the sentences on the gun possession and attempted murder convictions to run
concurrently because the prosecution had not proven that "the defendant's possession ofa gun

was separate and distinct from his shooting ofthe victim." Id. at 763.
The Court of Appeals denied the petitioner's application for leave to appeal on August
14, 2014, People v. Harris, 23 N.Y.3d 1062(2014), and his pro se motion for reconsideration on
December 3,2014. People v. Harris, 24 N.Y.3d 1084(2014). The Appellate Division denied

the petitioner's subsequent pro se motion to reargue his appeal. See People v. Harris, 2015 NY
Slip. Op. 75977(U)(2d Dep't 2015).

On August 7,2015,the petitioner moved pro se before Judge Goldberg pursuant to N.Y.
C.P.L. § 440.10 to vacate his conviction. (ECF No. 9-6 at 865-1059.) The petitioner renewed
the argument he made in the Appellate Division—^that the court amended the indictment by
charging the jury that the prosecution did not have to prove intent to kill a particular person. {Id.
at 904-908.) He also challenged the court's evidentiary rulings, claimed his lawyer was

ineffective, claimed he was not competent to stand trial, complained about the prosecutor's
summation and argued that the prosecutor did not provide timely discovery. {Id. at 865-915.)
On December 10,2015, Judge Goldberg denied the petitioner's motion. People v.
Harris,Ind. No. 5515/2009(N.Y. Sup. Ct. Dec. 10,2015)
(ECF No. 9-8.). Aside from the
competency and some of the ineffective assistance claims,"the remainder of his claims are based

upon the record ofthe proceedings and must be denied, pursuant to GPL 440.10(2)(c), because
they were sufficiently on the record to have been reviewed on his direct appeal." (ECF 9-8 at
1074.) In fact, the petitioner raised the claim about the court's charge in the Appellate Division,
which rejected it, providing another basis to deny the claims. {Id.) The trial court also rejected
the petitioner's complaints about his counsel,finding that some ofthe claims could have been
raised on direct appeal and that the claims were otherwise meritless. {Id.)

Finally, Judge Goldberg dismissed the claim that the petitioner was incompetent. The
petitioner "failed to show that he had been unable to understand the trial proceedings or to assist
in his defense." {Id. at 1078.) To the extent the petitioner claimed he was innocent,"his motion

fails to establish his actual innocence by clear and convincing evidence." {Id. at 1074.)

The petitioner moved for leave to appeal, which the Appellate Division denied.People v.
Harris, No. 2016-00480, 5515/09, 2016 WL 3945416(2d Dep't July 22,2016), and the Court of

Appeals denied leave to appeal. People v. Harris, 28 N.Y.Sd 1028(2016)(Abdus-Salaam, J.).

8

The Court of Appeals also denied the petitioner's motion for reconsideration. People v. Harris^
28 N.Y.3d 1145 (2017).

On February 6,2017,the petitioner filed this pro se petition for a writ of habeas corpus.
(EOF No. 1.)
LEGAL STANDARD

A federal court reviewing a habeas petition must not "review a question offederal law
decided by a state court ifthe decision ofthat court rests on a state law ground that
is independent ofthe federal question and adequate to support the judgment." Coleman v.

Thompson,501 U.S. 722,729(1991). This doctrine applies to both substantive and procedural
state law grounds. Id. at 729-30.
The Antiterrorism and Effective Death Penalty Act of 1996("AEDPA")requires a
federal court reviewing a state prisoner's habeas petition to give deference to a state court's
decision on the merits. See 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas

corpus unless the state court's decision was "contrary to, or involved an unreasonable application
of, clearly established Federal law" or was "based on an unreasonable determination ofthe facts
in light ofthe evidence presented in the State court proceeding." 28 U.S.C.§ 2254(d);see also

Johnson v. Williams, 568 U.S. 289,292(2013); Chrysler v. Guiney,806 F.3d 104,116-17(2d
Cir. 2015).
For the purposes offederal habeas review,"clearly established law" means "the holdings,

as opposed to the dicta, of[the Supreme] Court's decisions as ofthe time ofthe relevant statecourt decision." Williams v. Taylor, 529 U.S. 362,412(2000). A state court decision is

"contrary to" or an "unreasonable application of clearly established law ifthe decision: (1)is
contrary to Supreme Court precedent on a question oflaw;(2)arrives at a conclusion different

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

U.S. 797,804(1991); Jones v. Stinson, 229 F.3d 112,118(2d Cir. 2000). The state court's

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

claim. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838,842(1999). In other
words, a petitioner must present"the essential factual and legal premises of his federal
constitutional claim to the highest state court capable ofreviewing it." Jackson v. Conway,763
F.3d 115, 133(2d Cir. 2014)(quoting Rosa v. McCray,396 F,3d 210,217(2d Cir. 2005)).
DISCUSSION

The petitioner raises many ofthe same arguments he raised in his direct appeal and his
motion to vacate. For the reasons that follow, I reject the petitioner's arguments and deny his
petition in its entirety.
A. Dismissal of Potential Jurors

During voir dire, the trial judge asked the pool of potential jurors whether jury service
would be a "personal hardship" because offamily or business obligations. (ECF No. 12-1 at

1122:1-1123:25.) Two prospective jurors raised their hands and were excused, without objection
from either side. The petitioner claims that this was error. The Appellate Division rejected this

claim on the merits and as unpreserved. People v. Harris, 115 A.D.3d 761,762(2d Dep't 2014),
/v. denied, 23 N.Y.3d 1062(2014).

10

"[FJederal habeas review is foreclosed when a state court has expressly relied on a
procedural default as an independent and adequate state ground,even where the state court has

also ruled in the alternative on the merits ofthe federal claim." Velasquez v. Leonardo, 898 F.2d
7,9(2d Cir. 1990); see also CPL § 470.05(2). Federal courts do not "review questions offederal
law presented in a habeas petition when the state court's decision rests upon a state-law ground
that is independent ofthe federal question and adequate to support the judgment." Cone v. Bell,
556 U.S. 449,465 (2009). New York's contemporaneous objection rule "is a firmly established,
independent, and adequate state ground that bars habeas review of the merits of a constitutional
claim." Williams v. Artus, 691 F. Supp. 2d 515,524(S.D.N.Y. 2010). Because the Appellate

Division rejected this claim on procedural grounds—^the failure to object—^the petitioner cannot
obtain habeas relief. The petitioner does not demonstrate cause for the procedural default, nor
would denying his claim result in a fundamental miscarriage ofjustice. See Harris v. Reed,489
U.S. 255,262(1989);Parks v. Sheahan, 104 F. Supp. 3d 271,282(E.D.N.Y. 2015).

Moreover,the Appellate Division's decision to reject the petitioner's argument on the
merits was not "contrary to, or...an unreasonable application of, clearly established Federal

law." 28 U.S.C. § 2254(d); see, e.g., 28 U.S.C. § 1863(b)(5)(permitting courts to pre-screen
jurors by "class or group" to determine ifserving on the jury "would entail undue hardship or
extreme inconvenience"). Nor was it "based on an unreasonable determination ofthe facts in
light ofthe evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see also
Johnson,568 U.S. at 292; Chrysler, 806 F.3d at 116-17. The petitioner's claim is therefore
denied.
B. Amendment ofthe Indictment

The petitioner argues that the trial court improperly amended the indictment by

11

instructing the jurors that the prosecution was not required to prove that the petitioner targeted
the victim or "any particular person." (ECF No. 9-1 at 686:8-11.)
This claim is also procedurally barred, because counsel did not object on this ground.
The Appellate Division found that the claim was "unpreserved for appellate review." People v.
Harris^ 115 A.D.3d 761,762(2d Dep't 2014). The petitioner does not demonstrate "cause for

the default and actual prejudice as a result ofthe alleged violation offederal law, or...that
failure to consider the claims will result in a fundamental miscarriage ofjustice." Azaz v. Artus,
No. 09-CV-3857,2011 WL 9368971, at *8(E.D.N.Y. Nov. 2,2011), report and
recommendation adopted. No.09-CV-03857,2012 WL 5289519(E.D.N.Y. Oct. 19,2012).

Nor can the petitioner's argument succeed on the merits. Even if Judge Goldberg had
misstated the law—^and he did not—^a state court's jury instruction on a question of state law

does not present a question offederal law. "[T]he fact that the instruction was allegedly
incorrect under state law is not a basis for habeas relief." Estelle v. McGuire,502 U.S.62,71-72

(1991). "Before a federal court may overturn a conviction resulting jfrom a state trial in which
this instruction was used, it must be established not merely that the instruction is undesirable,

erroneous, or even 'universally condemned,' but that it violated some right which was

guaranteed to the defendant" by the federal constitution. Cupp v. Naughten,414 U.S. 141,146
(1973).

In any event. Judge Goldberg correctly described the law and did not amend the
indictment. It is only when the court's instructions, combined with the evidence, modifies

"'essential elements ofthe offense charged to the point that there is a substantial likelihood that
the defendant may have been convicted ofan offense other than the one charged by the grand

jury,"'that an indictment is amended constructively. United States v. Vebeliunas, 76 F.3d 1283,

12

1290(2d Cir.1996)(quoting United States v. Clemente, 22 F.3d 477,482(2d Cir. 1994)). If a
constructive amendment affects an "essential element[]" ofthe charged conduct, it is a "per se
violation[] ofthe Fifth Amendment that require[s] reversal even without a showing of prejudice
to the defendant." Id. at 1290(citation and original alternations omitted).
That is not what happened here. The petitioner was charged in the indictment with
attempted murder "with intent to cause the death of Garry [sic] Walls Sr.... by means of a

dangerous instrument," or assault"with intent to cause physical injury to Garry
means ofa deadly weapon

Walls Sr. by

"(ECF No. 9-3 at 835.) Judge Goldberg charged the jury that "it

is not required that the person who is injured, or killed, be the same person whose death was
intended to be caused, or that [the petitioner] had an intent to cause the death of any particular

person"(ECF No. 9-1 at 686:8-11), and,"just as with attempted murder,it is not required that
the person who is injured be the same person who is intended to be injured, or that [the
petitioner] had an intention to injure any particular person." (Id. at 690:3-6.) Because the
victim's identity is not an element of either charge, this instruction did not amend the indictment.

N.Y. Penal Law §§ 120.10[1], 125.25[1]; see Fernandez v. Dufrain, 11 F. Supp. 2d 407,419
(S.D.N.Y. 1998)(attempted second-degree murder statute does not require actual injury to any
particular person); People v. Wells,1 N.Y.3d 51, 56-57(2006)(identity ofspecific police officer
that defendant intended to kill was not an element of attempted murder in the first or second
degree); People v. Rivera,268 A.D.2d 445,445(2d Dep't 2000)(identity ofthe intended target

is not an essential element offirst-degree assault). The Appellate Division rejected the
petitioner's argument on the merits, finding that "the court's instructions were proper...the
identity ofthe intended target is not an essential element ofthese crimes[.]" People v. Harris,
115 A.D.3d 761,762(2014). Thus,the petitioner's claim is denied.

13

C. Excessive Sentence

The Appellate Division modified the petitioner's sentences to run concurrently, resulting

in an aggregate term of twenty-five years. Harris, 115 A.D.3d at 762-63. The petitioner says
that this is excessive. His claim is not cognizable on federal habeas review. It is well-settled that

"no federal constitutional issue is presented where, as here, the sentence is within the range
prescribed by state law." White v. Keane,969 F.2d 1381, 1383(2d Cir. 1992)(per curiam); Veliz
V. Griffin, No. 17-CV-0824,2017 WL 836560, at *3(E.D.N.Y. Mar. 2, 2017)("[W]hen a
sentence falls within the range prescribed by state law, the length ofthe sentence may not be
raised on habeas corpus review."). The petitioner's sentence was within the permissible
statutory range. See generally

. Penal Law §§ 70.02(l)(a),(3)(a),(3)(b), 120.10(1),

110.00/125.25(1), 265.03(3). Therefore, this claim is denied.
D. Ineffective Assistance of Trial Counsel

The petitioner also argues, as he did on both direct appeal and in the C.P.L. 440.10
proceeding, that his trial lawyer was"so deficient as to amount to the substantial equivalent ofno

representation." (ECF No.9-6 at 909.) The petitioner attacks his lawyer's strategy decisions,
including the way he handled the hearing on his ultimately successful suppression motion, as
well as other strategic decisions, including whether to call another passenger in the car and

whether and when to object. (ECF No.9-6 at 909-915.)
Judge Goldberg rejected all the petitioner's claims. First, the petitioner could have raised

some of his claims on direct appeal, but did not, barring relief in state court. In any event, the

petitioner "fail[ed] to allege sufficient facts to establish that any ofthese purported failures,
considered individually or collectively, caused sufficient prejudice to warrant vacating the
judgment... or deprived the defendant of meaningful representation" under Strickland v.

14

Washington, 466 U.S. 668,687(1984). (ECF No. 9-8 at 1078.)^ Moreover,the petitioner's
conviction "was supported by overwhelming evidence[,] including video surveillance recordings
of him firing a gun in the direction ofthe victim and incriminating statements he made in
recorded telephone calls from Rikers Island." {Id.)

Because the state court rejected the petitioner's complaints about his lawyer, the
petitioner must demonstrate that Judge Goldberg's decision was "contrary to, or involved an
unreasonable application of federal law or was "based on an unreasonable determination ofthe
facts in light ofthe evidence presented in the State court proceeding." 28 U.S.C. § 2254(d);see
Harrington v. Richter, 562 U.S. 86,100(2011). The standard is meant to be an exacting one; the

petitioner must demonstrate that the state court's decision was"so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement." Harrington, 562 U.S. at 102-03. The state court must be granted a

"deference and latitude that are not in operation when the case involves a review under the
standard itself." /c/. at 101.

To establish ineffective assistance of counsel, the petitioner must demonstrate that his

counsel's performance fell below an objective standard ofreasonableness under prevailing
professional norms, and that he was prejudiced by his counsel's deficient performance.

Strickland v. Washington, 466 U.S. 668,687(1984). The petitioner cannot meet the first part of

® The petitioner blames his appellate counsel, but even ifthe petitioner had exhausted this claim,
appellate counsel's decisions not to pursue meritless claims falls well within "the wide range of
reasonable professional assistance." Greinerv. Wells, 417 F.3d 305,319(2d Cir. 2005)(quoting
Strickland, 466 U.S. at 690); see also Turner v. Artuz,262 F.3d 118, 123-24(2d Cir. 2001). The
petitioner "bears the burden of establishing both deficient performance and prejudice," standards he
cannot meet. Fore v. Ercole, 594 P. Supp. 2d 281,302(E.D.N.Y. 2009). The "process of'winnowing
out weaker arguments on appeal and focusing on' those more likely to prevail,far from being evidence of
incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, All U.S. 527, 536
(1986)(quoting yowe^r463 U.S. at 75r-52); accordSellan v. Kuhlman, 261 F.3d 303,317(2d Cir. 2001).
15

the Strickland test merely by showing that his counsel employed a losing strategy or made a
mistake; instead, the petitioner must establish that his counsel "made errors so serious that

counsel was not functioning as the 'counsel' guaranteed... by the Sixth Amendment."
LanFranco v. Murray, 313 F.3d 112,118(2d Cir. 2002)(citing Strickland, 466 U.S. at 689).
The petitioner only can establish the prejudice prong ofthe Strickland test if there is a
"reasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding

would have been different." Charles v. Fischer,516 F. Supp. 2d 210, 216(E.D.N.Y. 2007)
(quotation omitted). In applying the two-part test,"judicial scrutiny ofcounsel's performance
must be highly deferential," and "a court must indulge a strong presumption that counsel's
conduct falls within the wide range ofreasonable professional assistance." Id. at 689. The

relevant inquiry focuses "on the fundamental fairness ofthe proceeding whose results are being
challenged." Strickland, 466 U.S. at 670.
Under this standard, the petitioner's claims fail on the merits, even ifthey were not

procedurally barred. First, the petitioner criticizes his lawyer's approach to the hearing on his
motion to suppress the petitioner's post-arrest statements to the police. It is difficult to see the

point ofthis complaint, since counsel succeeded in getting the statements suppressed. (ECF No.
14 at 1284-1314.) In any event, the police clearly had probable cause to arrest the petitioner; he

was captured on videotape shooting at the victim. See Goodwine v. Lee, No. lO-CV-6019,2016
WL 6834017, at *3(S.D.N.Y. Nov. 17,2016)(denying habeas petition for ineffective assistance

ofcounsel where petitioner's challenge to probable cause "had no reasonable probability of
success").

The petitioner's complaints about his lawyer's trial tactics—cross-examination, whether

to object, whether to call another passenger from the car as a witness—are no more persuasive.

16

(ECF No. 1 at 70-72.) These were strategic decisions well within the range of professional
competence. Indeed, counsel mounted a vigorous defense; in addition to the successful

suppression motion, counsel tried to establish that the petitioner was merely present at the
shooting, and that someone else shot the victim. Counsel's decision not to call Lonnie

Kimbrough, who was in the car during the shooting, was also a reasonable strategic choice.
"The decision not to call a particular witness is typically a question oftrial strategy that appellate
courts are ill-suited to second-guess." United States v. Luciano^ 158 F.3d 655,660(2d Cir.
1998). Since JCimbrough told the police that he did not see who was firing the shots because
everything "happened too fast,"(ECF No.9-6 at 951), he would not have been helpful to the

defense. See Krutikov v. United States^ 324 F. Supp. 2d 369, 371 (E.D.N.Y. 2004)(finding no
error when counsel declined to call a witness because counsel did not believe the witness would

be beneficial to the defense). Counsel's decision was "within the range of acceptable strategic
and tactical alternatives and did not cause the representation to fall below the constitutionally

acceptable level mandated by Strickland'^ United States v. Luciano, 158 F.3d 655,660(2d Cir.
1998).

Ofcourse, counsel was stymied in his efforts by the video evidence,the petitioner's
behavior in court, and his trial testimony that he was holding a cloth to make the real shooter

think he had a gun. "[UJndetailed and unsubstantiated assertions that counsel failed to conduct a
proper investigation have consistently been held insufficient to satisfy either Strickland prong."
Powers V. Lord, 462 F. Supp. 2d 371,381 (W.D.N.Y. 2006)(citing Polanco v. United States, No.
99-CV-5739,2000 WL 1072303, at *10(S.D.N.Y. Aug. 3, 2000));

also Lamberti v. United

States, No.95-CV-1557, 1998 WL 118172, at *2(S.D.N.Y. Mar. 13,1998)(rejecting Sixth

Amendment claim based on failure to investigate or communicate with petitioner as "vague and

17

conclusory ...[they] do not identify counsers asserted failings with any specificity or show how

any different conduct might have changed the result"). In short, the jury convicted the petitioner
not because ofsome shortcoming on his lawyer's part, but because ofthe compelling evidence of
his guilt. See Luciano, 158 F.3d at 660. Judge Goldberg's decision denying the petitioner's
ineffective assistance of counsel claim was neither contrary to nor an unreasonable application of
clearly established law. Therefore, this claim is denied.
E. Trial Court's Evidentiarv Rulings

As he did in his 440.10 motion, the petitioner challenges the following evidentiary
rulings: limitations on confronting witnesses with grand jury testimony, the admission of a crime

scene photograph, and permitting witnesses to refer to Powerfiil Williams—^the petitioner's
accomplice—^by name.
Citing N.Y. C.P.L. § 440.10(2)(c), Judge Goldberg rejected these claims because they
were "sufficiently on the record to have been reviewed on his direct appeal." (ECF No.9-8 at
1074.) These claims are thus procedurally barred. See Aparicio v. Artuz, 269 F.3d 78,93(2d
Cir. 2001); accord Pearson v. Rock, 12-CV-3505,2015 U.S. Dist. LEXIS 98156,*21 (E.D.N.Y.
July 24,2015)(rejection ofclaim pursuant to C.P.L. § 440.10(2)(c) is adequate and independent

state ground). The petitioner has not established either cause for the procedural default and
ensuing prejudice or that denying these claims would result in a fundamental miscarriage of
justice. See Dunham v. Travis, 313 F.3d 724, 730(2d Cir. 2002)(citations omitted); Edwards v.
Superintendent, Southport C.F., 991 F. Supp. 2d 348,367(E.D.N.Y. 2013)(citations omitted).

In any event, a state court's evidentiary rulings typically do not present constitutional
issues cognizable by a federal court. See generally 28 U.S.C. § 2254; Lewis v. Jeffers, 497 U.S.
764,780(1990)("federal habeas corpus relief does not lie for errors of state law"). Courts

18

"acknowledge our traditional reluctance to impose constitutional constraints on ordinary
evidentiary rulings by state trial courts." Crane v. Kentucky,476 U.S. 683,689(1986). A

federal habeas petitioner cannot prevail on a claim that a state court's evidentiary error deprived
him of due process unless he shows "that the error was so pervasive as to have denied him a
fundamentally fair trial." Singletary v. Fischer,227 F.R.D. 209,223(E.D.N.Y.2003)(citing
United States v. Agurs, All U.S. 97,108(1976). The standard is whether the erroneous

evidentiary decision,"viewed objectively in light ofthe entire record before the jury, was
sufficiently material to provide the basis for conviction or to remove a reasonable doubt that

would have existed on the record without it. In short, it must have been 'crucial, critical, highly
significant.'" Collins v. Scully, 755 F.2d 16, 19(2d Cir.1985){tyioimg Nettles v. Wainwright,
677 F.2d 410,414-15(5th Cir. 1982)).

None ofthe rulings the petitioner challenges come close to meeting this standard. Under
the Sixth Amendment's Confrontation Clause, a criminal defendant"must have a meaningful

opportunity to cross-examine witnesses against him." Alvarez v. Ercole, 763 F.3d 223,229-30
(2d Cir. 2014)(citations and quotations omitted). The Constitution "does not, however,
guarantee unfettered cross-examination ...[t]he trial court has 'broad discretion ...to impose
reasonable limits on ...cross examination based on concerns about... harassment, prejudice,
confusion ofthe issues,... or interrogation that is repetitive or only marginally relevant.'" Id. at
229-30(citations and quotations omitted). In order to grant a habeas petition on these grounds,
the Court would have to conclude that "the trial court abused its broad discretion by precluding

cross-examination ..." euid that "the [state appellate court] could not reasonably have
determined that the [evidence] would have been excludable had the trial court properly applied
'standard rules of evidence.'" Id. at 230. The error must also have had a "substantial and

19

injurious effect or influence in determining the jury's verdict." Brinson, 547 F.3d at 395
(quoting Brecht v. Abrahamson, 507 U.S. 619,637(1993))(quotation marks omitted).
The trial court did not abuse its discretion by sustaining the prosecution's objections to
defense counsel's cross-examination of Gary Walls and Deshawn Leggett. Both lines of

questioning were improper imder state law. Defense counsel cross-examined Leggett about
inconsistencies between his testimony and the grand juiy testimony of Gary Walls, who had not

yet testified. (ECF No.9-1 at 303.) The trial court precluded the questions because they were
improper. Of course, counsel could confront Walls with his own grand jury testimony, but he
could not use Walls' grand jury testimony to impeach Leggett. See generally N.Y. Grim. Proc.

Law § 60,35. The trial court later sustained objections to defense counsel's attempts to impeach
Walls with his own prior grand jury testimony, but only because counsel did not employ the

proper form;"[t]o set the stage for the prior inconsistency,the questioner must first inform the
witness ofthe circumstances surrounding the making ofthe statement, and inquire of him

whether he in fact made it." People v. fFwe,46 N.Y.2d 321,326(1978).^ Defense counsel did
not direct the witness to his specific testimony or lay the proper foundation; instead, he just
asked if his trial testimony was inconsistent with what he told the grand jury. Thus, Judge

Goldberg properly sustained the prosecutor's objections.

The petitioner also objects to the admission ofa photograph ofa building where the
shooting occurred; Deshawn Leggett testified that the photograph included a fence that had not
been there on the date ofthe shooting. (ECF No. 9-1 at 276-279.) Under New York law.

' his motion to vacate, which the petitioner incorporated into this petition, he appears to claim that the
In
prosecution gave the victim some kind of consideration for a prior drug case in exchange for his
testimony. (ECF No. 1 at 77.) There is no evidence in the record supporting this allegation, or that
defense counsel attempted to cross-examine the victim about these facts and was precluded from doing
so.

20

"photographs are authenticated by testimony ofa person familiar with the object portrayed

therein." Cochrane v. McGimis,50 F, App'x 478,480(2d Cir. 2002)(summary order)(quoting
People V. Brown, 216 A.D.2d 737, 738(2d Dep't 1995)). The petitioner does not dispute the
photograph's authenticity or explain why the trial court should not have admitted them.

Moreover,there is no evidence that there was anything unfairly prejudicial about the
photographs.

Finally, the petitioner argues that the court should have precluded any mention of his codefendant, Powerful Williams. (ECF No. 1 at 82.) "A federal court may not issue the writ on
the basis ofa perceived error of state law." Pulley v. Harris, 465 U.S. 37,41 (1984);see Estelle
V. McGuire, 502 U.S. 62,67-68(1991)("it is not the province ofa federal habeas court to

reexamine state-court determinations on state-law questions"). The petitioner's argument is
based solely on state law governing the admissibility ofevidence regarding a criminal
defendant's accomplice or co-defendant. See People v. Jenkins, 305 A.D.2d 287,288(1st Dep't

2003)(error to admit eyewitness testimony about defendant's accomplice to bolster eyewitness'
identification ofthe defendant); People v. Samuels,22 A.D.3d 507,508(2d Dep't 2005)
(improper to admit evidence to witness's identification of accomplice). The references to
Williams did not violate the petitioner's constitutional rights, for there was nothing unfairly
prejudicial about his name. The trial judge precluded any reference to Williams' guilty plea,
something that would have been unfairly prejudicial. Moreover,the court charged the jury that

Williams was not on trial and they should not speculate about what happened to him. The
references to Williams were appropriate in the context ofthe evidence, which included video
footage ofthe petitioner and Williams together around the time ofthe shooting, and the

21

testimony about what Williams did immediately before the shooting. (ECF No. 9-1 at 280.)*®
Even if any ofthese rulings were erroneous—and they were not—^the petitioner does not

demonstrate that any ofthem had a "substantial and injurious effect or influence in determining
the jury's verdict." Brinson, 547 F.3d at 395(quoting Brecht, 507 U.S. at 637)(internal
quotation marks omitted). The evidence ofthe petitioner's guilt was overwhelming.
Accordingly, the petitioner's claims do not form a basis for relief.
F. Prosecutorial Misconduct* *

The petitioner claims that the prosecutor violated her obligations under Brady v.
Maryland and made improper comments in her summation. Brady v. Maryland,373 U.S. 83
(1963).

Citing N.Y. C.P.L. § 440.10(2)(c), Judge Goldberg rejected these claims because they

were "sufficiently on the record to have been reviewed on the defendant's appeal," (ECF No. 98 at 1075.) These claims are thus procedurally barred. See Aparicio v. Artuz,269 F.3d 78,93
(2d Cir. 2001); accord Pearson v. Rock, 12-CV-3505,2015 U.S. Dist. LEXIS 98156,*21

(E.D.N.Y. July 24,2015)(rejection ofclaim pursuant to C.P.L. § 440.10(2)(c) is adequate and
independent state ground). The petitioner has not established either cause for the procedural
default and ensuing prejudice or that denying these claims would result in a fundamental
miscarriage ofjustice.

After Leggett mentioned Williams,the trial court at defense counsel's request instructed the jury to
disregard the reference to Williams' name,to whom witnesses then referred to as a "light-skinned" black
man. (7^/. at 280:23-281:15.)

"The petitioner's claims about discovery wndex People v. Rosario, 173 N.E.2d 881 (N.Y. Ct. App. 1961)
are state claims, and not cognizable on federal habeas review. 28 U.S.C. § 2254(a)(providing for federal
habeas relief based on violations offederal law); see also Kotler v. Woods,620 F. Supp. 2d 366,395
(E.D.N.Y. 2009)
("[T]o the extent that[a state habeas] claim is based on a Rosario violation, it must
fail.").

22

Brady requires the prosecution to disclose "evidence that is both favorable to the accused

and 'material either to guilt or to punishment.'" United States v. Bagley,473 U.S. 667(1985)
(quoting Brady^ 373 U.S. at 87). To establish a Brady violation, a petitioner "must show that:(1)
the government, either willfully or inadvertently, suppressed evidence;(2)the evidence at issue

is favorable to the defendant; and(3)the failure to disclose this evidence resulted in prejudice."
U.S. V. Yuk, 885 F.3d 57,86(2d Cir. 2018)(internal quotation marks omitted)(quoting United
States V. Coppa,267 F.3d 132,140(2d Cir. 2001)). Reversal is required "ifthere is a
'reasonable probability' that disclosure would have changed the outcome ofthe case, or where

the suppressed evidence 'could reasonably be taken to put the whole case in such a different light
as to xmdermine confidence in the verdict.'" Yuk at 86(quoting Kyles v. Whitley, 514 U.S. 419,
434-35 (1995)).

The evidence about which the petitioner complains—^his recorded telephone calls—^was
disclosed during the trial, and the trial court ameliorated any prejudice caused by the late

disclosure ofthe recordings by giving counsel time to review them, and by redacting irrelevant
or unfairly prejudicial material. As Judge Goldberg found,"[t]here is nothing on [the
recordings] that is exculpatory." (ECF No. 9-1 at 371:10-19.)
I also reject the petitioner's arguments about the prosecutor's summation references to

the video ofthe shooting. The prosecutor said that the petitioner"was standing with the gun ...
and then turned, and fired," and that he and Williams checked to see ifthe gun was loaded. (Id.

at 644:6-9.) Aside from the procedural impediment to the petitioner's claim,it is a "rare case[]"
in which even improper summation comments will be deemed "so numerous" and "so

prejudicial" that they support granting a habeas petition. Floyd v. Meachum,907 F.2d 347, 348
(2d Cir. 1990). Here,the prosecutor's statements were fair comment on the evidence, which

23

demonstrated that Williams was with the petitioner right before the shooting, and that the

petitioner was holding and firing a gun. I therefore deny the petitioner's claims.
G. Post-arrest Statements

The petitioner claims that his post-arrest statements should have been suppressed because
the police did not have probable cause to arrest him and did not advise him of his constitutional
rights. (ECF No. 1 at 94-97.) Because Judge Goldberg suppressed the petitioner's statements,
and the jury never heard about them,there is no basis for habeas relief. (ECF No. 14 at 1308:1325.)
H. Sufficiencv ofthe Evidence

The petitioner also challenges the evidence as insufficient. Judge Goldberg rejected the
same claim pursuant to N.Y. C.P.L. § 440.10(2)(c) because he could have raised it on his direct

appeal. (ECF No. 9-8 at 1074.) This claim is therefore procedurally barred. See Aparicio v.
Artuz,269 F.3d 78,93(2d Cir. 2001); accord Pearson v. Rock, 12-CV-3505,2015 U.S. Dist.
LEXIS 98156, *21 (E.D.N.Y. July 24,2015)(rejection ofclaim pursuant to C.P.L. §

440.10(2)(c) is adequate and independent state ground). The petitioner has not established either
cause for the procedural default and ensuing prejudice or that denying these claims would result
in a fundamental miscarriage ofjustice. See Dunham v. Travis, 313 F.3d 724,730(2d Cir. 2002)

(citations omitted); Edwards v. Superintendent, Southport C.F., 991 F. Supp. 2d 348,367
(E.D.N.Y. 2013)(citations omitted).

A petitioner challenging the sufficiency ofthe evidence faces a "high bar" in federal
habeas proceedings. There are "two layers ofjudicial deference"—^not only does the jury have
broad discretion to decide the case, but a state court's decision on a sufficiency ofthe evidence

challenge should not be overturned unless it is "objectively unreasonable." Coleman v. Johnson,

24

566 U.S. 650,651 (2012)(citations and quotations omitted).*^ Evidence is legally sufficient if
"after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements ofthe crime beyond a reasonable doubt." Jackson

V. Virginia^ 443 U.S. 309, 319(1979)(emphasis in original)(citations omitted). Federal courts
considering the evidentiary sufficiency ofa state conviction "must look to state law for 'the
substantive elements ofthe criminal offense.'" Coleman,566 U.S. at 654(citing Jackson,443
U.S. at 324 n.l6).

Viewing the facts in the light most favorable to the prosecution, there is no question that
a rational trier offact could have found that the evidence established the petitioner's guilt beyond
a reasonable doubt. Video surveillance tapes showed the petitioner loading a gun,leaving 130
Moore Street with his accomplice's help, and shooting the victim. The petitioner admitted that

he was the person on the video. The jury's decision to reject his claim that he was actually
holding a cloth and that someone else shot the victim—^which the trial court characterized as
"insulting" and "absurd"—^was understandable given the evidence against the petitioner.

Therefore, I deny the petitioner's evidentiary sufficiency claim.
I.

Incompetence

The petitioner claims that he was incompetent to stand trial, a claim he also raised in his
motion to vacate. The petitioner cites his outbursts on the record during the trial—^his objections,
interruptions, and arguments in the face ofrepeated warnings that Judge Goldberg would remove
him from the courtroom. (ECF No.9-1 at 878-880.)

Subjecting a mentally incompetent person to trial is a due process violation. Pate v.

"[0]n direct appeal,'it is the responsibility ofthe juiy—^not the court—^to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on

the ground of insufficient evidence only if no rational trier offact could have agreed with the jury."
Coleman v. Johnson, 566 U.S. 650,651 (2012)(quoting Cavazos v. Smith, 565 U.S. 1,2(2011)).
25

Robinson^ 383 U.S. 375 (1966). Under federal law, a defendant is mentally competent if he has
"sufficient present ability to consult with his lawyer with a reasonable degree ofrational
understanding—^and whether he has a rational as well as factual understanding ofthe

proceedings against him." Dusky v. United States, 362 U.S. 402,402(1960). Where there is
evidence that a defendant was mentally incompetent at the time oftrial, a federal court can grant
a habeas petition ifthe state court should have held a competency hearing, even ifthe issue is
unpreserved. Pate, 383 U.S. at 386; Silverstein v. Henderson, 706 F.2d 361, 369(2d Cir.
1983), cert, denied,464 U.S. 864(1983).

At no point did the petitioner or his attorney ever suggest that he was mentally unfit to
stand trial. Nor did he raise the claim on direct appeal. Nevertheless, I review the claim de
nova. See Silverstein, 706 F.2d at 366-67; Moore v. Conway,No. lO-CV-3202,2011 WL 73123,

at *4(E.D.N.Y. Jan. 10,2011). Nothing about the petitioner's behavior during the trial required
the trialjudge to hold a competency hearing sua sponte. Indeed,Judge Goldberg rejected the
petitioner's post-trial "self-serving claim that he was'incompetent' to stand trial," finding that
his "disruptive behavior and consequent exclusion from the courtroom was due to a choice he
made to express his dissatisfaction with the proceedings." (ECF No.9-1 at 1079.) I find no

basis for disturbing that ruling. Nothing in the record suggests that the petitioner did not
understand the charges against him or was unable to consult with his lawyer. Pallonetti v.
Racette, No. 1 l-CV-3563,2014 WL 4161957(E.D.N.Y. Aug. 19,2014)(denying defendant's

due process claim that court erred by not ordering competency hearing sua sponte because there

was "absolutely no evidence in the record to suggest" that the defendant was not competent to
stand trial). The substance ofthe petitioner's outbursts demonstrates that he "ha[d] sufficient
present ability to consult with his lawyer with a reasonable degree ofrational understanding and

26

has a rational as well as factual understanding ofthe proceedings against him." United States v.
Powell, 249 F. Supp. 3d 617,624(E.D.N.Y. April 28,2017)(quotation marks omitted). He
frequently interrupted with proposed objections, requested numerous evidentiary hearings,

testified on his own behalf, and demanded new representation when his attorney refused to adopt
his pro se motions. On this record, there is "no reasonable ground to question petitioner's
competency." Moore, 2011 WL 73123, at *5 (E.D.N.Y. Jan. 10, 2011). His conclusory
allegations to the contrary are not sufficient, and I therefore deny his claim.
CONCLUSION

Accordingly, the petition for a writ of habeas corpus is denied in its entirety. The case is
dismissed. A certificate of appealability will not be issued. See 28 U.S.C. § 2253(c). The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3)that any appeal from this order would not be taken in
good faith.

SO ORDERED.

s/Ann M. Donnelly

AnifW Donnelly
United States District Judge

Dated: Brooklyn, New York
March 2, 2020

27