Mitchell et al v. Griffin

Filing 7

MEMORANDUM AND OPINION, For the foregoing reasons, the petition for a writ ofhabeas corpus is denied and dismissed. The court declines to issue a Certificate of Appealability because petitioner has not shown that "reasonable jurists could debate whether... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement toproceed further." Middleton v. Attorneys Gen, of States of N.Y.r Pennsylvania, 396 F.3d 207, 209 (2d C ir. 2005) (internal quotation marks omitted); see also 28 U.S.C. § 2253(c) ("A certificate of appealability may issue... only if theapplicant has made a substantial showing of the denial of a constitutional right."). Additionally, 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, and therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v.United States, 369 U.S. 438, 444-45 (1962 ). The Clerk of Court is respectfully requested to enter judgment denying and dismissing the petition, serve a copy ofthis Memorandum and Order and the judgment on petitioner, note service on the docket, and close the case. (Certificate of Appealability Denied re 1 Petition for Writ of Habeas Corpus) Ordered by Judge Kiyo A. Matsumoto on 11/18/2019. c/m Fwd. for Judgment. (Galeano, Sonia)

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FILED

IN CLERK'S OFFICE
KLERK'S OFFI

US DISTRICT COURT E.D.N
^ICT COURT

5 KUV 2.0 2019 ^

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
X

BROOKLYN OFFICE

DAMON MITCHELL,

Petitioner,
MEMORANDUM & ORDER

-against17-CV-5584(KAM)

THOMAS GRIFFIN, Superintendent, Green
Haven Correctional Facility, and
ERIC T. SCHNEIDERMAN, New York
Attorney General,
Respondents.
X

MATSUMOTO, United States District Judge:

On April 1, 2011, a jury of the Supreme Court of the
State of New York, Richmond County (the ''trial court"), found
Damon Mitchell ("petitioner" or "Mitchell") guilty of two count
of second-degree robbery.

On May 4, 2011, the trial court

imposed on petitioner two consecutive 10-year prison terms for
the robbery convictions, each to be followed by a five-year term

of post-release supervision.

Petitioner appealed his

convictions to the Supreme Court of the State of New York,

Appellate Division, Second Judicial Department (hereinafter,
"Appellate Division").

The Appellate Division affirmed

petitioner's convictions.

Petitioner's appeal to the New York

Court of Appeals was subsequently denied.

Petitioner then moved

to vacate his convictions pursuant to New York's Criminal

Procedure Law ("Crim. Proc. Law") § 440.10 (the "440 motion") in

the- Supreme Court of the State of New York, Richmond County,
which was denied on December 17, 2015.

Petitioner afterward

sought leave to appeal the denial of his 440 motion, but the
Appellate Division denied such leave.
Mitchell now seeks relief from this court pursuant to

28 U.S.C. § 2254.

In his petition, filed on September 25, 2017

petitioner challenges his state court convictions on the ground
that he was deprived of the effective assistance of counsel bot
during trial and during a pre-trial suppression hearing.
No. 1, Petition (""Pet."), filed 09/25/2017, at 5, 17.)

(ECF
For the

reasons discussed below, the petition is DENIED in its entirety
BACKGROUND

I.

OFFENSE CONDUCT

Petitioner's convictions stem from two robberies that

occurred fewer than two days apart in Staten Island.

On June

17, 2010, at approximately 9:10 p.m., 65-year-old Alexander

Zagorsky was preparing to close the Rainbow One Laundromat, wheh
he was approached by a man asking to drop off clothing.
13, 60.)

(Pet.

That man thereafter retrieved a bag of laundry from

his car and, when no other patron was present in the laundromat

followed Zagorsky to the back of the business.

(Id.)

There,

the man suddenly struck Zagorsky on his face and body, demandinc

money.

(Id.)

The man ultimately fled the laundromat with $175

and a cell phone he was able to remove from Zagorsky's pockets.

The incident was captured on the business's security cameras.
(Id.; ECF No. 5, Response to Petition C'Resp."), filed

12/08/2017, at 2.)

Zagorsky called 911 at 9:55 p.m., and

Robbery Squad Detective Gary Drucker responded to the scene.
(Pet. 66-68.)

Zagorsky reported to Detective Drucker that the

robber was "a black man, approximately 35 years old, six feet

tall, 190 pounds, [and] wearing a tan or beige fishing hat."
(Id. at 13, 67.)

No arrest was made that night.

(Resp. 2.)

Roughly 33 hours later, at approximately 5:50 a.m. on

June 19, 2010, 29-year-old Elayaraja Sanmugam was working at th
Around the Clock Deli, when a man ''wearing a hood, a mask,

glasses, and gloves" entered the business, suddenly hit Sanmugam
on the face with a hammer, and attempted to use said hammer to

break open a cash register.

(Resp. 9; Pet. 59-60.)

Ultimately,

the man could take only $20 he found under the register.
at 10.)

(Id.

With the robber preoccupied attempting to access the

register, Sanmugam seized the opportunity to run out of the
deli, and he immediately alerted Christopher Rowell, a man

working next door, of the incident.

(Resp. 2.)

Rowell then

pursued the robber on foot, stopping to call 911 but never

"[losing] sight" of the person he was chasing.

(Id.)

In his

911 call, Rowell provided the dispatcher a description of
himself, including his clothing, so as to "avoid 'an

altercation' when police arrived."

(Id.)

Both Sanmugam and

Rowell observed no other people on the street at that time.
(Id.)

On patrol in the vicinity that morning, Officer Scott
Zelinski responded to the 911 call.

As he was canvassing the

area, he observed one black man pursuing another black man—

Rowell chasing petitioner.

(Pet. 21, 25; Resp. 11.)

Officer

Zelinski and his partner stopped the men, but because both were

wearing the type of clothing the 911 caller had described
himself as wearing, they opted to frisk and handcuff both

petitioner and Rowell.

(Pet. 21.)

On a separate patrol of the

area that morning. Officer Omar Birchwood responded to a call
from Officer Zelinski for back-up.

(Id.)

In the presence of petitioner and the officers, Rowell
told the police about the robbery that had just happened and
asked them to have Sanmugam, who was still at the deli, to

verify that petitioner was the perpetrator.

(Resp. 12.)

For

his part, petitioner claimed to the officers that he knew

nothing about the deli robbery; he said he had been returning
home from a store that morning and was unexpectedly pursued by

Rowell, who ''came out of nowhere" and appeared to be carrying a
firearm.

(Pet. 26.)

Petitioner and the officers subsequently

looked for a discarded firearm but could not locate one.

(Id.)

At approximately 6:15 a.m., the police arrived at the
deli and asked Sanmugam about the robbery.

(Resp. 12.)

They

then transported Sanmugam to where Officer Zelinski had stopped
Rowell and petitioner.

(Id.; Pet. 25.)

After Sanmugam

identified Rowell as his friend, the officers uncuffed him.

(Id.)

Based on this identification, the officers arrested

petitioner on four charges: robbery in the first degree,
assault, criminal possession of stolen property, and menacing.
(Pet. 71.)

Three days later, on June 22, 2010, Detective Drucker

arranged for Zagorsky to attempt to identify the perpetrator of
the July 17 robbery by way of a photo array, during which
Zagorsky positively identified petitioner.

(ECF No. 1-2,

Petitioner's Memorandum of Law ("Pet. Mem."), filed 09/25/2017,

at 9.)

Three days later, on June 25, 2010, Detective Drucker

arranged for a second time for Zagorsky to identify the

perpetrator of the June 17 laundromat robbery, this time throug
a corporeal line-up.

(ECF No. 5, Affirmation in Opposition to

the Petition for a Writ of Habeas Corpus, at 13.)

Zagorsky

again made a positive identification of petitioner.
Resp. 13.)

(Pet. 25;

Petitioner was thereafter charged with the June 17

robbery.
II.

JURY TRIAL, VERDICT, AND SENTENCING

Petitioner faced several charges at trial.

For the

June 17 robbery, petitioner was charged with robbery in the
second degree, robbery in the third degree, assault in the

second degree, and assault in the third degree.

For the June 1

robbery, petitioner was charged with robbery in the first

degree, robbery in the second degree, robbery in the third

degree, criminal possession of a weapon in the third degree, and
criminal possession of a weapon in the fourth degree.

(Pet.

79.)

On September 28, 2010, petitioner's counsel moved in
the Richmond County Supreme Court for dismissal of the

indictment and suppression of certain evidence.

(Id.)

Petitioner's motions for JVade, Mapp, and Dunaway hearings were

granted; his motion to dismiss the indictment was denied; and
after pretrial suppression hearings on October 25, 2010, and

November 18, 2010, petitioner's suppression motion was denied.^
(Pet. 10, 79-80.)

The court determined that the officers had

reasonable suspicion to detain petitioner on the morning of Junje
19 and that none of petitioner's statements to police before his
I

arrest were the product of custodial police interrogation in
violation of Miranda and, therefore, none was subject to
suppression.

(Resp. 7.)

On March 23, 2011, petitioner's jury trial commenced.
(Pet. 80.)

At trial, petitioner's counsel stressed that

Sanmugam had not positively identified petitioner as the man who

^
The trial court concurrently held a Huntley hearing, affording
petitioner the chance to challenge whether a statement he made was
involuntary.

See 32A N.Y. Jur. Grim. Proc. Law § 1665.

had attacked him with a hammer, which the government disclosed

mid-trial, and noted that police had failed to recover the

hammer that was allegedly used in the robbery.

(Id. at 27, '29.

Petitioner's trial counsel additionally sought to undermine

Zagorsky's testimony, while faulting the evidence collection
officer for failing to sufficiently examine the laundromat.
(Id.)

Petitioner denied having been at either the laundromat or

the deli, and having already rejected multiple plea offers, he
continued to maintain his innocence.

(Resp. 14; Pet. 29.)

After deliberations, the jury returned a mixed

verdict: petitioner was acquitted of the first-degree robbery
count, for the June 19 deli robbery, and convicted of two

second-degree robbery counts for the laundromat and deli
robberies.

(Pet..80.)

The trial prosecutor requested the court

impose consecutive 10-year prison terms, each of which to be
followed by five years of post-release supervision.

On May 4,

2011, the court sentenced petitioner consistent with the

government's request.

(EOF No. 5-8, Brief for Defendant-

Appellant (^^Def.-App. Br."), filed 12/08/2017, at 9-10.)
III. POST-CONVICTION PROCEEDINGS

A.

Petitioner's Direct Appeal

On October 30, 2013, petitioner perfected a direct

appeal of the jury verdict, arguing, inter alia, that his trial
counsel was ineffective for failing to ''adequately review

discovery materials," to "argue at the suppression hearing that
police lacked reasonable suspicion to stop and detain him," to
move to re-open the suppression hearing, and to recall Officer
Birchwood, who had earlier testified that Sanmugan had made a

positive identification of petitioner as the hammer-wielding
robber.

(Pet. 30.)

On September 10, 2014, the Appellate Division affirme(fl
the convictions and rejected petitioner's claim of ineffective
assistance of counsel.

(Pet. 30, 80.)

The court additionally

rejected petitioner's claim of a Brady violation, holding that
it was "unpreserved and, in any event, without merit."

People

V. Mitchell, 120 A.D.3d 1265 (2d Dep't 2014); (Pet. 76.)

After

reviewing the record, the appellate court finally concluded thajt
"the verdict of guilt was not against the weight of the
evidence."2 (Id.)

On December 8, 2014, the Court of Appeals denied

petitioner's application for leave to appeal.

People v.

Mitchell, N.Y.3d 1086 (2014); (Pet. 78.)
B.

Petitioner's § 440.10 Motion

On July 22, 2015, petitioner, proceeding pro se, moved
to vacate the judgment of the Richmond County Supreme Court,

arguing-as he did on direct appeal-that his trial counsel was

Petitioner has not renewed his Brady claim on federal habeas review,

ineffective for failing to move to re-open the suppression

hearing in light of the inconsistent testimony between Sanmugam
and Officer Birchwood.

(Pet. 30.)

Additionally, petitioner

claimed that the prosecution ''had knowingly presented false
testimony to the Grand Jury."

(Id.)

In opposition to

petitioner's motion, the prosecution argued that petitioner was
procedurally barred under C.P.L. § 440.10(2)(a) and (c);

alternatively, the prosecution argued that petitioner's motion
should be summarily denied for its lack of both legal and

factual bases, pursuant to C.P.L. § 440.30(4)(a), (b), and (d).
(Resp. 16.)

On December 17, 2015, Justice Ozzi of the Richmond

County Supreme Court denied petitioner's § 440.10 motion.
79-82.)

(Pet

In the decision and order, the court concluded that

petitioner's motion was procedurally barred under C.P.L. §
440.10(2)(a) and (c) because petitioner's claims could have beeh
asserted or had already been asserted on direct appeal.
81.)

(Id. at

In addition to this procedural bar, the court went on to

reject petitioner's claim—including his ineffective-assistance
claim—on the merits.

(Id. at 81-82.)

Specifically, the court,

citing New York law, concluded that Mitchell's arguments

regarding his trial counsel's performance reflected "[a] 'simpl
disagreement with strategies, tactics, or the scope of possible
cross-examination, weighed long after the trial.'"

(Id. at 24.)

As to the sentence imposed by the trial court. Justice Ozzi
found Mitchell's trial counsel was effective, and noted that

petitioner ultimately ''was acquitted of the top count of the
indictment," i.e., the first-degree robbery charge.

(Id.)

The

court added that petitioner's other argument, which centered on

the trial prosecutor's conduct during grand jury proceedings,
amounted to "speculation, without evidentiary support, that the

prosecution relied on hearsay evidence."

(Id. at 23-24.)

Petitioner subsequently applied for leave to appeal
the denial of his 440 motion, but on April 28, 2017, the

Appellate Division denied his application.
C.

(Id. at 83.)

Petitioner's Federal Habeas Petition

On September 25, 2017, petitioner filed the instant
petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254, seeking to vacate his state convictions.

In his petition,

Mitchell argues that his defense counsel was ineffective at bot
the suppression hearing and at trial.

(Pet. 6-7.)

LEGAL STANDARD

A petition for a writ of habeas corpus filed by a
person in state custody is governed, inter alia, by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

28 U.S.C. § 2254.

Section 2254 specifies that a district court

may issue a writ of habeas corpus for an individual petitioner
in state custody "only on the ground that he is in custody in

10

violation of the Constitution or laws or treaties of the United

States." 28 U.S.C. § 2254(a). In addition, AEDPA provides that!
a one-year statute of limitations applies to ''an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court."

28 U.S.C. § 2244(d)(1); see

generally 28 U.S.C. § 2244(d).
I.

STATE COURT APPLICATION OF FEDERAL LAW

A federal court may grant a writ of habeas corpus only

when "the applicant has exhausted the remedies available in the
courts of the State," when "there is an absence of available

State corrective process," or when "circumstances exist that
render [such State corrective] process ineffective to protect

the rights of the applicant."

28 U.S.C. § 2254(b)(1).

A federal court is prohibited from granting a petition
for a writ of habeas corpus for a claim adjudicated by the state
court on the merits, unless such adjudication 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."
2254(d)(1).

28 U.S.C. §

AEDPA thereby "bars relitigation of any claim

'adjudicated on the merits' in state court."

Harrington v.

Richter, 562 U.S. 86, 98 (2011); see also Shoop v. Hill, 139 S.

Ct. 504, 506 (2019) ("[H]abeas relief may be granted only if the
state court's adjudication 'resulted in a decision that was

11

contrary to, or involved an unreasonable application of,'

Supreme Court precedent that was ^clearly established' at the
time of the adjudication.").

In applying this ''highly

deferential standard for evaluating state-court rulings, . . .

state-court decisions [must] be given the benefit of the doubt.'
Brumfield v. Cain, 135 S. Ct. 2269, 2289 (2015) (quoting Cullen
V. Pinholster, 563 U.S. 170 (2011)).

In deciding whether to apply the above deferential
standard, the federal court must preliminarily determine whether
the state court adjudicated the relevant claim on the merits.
"A state court adjudicates a petitioner's federal claims on the
merits when it (1) disposes of the claim on the merits, and (2)

reduces its disposition to judgment."

Howard v. Walker, 406

F.3d 114, 122 (2d Cir. 2005) (citing Norde v. Keane, 294 F.3d
401, 410 (2d Cir. 2002) (internal quotation marks omitted)).

A

claim adjudicated on the merits need not have been exhaustively
addressed in state court.

See, e.g., Ryan v. Miller, 303 F.3d

231, 245-46 (2d Cir. 2002) (concluding that a state court had
adjudicated a case on the merits by way of a blanket statement,
"the defendant's remaining contentions are either unpreserved

for appellate review or without merit"); see also Reznikov v.
David, Nos. 05-CV-1006 (RRM), 05-CV-1008 (RRM), 2009 WL 424742,
at *3 (E.D.N.Y. Feb. 20, 2009) ("Under AEDPA, a proper merits

adjudication requires only that (a) a federal claim be raised.

12

and (b) that it be disposed of on substantive, rather than

procedural grounds.").

"When a state court [adjudicates a

federal claim on the merits], a federal habeas court must defer

in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state
court's decision on the federal claim—even if the state court

does not explicitly refer to either the federal claim or to
relevant federal case law."

Sellan v. Kuhlman, 261 F.3d 303,

312 (2d Cir. 2001). See also Gutierrez v. Capra, No. 14-CV-688'|
(KAM), 2019 WL 1508454, at *6 (E.D.N.Y. Apr. 5, 2019).

Indeed,

a federal court "cannot grant habeas relief where a petitioner's
claim pursuant to applicable federal law, or the U.S.
Constitution, has been adjudicated on its merits in state court

proceedings in a manner that is not manifestly contrary to
common sense."

Santone v. Fischer, 689 F.3d 138, 148 (2d Cir.

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

Once the habeas court determines that the state court

adjudicated a petitioner's federal claims on the merits, it musjb
then determine if the state court unreasonably applied federal

law!

To this end, the federal court considers that, for § 2254

purposes, "[cjlearly established federal law 'refers to the
holdings, as opposed to the dicta, of the Supreme Court's
decisions as of the time of the relevant state-court decision.'

Howard, 406 F.3d at 122 (quoting Kannaugh v. Miller, 289 F.3d

13

36, 42 {2d Cir. 2002)).

A state court's decision is contrary to

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 v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J.,
concurring and writing for the majority in this part).

An

unreasonable application of law occurs when "the state court
identifies the correct governing legal principle from [the

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

Id.

Unreasonableness is measured objectively and "requires a 'higher
threshold' than 'incorrect.'"

Boyd v. Saunders, No. 16-CV-4885

(KAM), 2018 WL 5313763, at *4 (E.D.N.Y. Oct. 26, 2018) (citing
Knowles v. Mirzayance, 556 U.S. Ill, 123 (2009)).

"'[T]he most

important point is that an unreasonable application of federal
law is different from an incorrect application.'"

Howard, 406

F.3d at 122 (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d
Cir. 2000)).

The state court's application of federal law must

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

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

V. Stone, 221 F.3d 100, 111 (2d Cir. 2000).

Francis

If a district couj^t

determines that a state court unreasonably applied established

federal law, thereby "resulting in constitutional error, [the

14

district court] must next consider whether such error was

harmless."

Howard, 406 F.3d at 122 (citing Brecht v.

Abrahamson, 507 U.S. 619, 629-30 (1993)).

Separate from a state court's unreasonable or contrary

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

presented in the State court proceeding."
2254(d)(2).

28 U.S.C. §

A state court's factual determinations are presumed

correct, however, and the petitioner has the burden of

"rebutting the presumption of correctness by clear and
convincing evidence."

Id. at § 2254(e)(1).

Accordingly, a

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

possibility fair[-]minded jurists could disagree that the state
court's decision conflicts with [Supreme Court] precedents."
Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (per curiam)
(citations and internal quotation marks omitted).
II.

Exhaustion Requirement

Pursuant to § 2254, a district court may not grant a

habeas petition made by "a person in custody pursuant to the

judgment of a State court" unless "the applicant has exhausted
the remedies available in the courts of the State."

2254(b)(1)(A).

28 U.S.C.

This rule is "grounded in . . . concerns for

15

federalism and comity between the state and federal sovereigns
. . . [and] ensures that federal courts respect the ^States'

interest in correcting their own mistakes.'"

Aparicio v. Artuz

269 F.3d 78, 90 (2d Cir. 2001) (citation omitted) (quoting

Coleman v. Thompson, 501 U.S. 722, 732 (1991)).

To satisfy the

exhaustion requirement, a petitioner must have ''(i) presented
the federal constitutional claim asserted in the [habeas]

petition to the highest state court (after preserving it as
required by state law in the lower courts) and (ii) informed
that court (and lower courts) about both the factual and legal

bases for the federal claim." Ramirez v. Attorney Gen. of N.Y.^
280 F.3d 87, 94 (2d Cir. 2001) (citing, inter alia, Picard v.
Connor, 404 U.S. 270, 276-77 (1971)); see also Bossett v.

Walker, 41 F.3d 825, 828 (2d Cir. 1994) (''To fulfill the

exhaustion requirement, a petitioner must have presented the
substance of his federal claims 'to the highest court of the

pertinent state.'" (quoting Pesina v. Johnson, 913 F.2d 53, 54
(2d Cir. 1990)).

"Even if a federal claim has not been presented to the

highest state court or preserved in lower state courts under
state law, it will be deemed exhausted if it is, as a result,

then procedurally barred under state law."
94.

Ramirez, 280 F.3d at

Where a claim is exhausted but procedurally barred, a court

may nonetheless review it if the petitioner shows "cause for the

16

default and prejudice, or demonstrate[s] that failure to
consider the claim will result in a miscarriage of justice

(i.e., the petitioner is actually innocent)."

Aparicio, 269

F.3d at 90 (citing Coleman, 501 U.S. at 748-50).

If a state

court ruling contains a plain statement that a claim is

procedurally barred, then the federal court may not review it,
even if the state court also rejected the claim on the merits in
the alternative.

See Harris v. Reed, 489 U.S. 255, 264 n.lO

(1989) (explaining that ''a state court need not fear reaching
the merits of a federal claim in an alternative holding" when it

explicitly invokes a state procedural ground as a separate basis
for its decision (emphasis in original)).
DISCUSSION

I.

Exhaustion

In the instant case, petitioner has exhausted his
remedies in state court, having appealed his conviction to the

State's Appellate Division and having sought leave to appeal hi^
affirmed convictions to the Court of Appeals, the State's

highest court.

Petitioner also sought post-conviction relief

from the State's courts, pursuant to Grim. Proc. Law § 440.10 in
a motion to vacate his conviction.

Before this federal court, petitioner argues that the

last reasoned opinion the court should review under AEDPA is
that of the Richmond County Supreme Court, which denied

17

petitioner's 440 motion.

(Pet. Mem. 27.)

Respondent, however,

argues that the court should defer to the Appellate Division's
decision on petitioner's direct appeal, as petitioner's claims
of ineffective assistance of counsel presented here are

''identical to those previously raised and rejected in the

Appellate Division," thereby rendering petitioner's claims
procedurally barred under § 440.10(2)(a).

(ECF No. 5-1,

Memorandum in Opposition ("0pp. Mem."), filed 12/08/2017, at 3.)
Though Justice Ozzi, in his decision on petitioner's
440 motion, cited procedural bars as a basis for denying

petitioner's post-conviction motion, (Pet. 23), the Justice
clearly went on to reject petitioner's claims on the merits.
"When, as here, there is 'ambiguity' in a state court opinion

that 'prevent[s] [this court] from definitively concluding that'
the state court relied on a state procedural bar-such as when

the 'opinion states that a group of contentions is either
without merit 'or' procedurally barred'—[this court will]

presume that the state court resolved the decision on the merits
and that we are not precluded from reviewing the claim's
merits."

Garner v. Lee, 908 F.3d 845, 859 (2d Cir. 2018)

(quoting Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003));
see also Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)

(stating that although "a state court may rest its judgment on

state procedural bar if it rejects the merits of a claim only i

18

the alternative, the [United States] Supreme Court has

admonished that, when in doubt, courts should presume that the

state court adjudicated the claim on the merits").
In the Richmond County Supreme Court's decision on

petitioner's post-conviction application, the court barred
petitioner's claims on two specific procedural grounds: §
440.10(2)(a) and (c), which, respectively, concern the
exhaustion of a claim on direct appeal from original judgment

and failure to raise a claim on direct appeal.

First, a denial

under § 440.10(2)(a) is not an independent and adequate state

ground that precludes federal habeas review.

Silverstein v.

Henderson, 706 F.2d 361, 368 (2d Cir. 1983).

Further, a denial

under § 440.10(2)(c) will be honored only when such procedural

rule is

^firmly established and regularly followed' by the

state in question."

Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.

1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
^^Whether application of the procedural rule is firmly

established and regularly followed must be judged in the context
of the specific circumstances presented in the case, an inquiry
that includes an evaluation of the asserted state interest in

applying the procedural rule in such circumstances."

Louis v.

Fischer, No. 04-CV-2887 (KAM), 2007 WL 4198255, at *20 (E.D.N.Y

June 25, 2007) (internal quotation marks omitted) (citing Cotto

V. Herbert, 331 F.3d 217, 240 (2d Cir. 2003)).

19

Here, petitioner

in fact raised the same ineffective-assistance claims in his

direct appeal.

{See Def.-App. Br. 66-85.)

Thus, § 440.10(2)(c

was an incorrect procedural basis for denying petitioner's
claim.

As petitioner points out, however, the Richmond County

Supreme Court additionally rejected petitioner's claim as
''wholly self-serving and without merit."
added).)

(Pet. 23 (emphasis

Since Justice Ozzi's decision included both procedural

and merits-based rationale, there is sufficient "ambiguity,"

Miranda, 322 F,3d at 178, to permit this court to treat the
decision as one on the merits and, accordingly, to afford it
deference.

The court therefore reviews Justice Ozzi's reasoned

decision under AEDPA's deferential standard and shall only gran

the petition if his decision constitutes an unreasonable
application of federal law or is based on an unreasonable
determination of the facts.

For the reasons set forth below,

the petition is DENIED.
II.

Ineffective Assistance of Counsel

The crux of petitioner's habeas petition centers
allegations of his trial counsel's deficient performance.
A.

Legal Standard

In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court "clearly established" that the Sixth Amendment to

20

the United States Constitution guarantees effective assistance

of counsel.

Williams, 529 U.S. at 390-91.

A defendant claiming

ineffective assistance must establish both prongs of the test

Strickland prescribes: ''deficient performance by counsel and

prejudice."
omitted).

Premo v. Moore, 562 U.S. 115, 122 (2011) (citation

That said, "[t]he Strickland standard is a general

one, so the range of reasonable applications is substantial."
Harrington, 562 U.S. at 105.
To satisfy the first prong—deficient performance—a
defendant must show that counsel's representation "fell below an

objective standard of reasonableness."
688.

Strickland, 466 U.S. at

A court reviewing an attorney's performance must be

"highly deferential," making "every effort . . . to eliminate
the distorting effects of hindsight" and evaluating "the conduc
from counsel's perspective at the time."

Id. at 689.

Consequently, a reviewing court "must indulge a strong

presumption that counsel's conduct falls within the wide range
of reasonable professional assistance[.]"

Id.; see also Brown

V, Greene, 577 F.Sd 107, 110 (2d Cir. 2009).

To satisfy the second prong—prejudice—a habeas

petitioner must show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

21

Strickland, 466 U.S. at 694.

Merely alleging that errors ''had

some conceivable effect on the outcome of the proceeding" is
insufficient.

Id. at 693.

Instead, "[c]ounsel's errors must be

'so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.'"

Harrington, 562 U.S.,at 104

(quoting Strickland, 466 U.S. at 687). "In assessing prejudice
stemming from the failure to investigate and introduce certain
evidence, a court must consider 'all the relevant evidence that

the jury would have had before it,' had the evidence been
introduced, including unfavorable evidence."

Barnes v. Surge,

372 F. Appx. 196, 199 (2d Cir. 2011) (emphasis in original)
(quoting Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per
curiam)).

Because the standards under Strickland and AEDPA are

both highly deferential, "when the two apply in tandem, review

is 'doubly'" deferential.
Knowles, 556 U.S. at 123).

Harrington, 562 U.S. at 105 (quoting
As the Supreme Court reasoned in

Harrington:
Federal habeas courts must guard against the

danger of equating unreasonableness under
Strickland with unreasonableness under §

2254(d).

When § 2254(d) applies, the

question is not whether counsel's actions
were reasonable.

The question is whether

there is any reasonable argument that counsel
satisfied Strickland's deferential standard.

22

Id.

Because, as noted above, this court will treat the Richmond

County Supreme Court's post-conviction decision as a decision on
the merits, the above-described ^Moubly" deferential standard of
review applies.
B.

Analysis

Per the Supreme Court's instructions, when reviewing
an ineffective assistance of counsel claim, the federal habeas

court must be guided by one question: ^^whether there is any
reasonable argument that counsel satisfied Strickland's
deferential standard."

Harrington, 562-U.S. at 105.

In his denial of petitioner's 440 motion. Justice Ozzi
determined that Mitchell had failed to ^demonstrate that he was

deprived of a fair trial by receiving less than meaningful
representation."

(ECF No. 5-17, 440 Decision {^M40 Dec."),

filed 12/08/2017, at 5.)

Considering petitioner's arguments.

Justice Ozzi concluded that Mitchell's ''assertions that his

attorney failed to make various arguments at hearings and trial
or pursue a mistaken identity defense all reflect strategic
decisions or tactics that do not amount to ineffective
assistance of counsel."

(Id.)

This court agrees.

Because there are reasonable

arguments that trial counsel satisfied the Strickland standard
for each of the claims raised by petitioner, the court cannot

23

say that Justice Ozzi unreasonably applied Strickland in his
denial of petitioner's 440 motion.
1.

Failure to Review Discovery Materials

Petitioner first argues that his trial counsel

performed deficiently with respect to pre-trial preparation.
The ''record demonstrate[s] that counsel failed to adequately

review relevant discovery materials," (Pet. Mem. 41.),

petitioner asserts, adding that his attorney's conduct "was
defined by [a] lack of preparation and focus" that served to
"undermine[] the defense and advance[] the prosecution."

(Id.)

To be sure, as petitioner argued in his direct appeal

(see Def.-App. Br. 76), a defendant's trial counsel is obligated
to conduct a "thorough investigation of law and facts relevant

to plausible options." Strickland, 466 U.S. at 690-91.

But in

advancing this claim, petitioner asserts two arguments that New
York state courts have already dispensed with as meritless:

first, that his trial counsel should have been aware of his prearrest statement in order to challenge admission into evidence
of said statement; and second, that his trial counsel generally
failed to review pre-trial discovery.

Other than conclusory statements, petitioner does not

present record evidence illustrating such alleged deficiencies.
In fact, the only portions of the state court record petitioner
references in advancing this first claim involve the pre-trial

24

suppression hearing, which is discussed below.
offers nothing else in support of this argument.

Petitioner
Because

petitioner's ineffective-assistance claim predicated on his
trial counsel's failure to review discovery materials is in

essence an unsubstantiated assertion, petitioner's claim is
denied.

2. Failure to Suppress Petitioner's Pre-Arrest Statement and
Challenge the Grounds for Petitioner's Arrest
Petitioner next asserts that his trial counsel

deficiently performed at the pre-trial suppression hearing.

Specifically, petitioner faults counsel for being ''unaware,"
(Pet. Mem. 42.), of petitioner's pre-arrest statement; for

"conduct[ing] the entire hearing . . . without once challenging
Officer Zelinski's testimony," (id.); for failing to home in on

the "glaring discrepancy," (id.), between the testimony of
Officers Zelinski and Birchwood; and for not advancing the

argument that police lacked reasonable suspicion to stop and
detain petitioner, (id. at 43).

Under Strickland's first prong, "strategic decisions

regarding the challenging of evidence and witnesses cannot be
second-guessed in an effort to support an ineffective assistance
of counsel claim."

Mejia v. United States, 862 F. Supp. 2d 263

277 (E.D.N.Y. 2012).

Trial counsel's "decision whether or not

to file a suppression motion is one such tactical decision that

25

courts generally will not disturb."

United States v. Wilson,

146 F. Supp. 3d 472, 478 (E.D.N.Y. 2015); see also United States
V. Jacobs, 270 F. Supp. 2d 293, 298 (D. Conn. 2003) {describing
decision not to argue for suppression as a ^^sound tactical
decision").

Here, the record demonstrates effective performance b|^
petitioner's trial counsel during the suppression hearing.

For

one, counsel acknowledged receipt of all relevant evidence at

the hearing, (see EOF No. 5-2, Suppression Hearing Transcript I
(^^Supp. Tr. I"), filed 12/08/2017, at 11),' and, once the
government broached the subject of petitioner's pre-arrest
statement, counsel immediately moved for a Huntley hearing,

which the court granted, (see id. at 9).

Counsel also made sure

to ascertain whether petitioner had been given Miranda warnings

prior to his arrest.

(Id. at 35.)

Further, the suppression

hearing transcript reveals the extent to which trial counsel
vigorously cross-examined Officer Zelinski, questioning him at
length about the description he had received of the perpetrator
of the robbery prior to arresting petitioner.

(Id. at 30.)

Additionally, petitioner's counsel in fact did question Officer
Birchwood about the substance of Rowell's 911 call, in which

Rowell provided the dispatcher with a description of himself,
not of the robbery's perpetrator.

(Id. at 54.)

Finally, the

testimony that petitioner's counsel himself elicited served to

26

explain why the officers stopped and questioned both petitioner
j

and Rowell-i.e., the two men were both wearing white shirts, and
so officers were uncertain which of the two was the 911 caller.

{Id. at 32.)

In the end, the basis for petitioner's arrest was

the identification by Sanmugan, the victim of the robbery, of
Rowell-not an affirmative identification of petitioner himself.
(Supp. Tr. I 74.)

Relatedly, petitioner faults counsel for failing to
convince the suppression court that there was insufficient

probable cause for his arrest or reasonable suspicion for the
police to have stopped him in the first place.
1-2, 38-39.)

(See Pet. Mem.

In advancing this argument, petitioner asserts

that ''[b]ecause counsel's obvious strategy in seeking and

conducting a suppression hearing was to win suppression of all
fruits of illegal police conduct, [counsel's] failure to make
meritorious arguments to effect his strategy was indefensible,

not objectively reasonable." (Pet. Mem. 39.)

But petitioner's

argument actually justifies why it was not objectively
unreasonable for trial counsel to have focused on one or more

issues instead of others.

During the two-day suppression

hearing, trial counsel had a slew of contested matters to cover

ranging from the adequacy of the victims' identification of
petitioner, (ECF No. 5-3, Suppression Hearing Transcript II
C'Supp. Tr. II"), filed 12/08/2017, at 43-44), to the

27

voluntariness of petitioner's pre-arrest statement, (id. at 47).
Put differently, trial counsel reasonably could have concluded
that it was more fruitful for his client's case to pursue

certain arguments over others during this proceeding.

See

Rahman v. Graham, No. 16CV5318LAPRWL, 2018 WL 9339953, at *16

(S.D.N.Y. Sept. 14, 2018), report and recommendation
adopted, No. 16-CV-5318 (LAP), 2019 WL 3802523 (S.D.N.Y. Aug.

13, 2019) (petitioner was not deprived effective assistance of

counsel by attorney's ^^strategic decision . . . to prioritize
stronger claims over weaker ones.").
Further, even assuming that counsel's performance was

deficient for the reasons petitioner alleges, the court is still
unable to conclude that the outcome of the suppression hearing
would have been different.

why.

The record evidence demonstrates

For one, the police officers testified that they stopped

''two individuals who matched the description given to them from

a [911] call," and that "[t]hey did not know which person" of
the two was the "good Samaritan" who had made the 911 call.

(Id.)

It was, therefore, clear to the suppression court that

police had an adequate basis for stopping both Rowell and
petitioner, (id. at 52-53), and that Sanmugan's subsequent
identification of Rowell as his "friend" provided ample cause to

arrest petitioner as the perpetrator of the robbery, (Supp. Tr.
I 74.).

28

There is ultimately no basis for the court to conclude

that any deficiency in trial counsel's performance at the

suppression hearing compromised the verdict the jury reached

after petitioner's trial.

Additional examples from the record

demonstrate why petitioner's argument is not persuasive.

For

example, Rowell's 911 call was ultimately not suppressed because

the trial judge correctly ruled it was an excited utterance and
did not present any Crawford issues.

(Supp. Tr. 4.)

Moreover,

petitioner's pre-arrest statement did not feature in the trial
prosecutor's case, rendering the inability of petitioner's
counsel to suppress it inconsequential.

Thus, even if petitioner's counsel was ineffective in

deciding to pursue certain specific tactics during the

suppression hearing, the court cannot say that counsel's
assistance at this preliminary proceeding affected the outcome

of petitioner's trial.

As discussed below, Sanmugan's

identification of Rowell at trial provided the jury a basis for

concluding that petitioner was the robber.

{See ECF No. 5-6,

Jury Trial Transcript II ("Jury Tr. II"), filed 12/08/2017, at
160.)

In light of the above, the Richmond County Supreme

Court's decision denying petitioner's ineffective-assistance
claim regarding the suppression hearing was neither "contrary
to," nor did it involve "an unreasonable application of, clearl]>

29

established Federal law, as determined by the Supreme Court."
28 U.S.C. § 2254(d)(1).

The suppression-based ineffective

assistance of counsel claim is therefore denied.

3. Failure to Pursue a Misidentification Defense at Trial
Petitioner's third claim of ineffective assistance

centers on his counsel's performance during the jury trial.

In

particular, petitioner faults trial counsel for inadequately

pursuing what petitioner concedes was the appropriate defense: a
misidentification defense.

In support of this claim, petitioner

argues two main points: first, that counsel failed ''to argue

that the height disparity" between the two victims' descriptions
of the robber "made it unlikely that the same man committed both

robberies," (Pet. Mem. 46); and second, that counsel failed to
move for a new suppression hearing, (id. at 49).

Contrary to petitioner's contentions, the record,
instead, underscores counsel's vigorous pursuit of a
misidentification defense.

Counsel cross-examined Zagorsky at

length about the description he provided Officer Drucker,

focusing the jury's attention on the fact that the victim had t
wear eyeglasses daily.

(ECF No. 5-5, Jury Trial Transcript I,

filed 12/08/2017, at 60.)

Counsel thereafter built on the

testimony he elicited by way of his extensive cross-examination
of Officer Drucker regarding Zagorsky's description.

138.)

(Id. at

Further, petitioner's trial counsel prompted the second

30

victim, Sanmugan, to concede that he ^^couldn't see [the
robber's] face."

(Jury Tr. II 163.)

Thus, the record does not

support petitioner's claim that his counsel unreasonably

neglected to point out discrepancies between the victims'
statements in advancing a misidentification defense.

In other

words, counsel clearly pursued a misidentification strategy, and
the court cannot say that it was unreasonable for counsel not to

have specifically argued the height differential in the victims'
respective descriptions of the robber.

With regard to moving for a new suppression hearing,

petitioner first and foremost fails to satisfy the prejudice

prong of Strickland's test.

Mitchell does not explain how such

a motion, if offered by his trial counsel mid-trial, would have
resulted in the jury rendering a different verdict.

Rather,

petitioner argues in conclusory fashion that the disclosure by
the prosecutor that Sanmugan was not an identifying witness,
(Pet. Mem. 17), should have prompted his trial counsel to

dispute the outcome of the suppression hearing, during which
officers mistakenly testified that ''Sanmugan had identified
Mitchell as the robber," (id. at 24-25), and which resulted in
the court's refusal to suppress Mitchell's statement to the

police and to conclude that officers had probable cause to stop
Mitchell, (id. at 11).

Petitioner, however, neglects to

acknowledge that the trial court properly instructed the jury o

31

how to evaluate petitioner's pre-arrest statement to police.
(Jur. Tr. II 261.)

Second, petitioner's counsel argued at

length about the reliability of testimony provided by Zagorsky,
Sanmugan, and Rowell.

{Id. at 219-35.)

As stated above, the

jury was tasked with deciding whether Sanmugan's identification
of Rowell as his friend was sufficient to implicate petitioner

by process of elimination.

In spite of petitioner's counsel's

efforts—including repeatedly asking why the hammer used in the

robbery had never been found, (id. at 224-25), and reminding

jurors that Sanmugan had never identified petitioner directly
(id. at 223)-the jury concluded that the evidence, taken

together, proved beyond a reasonable doubt that petitioner was
the perpetrator of the robbery.

Accordingly, the court cannot

conclude that Mitchell's retrospective disagreement with his
trial counsel's decision not to move to reopen the suppression

hearing provides sufficient reason to lack ^^confidence in the
outcome" of the trial.

Strickland, 466 U.S. at 694.

In any

event, as Justice Ozzi correctly noted, petitioner's Brady claim

was rejected as unpreserved on direct appeal.

(440 Dec. 3; see

also People v. Mitchell, 120 A.D.3d 1265 (2d Dep't 2014).)
Petitioner therefore cannot now rely on the habeas court to
revive this claim.

Another facet of trial counsel's purported

ineffectiveness in pursuing a misidentification defense.

32

petitioner argues, was the failure to highlight Zagorsky's
initial description of the robber to Detective Drucker.
Mem. 40.)

(Pet.

This description portrayed a robber who ''reportedly

was four inches taller, ten years younger and a different weight
than [petitioner]." (Id. at 14.)

Granted, Zagorsky's initial

description was hardly an exact match with petitioner's height,

weight, and age.

But Zagorsky positively identified Mitchell

twice—once in a photo array, and another time via a corporeal
line-up.

(Id.)

The jury thus had a reasonable basis to

conclude that the inaccurate description that a "'nervous,

shaken up,'" (id. at 19), Zagorsky provided on the night of the

robbery did not undermine his positive identifications later in
time.

Finally, petitioner faults his trial counsel for not

arguing that the prosecution had failed to prove one element of
the June 17 robbery charge: proof of physical injury.

42.)

(Id. at

This argument is wholly unrelated to a misidentification

defense, which petitioner admits was an appropriate defense, and
which his trial counsel in fact pursued.

As such, petitioner's

claim here is little more than the retrospective second-guessin

of trial counsel's strategy that Strickland prohibits.

And even

if it were not, the court cannot conclude that the testimony of

Zagorsky, coupled with the surveillance footage showing the
robber strike the elderly laundromat attendant with such force

33

that the man fell, (id.), was insufficient evidence for the jury
to have found proof of physical injury.

In light of the above, petitioner has failed to
demonstrate that the Richmond County Supreme Court's

adjudication of his post-conviction motion was an unreasonable
application of federal law.

His third ineffective-assistance

claim is therefore denied.

4.

Cumulative Effect of All Ineffective-Assistance Claim^
Petitioner's final claim is that the cumulative

effect of all of trial counsel's alleged errors denied him the

right to effective assistance of counsel.

Again, even if the

actions of petitioner's counsel resulted from error rather than
strategy or reasons beyond his control, counsel's performance
must still be accorded a degree of deference.

This is because

the Sixth Amendment does not guarantee ''error-free, perfect

representation," Morris v. Garvin, No. 98-CV-4661 (JG), 2000 WL
1692845, at *3 (E.D.N.Y. Oct. 10, 2000), but merely a "wide

range of professionally competent assistance," Stricklandf 466
U.S. at 689.

Since this court has determined that none of

petitioner's individual ineffective-assistance claims are
meritorious, the Richmond County Supreme Court's rejection of

petitioner's ineffective-assistance claims, individually and
cumulatively, was not an unreasonable application of federal
law.

See Wise v. Smith, 735 F.2d 735, 739 (2d Cir. 1984)

34

(defendant ''was not entitled to a perfect defense, and the
cumulative effect of the errors and omissions that we might find
do not amount to a denial of effective assistance of counsel").

The court cannot say that counsel's performance fell below
Strickland's deferential standard or that the trial outcome was

unreliable.

Thus, petitioner's final ineffective-assistance

claim is denied.

5.

Prejudice

In its post-conviction decision, the Richmond County

Supreme Court did not adjudicate prejudice.

This was not error

as Strickland's two-prong test requires both prongs be met for
an ineffective-assistance claim.

Stated differently. Justice

Ozzi did not need to reach the question of prejudice after

rejecting petitioner's ineffective-assistance claims on the
ground of trial counsel's performance.

It is ultimately unnecessary for this court to address

Strickland's second prong because petitioner has failed to meet
the first.

See Bennett v. United States, 663 F.3d 71, 85 (2d

Cir. 2011) (finding ineffective assistance of counsel claim
"must be rejected if the defendant fails to meet either the

performance prong or the prejudice prong" of the Strickland
test).

That fact notwithstanding, as noted above, this court

concludes that, other than making conclusory statements,

petitioner has failed to demonstrate that the outcome of his

35

jury trial would have been different but for the conduct of
trial counsel.

Ill. Unreasonable Determination of Facts

Petitioner additionally contends that the Richmond

County Supreme Court's adjudication of his post-conviction
motion involved an unreasonable determination of facts.

Specifically, petitioner cites the Supreme Court's
''determination that counsel's challenged conduct reflected

strategic decisions" as grounds for reversing the court's

judgment.

(Pet. Mem. 41.)

This argument is effectively a

regurgitation of petitioner's claims regarding his counsel's

performance; in other words, petitioner claims that Justice Ozzi
erred factually by concluding that petitioner's trial counsel
did not perform deficiently.

The redundancy of this argument

aside, the court will address petitioner's unreasonable
determination of facts argument in turn.

As AEDPA's § 2254(e)(1) instructs, "a determination of

a factual issue made by a state court shall be presumed to be
correct," and the party alleging an unreasonable factual
determination bears the burden of rebutting this presumption "by

clear and convincing evidence."

The Supreme Court has clarified

this instruction, explaining that a state court's factual
determination is not rendered unreasonable "merely because the

federal habeas court would have reached a different conclusion

36

in the first instance."

(2010).

Wood v. Allen, 558 U.S. 290, 291

Further, if "Mr]easonable minds reviewing the record

might disagree' about the finding in question, ^on habeas reviev/
that does not suffice to supersede the trial court's . . .
determination.'"

Brumfield, 135 3. Ct. at 2277 (quoting

Rice V. Collins, 546 U. S. 333, 341-42 (2006)).

Reviewing the extensive record before it, the Richmond
County Supreme Court concluded that counsel's performance

reflected strategy with which petitioner disagrees in hindsight:
Petitioner in effect quibbles with Justice Ozzi's classification
of his trial counsel's acts as strategic decisions.

(See Pet.

24 ('MT]he defendant's assertions that his attorney failed to
make various arguments at hearings and trial or pursue a

mistaken identity defense all reflect strategic decisions that
do not amount to ineffective assistance of counsel.").)

In

support of his argument, petitioner advances largely the same
evidence he proffers for his ineffective-assistance claims.
This evidence, as discussed above, does not establish that
counsel was deficient.

In view of the operative standard, the

evidence petitioner proffers is neither ^Mlear and convincing,
§2254(e)(1), nor does it give this court any reason to conclude
differently than did the Richmond County Supreme Court.

Accordingly, petitioner's allegation of an unreasonable factual

37

determination is without merit and amounts to a semantics

dispute that this court rejects.
CONCLUSION

For the foregoing reasons, the petition for a writ of

habeas corpus is denied and dismissed.

The court declines to

issue a Certificate of Appealability because petitioner has not

shown that ''reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to

proceed further." Middleton v. Attorneys Gen, of States of
N.Y.r Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (internal

quotation marks omitted); see also 28 U.S.C. § 2253(c) ("A
certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.").

Additionally, 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, and therefore, in forma

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

38

Coppedge v.

The Clerk of Court is respectfully requested to enter

judgment denying and dismissing the petition, serve a copy of
this Memorandum and Order and the judgment on petitioner, note
service on the docket, and close the case.
SO ORDERED.

Dated:

November 18, 2019
Brooklyn, New York
/s/
HON. KIYO A. MATSUMOTO

United States District Judge

39