Martin v. James
DECISION & ORDER: On August 28, 2019, Lemar Martin ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of trial counsel. ECF No. 1 ("Petition"). For the f oregoing reasons, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED in its entirety. A certificate of appealability shall not issue. See 28 U.S.C. § 2253. The Clerk of the Court is directed to serve notice of entry of this Order on all parties and to close the case. So Ordered by Judge William F. Kuntz, II on 2/18/2021. (Love, Alexis)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION & ORDER
JAMIE LAMANNA, Superintendent,
Green Haven Correctional Facility; and
LETITIA JAMES, Attorney General of the
State of New York,
WILLIAM F. KUNTZ, II, United States District Judge:
On August 28, 2019, Lemar Martin (“Petitioner”) filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of trial counsel. ECF No. 1
(“Petition”). For the reasons discussed below, the petition for the writ of habeas corpus is DENIED
in its entirety.
Conviction and Sentencing
From the summer of 2007 through the spring of 2008, the parents of three-year old Kyle
Smith were unable to care for him. During that time, the child lived in a one-bedroom apartment
in Brooklyn, New York with Lemar Martin (“Petitioner”) and his girlfriend Nymeen Cheatham.
Respondents’ Appellate Brief, ECF No. 6-2, (“Resps.’ App. Brief”) at 2. Petitioner, Cheatham,
and the child all shared a small bedroom. Id. On June 5, 2008, after the child was allegedly
disrespectful to a house guest, Petitioner “popped” the child in the arm, threw water in the child’s
face, and forced him to perform calisthenics. Id. at 12. When the child continued to misbehave
in the middle of the night, Cheatham beat the child to death in the bedroom. Id. at 2. Petitioner
was in the small bedroom during the beating but did not intervene. Id.
Petitioner and Cheatham were charged with murder in the second degree and aggravated
sexual abuse in the first degree. Decl. in Opp. to Petition, ECF No. 6, (“Resps.’ Decl.”) ¶ 10.
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On November 24, 2009, Cheatham plead guilty to manslaughter in the first degree. Id. ¶ 11. At
her allocution, she stated Petitioner “was already in the bed dozing off, pretty much asleep”
when she entered the bedroom to begin putting the child to bed. Id. On January 6, 2010,
Cheatham was sentenced to a term of imprisonment of twenty years to be followed by three
years of supervised release. Id.
Petitioner plead not guilty and was tried before a jury. Id. ¶ 12. At trial, the prosecution
argued Cheatham beat the child to death and Petitioner, having a legal duty to intervene, failed to
stop the beating. In his opening statement, defense counsel told the jury Petitioner slept through
the beating. Id. Defense counsel also told the jury he intended to call Cheatham as a witness to
support this claim and that Cheatham had previously stated, under oath, Petitioner “was already
in the bed dozing off, pretty much asleep” when she came into the bedroom to put the child to
bed on the night in question. Id. at ¶ 11. During the trial, after Cheatham received a subpoena to
appear in court, Cheatham’s counsel addressed the Court outside of the presence of the jury. Id.
¶ 13. Cheatham’s counsel told the Court he had cautioned defense counsel against calling
Cheatham as a witness saying, “be careful what you ask for because you may not get what you
want,” insinuating Cheatham may not provide the exculpatory testimony defense counsel
anticipated. Id. Cheatham’s counsel went on to tell the Court, “there’s a very good chance if
[defense counsel] calls my client and asks her certain questions, she may give answers that could
hurt this case.” Id. Cheatham’s attorney then advised defense counsel Cheatham would not
speak with defense counsel before testifying. Id. ¶ 14. Defense counsel made the decision not to
call Cheatham to the stand. Id. ¶ 15. The Government also did not call Cheatham as a witness.
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The evidence at trial showed the child was beaten so severely he suffered confluent
bruising—an extensive area of bruising where the bruises merge—making it impossible for the
medical examiner to determine the number of times the child was struck. Id. ¶ 7. In addition to
significant bruising, the child’s lips were torn and his anus was bruised and torn. Id. Blood was
found on the walls of the bedroom and on the bed in which Petitioner and Cheatham slept. Id.
The medical examiner determined the child’s injuries were consistent with the beating having
taken place over the course of many hours. Id. ¶ 8.
At trial, the prosecution offered a statement Petitioner made to the police at the scene the
morning after the incident. See Resps.’ App. Brief at 76. In the statement, Petitioner says he did
not know anything was wrong with the child until Cheatham called him at work the following
morning, although he had woken up several times during the night because he heard Cheatham
talking to the child. Id. However, when Petitioner testified at trial, he told the jury he slept from
1:00 A.M. until his alarm went off at 7:00 A.M., contradicting the earlier statement. Id.
Petitioner also testified he was a heavy sleeper, and he presented the testimony of other witnesses
who agreed. Id.
The jury found Petitioner guilty of murder in the second degree. Id. ¶ 16. On March 11,
2010, at Petitioner’s sentencing, the Court stated, “[h]aving seen the pictures of where this
torture was unleashed, a very small bedroom with an infant’s crib and adult bed crowded on top
of each other by a large screen T.V., neither the Court, nor more importantly the jury frankly
thought that the Defendant’s claim of sleeping through this night of frenzied madness raised any
reasonable doubt as to the Defendant’s culpability.” Resps.’ App. Brief at 43. The Court
sentenced Petitioner to a term of imprisonment of eighteen years to life. Id.
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Petitioner appealed from his judgement of conviction to the Supreme Court of the State
of New York, Appellate Division, Second Judicial Department. Resps.’ Decl. ¶ 17. He alleged:
(1) he was deprived of his right to present a defense by the Court’s preclusion of evidence
concerning Cheatham’s psychiatric history; (2) he was deprived of effective assistance of
counsel at trial because counsel failed to present the jury with favorable testimony from
Cheatham and testimony concerning Cheatham’s troubled mental health history after having told
the jury, during his opening statement, such testimony was forthcoming; (3) he was deprived of a
fair trial by the prosecutor’s summation; and (4) the verdict was against the weight of the
On May 2, 2018, the Appellate Division affirmed Petitioner’s conviction. Id. ¶ 18. The
Appellate Division determined: (1) the trial court properly precluded evidence about Cheatham’s
mental stability because it was irrelevant; (2) the verdict was not against the weight of the
evidence; and (3) Petitioner was not deprived of effective assistance of counsel. People v.
Martin, 76 N.Y.S.2d 572, 573–74 (App. Div. 2d Dep’t 2018). Additionally, the Appellate
Division determined Petitioner’s summation claim was partially unpreserved for review and
although some of the comments may have been improper, they did not deprive Petitioner of a
fair trial. Id.
Petitioner sought leave to appeal to the New York Court of Appeals from the Appellate
Division’s order affirming his judgment of conviction. Resps.’ Decl. ¶ 19. In his application for
leave to appeal, Petitioner raised the same issues he had raised to the Appellate Division. By
certificate dated July 13, 2018, the New York Court of Appeals denied Petitioner’s application
for leave to appeal. Id.; People v. Martin, 108 N.E.3d 506 (2018).
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On August 8, 2019, Petitioner filed a petition for a writ of habeas corpus in this Court.
Petition, ECF No. 1. In the petition, Petitioner claims he was deprived of effective assistance of
counsel at trial, based on the same ground he raised before the Appellate Division. Id.
Specifically, Petitioner argues defense counsel was ineffective because he promised the jury
exculpatory testimony from Cheatham, without first confirming Cheatham was willing give such
The Court’s review of the Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA, an application for a writ of
habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in
state court unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or
involved an unreasonable application of clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceedings. Id. Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as
meaning a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition
to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks
omitted). Courts examine the “last reasoned decision” by the state courts in determining whether
a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
“[W]hen a state court issues an order that summarily rejects without discussion all the claims
raised by a defendant, including a federal claim that the defendant subsequently presses in a
federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the
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federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013)
(emphasis in original). The same presumption applies when “a state court rules against the
defendant and issues an opinion that addresses some issues but does not expressly address the
federal claim in question.” Id. at 292. This “presumption is a strong one that may be rebutted
only in unusual circumstances.” Id. at 302; see also Cruz v. Griffin, 16-CV-8998, 2019 WL
6220806, at *9–10 (S.D.N.Y. Oct. 24, 2019) (McCarthy, Mag.), report and recommendation
adopted, 16-CV-8998, 2019 WL 6211262 (S.D.N.Y. Nov. 20, 2019) (Seibel, J.).
A. The Appellate Division Decided Petitioner’s Federal Ineffective Assistance of Counsel
Claim on the Merits
With respect to Petitioner’s ineffective assistance claim, the Appellate Division wrote
only, “[t]he defendant was not deprived of the effective assistance of counsel, as defense counsel
provided meaningful representation.” People v. Martin, 76 N.Y.S.3d 572, 574 (App. Div. 2d
Dep’t 2018). The Appellate Division cited to two New York Court of Appeals cases, both of
which recognize there is a “somewhat different test for ineffective assistance of counsel under
article I, § 6 of the New York Constitution” than under the federal constitution. People v.
Benevento, 697 N.E.2d 584, 588 (1998) (quoting People v. Claudio, 629 N.E.2d 384,
385(1993)). Under the New York standard, the relevant inquiry is the “fairness of the
proceedings as a whole.” People v. Stultz, 810 N.E.2d 883, 887(2004). Petitioner argues
because the state court did not cite Strickland v. Washington, 466 U.S. 668 (1984), which sets
forth the federal standard governing ineffective assistance of counsel claims, it did not adjudicate
Petitioner’s federal ineffective assistance of counsel claim on the merits. Therefore, Petitioner
argues, AEDPA does not apply and this court should review Petitioner’s 6th Amendment
ineffective assistance claim de novo.
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However, while the Appellate Division discussed the New York standard for effective
assistance of counsel, the use of the phrase “meaningful representation,” along with the absence
of any discussion of a procedural bar on these claims, constitutes an adjudication on the merits of
petitioner’s federal ineffective assistance of counsel claim. Bogan v. Bradt, 11-CV-1550, 2017
WL 2913465, at *8 (E.D.N.Y. July 6, 2017) (Brodie, J.) (determining state court decided
petitioner’s federal ineffective assistance of counsel claim on the merits where appellate court
cited only New York state standard); see also Gersten v. Senkowski, 426 F.3d 588, 606 (2d Cir.
2005) (determining state court decided petitioner’s ineffective assistance of counsel claim on the
merits where the court summarized “that the defendant received meaningful representation”); see
also Eze v. Senkowski, 321 F.3d 110, 123–24 (2d Cir. 2003) (same).
B. The Appellate Division’s Decision is Due AEDPA Deference
Because this Court finds the state court adjudicated the merits of Petitioner’s federal
ineffective assistance claim, AEDPA applies. Therefore, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below Strickland’s standard. Were that the
inquiry, the analysis would be no different than if, for example, [the district court] were
adjudicating a Strickland claim on direct review of a criminal conviction[.]” Paige v. Lee, 99 F.
Supp. 3d 340, 345 (E.D.N.Y. Apr. 16, 2015) (Kuntz, J.) (quoting Harrington v. Richter, 562 U.S.
86 (2011)). Therefore, to the extent a habeas petitioner must show both counsel’s performance
was unreasonable and the state court’s decision to the contrary was unreasonable, a “doubly
deferential” standard of judicial review applies to ineffective assistance of counsel claims
analyzed under 28 U.S.C. § 2254(d)(1). Santana v. Capra, 284 F. Supp. 3d 525, 538 (S.D.N.Y.
Jan. 11, 2018) (Koeltl, J.) (citing Knowles v. Mirzayance, 556 U.S. 111 (2009)).
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Petitioner’s Ineffective Assistance of Counsel Claim Fails
While review is even more deferential in this context, as an initial matter the Court may
evaluate whether defense counsel’s performance was sufficient under Strickland, as a finding
defense counsel met the Strickland standard is dispositive of Petitioner’s AEDPA claim for
ineffective assistance of counsel. Moreno v. Smith, 06-CV-4602, 2010 WL 2975762, at *15
(E.D.N.Y. July 26, 2010) (Matsumoto, J.).
Under Strickland, to prevail on an ineffective assistance of counsel claim, a defendant
must meet a two-pronged test: (1) he “must show that counsel’s performance was deficient,” 466
U.S. at 687, so deficient that, “in light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent assistance,” id. at 690; and (2) he must
show “the deficient performance prejudiced the defense,” id. at 687, in the sense that “there is a
reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694. Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011).
“It is the accused’s ‘heavy burden’ to demonstrate a constitutional violation under Strickland.”
Moreno, 2010 WL 2975762 at *15 (quoting United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.
2004)). As set forth in detail below, Petitioner has not met his high burden of establishing he
received ineffective assistance of counsel at trial.
A. Defense Counsel’s Unfulfilled Promises to the Jury Did Not Meet the Standard for
Under the first prong of Strickland, “[j]udicial scrutiny of counsel’s performance must be
highly deferential . . . .[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must overcome
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the presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted).
Petitioner rests his ineffective assistance claim on defense counsel’s promise to the jury,
during his opening statement, that he would support his contention Petitioner slept through the
beating with testimony from Cheatham, without first confirming Cheatham was willing to
provide such testimony. Defense counsel did have a reasonable basis to believe Cheatham
would be willing to corroborate Petitioner’s claim he slept through the beating. Namely, he was
aware Cheatham had already made a sworn statement during her allocution lending support to
Petitioner’s claim he was sleeping during the beating, and counsel knew Cheatham was not
cooperating with the Government. Admittedly, defense counsel’s decision to promise the jury
they would hear from Cheatham was unwise. Even if defense counsel firmly believed Cheatham
would testify, he should have exercised a greater degree of circumspection in his opening
statement to the jury. “Given the inherently unpredictable nature of trial, it is impossible to
know with certainty how events are going to unfold and what their impact on myriad, intertwined
tactical decisions will be. Thus, frequently, discretion is the better part of valor.” White v.
Greene, 05-CV-0545, 2010 WL 2104290, at *5 (W.D.N.Y. May 24, 2010) (Bianchini, J.).
However, even though counsel may have committed a misstep, the Court does not believe it was
an “error so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687).
Defense counsel’s decision to tell the jury Cheatham had given a sworn statement saying
Petitioner was “was already in the bed dozing off, pretty much asleep” when she entered the
bedroom may have had some strategic benefits. Counsel may have made a calculation, that
while he could not be certain Cheatham would testify, it would be in his client’s interest for the
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jury to hear Cheatham’s statement at the outset of trial, regardless of whether she ultimately
When defense counsel learned Cheatham would not speak to him before testifying, he
made another strategic decision not to put her on the stand. This was clearly a smart choice, as
he had no way of knowing whether she would exculpate or inculpate Petitioner in the crime.
Understanding it was not ideal to have overpromised to the jury, defense counsel made the
strategic decision to point out, in summation, the Government’s decision not to call Cheatham,
indicating they also did not think she would have provided testimony helpful to the prosecution.
With this argument, counsel made clear to the jury—in reasonable anticipation the Government
would point out his own failure to call Cheatham—that the jury should not draw an inference
favorable to the Government from Cheatham’s absence.
Despite this misstep, defense counsel otherwise put on a legitimate defense. Tasked with
the very difficult duty of representing a guardian whose child was beaten to death over a number
of hours while he was in the room, defense counsel argued Petitioner was asleep. He elicited
testimony from Petitioner himself that he was asleep during the beating and unaware it was
taking place. He also called several witnesses who testified Petitioner was a caring father and
guardian, nonviolent, and a very heavy sleeper.
Ultimately, while defense counsel’s decision to promise the jury they would hear from
Cheatham, before confirming she would testify in support of their case was unwise, it did not
amount to the kind of error so serious to amount to a violation of Petitioner’s Sixth Amendment
rights, especially in light of the rest of the defense. See Matthews v. Capra, 14-CV-01112, 2016
U.S. Dist. LEXIS 191644 (N.D.N.Y. Nov. 29, 2016) (Singleton, J.) (unfulfilled promise to call a
witness at trial does not automatically render counsel ineffective where counsel otherwise
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presented a vigorous defense), reversed on other grounds, 699 Fed. Appx. 98 (Nov. 22, 2017)
(Summary Order); People v. Lopez-Mendoza, 33 N.Y.3d 565, 572, (2019) (“[o]n its own, the
decision not to call a witness after promising to do so does not establish ineffective assistance of
counsel as a matter of law.”) (citation omitted).
B. Petitioner Cannot Establish Prejudice Resulted from Defense Counsel’s Opening
Even if this Court had deemed counsel’s misstep to be deficient representation, Petitioner
would still have to demonstrate actual prejudice as a result. Under the second prong of
Strickland, to establish prejudice, “[t]he defendant must show that there is 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.” Strickland, at 694. For the foregoing reasons, the Court finds Petitioner has failed
to demonstrate there is a reasonable probability that the outcome of his trial would have been
different or more favorable, but for counsel’s deficient performance.
Petitioner was not prejudiced by defense counsel’s overpromising the jury. Without
defense counsel’s comments at opening statements, the jury would not have been made aware
Cheatham had made a statement under oath insinuating Petitioner may have been asleep during
the beating. Further, defense counsel was able to use the misstep to point out, during closing
statements, that although he did not call Cheatham, the Government similarly did not do so,
implying they did not believe she would testify in support of their case. This left the jury to
decide for themselves why Cheatham was not called by either party. Moreover, even if defense
counsel had not promised the jury exculpatory testimony from Cheatham, the jurors would have
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been left to wonder why the one person who would have been able to corroborate Petitioner’s
story was absent from the trial.
Additionally, Petitioner was not prejudiced by his counsel’s misstep as the prosecution
set forth significant evidence of his guilt. Strouse v. Leonardo, 928 F.2d 548 (2d Cir. 1991)
(holding petitioner was not prejudiced in his murder trial given overwhelming evidence of
guilt.). Petitioner was convicted of second-degree murder under a theory of depraved
indifference to human life. The Government argued Petitioner failed to intervene in the beating,
recklessly creating a grave risk of serious physical injury or death. To convict Defendant, the
jury needed only to find Defendant was aware of the beating and took no action to stop it. At
trial, the medical evidence established the child’s death was not sudden, and the child sustained
injuries consistent with a beating inflicted over a number of hours. Because it was clear
Defendant was in the small room when the beating occurred, the entire defense rested on
Petitioner’s claim he slept through the beating in its entirety. However, in Petitioner’s first
written statement to police, when he thought he could claim the beating occurred in the morning
after he left for work, he admitted to waking a few times during the night. Police also testified
the morning after the beating Petitioner was “waving around his cell phone saying I wasn’t here
when any of this happened,” Resps.’ App. Brief at 5–6, and Petitioner “told [him] that the child
used to dig in his, his butt until he was raw. He also stated to [him] that the child jerked off. He
also stated to [him] that the child had [scabies].” Id. at 8. The prosecution pointed to these
statements in summation implying these comments were consistent with someone trying to
“explain away the injuries before anybody finds them.” Trial Transcript, ECF No. 6-11 at 73.
Petitioner himself stated he heard his alarm clock ring in the morning, got up and dressed
for work—all in the room where blood was found on the bed and walls—and left without
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noticing anything was wrong. Finally, the Government set forth evidence Petitioner harshly
disciplined the three-year old child earlier in the evening, arguing this was consistent with failing
to intervene when the child was beaten later in the night. In light of all of this evidence, it is
unreasonable to assume the outcome of the trial would have been different had defense counsel
followed through on his promise to call Cheatham—who was highly impeachable herself—or
not made any promises at all. Therefore, Petitioner has failed to meet the prejudice prong of
In sum, after carefully reviewing the merits of Petitioner’s ineffective assistance of
counsel claim, the Court concludes Petitioner has not met the high burden set forth by Strickland.
The state court’s decisions on Petitioner’s claims were not contrary to, nor an unreasonable
application of, clearly established federal law, nor were they based on an unreasonable
determination of the facts in light of the evidence presented in state court.
For the foregoing reasons, Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is DENIED in its entirety. A certificate of appealability shall not issue. See 28
U.S.C. § 2253. The Clerk of the Court is directed to serve notice of entry of this Order on all
parties and to close the case.
HON. WILLIAM F. KUNTZ, II
UNITED STATES DISTRICT JUDGE
Dated: February 18, 2021
Brooklyn, New York
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