Nealy v. Artest
Filing
38
MEMORANDUM AND OPINION. For the reasons set forth herein, the Court concludes that there is no basis for habeas relief under 28 U.S.C. § 2254. Therefore, the petition is denied in its entirety. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/25/2014. (Gibaldi, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 08-CV-3483 (JFB)
_____________________
WILLIAM NEALY,
Petitioner,
VERSUS
DALE ARTEST,
Respondent.
___________________
MEMORANDUM AND ORDER
February 25, 2014
___________________
JOSEPH F. BIANCO, District Judge:
favorable to petitioner; (4) petitioner was
deprived of the effective assistance of trial
counsel;
(5) the prosecutor committed
prosecutorial
misconduct,
including
conspiring with the defense attorneys and a
parole officer to secure an unlawful
conviction, interfering with petitioner’s right
to counsel, committing selective and
malicious prosecution, and forcing a waiver
of petitioner’s rights; (6) petitioner’s prior
conviction is unconstitutional and should not
have been used against petitioner in
calculating his sentence; and (7) petitioner is
actually innocent of the underlying
allegations,
as
another
individual
(petitioner’s nephew) confessed to the
crime, and further, an eyewitness attests that
petitioner was not present at the crime scene.
William Nealy (“Nealy” or “petitioner”)
petitions this Court for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, to
vacate his conviction for one count of
assault in the second degree, one count of
criminal possession of a weapon in the third
degree, one count of resisting arrest, and one
count of menacing in the third degree.
Petitioner challenges his conviction on the
following
grounds:
(1)
petitioner’s
conviction was the result of an illegal
seizure, as it was based on evidence
acquired during an unconstitutional search
and seizure, and arose from an arrest for
which the police had no probable cause; (2)
petitioner’s conviction was obtained in
violation of the privilege against selfincrimination because his parole officer
presented evidence that should have been
suppressed, and further, alleged that
petitioner made an incriminating statement;
(3) the prosecutor failed to disclose evidence
For the reasons set forth herein, the
Court concludes that petitioner has not
demonstrated any basis for habeas relief,
and denies the instant petition. Specifically,
petitioner has procedurally defaulted on his
1
first, second, fifth, and sixth grounds for
relief. In an abundance of caution, however,
the Court considers all of petitioner’s claims
on the merits and concludes that none
warrant habeas relief. Accordingly, the
habeas petition is denied in its entirety.1
at 349–62.) Petitioner proceeded to chase
the victim’s brother, Patrick Lanier
(“Patrick”), swinging at him with the
razor/box cutter. The altercation arose from
a racial comment uttered by Patrick when he
lost money in a game of dice. (Id. at 353.)
As a result of the incident, Lanier received
approximately forty stitches and suffered a
three-and-one-half inch scar on the left side
of his face; Patrick evaded injury. (Id. at
356.) Immediately following the incident,
the brothers reported the occurrence to the
police. (Id. at 363.)
I. BACKGROUND
A. Facts
The following facts were adduced from
the petition and documents attached thereto,
as well as from the state court’s trial and
appellate record.
On April 15, 2001, Lanier confronted
petitioner in a local bar. During this
encounter, Lanier inquired as to why
petitioner had cut him; petitioner, without
denying the attack, asked Lanier to forget
the matter. Lanier responded that he could
not forget it unless petitioner agreed to
engage in a fair fight to settle the dispute.
(Id. at 393.) Petitioner refused to fight
Lanier. This exchange prompted Lanier to
approach a police vehicle that happened to
be parked outside, and to report petitioner as
his assailant from the incident that occurred
on April 10, 2001. (Id. at 400–03.) Petitioner
tried to avoid attention by slowly backing
away from the scene and pulling a red
bandana over his mouth. (Id. at 854–55.)
However, once identified and approached by
the officer, petitioner refused to discuss the
accusation, cursed at the officer, and
eventually fled on foot. (Id. at 856–64).
The instant petition stems from
petitioner’s conviction, following a jury
trial, of assault in the second degree (N.Y.
Penal Law § 120.05), criminal possession of
a weapon in the third degree (N.Y. Penal
Law § 265.02), resisting arrest (N.Y. Penal
Law § 120.15), and menacing in the third
degree (N.Y. Penal Law § 205.30).
According to the evidence presented by
the prosecution at trial, at approximately
2:45 a.m. on April 10, 2001, petitioner
slashed Donald Lanier’s (“Lanier”) face
with a razor/box cutter outside the Bamboo
Lounge in Hempstead, Nassau County. (Tr.
Respondent also argues that petitioner’s failure to
sign his petition for a writ of habeas corpus warrants
dismissal. See Rule 2(c)(5), 28 U.S.C. foll. § 2254
(“The petition must . . . be signed under penalty of
perjury by the petitioner or by a person authorized to
sign it for the petitioner under 28 U.S.C. § 2242.”).
However, petitioner has since filed an amended,
signed petition, thereby curing this defect. See, e.g.,
Blake v. Johnson, No. 10-CV-00572, 2011 WL
2117954, at *1 n.1 (W.D. Va. May 27, 2011) (noting
that court “conditionally filed the [unsigned habeas]
petition and requested petitioner’s signature in an
amended petition, which he executed”); Enriquez v.
Calderon, No. C01-2802 MMC (PR), 2001 WL
1456758, at *1 (N.D. Cal. Nov. 9, 2001) (accepting
amended, signed habeas petition after original,
unsigned petition was dismissed without prejudice).
1
The officer pursued petitioner. Once
caught, petitioner resisted the officer’s
attempt to handcuff him by kicking and
flailing his arms. (Id. at 865–70.) Additional
police assistance was necessary to secure
petitioner into police custody. (Id. at 944–
50.)
2
At trial, Parole Officer Robert Billings
(“Parole Officer Billings”) testified that he
had contact with petitioner regarding the
April 10, 2001 incident. (Id. at 734–38.)
Parole Officer Billings testified that
petitioner had attempted to visit his parole
officer, who was not in the office that day.
(Id. at 737.) Parole Officer Billings recorded
petitioner’s visit on a note, which he left for
petitioner’s parole officer upon his return.
(Id. at 738.) The note, which was admitted
in evidence, referred to a fight between two
men that occurred at the Bamboo Lounge,
and stated that petitioner was stopped by a
police officer, but was not arrested. (Id. at
738–39.) Moreover, the note mentioned
that, during petitioner’s meeting with Parole
Officer Billings, he asked for a travel pass to
South Carolina. (Id. at 739.) During crossexamination, defense counsel highlighted
that Parole Officer Billings did not record
his encounter with petitioner on his day
sheet, which is intended to serve as an
additional source of verification for
meetings held. (Id. at 758–64.)
could. (Id.) Lewis further testified that
petitioner arrived at her house around 2:30
a.m. and stayed there for the rest of the
night. (Id. at 1050.)
On April 24, 2001, petitioner’s attorney,
Michael
Berger
(“Berger”),
waived
petitioner’s right to a speedy trial, speedy
preliminary hearing, and speedy grand jury
presentation. Shortly thereafter, Berger was
relieved from representing petitioner due to
a conflict of interest, and Jeff Groder
(“Groder”) was assigned as defense counsel.
Following trial by jury, petitioner was found
guilty of all of the charges brought against
him.
B. Procedural History
Petitioner was tried on the charges of
assault in the second degree (N.Y. Penal
Law § 120.05), criminal possession of a
weapon in the third degree (N.Y. Penal Law
§ 160.15), resisting arrest (N.Y. Penal Law
§ 160.15), and menacing in the third degree
(N.Y. Penal Law § 160.15). Prior to trial,
petitioner’s attorney, Groder, brought a
motion pursuant to New York Criminal
Procedure Law (“C.P.L.”) § 30.30, claiming
that petitioner’s statutory speedy trial right
had been violated. On February 25, 2002,
this motion was denied.
In the course of Lanier’s testimony at
trial, Alfred Antoine (“Antoine”) was
identified as the individual who handed the
razor/box cutter to petitioner. Despite
petitioner’s desire to have Antoine testify,
neither the prosecution nor defense counsel
called Antoine as a witness.
1. Moving to Set Aside the Verdict
Defense counsel called Vicki Lewis
(“Lewis”) to testify on petitioner’s behalf.
During direct questioning by the defense,
Lewis’s past criminal activities, including
shoplifting, drug possession, assault on a
police officer, and violation of probation
came to light. (Id. at 1042–46; 1087–97.)
Lewis testified that she had a phone
conversation with petitioner at 1:30 a.m. on
the night of the incident. (Id. at 1049.) Lewis
claimed that petitioner told her police were
questioning him, but he would be leaving
the scene to meet up with her as soon as he
On April 15, 2002, following his jury
conviction, Nealy moved to set aside the
verdict pursuant to C.P.L. § 330.30. In this
motion, petitioner alleged, inter alia, that the
prosecution had improperly withheld
information regarding the identity of a
possible accomplice (Antoine). (Resp’t Aff.
and Mem. of Law in Supp. of Opp’n to
Habeas Corpus Pet. (“Resp’t Opp’n”) at 4–
3
5; Def.’s C.P.L. § 330.30 Mot.2) He also
asserted that newly discovered evidence
created the possibility of a more favorable
verdict for petitioner had it been presented at
trial. (Resp’t Opp’n at 5; Def.’s C.P.L.
§ 330.30 Mot.) Specifically, petitioner
asserted that the existence of evidence that
someone named Cimmarron Patterson
(“Patterson”) was the person who had
actually attacked Lanier. (Resp’t Opp’n at 5;
Def.’s C.P.L. § 330.30 Mot.) To support this
claim, petitioner submitted a written
statement by Patterson, in which the latter
assumed responsibility for the attack on
Lanier. (Resp’t Opp’n at 5.) The statement
also included Patterson’s statements that he
had recently been discharged from a mental
institution, that he cut Lanier because he felt
threatened by him, and that he had informed
petitioner of all of this soon after the attack.
(Id. (citing Def.’s C.P.L. § 330.30 Mot.).)
had they been released during trial, the
verdict might have been more favorable to
petitioner. (Id. at 6 (citing People’s Resp. to
Def.’s C.P.L. § 330.30 Mot.).)
Regarding the first of these two claims
(i.e., that the prosecution improperly
withheld information as to a potential
accomplice’s identity), respondent countered
that the accomplice’s name and location was
disclosed to defense counsel prior to trial,
and furthermore, that petitioner failed to
show that the accomplice actually would
have provided exculpatory evidence. (Id.)
As to petitioner’s second claim, respondent
argued that Patterson’s statements did not
constitute newly discovered evidence
because—in Patterson’s own words—he
disclosed all such information to petitioner
the day after the crime, approximately ten
months before trial. Moreover, the fact that
Patterson had recently been released from a
mental institution diminished his statements’
credibility and reduced the likelihood that,
During proceedings held on February 11,
2002, petitioner was sentenced to twentyfive years to life imprisonment for assault in
the second degree, and to lesser sentences on
the remaining convictions. (Id.) The court
also deemed petitioner to be a persistent
violent
felony
offender
(“PVFO”),
predicated on prior convictions from 1989
(Indictment Number 6913) and 1995
(Indictment Number 86801). (Id. at 6–7.)
The New York Supreme Court denied
petitioner’s C.P.L. § 330.30 motion on July
30, 2002, holding that the alleged
accomplice’s identity had been provided to
defendant
sufficiently
before
trial;
Patterson’s statement was not “newly
discovered evidence” under C.P.L. § 330.30;
and petitioner could not show that the
verdict would have been more favorable to
him had Patterson’s statements been
introduced. (Id. (citing County Ct.’s July 30,
2002 Decision Denying Def.’s C.P.L. §
330.30 Mot.).)
2. Petitioner is Deemed a Persistent
Violent Felony Offender
3. State Court Review of
Petitioner’s Convictions
Petitioner appealed his conviction to the
New York State Appellate Division, Second
Department, raising several arguments: (1)
his right to due process was violated by an
incorrect C.P.L. § 710.30 notice, and further,
by the prosecution’s failure to disclose
Police Officer Harold Gross’s grand jury
minutes at petitioner’s hearing; (2) petitioner
was entitled to a Wade hearing; (3) trial
testimony of Detective Fiero, Police Officer
Troy Wright, and Officer Harold Gross
Petitioner’s first C.P.L. § 330.30 motion does not
contain page numbers. Accordingly, the Court cites
to the document in full, in the interest of avoiding
improper designation of page numbers.
2
4
reinforced identification of the prosecution’s
witnesses; (4) petitioner’s alleged statement
to Parole Officer Billings was not an
admission or confession, and should not
have been admitted in evidence against
petitioner at trial; (5) the prosecution failed
to disclose a note that contained exculpatory
evidence before trial, constituting a Brady
violation; (6) the prosecution failed to
establish probable cause for petitioner’s
arrest; (7) petitioner’s counsel was
ineffective at trial;3 (8) dismissal of the
indictment was warranted pursuant to C.P.L.
§§ 190.25, 190.35, 190.55, and 210.35(5);
and (9) the government committed various
forms
of
misconduct,
including
prosecutorial misconduct, and selective and
malicious prosecution. (Resp’t Opp’n at 8.)
The government submitted separate
briefs in response to both petitioner’s pro se
arguments and counsel’s brief. The
government’s main position was that
petitioner’s claims were, for all intents and
purposes,
forfeited,
unpreserved,
or
meritless. (Id. at 9 (citing People’s Resp. to
Def.’s First C.P.L. § 440.10 Mot. at A–84 to
A–145).)
Petitioner’s conviction was unanimously
affirmed. See People v. Nealy, 32 A.D.3d
400 (2d Dep’t 2006). In particular, the court
reached the following conclusions: (1) there
was sufficient evidence supporting a finding
of probable cause as to petitioner’s arrest;
(2) evidence concerning petitioner’s
membership in a gang did not constitute
reversible error; (3) petitioner’s statements
to his parole officer were properly admitted
pursuant to the party admission exception to
the hearsay rule; (4) the prosecutor did not
commit a Brady violation regarding the
alleged accomplice, as this information was
disclosed to the defense before trial and was
not exculpatory in nature; and (5) the record
before the court showed that defendant had
meaningful representation at trial. Id. at
401–03. Those claims that the court did not
specifically address on the merits were
dismissed as “unpreserved for appellate
review.” Id. at 403.
Additionally, assigned appellate counsel
submitted a brief on petitioner’s behalf
raising the following arguments: (1)
admission of petitioner’s statement to his
parole officer constituted improperly
admitted hearsay; (2) reference to
petitioner’s previous criminal convictions
improperly prejudiced the jury; (3) the
prosecution’s references to gang activity
created a damaging image of petitioner as a
violent gang member, thereby depriving him
of a fair trial; (4) the court failed to
adjudicate petitioner’s motion to dismiss the
indictment at the end of trial; and (5) the
court improperly dismissed petitioner’s
challenge of the jury panel without
conducting a proper hearing. (Resp’t Opp’n
at 7–8 (citing Appellate Division Br. of
Def.’s Assigned Counsel).)
Petitioner then filed a pro se motion to
vacate the judgment pursuant to C.P.L.
§ 440.10. (See Def.’s First C.P.L. § 440.10
Mot.) Petitioner argued (1) lack of a timely
preliminary hearing in accordance with
C.P.L. § 180.80, and (2) ineffective
assistance of counsel, alleging that his
attorney did not sufficiently investigate
petitioner’s case or locate eyewitnesses who
could provide exculpatory testimony. (Id.)4
3
In support of his ineffective assistance of counsel
claim, petitioner asserted that trial counsel “failed to
call witnesses at the [pretrial] hearing on defendant’s
behalf.” (Resp’t Opp’n at 9 (quoting People’s Resp.
to Def.’s First C.P.L. § 440.10 Mot. at A–37 to A–
82).)
Petitioner’s first C.P.L. § 440.10 motion does not
contain page numbers. Accordingly, the Court cites
4
5
see also Def’s Second C.P.L. § 440.10
Motion, at 3–6.) On December 19, 2007, the
court denied nearly all of petitioner’s claims
on procedural grounds. As to petitioner’s
ineffective assistance of counsel claim, the
court concluded that the claim was
previously addressed in a prior C.P.L.
§ 440.10 motion, that plaintiff had failed to
show prejudice arising from counsel’s
alleged shortcomings, and in any event, that
counsel was effective. (Resp’t Opp’n at 15.)
Petitioner sought leave to appeal this
decision; his application was denied. (Id.)
Petitioner also asserted that defense
counsel’s signature on the felony-hearing
waiver had been forged. (Id.)
On March 14, 2007, the court dismissed
petitioner’s motion. The court concluded
that petitioner’s argument for vacatur of
conviction due to failure to receive a
preliminary hearing under C.P.L. § 180.80
was without merit; petitioner’s allegations of
a forged document were not supported by
any evidence in the record; petitioner was
represented by competent counsel at all
stages of his proceedings; and petitioner’s
argument that counsel failed to call specific
witnesses at trial had no evidentiary support
in the record. (People v. Nealy, Ind. No.
973-cv-01 (N.Y. Sup. Ct., Nassau Cnty.
Mar. 14, 2007), ECF. No. 1 at 15–17.)
Petitioner applied for leave to appeal the
New York Supreme Court’s denial of his
first C.P.L. § 440.10 motion. On August 21,
2007, petitioner’s request for leave to appeal
was denied.
Petitioner filed a third motion under
C.P.L. § 440.10, again claiming ineffective
assistance of counsel, but this time, also
raising a claim of newly discovered
evidence. (Id.) Petitioner withdrew this
motion, however, before it was considered
by the court. (Id. at 15–16.)
In August 2008, petitioner filed his
fourth motion to vacate his judgment of
conviction under C.P.L. § 440.10. (Id. at
16.) Again, he asserted ineffective assistance
of counsel, based on counsel’s failure to
interview Antoine, petitioner’s alleged
accomplice, and that he had newly
discovered evidence that entitled him to
vacatur of his judgment of conviction. (Id.)
That motion was denied in December 2008.
(See ECF No. 11.) However, petitioner did
not seek leave from the Appellate Division
to appeal the denial of this motion.
On July 30, 2007, petitioner moved
under C.P.L. § 440.20 to set aside his
sentence. (See Def.’s C.P.L. § 440.20 Mot.
& Reply.) He argued that the court
improperly sentenced him as a PVFO, that
his counsel was ineffective at the PVFO
hearing, and that his appellate counsel
during the challenge to his 1995 conviction
was ineffective. (Resp’t Opp’n at 12–13
(citing Def.’s C.P.L. § 440.20 Mot.).)
Before the court had decided petitioner’s
motion to set aside the sentence, however,
petitioner filed a second motion under
C.P.L. § 440.10. He asserted various denials
of his constitutional rights, and alleged that
he had not been afforded a C.P.L. § 180.80
hearing, and that he had been provided with
ineffective assistance of counsel. (Id. at 13;
4. The Instant Petition
Petitioner filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on August 22, 2008. Respondent
filed a motion to dismiss the writ of habeas
corpus petition and a memorandum of law in
opposition on December 2, 2008. Petitioner
submitted a reply and memorandum of law
in support thereof dated February 17, 2009.
to the document in full, in the interest of avoiding
improper designation of page numbers.
6
In his original habeas petition, petitioner
contended that his conviction was (1) based
on
evidence
acquired
during
an
unconstitutional search and seizure; (2)
obtained in violation of his privilege against
self-incrimination because his parole officer
alleged that petitioner had made an
incriminating statement; (3) obtained by the
prosecutor’s wrongful failure to disclose
favorable evidence (namely, that an alleged
accomplice passed the knife to the assailant,
the name of whom the prosecutor allegedly
did not disclose until the eve of trial); (4)
due to ineffective assistance of counsel
(specifically, counsel failed to call an alibi
witness favorable to the defense, but called
one whom counsel knew would testify
falsely and who had a criminal record); (5)
the result of the prosecutor’s conspiring with
two defense attorneys and a parole officer,
engaging in selective prosecution and
malicious prosecution, and forcing defense
counsel to waive petitioner’s rights; and (6)
generally unconstitutional because his 1995
conviction was unconstitutional.
A. Procedural Analysis
1. Exhaustion
As a threshold matter, a district court
shall not review a habeas petition unless
“the applicant has exhausted the remedies
available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). Although a state
prisoner need not petition for certiorari to
the United States Supreme Court to exhaust
his claims, see Lawrence v. Florida, 549
U.S. 327, 333 (2007), petitioner must fairly
present his federal constitutional claims to
the highest state court having jurisdiction
over them, see Daye v. Att’y Gen. of N.Y.,
696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Exhaustion of state remedies requires that a
petitioner “fairly presen[t] federal claims to
the state courts in order to give the State the
opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.”
Duncan v. Henry, 513 U.S. 364, 365 (1995)
(quoting Picard v. Connor, 404 U.S. 270,
275 (1971)) (alteration in original) (internal
quotation marks omitted).
On January 3, 2012, petitioner submitted
an amended petition for writ of habeas
corpus in which he raised the additional
claim that he is actually innocent. On April
19, 2012, respondent submitted a response
to petitioner’s actual innocence claim, and
on May 3, 2012, petitioner submitted his
reply.
Generally, to establish exhaustion,
passage through the state courts, in and of
itself, is insufficient. See Picard, 404 U.S. at
275. To provide the State with the necessary
“opportunity,” the prisoner must fairly
present his claim in each appropriate state
court (including a state supreme court with
powers of discretionary review), alerting
that court to the federal nature of the claim
and “giv[ing] the state courts one full
opportunity to resolve any constitutional
issues by invoking one complete round of
the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); see also Duncan, 513 U.S.
at 365–66. “A petitioner has fairly presented
his claim only if he has informed the state
court of both the factual and the legal
premises of the claim he asserts in federal
court.” Jones v. Keane, 329 F.3d 290, 294–
The Court has fully considered all of the
submissions and arguments of the parties. It
addresses each of petitioner’s claims in turn.
II. DISCUSSION
Respondent argues that the instant
petition should be denied because
petitioner’s claims do not present a basis for
habeas corpus relief. For the reasons set
forth below, the Court agrees and dismisses
the instant petition.
7
95 (2d Cir. 2003) (quoting Dorsey v. Kelly,
112 F.3d 50, 52 (2d Cir. 1997)) (internal
quotation marks omitted). “Specifically,
[petitioner] must have set forth in state court
all of the essential factual allegations
asserted in his federal petition; if material
factual allegations were omitted, the state
court has not had a fair opportunity to rule
on the claim.” Daye, 696 F.2d at 191; see
also United States ex rel. Rogers v.
LaVallee, 463 F.2d 185, 187 (2d Cir. 1972).
To that end, “[t]he chief purposes of the
exhaustion doctrine would be frustrated if
the federal habeas court were to rule on a
claim whose fundamental legal basis was
substantially different from that asserted in
state court.” Daye, 696 F.2d at 192.
(citing Gray v. Netherland, 518 U.S. 152,
162 (1996); Coleman, 501 U.S. at 744–51)).
“[T]he procedural bar that gives rise to
exhaustion provides an independent and
adequate state-law ground for the conviction
and sentence, and thus prevents federal
habeas corpus review of the defaulted claim,
unless the petitioner can demonstrate cause
and prejudice for the default.” Gray, 518
U.S. at 162.
The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect accorded to
state judgments. See House v. Bell, 547 U.S.
518, 536 (2006). The purpose of this rule is
to maintain the delicate balance of
federalism by retaining a state’s right to
enforce its laws while maintaining its
judicial procedures as it sees fit. Coleman,
501 U.S. at 730–31.
2. State Procedural Requirements
Similar to a failure to exhaust a claim, a
habeas petitioner’s failure to satisfy a state’s
procedural requirements deprives the state
courts of an opportunity to address the
federal constitutional or statutory issues in a
petitioner’s claim. Coleman v. Thompson,
501 U.S. 722, 731–32 (1991). “[A] claim is
procedurally defaulted for the purposes of
federal habeas review where ‘the petitioner
failed to exhaust state remedies and the
court to which the petitioner would be
required to present his claims in order to
meet the exhaustion requirement would now
find the claims procedurally barred.’” Reyes
v. Keane, 118 F.3d 136, 140 (2d Cir. 1997)
(quoting Coleman, 501 U.S. at 735)
(emphasis omitted).
Once it is determined that a claim is
procedurally barred under state rules, a
federal court may still review such a claim
on its merits if the petitioner can
demonstrate both cause for the default and
prejudice resulting therefrom, or if he can
demonstrate that the failure to consider the
claim will result in a miscarriage of justice.
Id. at 750. A miscarriage of justice occurs in
extraordinary cases, such as a constitutional
violation resulting in the conviction of an
innocent individual. Murray v. Carrier, 477
U.S. 478, 496 (1986).
B. Application
1. Fourth Amendment Claims:
Probable Cause and Legality of Seizure
Even where a plaintiff properly exhausts
his claim, however, exhaustion “does not
automatically entitle the habeas petitioner to
litigate his or her claims in federal court.
Instead, if the petitioner procedurally
defaulted those claims, the prisoner
generally is barred from asserting those
claims in a federal habeas proceeding.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006)
Petitioner’s claim that there was no
probable cause for his arrest and that police
illegally seized petitioner is barred from
review.
8
It is well-settled that “[w]here the State
has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a
state prisoner may not be granted federal
habeas corpus relief on the ground that
evidence obtained in an unconstitutional
search or seizure was introduced at his trial.”
Stone v. Powell, 428 U.S. 465, 494 (1976).
The Second Circuit has further explained
that, under Powell, “review of fourth
amendment claims in habeas petitions would
be undertaken in only one of two instances:
(a) if the state has provided no corrective
procedures at all to redress the alleged
fourth amendment violations; or (b) if the
state has provided a corrective mechanism,
but the defendant was precluded from using
that
mechanism
because
of
an
unconscionable breakdown in the underlying
process.” Capellan v. Riley, 975 F.2d 67, 70
(2d Cir. 1992). Courts have described such a
breakdown as occurring when the state court
“failed to conduct a reasoned method of
inquiry into the relevant questions of fact
and law.” Id. at 71 (citation and internal
quotation marks omitted).
Appellate Division in [his] pro se brief,”
defendant’s “Fourth Amendment argument
is barred [from federal habeas review]
because the issue was fully and fairly
litigated in the state courts.”).
It is also clear that defendant was able to
take advantage of such procedures. As set
forth supra, plaintiff raised his Fourth
Amendment claims in both the lower court
proceedings, and also, on appeal to the
Appellate Division, which affirmed the
lower court rulings. Indeed, the state court
held a pretrial hearing at which petitioner
was able to cross-examine the prosecution’s
witness, present his own evidence, and raise
any legal arguments in support of his
suppression motion. Thus, the record reveals
no “‘disruption or obstruction of a state
proceeding’ typifying an unconscionable
breakdown.” Capellan, 975 F.2d at 70
(quoting Shaw v. Scully, 654 F. Supp. 859,
864 (S.D.N.Y. 1987)).
Instead, the record clearly shows that the
state court conducted a reasoned and
thorough method of inquiry into the relevant
facts, and that the Appellate Division, on
review of petitioner’s claims, affirmed the
lower court’s determinations. See Nealy, 32
A.D.3d at 401 (“[T]he People presented
sufficient evidence at the hearing to
demonstrate that there was probable
cause . . . . The hearing record reveals that
several days after one complainant was
slashed in the face and the other
complainant was threatened with being
slashed, the two complainants approached
police officers patrolling the parking lot of a
bar and identified to the officers the
defendant standing nearby as the assailant.
The officers then approached the
defendant . . . . When [they] reached the
defendant and asked him to come with them,
the defendant started to run away and kept
running despite their orders to stop. Under
these circumstances, the officers had
Here, it is clear that New York has
adequate corrective procedures for litigating
Fourth Amendment claims, which are set
forth in C.P.L. § 710.10 et seq. See, e.g.,
Capellan, 975 F.2d at 70 n.1 (“[T]he
‘federal courts have approved New York’s
procedure for litigating Fourth Amendment
claims . . . as being facially adequate.’”
(quoting Holmes v. Scully, 706 F. Supp. 195,
201 (E.D.N.Y. 1989)); McPhail v. Warden,
Attica Corr. Facility, 707 F.2d 67, 69 (2d
Cir. 1983) (New York’s procedure for
litigating a Fourth Amendment claim in a
criminal trial complied with requirement
that state provide an opportunity to litigate
such claims); see also Blagrove v. Mantello,
104 F.3d 350, 350 (2d Cir. 1996) (where
defendant’s “Fourth Amendment issues
were raised before the trial court in the
suppression hearing and before the
9
probable cause to believe that the defendant
was the complainants’ assailant.” (internal
citations omitted)). Petitioner here does not
contend that he was denied an opportunity to
fully and fairly litigate his Fourth
Amendment claims in the lower courts.
Because the record shows, and petitioner
does not contest, that petitioner did, in fact,
receive a full and fair opportunity to raise
his Fourth Amendment challenges, they are
ineligible for habeas relief and beyond the
scope of this Court’s consideration. See
Grey v. Hoke, 933 F.2d 117, 121 (2d Cir.
1991) (noting that under Stone v. Powell,
“federal habeas corpus relief is not available
on the ground that evidence produced at trial
was the result of an unconstitutional search
and seizure, unless the state denied the
prisoner an opportunity for full and fair
litigation of the claim”); see also Jackson v.
Scully, 781 F.2d 291, 297 (2d Cir. 1986)
(stating that a federal habeas corpus court
may not consider a Fourth Amendment
claim if the state already has provided a full
and fair opportunity for litigation of the
same).
likewise finds no such prejudice or
miscarriage of justice. Accordingly,
petitioner’s Fourth Amendment claims are
not subject to federal habeas review.
2. Fifth Amendment Claim
Petitioner’s claim that his conviction
was obtained in violation of his privilege
against self-incrimination is procedurally
barred. Parole Officer Billings’ testimony,
which led to the introduction of a note in
evidence
(allegedly
containing
an
incriminating statement on the part of
petitioner), was challenged on appeal;
however, it was challenged as improperly
admitted under the hearsay rule. Nealy, 32
A.D.3d at 402. Thus, petitioner’s Fifth
Amendment claim concerning the note and
its incriminating statement is not exhausted.
Generally, a petitioner must have fairly
presented his claim and exhausted its
available remedies at the state court level
before a federal court may grant relief on a
ground raised in a habeas corpus petition.
See 28 U.S.C. § 2254 (b) & (c). Specifically,
“[b]ecause the exhaustion doctrine is
designed to give the state courts a full and
fair opportunity to resolve federal
constitutional claims before those claims are
presented to the federal courts, we conclude
that state prisoners must give the state courts
one full opportunity to resolve any
constitutional issues by invoking one
complete round of the State’s established
appellate review process.” O’Sullivan, 526
U.S. at 845.
In short, having fully availed himself of
New York’s corrective procedures as to his
Fourth Amendment claims, petitioner has
had an opportunity for full and fair litigation
of the claim; he therefore may not raise it on
federal habeas review.
Even when a claim is procedurally
barred, a federal court may still review such
a claim on the merits if a petitioner can
demonstrate both cause for the default and
prejudice resulting therefrom, or if he can
demonstrate that failure to consider the
claim will result in a miscarriage of justice.
Coleman, 501 U.S. at 749–50. Here,
petitioner has provided no explanation for
the default, nor has he demonstrated
prejudice resulting therefrom or a
miscarriage of justice. On careful
consideration of the record, the Court
When claims in a federal habeas petition
have not been exhausted, the federal court
may determine that no available procedures
remain in state court by which a petitioner
may exhaust the claims. See 28 U.S.C.
§ 2254(b) (petition shall not be granted
unless exhaustion has occurred or “there is
absence of available State corrective
10
process”); see also Aparicio v. Artuz, 269
F.3d 78, 90 (2d Cir. 2001). “In such a case
the habeas court theoretically has the power
to deem the claim exhausted.” Aparico, 269
F.3d at 90 (citing Reyes v. Keane, 118 F.3d
136, 139 (2d Cir. 1997)). Here, petitioner no
longer has any state remedies available to
him with respect to Fifth Amendment claim
because New York’s procedural rules
prevent him from raising this claim in a New
York court. See, e.g., Moss v. New York, No.
10-CV-5840 (SJF), 2014 WL 585928, at *9
(E.D.N.Y. Feb. 12, 2014) (citing C.P.L.
§ 440.10(2)(c) (barring review of claims that
could have been raised on direct appeal));
see also St. Helen v. Senkowski, 374 F.3d
181, 183 (2d Cir. 2004) (“[T]he failure to
have raised the claim on direct review now
forecloses further collateral review in state
court.”); Aparico, 269 F.3d at 91 (“New
York does not otherwise permit collateral
attacks on a conviction when the defendant
unjustifiably failed to raise the issue on
direct appeal.”). Thus, petitioner meets the
technical requirements for exhaustion.
Coleman, 501 U.S. at 732. However,
petitioner’s
claims
are
procedurally
defaulted. See, e.g., Moss, 2014 WL 585928,
at *9 (failure to raise claims on direct appeal
resulted in procedural default, barring
federal habeas review).
Amendment claim remains procedurally
barred and outside the scope of federal
habeas review.
3. Ineffective Assistance of Counsel Claim
Respondent contends that a portion of
petitioner’s ineffective assistance of counsel
claim—that his counsel failed to call an alibi
witness—is unexhausted. (Resp’t Opp. at
22.) At the time respondent filed its
opposition, petitioner had raised the issue in
his fourth C.P.L. § 440.10 motion, which the
New York Supreme Court had not yet
decided. Only several days after filing its
opposition, respondent informed this Court
that petitioner’s motion was denied. (See
ECF No. 11.) Nonetheless, respondent
maintained that petitioner’s ineffective
assistance claim remained unexhausted
because he failed to seek leave from the
Appellate Division to appeal the decision.
(See id.) This is incorrect. By letter dated
July 27, 2009, petitioner submitted a July
15, 2009 order from the Appellate Division
denying his application to appeal from the
denial of his fourth C.P.L. § 440.10 motion.
(See ECF No. 20.) Accordingly, the Court
considers petitioner’s ineffective assistance
claim (based on his counsel’s alleged failure
to call an alibi witness) to be properly
exhausted.
See,
e.g.,
Ramos
v.
Superintendent, Sing Sing Corr. Facility,
No. 11-CV-4929 (VB), 2014 WL 243148, at
*5 (S.D.N.Y. Jan. 22, 2014) (claim was
properly exhausted where, even though
petitioner did not exhaust claim on direct
appeal, he raised it in C.P.L. § 440 motion,
the state court denied the claim on the
merits, and petitioner sought leave to appeal
from the Appellate Division); Anthoulis v.
New York, No. 11-CV-1908 (BMC), 2012
WL 194978, at *3 (E.D.N.Y. Jan. 23, 2012)
(“[T]o properly exhaust an ineffective
assistance of counsel claim that relies on
evidence outside the pretrial and trial record,
petitioner must raise it as part of a motion to
Where a claim is procedurally defaulted
from review because it was not fairly
presented to the state courts, the federal
court has the authority to consider the claim
only when the petitioner can establish both
cause for the procedural default and actual
prejudice resulting from it, or that the
federal court’s failure to consider the claim
will result in a fundamental miscarriage of
justice. See Schlup v. Delo, 513 U.S. 298,
318–21 (1995); Reed v. Ross, 468 U.S. 1,
11–13 (1984); Grey, 933 F.2d at 121.
Petitioner has shown none of the above
factors, nor does the record reflect any such
elements.
Thus,
petitioner’s
Fifth
11
vacate judgment under CPL § 440.10 and
then seek leave to appeal to the Appellate
Division.”).
Because the state court relied on an
independent and adequate state law,
petitioner’s
selective
and
malicious
prosecution claim is procedurally defaulted
and, therefore, may not be raised on habeas
review.
4. Various Claims of
Prosecutorial Misconduct
Petitioner’s
particular
claims
of
prosecutorial alleged misconduct, including
forcing a waiver of petitioner’s right to a
speedy trial and conspiring to secure an
unlawful conviction, are procedurally barred
because they were not presented in state
court. See generally O’Sullivan, 526 U.S. at
845.
5. The 1995 Conviction Claim
Petitioner alleges that his sentence is
unconstitutional because it was partially
based upon an unconstitutional 1995
conviction. He also raised this contention in
his C.P.L. § 440.20 motion. The New York
Supreme Court rejected the petitioner’s
allegations, holding the “defendant is
precluded by statute from contesting the use
of his 1989 and 1995 convictions as
predicate convictions for his adjudication as
a PVFO.” (See People v. Nealy, Ind. No.
973N-01 (N.Y. Sup. Ct., Nassau Cnty. Dec.
19, 2007), ECF No. 1, at 21.) Where “a
judgment from a state court rests on a statelaw ground that is both ‘independent’ of the
merits of the federal claim and an ‘adequate’
basis for the court’s decision,” the claim is
procedurally barred in a federal habeas
corpus proceeding. Harris v. Reed, 489 U.S.
255, 260–61 (1989). The standard set forth
in Harris v. Reed, applied to this context,
places the petitioner’s 1995 conviction
outside the scope of review for this Court.
Furthermore, petitioner’s 1995 conviction
does not “implicate a fundamental
miscarriage of justice.” See Schlup, 513 U.S.
at 318–21.
Petitioner’s claim of selective and
malicious prosecution is barred from review
on state procedural grounds. In fact, the
Appellate Division dismissed this claim on
the grounds that they were “unpreserved for
appellate review.” See Nealy, 32 A.D.3d at
403. When a state court relies on an
independent and adequate state law, federal
habeas review is foreclosed. Glenn v.
Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)
(finding that failure to preserve issue for
appeal was adequate and independent state
law ground precluding federal habeas
review). This is true, even if the state court
rules in the alternative on the merits of
petitioner’s claims. See id. at 724; see also
Green v. Travis, 414 F.3d 288, 294 (2d Cir.
2005) (“[E]ven when a state court says that
a claim is ‘not preserved for appellate
review’ but then rules ‘in any event’ on the
merits, such a claim is procedurally
defaulted.”). To be independent, the “state
court must actually have relied on the
procedural bar as an independent basis for
its disposition of the case,” Harris v. Reed,
489 U.S. 255, 261 (1989), by “clearly and
expressly stat[ing] that its judgment rests on
a state procedural bar,” id. at 263 (internal
quotation marks omitted).
6. Summary of Procedurally
Barred Claims
Grounds one, two, five, and six are
procedurally
defaulted.
In
addition,
petitioner has not shown cause for default,
or any resulting prejudice or fundamental
miscarriage of justice such that these
defaults may be overcome. Moreover,
assuming arguendo that these claims are
12
A decision is “contrary to” clearly
established federal law, as determined by the
Supreme Court, “if the state court arrives at
a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if
the state court decides a case differently than
[the Supreme Court] has on a set of
materially
indistinguishable
facts.”
Williams, 529 U.S. at 412–13. A decision is
an “unreasonable application” of clearly
established federal law if a state court
“identifies the correct governing legal
principle from [the Supreme Court’s]
decisions but unreasonably applies that
principle to the facts of [a] prisoner’s case.”
Id. at 413.
reviewable, the claims are patently without
merit for the reasons set forth infra.
B. Merits Analysis
1. Standard of Review
To determine whether petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standards of review
provided in 28 U.S.C. § 2254, as amended
by AEDPA, which provides in relevant part:
(d) An application for a writ
of habeas corpus on behalf of
a person in custody pursuant
to the judgment of a State
court shall not be granted
with respect to any claim that
was adjudicated on the merits
in State court proceedings
unless the adjudication of the
claim—
AEDPA establishes a deferential
standard of review: “‘a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also be unreasonable.’” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). The Second
Circuit added that, while “‘some increment
of incorrectness beyond error is required . . .
the increment need not be great; otherwise,
habeas relief would be limited to state court
decisions so far off the mark as to suggest
judicial incompetence.’” Id. at 93 (alteration
omitted) (quoting Francis S. v. Stone, 221
F.3d 100, 111 (2d Cir. 2000)). Finally, “if
the federal claim was not adjudicated on the
merits, ‘AEDPA deference is not required,
and conclusions of law and mixed findings
of fact and conclusions of law are reviewed
de novo.’” Dolphy v. Mantello, 552 F.3d
236, 238 (2d Cir. 2009) (quoting Spears v.
Greiner, 459 F.3d 200, 203 (2d Cir. 2006)).
(1) resulted in a decision that
was contrary to, or involved
an unreasonable application
of, clearly established Federal
law, as determined by the
Supreme Court of the United
States; or
(2) resulted in a decision that
was
based
on
an
unreasonable determination
of the facts in light of the
evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). “‘Clearly established
Federal law’” is comprised of “‘the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of
the relevant state-court decision.’” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
2. Application
Petitioner has relied upon the briefs he
submitted on direct appeal and in support of
13
his C.P.L. 440.10 motions, and presents
seven grounds in support of his habeas
petition: (1) petitioner’s conviction was the
result of an illegal seizure, as it was based
on
evidence
acquired
during
an
unconstitutional search and seizure, and
arose from an arrest for which the police had
no probable cause; (2) petitioner’s
conviction was obtained in violation of the
privilege against self-incrimination because
his parole officer presented evidence that
should have been suppressed, including that
petitioner made an incriminating statement;
(3) the prosecutor failed to disclose evidence
favorable to petitioner; (4) petitioner was
deprived of effective trial counsel; (5) the
prosecutor
committed
prosecutorial
misconduct, including conspiring with the
defense attorneys and a parole officer to
secure an unlawful conviction, interfering
with petitioner’s right to counsel,
committing
selective
and
malicious
prosecution, and forcing a waiver of
petitioner’s rights; (6) petitioner’s 1995
conviction is unconstitutional and should not
have been used against petitioner; and (7)
petitioner is actually innocent of the
underlying allegations, as another individual
(petitioner’s nephew) confessed to the
crime, and further, an eyewitness attests that
petitioner was not present at the crime scene.
Although petitioner procedurally defaulted
most of these claims, see supra, the Court
addresses each of these claims in turn on the
merits and discerns no basis for habeas
relief.
As set forth supra, the Court cannot
grant relief on this ground because the
petitioner had a full and fair opportunity to
litigate his Fourth Amendment claim in state
court. See Grey, 933 F.2d at 121; Jackson,
781 F.2d at 297. It therefore is procedurally
barred for the reasons set forth above.
Petitioner also has offered no justification
for the default, nor has he shown prejudice
or a miscarriage of justice resulting
therefrom. See Coleman, 501 U.S. at 749–
50.
However, even if this Court could
review the underlying merits of petitioner’s
Fourth Amendment claim, it still fails
because petitioner has not demonstrated
either that the state court ruling was contrary
to, or involved an unreasonable application
of, clearly established federal law, or that it
was an unreasonable determination of the
facts in light of the evidence in the record.
The trial court and the Appellate
Division decided petitioner’s Fourth
Amendment issue on the merits. Therefore,
AEDPA deference applies. The state court
had more than a sufficient basis to find
probable cause to arrest for assault and
criminal possession of a weapon. Grounds
for plaintiff’s arrest included, in particular:
(1) information provided by Lanier to the
police, including his statement that
petitioner had not denied his role in
assaulting Lanier, and (2) petitioner’s
attempted flight from police when they
approached him to discuss Lanier’s
allegations. In short, there is nothing in the
record to indicate that the state court’s ruling
that the police had probable cause to arrest
petitioner was contrary to, or an
unreasonable application of, clearly
established federal law, nor was it an
unreasonable determination of the facts in
light of the evidence presented in the state
court hearing.
a. Fourth Amendment Claims
Petitioner argues that he is entitled to
habeas relief because the police lacked
probable cause to arrest him for an assault
that occurred five days before his arrest. For
this reason, he claims that he was illegally
seized. The Court disagrees.
14
Accordingly, even if this Court could
review petitioner’s Fourth Amendment
claim on the merits (which it cannot), the
Court concludes that the claim lacks merit.
Waterfront Comm. of N.Y. Harbor, 378 U.S.
52, 55 (1964), overruled on other grounds
by United States v. Balsys, 524 U.S. 666
(1998). Thus, the rights inherent in the Fifth
Amendment “must be accorded liberal
construction in favor of the right [the Fifth
Amendment] was intended to secure.”
Hoffman v. United States, 341 U.S. 479, 486
(1951). To that end, the Supreme Court
established
“Miranda
warnings”
as
procedural safeguards to be offered a person
in police custody, for the purpose of
establishing a presumption that any
subsequent statements were voluntary and
free. See generally Miranda v. Arizona, 384
U.S. 436 (1966). The Miranda safeguards
are “not themselves rights protected by the
Constitution but [are] instead measures to
insure that the right against compulsory selfincrimination [is] protected.” Michigan v.
Tucker, 417 U.S. 433, 444 (1974). Miranda
warnings do not function to bar all
confessions made by un-Mirandized
defendants. For Miranda to be triggered, a
defendant must be subjected to custodial
interrogation. Outside of that setting,
“[v]olunteered statements of any kind are
not barred by the Fifth Amendment and their
admissibility is not affected.” Miranda, 384
U.S. at 478.
b. Fifth Amendment Claims
Petitioner claims that statements he
made to Parole Officer Billings (contained
in a note and described by Parole Officer
Billings at trial) about an encounter he had
with the police were improperly submitted
as evidence at trial. The note sets forth
petitioner’s account of the night he was
allegedly stopped, searched, and questioned
by the police regarding the incident at the
Bamboo Lounge. Petitioner contends that
his Fifth Amendment right against selfincrimination was violated by counsel’s
failure to suppress the evidence. Petitioner
also points to inconsistencies in parole office
records to discredit the accuracy of the
contents of the note.
i. Legal Standard
The Fifth Amendment’s protection
against
self-incrimination
is
wellestablished. See U.S. Const. amend. V (“No
person . . . shall be compelled in any
criminal case to be a witness against
himself.”). Its protections are triggered
“when the accused is compelled to make a
[t]estimonial [c]ommunication that is
incriminating.” Fisher v. United States, 425
U.S. 391, 408 (1976); see also United States
v. Hubbell, 530 U.S. 27, 34 (2000).
ii. Application
It is clear that the statements petitioner
made to Parole Officer Billings were
voluntarily made and not the product of
custodial interrogation. Petitioner reported
to the parole office and recounted a police
stop and seizure of his own volition.
Accordingly, the admission in evidence of
plaintiff’s note to his parole office did not
violate petitioner’s Fifth Amendment right
against self-incrimination, even though
Parole Officer Billings did not read
petitioner Miranda warnings. Cf. United
States v. Harris, No. 12-4862-CR, 2013 WL
6641549, at *1 (2d Cir. Dec. 18, 2013)
The Supreme Court has declared that the
privilege against self-incrimination is “an
important advance in the development of our
liberty—‘one of the great landmarks in
man's struggle to make himself civilized.’”
Ullman v. United States, 350 U.S. 422, 426
(1956). Indeed, the Fifth Amendment
“reflects many of our fundamental values
and most noble aspirations.” Murphy v.
15
is material ‘if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different.’”
Strickler v. Greene, 527 U.S. 263, 280
(1999) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). Failure to disclose
such material merits relief only if the
prosecution’s
failure
“undermines
confidence in the outcome of the trial.”
Kyles, 514 U.S. at 434 (quoting Bagley, 473
U.S. at 678). Thus, the three elements of a
Brady violation are that: (1) “[t]he evidence
at issue must be favorable to the accused,
either because it is exculpatory, or because it
is impeaching”; (2) “that evidence must
have been suppressed by the State, either
willfully or inadvertently”; and (3)
“prejudice must have ensued.” Strickler, 527
U.S. at 281–82.
(“‘The test for custody is an objective one:
whether a reasonable person in defendant’s
position would have understood himself to
be subjected to the restraints comparable to
those associated with a formal arrest.’”
(quoting United States v. Newton, 369 F.3d
659, 671 (2d Cir. 2004))). Moreover, there is
no evidence that petitioner was otherwise
compelled to recount the stop and seizure.
Finally, as to petitioner’s objection to the
admission in evidence of the contents of the
note on the grounds that it was inaccurate,
such a claim does not allege a violation of
federal law and is therefore not cognizable
on habeas review. See, e.g., Smith v.
Graham, No. 10 CIV. 3450 (JPO)(THK),
2012 WL 2428913, at *5 (S.D.N.Y. May 7,
2012) (“Evidentiary rulings are typically
within the province of state law, and are thus
only cognizable under habeas review if they
are ‘of a constitutional magnitude.’”
(quoting Perez v. Phillips, 210 F. App’x 55,
56
(2d
Cir.
2006))),
report
&
recommendation adopted, 2012 WL
2435732 (S.D.N.Y. June 27, 2012).
ii. Application
Here, petitioner raised his claim
regarding the prosecution’s failure to
disclose evidence favorable to petitioner on
direct appeal. As such, petitioner has
adequately exhausted his state remedies with
respect
to
the
claim.
Petitioner
unsuccessfully raised these claims in his
appeal to the Second Department, and the
New York Court of Appeals denied
petitioner leave to appeal these issues. The
Appellate Division specifically held that the
issue was “without merit, since the
information was provided to the defense
before trial and was not exculpatory in
nature.” Nealy, 32 A.D.3d at 402 (citations
omitted).
c. Failure of Prosecutor to Disclose
Evidence Favorable to Petitioner
i. Legal Standard
Turning first to the alleged suppression
of evidence claim, under Brady v. Maryland,
“suppression by the prosecution of evidence
favorable to an accused upon request
violates due process where the evidence is
material either to guilt or to punishment,
irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. 83, 87 (1963). In
order to prevail on a Brady claim, a
petitioner must demonstrate that material
evidence favorable to his case was not
disclosed to him. Kyles v. Whitley, 514 U.S.
419, 438 (1995) (“[T]he prosecution’s
responsibility for failing to disclose known,
favorable evidence rising to a material level
of importance is inescapable.”). “[E]vidence
Under 28 U.S.C. § 2254(d)(1), where a
state court’s decision that there was no
Brady violation is not “contrary to, nor an
unreasonable application of, clearly
established federal law,” a petition for
habeas corpus must be denied. See Jones v.
Artuz, No. 97-CV-2063(NG), 2002 WL
16
31006171, at *6–7 (E.D.N.Y. Aug. 30,
2002) (holding that state court’s Brady
determination was not contrary to, or
involve an unreasonable application of,
clearly established federal law, and
therefore, did not provide grounds for
habeas relief).
See Kyles, 514 U.S. at 433–34 (citation and
internal quotation marks omitted) (stating
evidence is “material” for Brady purposes
“if there is a reasonable probability that, had
the evidence been disclosed to the defense,
the result of the proceeding would have been
different”). In sum, the state court found that
the prosecution had not, in fact, suppressed
the allegedly exculpatory evidence, and
furthermore, that the evidence itself was
neither favorable nor material to the
accused. This Court agrees and concludes
that habeas relief is not appropriate on this
ground, as the state court’s determination
was neither contrary to, nor an unreasonable
application of, federal law, nor was it an
unreasonable determination of the facts in
light of the evidence presented.
In the case at hand, the state court
determined that there was no Brady
violation with respect to petitioner’s claim
that the prosecution was in possession of the
alleged accomplice’s (Antoine’s) name and
location, but failed to disclose it. The state
court based its determination on the fact that
the prosecution did in fact disclose the name
and location of Antoine approximately one
month before trial, giving the defense a
sufficient amount of time in which to
prepare use of this information. (See Tr. 57,
1250 (“Judge, I refer the Court and counsel
again to Rosario material turned over at
trial. I referred to this one before, to this
particular one, under previously served
documents . . . defense informed that the
defendant’s accomplice may be Antoine
Alfred a/k/a Antoine Morgan. That was told
to [defense counsel] at least prior to the last
trial date which was set over a month
ago . . . .”)); see United States v. Douglas,
525 F.3d 225, 245 (2d Cir. 2008) (noting
that Brady material generally must be
disclosed in time for a defendant’s effective
use of the material at trial). Moreover,
petitioner did not establish that the
information pertaining to Antoine was
actually “favorable” to the defense. See
Rojas v. Woods, No. 07-Civ-6687 (DAB),
2009 WL 4639620, at *2 (S.D.N.Y. Dec. 3,
2009) (acknowledging that a “‘true Brady
violation’” requires a showing, in part, that
the evidence at issue is “‘favorable to the
accused, either because it is exculpatory, or
because it is impeaching’” (quoting
Strickler, 527 U.S. at 281–82)). Lastly,
petitioner did not show that the suppressed
evidence was material to the finding of guilt.
d. Ineffective Assistance of Counsel
i. Legal Standard
Under the standard promulgated in
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: (1) “counsel’s representation fell
below
an
objective
standard
of
reasonableness,” id. at 688, and (2) “there is
a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different,”
id. at 694.
The first prong requires a showing that
counsel’s performance was deficient.
However,
“[c]onstitutionally
effective
counsel embraces a ‘wide range of
professionally competent assistance,’ and
‘counsel is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional judgment.’” Greiner
v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 690). The
17
performance
inquiry
examines
the
reasonableness of trial counsel’s actions
under all circumstances, keeping in mind
that a “fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight.” Id. at 319 (quoting Rompilla v.
Beard, 545 U.S. 374, 408 (2005)) (internal
quotation marks omitted). In assessing
performance, a court must apply a “‘heavy
measure of deference to counsel’s
judgments.’” Id. at 319 (quoting Strickland,
466 U.S. at 691). “A lawyer’s decision not
to pursue a defense does not constitute
deficient performance if, as is typically the
case, the lawyer has a reasonable
justification for the decision,” DeLuca v.
Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996),
and “‘strategic choices made after thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable,’” id. (quoting Strickland,
466 U.S. at 690). Moreover, “‘strategic
choices made after less than complete
investigation are reasonable precisely to the
extent
that
reasonable
professional
judgments support the limitations on
investigation.’” Id. at 588 (quoting
Strickland, 466 U.S. at 690–91).
409 F.3d 48, 63–64 (2d Cir. 2005) (quoting
Strickland, 466 U.S. at 695). Additionally, it
is important to note that “‘[a]n error by
counsel, even if professionally unreasonable,
does not warrant setting aside the judgment
of a criminal proceeding if the error had no
effect on the judgment.’” Lindstadt v.
Keane, 239 F.3d 191, 204 (2d Cir. 2001)
(quoting Strickland, 466 U.S. at 691).
Moreover, “[u]nlike the determination of
trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice ‘may be made with the benefit of
hindsight.’” Hemstreet v. Greiner, 491 F.3d
84, 91 (2d Cir. 2007) (quoting Mayo v.
Henderson, 13 F.3d 528, 534 (2d Cir.
1994)).
This Court proceeds to examine
petitioner’s ineffective assistance claims,
keeping in mind that the habeas petitioner
bears the burden of establishing both
deficient performance and prejudice. United
States v. Birkin, 366 F.3d 95, 100 (2d Cir.
2004).
ii. Application
Petitioner’s claim of ineffective counsel
is two-fold. Specifically, he alleges the
following: (1) counsel did not call a witness
to testify that he asserts would have been
favorable to the defense; and (2) counsel
called an alibi witness who not only had a
criminal record, but whom counsel knew
would testify falsely. Neither of these claims
satisfies Strickland’s standard of review.
The second prong focuses on prejudice
to the petitioner. The petitioner is required to
show that there is a “reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. In
this context, “reasonable probability” means
that the errors are of a magnitude such that
they “‘undermine[] confidence in the
outcome.’” Pavel v. Hollins, 261 F.3d 210,
216 (2d Cir. 2001) (quoting Strickland, 466
U.S. at 694). “‘[T]he question to be asked in
assessing the prejudice from counsel’s
errors . . . is whether there is a reasonable
probability that, absent the errors, the
factfinder would have had a reasonable
doubt respecting guilt.’” Henry v. Poole,
Petitioner’s claim regarding defense
counsel’s decision against calling Antoine to
the stand is without merit. First, counsel has
discretion to employ the defense strategy he
or she deems most appropriate. The decision
whether to call (or not to call, as the case
may be) a witness is a discretionary one that,
under the circumstances presented here, was
not unreasonable.
18
In order to meet the first prong of the
Strickland test, “a defendant must show that
counsel’s representation ‘fell below an
objective standard of reasonableness'
determined according to ‘prevailing
professional
norms’ . . . . Counsel’s
performance is examined from counsel’s
perspective at the time of and under the
circumstances of trial.” Murden v. Artuz,
497 F.3d 178, 198 (2d Cir. 2007) (quoting
Strickland, 466 U.S. at 688); see also Davis,
428 F.3d at 88 (“When assessing whether or
not counsel’s performance ‘fell below an
objective
standard
of
reasonableness . . . under
prevailing
professional norms,’ Strickland directs us to
consider the circumstances counsel faced at
the time of the relevant conduct and to
evaluate the conduct from counsel’s point of
view.” (quoting Strickland, 466 U.S. at 688–
89)). The record does not show, and
petitioner does not direct the Court to, any
evidence establishing that counsel’s decision
against calling Antoine to the stand fell
below
an
objective
standard
of
reasonableness under prevailing professional
norms. The most that petitioner alleges is
that
Antoine
possessed
exculpatory
information and was willing to testify for the
defense. In particular, petitioner suggests
that Antoine’s testimony might have created
a dispute as to whether Antoine passed
petitioner the razor blade during the incident
at the Bamboo Lounge. Even if this were so,
however, this does not lead to the clear
conclusion that petitioner is free from guilt.
decisions were objectively unreasonable
only if there [was] no . . . tactical
justification for the course taken.” Lynn v.
Bliden, 443 F.3d 238, 247 (2d Cir. 2006)
(alteration in original) (citation and internal
quotation marks omitted). Furthermore,
“[a]ctions or omissions by counsel that
‘might be considered sound trial strategy’ do
not constitute ineffective assistance.” United
States v. Best, 219 F.3d 192, 201 (2d Cir.
2000) (quoting Strickland, 466 U.S. at 689);
see also Bell v. Miller, 500 F.3d 149, 156
(2d Cir. 2007) (explaining that, in order to
show ineffective assistance, “defendant must
overcome the presumption that, under the
circumstances, the challenged action might
be considered sound trial strategy” (citation
and internal quotation marks omitted)). For
this reason, “[s]trategic choices made by
counsel after thorough investigation . . . are
virtually unchallengeable . . . and there is a
strong
presumption
that
counsel’s
performance falls within the wide range of
reasonable
professional
assistance.”
Gersten, 426 F.3d at 607 (citation and
internal quotation marks omitted); see also
Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir.
2001) (explaining that representation is
deficient only if, “in light of all the
circumstances, the identified acts or
omissions were outside the wide range of
professionally
competent
assistance”
(citation and internal quotation marks
omitted)). The decision of petitioner’s
counsel to have Lewis testify aptly falls into
the trial strategy category. Petitioner points
to no evidence showing that there was no
tactical justification for counsel’s decision to
call Lewis, or that counsel’s choice fell
beyond the scope of reasonable professional
assistance.
Petitioner’s second claim challenging
counsel’s
effectiveness
contests
his
attorney’s decision to call an alibi witness.
However, petitioner does not show that
counsel knew Lewis would testify falsely, or
that Lewis was an unreasonable witness to
call.
As the Second Circuit has held,
“[j]udicial scrutiny of a counsel's
performance must be highly deferential,”
and “every effort [must] be made to
eliminate the distorting effects of hindsight.”
Generally, “a habeas petitioner will be
able to demonstrate that trial counsel’s
19
Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir.
2004) (citation and internal quotation marks
omitted). In this case, the Court concludes
that there is no basis to second-guess
counsel’s decisions. See Eze v. Senkowski,
321 F.3d 110, 125 (2d Cir. 2003)
(explaining that scrutiny is deferential
because “‘it is all too tempting for a
defendant to second-guess counsel’s
assistance after a conviction or adverse
sentence, and it is all too easy for a court,
examining counsel’s defense after it has
proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable”’ (alteration omitted) (quoting
Strickland, 466 U.S. at 689)).
e. Prosecutorial Misconduct, Selective
Prosecution, and Malicious Prosecution
Petitioner alleges several claims against
the government (including that the
prosecutor and the court interfered with
petitioner’s right to counsel, that the
prosecutor engaged in a selective and
malicious prosecution, that the prosecutor
conspired with both defense attorneys to
secure an unlawful conviction), as well as
against his defense attorneys (including that
they waived petitioner’s rights, ordered
Parole Officer Billings to commit perjury,
and conspired with Parole Officer Billings to
secure an unlawful conviction). Although
some of these arguments are procedurally
barred from review, all are without merit.
In sum, the Court has “assess[ed] the
impact of [trial counsel’s representation] in
the aggregate,” Lindstadt, 239 F.3d at 204
(emphasis omitted), and it concludes that
petitioner’s claims of ineffective assistance
of trial counsel fail to demonstrate a basis
for relief. Specifically, petitioner’s claims
that counsel failed to call certain witnesses
during trial and called an alibi witness who
had damaging effects, do not, taken
individually or cumulatively, reach the
constitutional threshold of professional
unreasonableness as set forth by Strickland.5
Petitioner’s application for habeas relief on
this ground is therefore denied.
Conclusory allegations of impropriety
are insufficient to warrant habeas corpus
relief. See generally United States v. Torres,
129 F.3d 710, 715–17 (2d Cir. 1997).
Petitioner has offered no evidence of
conspiracy with respect to his claim as to
Parole Officer Billings or as to the
prosecution and defense. Additionally,
petitioner’s claim that the prosecutor and the
court interfered with his right to counsel is
similarly vague and fails to prove improper
behavior. See generally Withrow v. Larkin,
421 U.S. 35, 47 (1975) (stating that a party
bringing a judicial misconduct claim has a
“difficult burden of persuasion to carry,”
and “must overcome a presumption of
honesty and integrity in those serving as
adjudicators”). Regarding any remaining
contentions petitioner may have as to
prosecutorial misconduct, petitioner has
failed to set forth a basis for habeas relief,
providing little more than conclusory and
vague assertions of misconduct. Jones v.
Poole, No. 06-CV-7172 (NRB), 2007 WL
2456646, at *11 (S.D.N.Y. Aug. 21, 2007)
(stating that “vague and conclusory claims
are not sufficient bases for habeas corpus
relief”). In short, petitioner has not
5
Because the Court concludes that petitioner has
failed to establish that his counsel’s representation
fell below an objective standard of reasonableness,
the Court need not consider the issue of prejudice.
See, e.g., Palacios v. Burge, 589 F.3d 556, 562 (2d
Cir. 2009) (concluding that there was “no cause for
[the court] to reach the ‘prejudice prong” of the
Strickland test where petitioner “failed to satisfy the
‘performance’ prong of the Strickland test”). Even
assuming arguendo that petitioner satisfied the
performance prong of the Strickland test, petitioner
has failed to establish any prejudice from counsel’s
performance.
20
demonstrated that there is any merit to any
of these claims.
by statute from contesting the use of his
1989 and 1995 convictions as predicate
convictions for his adjudication as a PVFO.”
(Decision on Def.’s C.P.L. § 440.20 Mot. at
2); see also C.P.L. §§ 400.15(8), 400.16(8).
The Appellate Division denied petitioner
leave to appeal the lower court’s decision.
Because the New York Supreme Court
expressly concluded that petitioner’s 1995
conviction claim was precluded by statute, it
is barred from habeas review.
As to petitioner’s selective and
malicious prosecution claim, this claim is
procedurally barred for the reasons set forth
supra, namely, because the state court
decision rests on an adequate and
independent state procedural ground. See
Nealy, 32 A.D.3d at 403 (holding that
defendant’s selective
and malicious
prosecution claim, among others, was
“unpreserved for appellate review”). It
therefore is outside the scope of habeas
review. In any event, petitioner has failed to
demonstrate that this claim has any merit.
In any event, petitioner’s claim is
without merit. Petitioner’s 1995 conviction
does not “implicate a fundamental
miscarriage of justice.” See generally
Schlup, 513 U.S. at 314 (citation and
internal quotation mark omitted). Petitioner
does not establish his innocence in regard to
the prior conviction, nor has the Court found
his claim of unconstitutionality to be valid.
Thus, this claim does not provide a basis for
habeas relief.
f. Petitioner’s Prior Convictions Claim
Petitioner’s 1989 and 1995 convictions
caused him to be categorized as a PVFO.
Petitioner challenges this in his C.P.L.
§ 440.20 motion, asserting that he was
wrongly sentenced as a PVFO because his
prior convictions were constitutionally
invalid. (See Def.’s C.P.L. § 440.20 Mot. at
3, 6–8.) A hearing was held to determine
whether petitioner should be sentenced as a
PVFO. Following the hearing, the court held
that petitioner’s record qualified him as a
PVFO within the meaning of C.P.L.
§ 70.08(1)(a). Here, petitioner alleges that
his sentence as a PVFO was unconstitutional
because it was based, in part, upon the
allegedly unconstitutional 1995 conviction.
g. Petitioner’s Actual Innocence Claim
Petitioner asserts that he is “actually
innocent” of the assault on Lanier at the
Bamboo Lounge, directing the Court to
information which he previously presented
to the state courts following his conviction,
and which he contends supports a finding of
innocence. Specifically, petitioner points the
Court to the following evidence: (1) an April
2002 statement made by Patterson, his
nephew, shortly following his release from a
mental institution, claiming that it was
Patterson, and not petitioner, who
committed the crime, and (2) a November
2007 statement from Shamel Howard, a
fellow inmate of petitioner and prior
convicted felony offender, who claims that
he witnessed the incident at the Bamboo
Lounge and did not recall petitioner being
present at the time of the alleged assault.
(See Pet’r’s Am. Pet. for Habeas Relief
(“Am. Pet.”) at 5–8.) For the following
Petitioner’s claim is procedurally barred
from review. The standard set forth in
Harris v. Reed—noting the requisites for a
state court’s decision to be deemed
procedurally barred (i.e., if the decision rests
on an independent and adequate state law
ground)—when applied to this context,
places petitioner’s 1995 conviction outside
the scope of review for this Court. The New
York Supreme Court, relying on New York
law, concluded that “defendant is precluded
21
reasons, the Court concludes that petitioner
fails to establish actual innocence.
various motions, Patterson himself states
that, soon after the assault occurred, he told
petitioner that Patterson committed the
crime. (See Am. Pet. at 5.) Thus, petitioner
was well aware of Patterson’s confession
before trial.
In general, “[c]laims of actual innocence
based on newly discovered evidence have
never been held to state a ground for federal
habeas relief absent an independent
constitutional violation occurring in the
underlying state criminal proceeding.”
Herrera v. Collins, 506 U.S. 390, 400
(1993). This is due to the fact that a court’s
role on habeas review is “‘not [to assess] the
petitioners’ innocence or guilt but solely [to
consider] the question whether their
constitutional rights have been preserved.’”
Id. (quoting Moore v. Dempsey, 261 U.S.
86, 87–88 (1923)). Generally, in order for an
actual innocence claim “to be credible,” it
must be supported by a showing of “new
reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that
was not presented at trial.” Schlup, 513 U.S.
at 324. Additionally, in establishing such a
claim, a petitioner must show that, “in light
of all the evidence, it is more likely than not
that no reasonable juror would have
convicted him.” Fountain v. United States,
357 F.3d 250, 255 (2d Cir. 2004) (quoting
Bousley v. United States, 523 U.S. 614, 623
(1998)); see also Schlup, 513 U.S. at 327. In
making such an assessment, a court on
habeas review must consider “all the
evidence, including that alleged to have
been illegally admitted (but with due regard
to any unreliability of it) and evidence
tenably claimed to have been wrongly
excluded or to have become available only
after the trial.” Schlup, 513 U.S. at 328
(citation and internal quotation marks
omitted).
Moreover, Patterson’s statement is not
the type of reliable evidence that likely
would have made it “more likely than not
that no reasonable juror would have
convicted him.” Fountain, 357 F.3d at 255.
Red flags concerning Patterson’s credibility
abound, including the facts that Patterson
was petitioner’s nephew, was recently
released from a mental institution at the time
he made the statement, and that he had a
significant criminal record, including at least
eight felony charges. Lastly, the fact that
Patterson failed to present himself to
authorities
following
his
alleged
participation in the slashing at the Bamboo
Lounge—despite knowing that petitioner
had been charged with the crime—casts
doubt upon the veracity of his statement. See
People v. Dawson, 50 N.Y.2d 311, 318
(1980) (“[T]here exists a wide variety of
situations in which the natural impulse of a
person possessing exculpatory information
would be to come forward at the earliest
possible moment in order to forestall the
mistaken prosecution of a friend or loved
one. In such situations, the failure to speak
up at a time when it would be natural to do
so might well cast doubt upon the veracity
of a witness’s exculpatory statements at
trial.”).
Regarding Howard’s statement, it also
lacks indicia of reliability necessary for
purposes of establishing an actual innocence
claim. Specifically, Howard, who has a
lengthy criminal record, was housed in the
same correctional facility building as
petitioner, with various opportunities to
speak with petitioner, at the time he
provided the affidavit attesting to
Petitioner’s evidence here is insufficient
for purposes of establishing an actual
innocence claim. To begin with, Patterson’s
supposed confession is not newly discovered
evidence. As petitioner acknowledges in his
22
petitioner’s absence the night of the
incident. (See Resp’t’s Supp. Mem. of Law
at 7 (citing Ex. 4, Howard’s NYSID
Report); see also id. at 8 & n.5.) It stretches
credulity to say that a fellow inmate, who
also was present at the time of the Bamboo
Lounge incident, came across petitioner in
prison years later and recalled that petitioner
was not one of the individuals present at the
scene of the alleged assault.
have convicted him. Therefore, habeas relief
is not available to him on this claim.
*
*
*
Having carefully analyzed all of
petitioner’s claims, the Court concludes that
the state court decisions challenged by
petitioner were neither contrary to, nor an
unreasonable application of, clearly
established federal law, nor were they based
on an unreasonable determination of the
facts. Moreover, the claims that petitioner
failed to raise in state court are patently
without merit. Similarly, petitioner fails to
establish an actual innocence claim.
Accordingly, petitioner’s habeas petition is
denied in its entirety on the merits.
In addition to the fact that petitioner’s
actual-innocence evidence consists of
incredible statements with strong indicia of
unreliability, the Court concludes that the
prosecution’s evidence of guilt here was
strong. (See id. at 12 (citing Resp’t’s App.
Div. Br. at 3–14).) Specifically, both the
victim of the slashing and the victim’s
brother identified petitioner as the culprit.
(Tr. 350–62; 411; 593–97; 619–20.)
Additionally, when the victim, Lanier,
confronted petitioner outside a bar several
days following the assault, he explicitly
asked petitioner why he had cut him.
Petitioner made no denial of his
involvement, instead stating, “could we
squash it?” (Id. at 393.) Lastly, after Lanier
approached police officers, identifying
petitioner as his attacker, petitioner tried to
conceal the bottom of his face and slip
away; he then continued to flee from the
police after he was asked about Lanier’s
allegations. (Id. at 402–03, 612.) Indeed,
even petitioner’s alibi, offered through a
friend, was undermined by her telephone
records. (See Resp’t’s Supp. Mem. of Law at
13 n.8 (citing NCDA’s App. Division Br. at
10–11, 13–14).) Thus, petitioner’s evidence
does not undermine the strong evidence of
his guilt.
In sum, the prosecution presented strong,
credible evidence of petitioner’s guilt.
Petitioner’s proffered proof of actual
innocence does not show, in light of all the
evidence, that no reasonable juror would
23
III. CONCLUSION
For the reasons set forth herein, the
Court concludes that there is no basis for
habeas relief under 28 U.S.C. § 2254.
Therefore, the petition is denied in its
entirety. Because petitioner has failed to
make a substantial showing of a denial of a
constitutional right, no certificate of
appealability shall issue. See 28 U.S.C. §
2253(c)(2). The Clerk of the Court shall
enter judgment accordingly and close the
case.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 25, 2014
Central Islip, New York
*
*
*
Petitioner proceeds pro se. Respondent
is represented by Kathleen M. Rice, District
Attorney, Nassau County, by Andrea M.
DiGregorio, 262 Old Country Road,
Mineola, NY 11501.
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?