Ortiz v. Rock

Filing 29

MEMORANDUM AND ORDER: For the reasons set forth in the attached, Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. Because Petitioner fails to make a substantial showing of a denial of a co nstitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 10/13/2016. (Chan, Grace)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OLVIN ORTIZ,
Petitioner,
MEMORANDUM & ORDER
09-CV-679 (PKC)
v.
DAVID ROCK, SUPERINTENDENT,
Respondent.
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PAMELA K. CHEN, United States District Judge:
Olvin Ortiz (“Petitioner”), appearing pro se, petitions this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence entered on February 28,
2005 in the Supreme Court of the State of New York, Suffolk County. Following a jury trial,
Petitioner was convicted of one count of Murder in the Second Degree and sentenced to 25 years
to life. Petitioner challenges his conviction on the following five grounds: (1) the prosecutor
failed to prove his guilt beyond a reasonable doubt, and the verdict was against the weight of the
evidence; (2) he was denied a fair trial when the prosecutor elicited testimony that he was known
by the nickname “Crazy”; (3) he was denied a fair trial based on the prosecutor’s remarks during
opening and closing statements; (4) his sentence was excessive and should be reduced; and (5) his
appellate counsel was ineffective for failing to raise the following issues: (i) that the State court
lacked subject matter jurisdiction when the indictment was amended, (ii) that the sentence imposed
was not applicable to his offense, and (iii) that he was denied a jury trial when the State court
sentenced him to the maximum term. For the reasons set forth below, the petition for a writ of
habeas corpus is denied in its entirety.

BACKGROUND
A. Trial
1. Prosecution’s Case
Viewed in the light most favorable to the prosecution, 1 the evidence it presented at trial
would have permitted a reasonable juror to find as follows:
In the early hours of April 25, 2004, Petitioner got into a fight with Jose Umanzor
(“Umanzor” or “the victim”) outside of a bar called El Modello’s in Brentwood, Long Island,
allegedly over whether either man was a member of the “MS-13” gang. (Tr. 25, 28-29, 32-34.) 2
After Umanzor punched Petitioner in the mouth, drawing blood, Petitioner pulled a small knife
with a blue handle from his pocket and chased Umanzor into the parking lot of a supermarket. (Tr.
34-35, 116-117.) There, Petitioner stabbed Umanzor twice: on the back of the right shoulder and
to the inner part of the left upper arm. (Tr. 386, 395.) The latter cut went almost to the bone and
extended to his elbow, severing a major artery. (Tr. 386, 395.) Petitioner ran back to the bar to
retrieve his phone from the ground and left in a white Honda with Edwin Panameno and two others.
(Tr. 36, 174.) Panameno took Petitioner to a mutual friend’s home, where Petitioner attempted,
with the mutual friend, to wash the blood off the outside of Panameno’s car; Petitioner also washed
the blood off his hands and knife. (Tr. 39-40, 175.) In the meantime, a friend of Umanzor’s who

1

The Court recites relevant facts in the light most favorable to the verdict. See Garbutt v.
Conway, 668 F.3d 79, 80 (2d Cir. 2012).
2

Numbers preceded by “Tr.” refer to the transcript of Petitioner’s trial, which took place
between February 7-10, 2005, before Judge Mullen in the Supreme Court of the State of New
York, Suffolk County (“Suffolk County Supreme Court”).
2

had been at the scene, Mark Hernandez, called the police. (Tr. 118-119.) Umanzor was taken to
a hospital, where he died as a result of the blood loss from the two stab wounds. (Tr. 397.) The
police did not find a weapon on Umanzor. (Tr. 101.)
Two days later, Panameno, who had been approached by the police, agreed to cooperate
with their investigation and wear a recording device while in a car with Petitioner. (Tr. 41-43.)
While being recorded, Petitioner told Panameno that he was aware that the victim had died, that
he buried the knife, and that he was going to go to Costa Rica to avoid “25 years in jail.” (Tr. 4546.) Panameno and Petitioner were stopped by a police car, and Petitioner was arrested. (Tr. 162,
164, 263.) At the Third Precinct, Petitioner waived his Miranda rights and agreed to answer
questions and make a statement. (Tr. 166-169, 178, 269-70.) Among other things, Petitioner told
the police that after the fight in front of the bar, he ran after Umanzor, stabbing at him with the
knife as he chased him, but that he stopped as soon as he was aware that he had cut him. (Tr. 174.)
Petitioner accompanied the police to his friend’s home to retrieve the buried knife. (Tr. 229-230.)
2. Defense’s Case
The defense called two witnesses and Petitioner. The first defense witness, Detective
Patrick Portela, testified that the police had briefly considered another individual named Pedro
Rivera as the perpetrator. (Tr. 432-35.) On cross, however, Detective Portela testified that Rivera
had been ruled out as a suspect after the police determined that Rivera was a friend of Umanzor
who tried to administer first-aid to Umanzor at the scene. (Tr. 436, 439.) The second defense
witness was a security guard at El Modello’s bar, who testified that he saw one man chasing

3

another across the supermarket parking lot, but could not identify Petitioner as one of the men.
(Tr. 451, 458.)
Finally, Petitioner took the stand and attempted to establish that he stabbed the victim out
of self-defense. Petitioner testified that he became a member of La Mara Salvatrucha or the “MS13” gang at age thirteen when he lived in El Salvador. (Tr. 474.) Petitioner testified that after
arriving in the United States, he had been beaten and threatened by MS-13 gang members because
he refused to join the gang in this country. (Tr. 490-93.) Petitioner testified that on April 25, 2004,
Umanzor—whom Petitioner stated was among those who attacked and threatened him
previously—punched him in the nose and mouth and knocked him down, and that others began to
beat him outside the bar. (Tr. 494-95.) Petitioner testified that he “didn’t have any choice. If I
didn’t do what I did, I was going to be killed. So, I took out my knife. I didn’t want to kill
anybody.” (Tr. 496.) Petitioner testified that he was only “trying to get out from under the group
that was beating me.” (Tr. 520.) Petitioner also disputed the statement he gave to police as
incomplete, in that it did not include information on how the fight started. (Tr. 518, 526, 529.)
B. Verdict and Sentencing
On February 9, 2005, after an afternoon of deliberations, the jury found Petitioner guilty of
one count of Murder in the Second Degree. (Tr. 690-92.) On February 28, 2005, Judge Mullen
imposed an indeterminate sentence of 25 years to life. (S. 16.3)

3

Numbers preceded by “S.” refer to the transcript of Petitioner’s sentencing hearing before
the Suffolk County Supreme Court on February 28, 2005.
4

C. Pre-Trial Suppression Hearing
A pre-trial suppression hearing was held on December 1, 2004. 4 At the hearing, Detective
DeJesus testified that he interviewed Panameno and that Panameno identified Petitioner from a
photo array. (Supp. Hr’g 18-19, 23-24.) Detective DeJesus also testified that Panameno agreed
to wear a wire and record his conversation with Petitioner. (Supp. Hr’g 29-30.) Judge Mullen
held that the identification procedures used by police when Panameno and Hernandez identified
Petitioner were not unduly suggestive, and that Petitioner’s statements to Panameno in the car and
to police at the precinct were admissible. (Supp. Hr’g Op. at 3.)
D. Direct Appeal
Petitioner appealed his conviction to the Appellate Division, Second Department
(“Appellate Division”), through counsel, on the following four grounds: (1) Petitioner’s guilt was
not proven beyond a reasonable doubt and the verdict was against the weight of the evidence; (2)
Petitioner was denied a fair trial when the prosecutor elicited testimony that Petitioner was known
by the nickname “Crazy”; (3) Petitioner was denied a fair trial based on the cumulative effect of
the prosecutor’s improper opening and closing statements; (4) Petitioner’s sentence was unduly
harsh and excessive. (See generally Pet’r App. Br.)
The Appellate Division affirmed Petitioner’s conviction, holding that: (1) the evidence at
trial was legally sufficient to establish Petitioner’s guilt beyond a reasonable doubt and the verdict

4

Numbers preceded by “Supp. Hr’g” refer to the hearing minutes of Petitioner’s December
1, 2004 pretrial suppression hearing before the Suffolk County Supreme Court. Numbers preceded
by “Supp. Hr’g Op.” refer to Judge Michael F. Mullen’s December 23, 2004 decision following
the suppression hearing.
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was not against the weight of the evidence; (2) Petitioner’s contention that he was denied a fair
trial based on repeated references to his nickname was unpreserved for appellate review, but that
any error in allowing such references was harmless; (3) Petitioner’s contention that the
prosecutor’s remarks were improper was also unpreserved for appellate review, but that any
improper remarks were also harmless error; (4) Petitioner was not denied effective assistance of
counsel; and (5) Petitioner’s sentence was not unduly harsh and excessive. People v. Ortiz, 846
N.Y.S.2d 370 (App. Div. 2007). On February 26, 2008, the New York Court of Appeals denied
Petitioner’s application for leave to appeal. People v. Ortiz, 10 N.Y.3d 769 (2008).
E. State Collateral Attack
On March 4, 2011, Petitioner filed a pro se application for a writ of error coram nobis with
the Appellate Division, alleging ineffective assistance of appellate counsel because appellate
counsel failed to raise the following grounds on Petitioner’s direct appeal: (i) that the State court
lacked subject matter jurisdiction when the indictment was amended; (ii) that the sentence imposed
was not applicable to his offense, and (iii) that he was denied a jury trial when the State court
sentenced him to the maximum term. (Dkt. 26 (Pet. for Writ of Error Coram Nobis) at ECF 719. 5) On October 18, 2011, the Appellate Division summarily denied the application, finding that
Petitioner failed to establish that he was denied effective assistance of appellate counsel. People
v. Ortiz, 931 N.Y.S.2d 882 (App. Div. 2011). On July 16, 2012, the New York Court of Appeals
denied Petitioner leave to appeal. People v. Ortiz, 19 N.Y.3d 976 (2012).

5

Citations to “ECF” pages refer to the page numbering of the Electronic Court Filing
(“ECF”) system, and not the document’s internal page numbers.
6

F. Instant Habeas Petition
On February 12, 2009, Petitioner timely submitted the instant Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1.) Petitioner raised the same four grounds for relief
as he did in his direct appeal. (Dkt. 1 at ECF 5-9, 17-22.) On December 15, 2010, Petitioner
requested that his petition be held in abeyance to allow him time to file a writ of error coram nobis
in State court. (Dkt. 19.) The Court granted Petitioner’s request. (See Dkt. 20, 24.) On August
30, 2012, Petitioner notified the Court that the New York Court of Appeals had denied his leave
to appeal the coram nobis writ. (Dkt. 26.) The Court liberally construes this August 30, 2012
submission as a Supplemental Petition incorporating the three issues he raised in his State writ of
error coram nobis regarding ineffective assistance of counsel. 6 (Dkt. 26 at ECF 12-18.)
DISCUSSION
A. STANDARD OF REVIEW
A habeas corpus petition is not a vehicle to re-litigate every issue previously determined
in State court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Rather, a State prisoner seeking
habeas relief under 28 U.S.C. § 2254 (“Section 2254”), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), must show that he is “in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

6

The Court construes Petitioner’s pro se submissions in a manner most favorable to him.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (requiring courts to hold pro se pleadings to less
stringent standards); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006) (the
Court is obligated to construe a pro se submission “to raise the strongest arguments” it suggests).
7

Under Section 2254, a petitioner must show that the State court decision, having been
adjudicated on the merits, is either: (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States,” or (2)
“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) (emphasis added).
As to the former, “clearly established law” is defined as “the holdings, as opposed to dicta,
of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). A State court decision is “contrary to” clearly established
law if the State court: (1) arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law; or (2) decides a case differently than the Supreme Court has on a set of
“materially indistinguishable” facts. Evans v. Fischer, 712 F.3d 125, 132 (2d Cir. 2013) (quoting
Williams, 529 U.S. at 405). Under the “unreasonable application” clause, a federal habeas court
should “ask whether the state court’s application of clearly established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409; see also id. at 410 (“[A]n unreasonable application of
federal law is different from an incorrect application of federal law.”) (emphasis in original);
Grayton v. Ercole, 691 F.3d 165, 174 (2d Cir. 2012) (“[T]he writ may only issue where the state
court’s application of the law was not only wrong, but unreasonable.”). A federal habeas court
may only “issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [the Supreme] Court’s precedents.” Harrington v.
Richter, 562 U.S. 86, 102 (2011).
As to the latter, where a habeas petition challenges a State court’s factual findings, Section

8

2254(e)(1) provides that “a determination of a factual issue made by a State court shall be
presumed to be correct” and “[t]he [petitioner] shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” Id. § 2254(e)(1).
Section 2254 thus embodies a “‘difficult to meet’ . . . and ‘highly deferential standard . . .
which demands that state-court decisions be given the benefit of the doubt.’” Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102; Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam)). But if “a federal court is convinced that a prisoner’s custody . . .
violates the Constitution, that independent judgment should prevail.” Williams, 529 U.S. at 389.
B. PROCEDURALLY DEFAULTED CLAIMS
Under 28 U.S.C. § 2254, as amended by AEDPA, a petitioner must comply with certain
procedural requirements when filing an application for a writ of habeas corpus. While Petitioner’s
claims here appear to comply with the timeliness and exhaustion requirements, Respondent
contends that two of Petitioner’s claims—relating to the use of Petitioner’s nickname at trial and
improper remarks by the prosecutor during opening statements—are procedurally defaulted. The
Court agrees.
1. Relevant Law
A federal court generally is precluded from reviewing a habeas claim if the State court’s
prior denial of that claim rests on an adequate and independent state ground. See, e.g., Harris v.
Reed, 489 U.S. 255, 262 (1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1971). A petitioner’s
failure to comply with a State procedural rule qualifies as such an adequate and independent state
ground, provided that (i) the State court actually “relied on the procedural bar as an independent

9

basis for its disposition of the case,” Harris, 489 U.S. at 261-62 (internal quotation marks and
citation omitted), and (ii) the State procedural rule is “firmly established and regularly followed.”
See Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003). A State court’s express reliance on a
procedural ground as one basis for the denial of the claim precludes habeas review, even if the
State court proceeds to consider the merits of the claim. Glenn v. Bartlett, 98 F.3d 721, 724 (2d
Cir. 1996); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). In determining whether to deny
a habeas claim on that basis, however, federal courts “apply a presumption against finding a state
procedural bar and ‘ask not what we think the state court actually might have intended but whether
the state court plainly stated its intention.’” Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001)
(quoting Stinson, 229 F.3d at 118).
A petitioner may obtain federal habeas review of a procedurally-defaulted claim, if the
petitioner demonstrates either “cause for the default and actual prejudice,” or that “failure to
consider the claims will result in a miscarriage of justice (i.e., the petitioner is actually innocent).” 7
Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722,
748-50 (1991)); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). To establish cause for a
procedural default, a petitioner must show “some objective factor external to the defense” that
explains why he did not previously raise the claim. Clark v. Perez, 510 F.3d 382, 393 (2d Cir.
2008) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show prejudice, a petitioner must
demonstrate that the failure to raise the claim previously had a substantial injurious effect on the

7

A claim of actual innocence must be supported by “new reliable evidence” and is
therefore “rarely successful.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
10

petitioner’s case such that he was denied fundamental fairness. Reyes v. New York, No. 99-cv3628, 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999) (citing Murray, 477 U.S. at 494).
2. Procedural Bar as to Two of Petitioner’s Claims
The Appellate Division found that Petitioner’s claims related to (1) references to his
nickname of “Crazy” during trial, and (2) improper remarks by the prosecutor during his opening
statement, were “unpreserved for appellate review.” 8

Ortiz, 846 N.Y.S.2d at 371 (citing

N.Y.C.P.L. § 470.05[2]). Because the Appellate Division expressly based this determination on a
State procedural rule, it constitutes an independent and adequate ground that bars federal habeas
relief. Harris, 489 U.S. 255 at 260-61. These two grounds are therefore procedurally barred from
habeas review unless Petitioner can establish “cause and prejudice” for the default or show that a
miscarriage of justice will occur absent review. Petitioner has failed to establish either. Petitioner
never brought claims of ineffective assistance of his trial attorney based on his failure to object to
either of these two grounds alleged here. See Coleman, 501 U.S. at 725 (the trial attorney’s failure
to object to such issues could constitute “cause” for a procedural default if a separate claim of
ineffective assistance of counsel based on the alleged error has been brought and exhausted in state
court); see also Murray, 477 U.S. at 488-89. Petitioner also does not contend that he is actually

8

The Appellate Division separately noted that in any event, any error in allowing
references to the nickname or allowing the challenged remarks during opening statement
constituted harmless error. See Ortiz, 846 N.Y.S.2d at 371 (noting that “evidence of the
defendant’s guilt, without reference to the alleged error, was overwhelming, and there is no
significant probability that the error contributed to the defendant’s conviction”).
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innocent. Therefore, Petitioner has not shown good cause to excuse his failure to preserve these
two claims, and the Court is barred from reaching the merits of these claims. 9

9

Even if the Court were to address the merits of Petitioner’s claims concerning the use of
his nickname and the prosecution’s opening statement, those claims would fail. In determining
whether a defendant was prejudiced by the government’s use of a nickname, courts look to “the
relevance of the defendant’s nickname and the frequency of its use by the prosecution.” United
States v. Farmer, 583 F.3d 131, 145 (2d Cir. 2009). Courts have also looked to whether the name
was “necessarily suggestive of a criminal disposition.” Id. Finally, Petitioner must demonstrate
that the nickname caused him to suffer “substantial prejudice, by so infecting the trial with
unfairness as to make the resulting conviction a denial of due process.” Id. at 147. Here, Petitioner
complains that during Panameno’s direct examination, the prosecutor referred to Petitioner as
“Crazy” 19 times and Panameno referred to him as “Crazy” 20 times. (See Pet’r App. Br. at 14.)
However, there was a practical reason for the use of this nickname: Panameno testified that he
only knew Petitioner by that nickname and never knew his real name. (Tr. 25, 43:19-22, 53.)
Moreover, the Court finds that “Crazy” is “not necessarily suggestive of a criminal disposition,”
United States v. Dean, 59 F.3d 1479, 1492 (5th Cir. 1995), even though the nickname was
conferred on Petitioner when he joined MS-13 at the age of thirteen in El Salvador. (Tr. 497-98.)
Finally, there was overwhelming evidence of Petitioner’s guilt—including undisputed evidence
that Petitioner committed the stabbing, and multiple witness accounts that Petitioner chased after
the victim from which the jury could infer intent, see infra p. 15—and the Court finds no significant
probability that the prosecution’s use of Petitioner’s nickname during Panameno’s questioning
contributed to the defendant’s conviction.
Similarly, were the Court to address Petitioner’s opening statement claim, it would also
find that this claim fails on the merits. Petitioner specifically challenges the prosecution’s
statement to the jury that the victim’s father “lost his son” at Petitioner’s hands to arouse sympathy.
(Tr. 12-13; see Pet’r App. Br. at 17.) Such a statement did not “manipulate[] or misstate[]”
evidence or implicate other specific rights of the accused. Darden v. Wainwright, 477 U.S. 168,
182 (1986) (noting that the relevant standard is whether a prosecutor’s comments “so infected the
trial with unfairness as to make the resulting conviction a denial of due process”); see also Johnson
v. Ercole, No. 05-CV-3563, 2007 WL 778478, at *4-5 (E.D.N.Y. Mar. 13, 2007) (prosecutor’s
comments, which allegedly aroused sympathy for the victim, inflamed the emotions of the jury
and demonized the petitioner, were “not so egregious as to infect the trial with unfairness”).
Moreover, the trial judge appropriately warned the jury during its charge that the opening
statements were not evidence, (Tr. 636-37), and instructed the jury that its deliberations “must not
. . . be influenced in any way, by bias, or prejudice or sympathy.” (Tr. 640, 652). Finally, as the
Court noted above, the weight of the evidence against Petitioner was heavy, which strongly
“reduce[s] the likelihood that the jury’s decision was influenced by argument.” Darden, 477 U.S.
at 182.
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C. NON-COGNIZABLE CLAIMS (EXCESSIVE SENTENCE)
Petitioner argues that his sentence was unduly harsh and excessive in view of the goal of
rehabilitation, his “rough upbringing,” and his youth, as he was 17 at the time of sentencing. (Dkt.
1 at ECF 9, 21-22, Dkt. 15 at ECF 17.) However, an excessive sentence claim is not subject to
federal habeas review where a petitioner’s sentence is within the range prescribed by State law.
Pina v. Kuhlmann, 239 F. Supp. 2d 285, 288 (E.D.N.Y. 2003) (citing White v. Keane, 969 F. 2d
1381, 1383 (2d Cir. 1992)). Here, the sentence imposed was within the range prescribed by New
York law for Murder in the Second Degree, which is a class A–I felony under New York law. See
N.Y. Penal Law § 125.25 (McKinney 2012). A class A–I felony carries a minimum imprisonment
term of not less than 15 years and not more than 25 years, and a maximum term of life
imprisonment. See N.Y. Penal Law § 70.00(2)(a), 3(a)(i) (McKinney 2012). Petitioner was
sentenced to an indeterminate sentence of 25 years to life imprisonment. (S. 16.) As Petitioner’s
sentence was within the range prescribed by State law, no federal constitutional issue is
presented. 10 Petitioner is therefore not entitled to federal habeas relief on this ground.
D. MERITS OF PETITIONER’S REMAINING CLAIMS
The Court now considers each of Petitioner’s remaining claims on the merits. For the
reasons set forth below, the Court finds that none of Petitioner’s claims warrants the relief he seeks.

10

The Court notes further that the State court also notified Petitioner that if he was
convicted at trial he faced a sentence of twenty-five years to life, and Petitioner stated that he was
not interested in any offers and wanted to go to trial. (See Supp. Hr’g 12-22.)

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1. Sufficiency of the Evidence
Petitioner claims that his conviction was against the weight of the evidence and the State
failed to prove his guilt beyond a reasonable doubt. (Dkt. 1 at ECF 5, 17.) The Court will construe
the pro se petition as asserting a sufficiency of the evidence claim under the Fourteenth
Amendment’s Due Process Clause. 11 See Einaugler v. Supreme Court of the State of N.Y., 109
F.3d 836, 839 (2d Cir. 1997) (stating that due process prohibits “conviction ‘except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which [the
defendant] is charged.’” (quoting In re Winship, 397 U.S. 358, 364 (1970)). With respect to this
claim, the Appellate Division ruled on the merits that the evidence at Petitioner’s trial was “legally
sufficient to establish beyond a reasonable doubt that the defendant possessed the intent to kill the
decedent.” Ortiz, 846 N.Y.S.2d at 370-71. For the reasons set forth below, the Court concludes
that this ruling was neither contrary to, nor an unreasonable application of, clearly established
federal law, nor was it an unreasonable determination of the facts in light of the entire record.
Thus, this claim does not entitle Petitioner to habeas relief.
i. Relevant Law
A petitioner “bears a heavy burden” when challenging the legal sufficiency of the evidence
to support his State court conviction. See United States v. Aguilar, 585 F.3d 652, 656 (2d Cir.

11

The Court notes that “weight of evidence” is the name of a specific claim under New
York law and thus, is not cognizable on federal habeas review. See McKinnon v. Superintendent,
Great Meadow Correctional Facility, 422 F. App’x 69, 75 (2d Cir. 2011) (citing Correa v.
Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) (“A ‘weight of the evidence’ argument is a
pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal
sufficiency claim is based on federal due process principles.”)); see also Lewis v. Jeffers, 497 U.S.
764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”).
14

2009). On federal habeas review, “the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original); Aguilar, 585 F.3d at 656; Flowers v. Fisher, 296 Fed. Appx. 208, 210 (2d
Cir. 2008). When considering the sufficiency of the evidence of a State court conviction, “[a]
federal court must look to state law to determine the elements of the crime.” Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Accordingly, in this case, the Court looks to New
York law for the elements of Murder in the Second Degree. Under New York law, a defendant is
guilty of Murder in the Second Degree when “[w]ith intent to cause the death of another person,
he causes the death of such person . . . .” N.Y. Penal Law § 125.25[1].
ii. Application of Law to Facts
Here, it is undisputed that Petitioner stabbed the victim at least twice, causing two wounds,
including a deep cut that extended from the victim’s upper arm to his elbow, and severed a major
artery. Although Petitioner testified on the stand that he stabbed the victim in self-defense, it was
entirely reasonable for the jury to reject his account of events and accept the accounts of multiple
witnesses who testified to seeing Petitioner chase the victim across a parking lot with a knife.
Indeed, Petitioner provided a similar account of events to the police when he was arrested.
Moreover, the victim did not have a weapon on him. Under the circumstances, the Court finds
that “the jury was free to infer [Petitioner’s] intent [to cause death] from the very act of his stabbing
[the victim].” Vera v. Hanslmaier, 928 F. Supp. 278, 284-85 (S.D.N.Y. 1996) (citations omitted);
People v. Turner, 529 N.Y.S.2d 898, 899 (App. Div. 1988) (“Intent may be implied from the act

15

itself, or from the defendant’s conduct and surrounding circumstances.”).
Even if the sufficiency of the evidence were a debatable point, the factual findings of a
State court must be presumed to be correct. 28 U.S.C. § 2254(e)(1). Accordingly, to prevail on
his insufficiency claim, Petitioner would have to adduce “clear and convincing evidence” that he
did not intend to cause death when he stabbed the victim. Id. Petitioner has not come close to
making such a showing. He therefore is not entitled to habeas relief based on this ground.
2. Prosecutorial Misconduct (Remarks During Summation)
Petitioner argues that the prosecutor’s “inflammatory remarks during his closing statement
denied him a fair trial.” (Dkt. 1 at ECF 8, 19-20.) Specifically, Petitioner contends that the
prosecutor invited the jury to rely on improper considerations when he: (1) told the jury to “keep
their eye on the ball”; (2) suggested that Petitioner “had tailored his testimony to the evidence
elicited at trial”; (3) denigrated Petitioner’s counsel; and (4) suggested that an alternate juror had
sufficient medical knowledge to determine the nature of the victim’s wounds. (Id.) With respect
to this claim, the Appellate Division ruled on the merits that the prosecutor’s challenged remarks
during closing “constituted harmless error.” Ortiz, 846 N.Y.S.2d at 370. For the reasons set forth
below, the Court concludes that this ruling was neither contrary to, nor an unreasonable application
of, clearly established federal law, nor was it an unreasonable determination of the facts in light of
the entire record. Thus, this claim also does not entitle Petitioner to habeas relief.
i. Relevant Law
Prosecutors are permitted broad latitude during summation, and are permitted to respond
to arguments by defense impugning the integrity of the case. United States v. Tocco, 135 F.3d

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116, 130 (2d Cir. 1998); United States v. Bautista, 23 F.3d 726, 732 (2d Cir. 1994). A claim of
prosecutorial misconduct during summation requires a court to consider “whether the prosecutor’s
comments so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden, 477 U.S. at 181 (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). There
must be a showing that the petitioner “suffered actual prejudice because the prosecutor’s comments
during summation had a substantial and injurious effect or influence in determining the jury’s
verdict.” Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). In determining whether the petitioner
suffered such prejudice, a court must consider: “[(a)] the severity of the prosecutor’s conduct; [(b)]
what steps, if any, the trial court [could] have taken to remedy any prejudice; and [(c)] whether the
conviction was certain absent the prejudicial conduct.” Id. (citing Gonzalez v. Sullivan, 934 F.2d
419, 424 (2d Cir. 1991)).
ii. Application of Law to Facts
The first three of Petitioner’s claims are easily addressed. First, the prosecutor’s reminder
to the jury to keep its “eye on the ball” does not rise to the level of prosecutorial misconduct.
Garcia v. Greiner, No. 01-CV-2470, 2004 WL 943902, at *7 (E.D.N.Y. Apr. 28, 2004) (“The
prosecutor can properly ask the jury not to be side-tracked by certain evidence and certain issues
to focus on the issues that make out the prosecution’s case.”). Nor does the prosecutor’s statement
that Petitioner “tailor[ed] his testimony” to the evidence adduced at trial. See Portuondo v. Agard,
529 U.S. 61, 73 (2000) (“Allowing comment upon the fact that a [testifying criminal] defendant’s
presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate
– and indeed, given the inability to sequester the defendant, sometimes essential – to the central

17

function of the trial, which is to discover the truth.”). Finally, the prosecutor’s remarks that the
self-defense argument advanced by defense counsel was a “smokescreen,” that defense counsel
attempted to trick or fool the jury, and that defense counsel had coached Petitioner also do not rise
to the level of prosecutorial misconduct. See United States v. Resto, 824 F.2d 210, 212 (2d Cir.
1987) (calling specific defense tactics “slick bits” and “slyness” and accusing defense counsel of
“sleight-of-hand” was not prosecutorial misconduct).
The Court is more troubled, however, by the prosecutor’s appeal to an “alternate juror’s
medical knowledge” and his comments on defense counsel’s failure to call Petitioner’s stepfather
as a witness. However, whatever error may have resulted from the prosecutor’s comments was
harmless in light of the judge’s curative instructions regarding Petitioner’s failure to call his
stepfather, (Tr. 649), and the fact that the alternate juror did not participate in the jury’s
deliberations (Tr. 668). In his curative instruction, the trial judge was explicit with the jury that
Petitioner did not have the burden of proof or the obligation to call any witnesses. See, e.g.,
Chalmers v. Mitchell, 73 F.3d 1262, 1271 (2d Cir.) (such instructions “likely corrected any
misperception the jury may have held” as a result of the prosecution’s comments.); Lemus v. Artuz,
131 F. Supp. 2d 532, 536 (S.D.N.Y. 2001) (“In view of these prompt and repeated curative
instructions, the prosecutor’s inappropriate but brief comment could not possibly have materially
affected the jury or rendered the trial fundamentally unfair.”). Furthermore, even if the prosecutor
and trial court both erred, there was overwhelming evidence of Petitioner’s guilt, and there is no
significant probability that these remarks contributed to the defendant’s conviction. Petitioner’s
claim concerning prosecutorial misconduct therefore does not entitle him to relief in this forum.

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3. Ineffective Assistance of Counsel
Petitioner argues that he was denied effective assistance of appellate counsel when counsel
failed to raise the following issues: (i) that the State court lacked subject matter jurisdiction when
the indictment was amended, (ii) that the sentence imposed was not applicable to his offense, and
(iii) that he was denied a jury trial when the State court sentenced him to the maximum term.
Petitioner previously raised this claim in his post-conviction application for a writ of error coram
nobis. (Dkt. 26.) By Order dated October 18, 2011, the Appellate Division summarily denied
Petitioner’s application, People v. Ortiz, 931 N.Y.S.2d (N.Y. App. Div. 2011), and on July 16,
2012, the New York State Court of Appeals denied Petitioner leave to appeal, People v. Ortiz, 19
N.Y.3d 976 (N.Y. 2012). Because “[a] summary disposition constitutes a disposition ‘on the
merits’[,]” the State court’s decision is entitled to AEDPA deference.

Hawthorne v.

Schneiderman, 695 F.3d 192, 196 (2d Cir. 2012) (per curiam) (citing Harrington, 562 U.S. at 98).
i. Relevant Law
To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that
(a) his counsel’s performance “fell below an objective standard of reasonableness,” and (b) there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688–94. With
respect to the first of these requirements, there is a “strong presumption that [a lawyer’s] conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. This deference is
due because “it is all too easy to conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002). Therefore,

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a petitioner must overcome the “presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (quoting Strickland, 466 U.S. at 689) (internal
quotation marks omitted).
Although the Strickland test has two prongs, a court considering an ineffective assistance
claim need not “address both components of the [Strickland] inquiry if the [petitioner] makes an
insufficient showing on one.” Strickland, 466 U.S. at 697. Indeed, as the Supreme Court noted in
Strickland, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.” Id. The Supreme Court has recently reaffirmed in
the habeas context that “[w]hen a state prisoner asks a federal court to set aside a sentence due to
ineffective assistance of counsel,” the court is required to “use a ‘doubly deferential’ standard of
review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v.
Titlow, 134 S. Ct. 10, 13 (2013) (quoting Cullen, 131 S. Ct. at 1403). For this reason, it is scarcely
surprising that “the great majority of habeas petitions that allege constitutionally ineffective
counsel” fail. See Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
ii. The State Court Did Not Err in Denying Ineffective Assistance of
Counsel Claims
Appellate Counsel.

The Court finds that the State court’s decision on Petitioner’s

ineffective assistance of appellate counsel claims were not contrary to or an unreasonable
application of clearly established Federal law. See 28 U.S.C. § 2254(d)(1). In the Appellate
Division, Petitioner’s appellate counsel summarized the proceedings below clearly and in a light
favorable to Petitioner; made relevant citations to the record; argued for reversal based on four

20

grounds; and cited applicable case law, reflecting that he had fully researched the issues. 12 (See
generally Pet’r App. Br.) Appellate counsel need not raise frivolous arguments on appeal; nor
should counsel “‘raise every nonfrivolous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal.’” Smith, 528 U.S. at 288. “Experienced
advocates since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible or at most on a few key issues.”
Jones v. Barnes, 463 U.S. 745, 751 (1983). Under these circumstances, the Appellate Division
was not unreasonable in rejecting Petitioner’s claim of ineffective appellate counsel.13
Trial Counsel. To the extent Petitioner raises an ineffective assistance of trial counsel
claim, 14 the Appellate Division’s decision was also not contrary to, or an unreasonable application

12

In an affirmation responding to Petitioner’s coram nobis application, Petitioner’s
appellate attorney contended that there was no basis on which to proceed on Petitioner’s coram
nobis claims and that he raised all available meritorious claims on direct appeal. (Dkt. 26, Dowden
Aff. at ECF 5-6.)
13

In any event, the issues Petitioner argues that appellate counsel failed to raise on direct
appeal would not have warranted federal habeas relief. Whether the trial court possessed subject
matter jurisdiction over an amended indictment is solely an issue of New York law. See People v.
Case, 42 N.Y.2d 98, 99-100 (1977). As explained above, federal habeas review is available only
for violations of federal constitutional law and is not available for violations of State constitutional
law. See supra p. 13. As to Petitioner’s second and third claims of ineffective assistance of
appellate counsel, this Court has already determined that the sentence imposed on Petitioner was
applicable to his offense, not excessive, and did not violate his constitutional rights. See id.
14

Petitioner did not raise this ground in either his habeas petition in federal court or in his
application for a writ of error coram nobis in State court. Petitioner raises it for the first time in
his “Traverse Opposition to Respondent’s Answer and Memorandum of Law” in this habeas
proceeding. (See Dkt. 15 at ECF 17-18.) The Court notes, however, that on direct appeal, the
Appellate Division nevertheless ruled that Petitioner was not deprived of effective assistance of
trial counsel. See Ortiz, 846 N.Y.S.2d at 370.
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of, clearly established federal law. Specifically, Petitioner claims that his trial counsel was
“ineffective for failing to object to the misconduct of the Prosecutor at trial.” (Dkt. 15 at ECF 17.)
A review of the trial record, however, shows that Petitioner received a vigorous defense and that
Petitioner’s trial counsel did object to the prosecutor’s purported misconduct by moving for a
mistrial based on “multiple errors” in the prosecution’s closing. (Tr. 627-631 (enumerating
objections).) Trial counsel also moved for a trial order of dismissal. (Tr. 425-27.) Petitioner’s
trial counsel cross-examined prosecution witnesses (Tr. 53-75, 79-94, 107-09, 121-36, 147-50,
236-99, 303-324, 356-69, 399-419), interposed objections (Tr. 163, 184, 436, 442), presented
opening and closing arguments (Tr. 16-20, 546-593), elicited favorable witness testimony (Tr.
431-35, 443-44, 445-57), and otherwise provided Petitioner meaningful representation.
Petitioner’s counsel cannot be faulted for the jury’s finding that Petitioner was guilty, despite
counsel’s argument at trial that Petitioner acted in self-defense. (Tr. 490, 493-96.) Accordingly,
Petitioner’s application for habeas corpus relief on these grounds is denied.

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CONCLUSION
For the foregoing reasons, Petitioner’s application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 is DENIED. Because Petitioner fails 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).
Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose
of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is
directed to enter judgment and close this case.

SO ORDERED:

/s/ Pamela K. Chen______________
PAMELA K. CHEN
United States District Judge

Dated: October 13, 2016
Brooklyn, New York

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