Nash v. Green Haven Correctional Facility

Filing 32

MEMORANDUM AND OPINION. For the reasons set forth herein, the Court concludes that petitioner has demonstrated no basis for habeas relief under 28 U.S.C § 2254. Petitioner's claims are plainly without merit. Therefore, the petition for a wr it of habeas corpus is denied. 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 this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/21/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-00313 (JFB)

_____________________

DANIEL NASH,
Petitioner,
VERSUS

GREEN HAVEN CORRECTIONAL FACILITY,
Respondent.
___________________
MEMORANDUM AND ORDER
August 21, 2014
___________________

JOSEPH F. BIANCO, District Judge:

incarceration for unlawful possession of
marijuana.

Daniel Nash (“Nash” or “petitioner”)
petitions this Court for a writ of habeas
corpus pursuant to 28 U.S.C § 2254,
challenging his conviction in the County
Court, Suffolk County, State of New York,
for murder in the second degree (N.Y. Penal
Law § 125.25(1)), criminal possession of a
controlled substance in the seventh degree
(N.Y. Penal Law § 220.03), operating a
motor vehicle while under the influence of
drugs (N.Y. Vehicular and Traffic Law
§ 1192.4), and unlawful possession of
marijuana (N.Y. Penal Law § 221.05).
Petitioner was sentenced to an indeterminate
period of incarceration of twenty-five years
to life on his second degree murder
conviction, to be served concurrently with
sentences for one year’s incarceration for
possession of a controlled substance in the
seventh degree, six months’ incarceration
for operating a motor vehicle under the
influence of drugs, and fifteen days’

Petitioner challenges his conviction and
sentence on the following grounds: (1) the
hearing court incorrectly denied petitioner’s
motion to suppress his post-arrest
statements; (2) petitioner was denied
effective assistance of counsel; (3) the
evidence against petitioner was insufficient
to support a finding of guilt beyond a
reasonable doubt; (4) petitioner’s sentence
was harsh and excessive.
For the reasons set forth below, the
Court determines that the petition for habeas
corpus is without merit. Accordingly, the
Court denies the petition in its entirety.
I. BACKGROUND
A. Facts
The following facts were adduced from
the petition and documents attached hereto,
1

as well as from the state court trial and
appellate record.

was in the process of selling an annuity she
had received from her father’s estate, and
she expected to receive a lump sum award of
sixty thousand dollars. (See id. at 2668–69.)
The petitioner had told his new girlfriend
Angela Darden (“Darden”) that he
maintained a relationship with Tara only
because he hoped to receive some of that
money in a divorce. (Id. at 1486–87.)

1. The Murder
In the early morning hours of September
3, 2003, petitioner’s wife Tara Nash
(“Tara”) was shot in the head while she sat
inside her car near 500 Riverside Drive in
Riverhead, New York. (See Tr. 695.1) Police
officers responded to an emergency call of
shots fired at 12:20 a.m. and observed a
white SUV at the scene. (Id. at 695–99.) The
vehicle was still running, but the headlights
were turned off. (Id. at 699.) The doors were
locked and all the windows rolled up and
closed save one, which had been shattered.
(Id.) Tara was slumped over in her seat, and
one of the officers could see that she had
been shot. (Id. at 699–701.) The officer
called the Riverhead Town Volunteer
Ambulance
Corps,
and
responding
volunteers attempted to stabilize Tara, who
was still breathing. (See id. at 700–04, 711–
12.) They could not save her, however, and
Tara died at approximately 1:23 a.m. (See
id. at 2998.)

On several occasions, Tara’s cousin
Crystal Hayes (“Hayes”) observed Tara
crying with bruises on her body following
fights with petitioner. (Id. at 1757–59.) On
June 27, 2003, Darden saw petitioner and
Tara fighting and heard hitting followed by
Tara’s screams. (Id. at 2254.) At times,
neighbors also saw the petitioner kicking
and hitting Tara in the front yard. (Id. at
1505–08.) A mutual friend to both parties,
Ethel, also witnessed similar conflicts. (Id.
at 2398–99.) On one occasion in Ethel’s
apartment, petitioner was standing over Tara
as he threatened to kill her and her boyfriend
Terrell Faines (“Faines”). (See id. at 2415–
17.) Ethel testified that she had observed a
gun in the back waistband of petitioner’s
pants at that time.2 (See id.)

Investigators later determined that Tara
had been shot twice in the head by a .38
caliber gun. (See id. at 2572–87.)

3. Events Leading to Tara’s Death
The day before Tara was killed, she and
petitioner fought about petitioner’s use of
Tara’s car. (See id. at 1770.) On the morning
of September 2, 2003, petitioner arrived at
Tara’s house and took her to work in her car.
(Id.) Petitioner returned to the house later

2. Petitioner’s Relationship with Tara
Although petitioner and Tara were
married, the couple had been estranged for
several months by the time of Tara’s death.
They argued over a variety of issues,
including money, petitioner’s failure to care
for their children, extramarital affairs, and
petitioner’s use of Tara’s car. (See id. at
1749–53.) Tara did not receive any
monetary support from the petitioner and
was in dire economic straits; however, she
1

Petitioner’s friend Sean Hardy (“Hardy”) also
testified to having seen petitioner with a gun on two
occasions. The first time was several weeks before
the murder, when the two were lifting weights in the
garage at Tara’s house. (See id. at 2008–13.) The
second time was when the two returned from a night
club. (See id.) The petitioner took the gun out, aimed
at passersby, and pretended to shoot until Hardy told
petitioner to stop. (Id.)
2

“Tr.” refers to the transcript of petitioner’s trial.

2

that night with his friend Hardy, and there
were three additional guests in the house:
April
Welton
(“Welton”),
Welton’s
daughter, and Welton’s husband; Hayes was
being paid to braid the girl’s hair. (See id. at
1779.) When he petitioner arrived, he and
Tara argued first in the kitchen, then in the
garage. (See id. at 1785.) Petitioner
questioned Tara about why she wanted the
keys back, implying that she wanted to go
out with Faines. (See id. at 1792.) Welton
and her husband witnessed this argument as
they smoked outside of the house. Welton
testified that they both appeared to be very
angry. She also saw petitioner drop a black
and chrome revolver with a black handle,
and then watched petitioner stoop to pick it
up. (See id. at 1176–82.) Petitioner put the
gun back in his waist band, continued the
argument, and then returned with Tara into
the house. (See id. at 1188.)

(Id. at 2213.) Once told that Tara already
knew he was there, petitioner went out to
speak to her. Darden opened a window to
hear their argument. (Id. at 2218.) She saw
them arguing, petitioner putting his arm on
Tara, either grabbing it or just touching it,
and then Tara walked away. (See id. at
2226.) Tara entered her car and drove away
quickly, leaving skid marks on the road.
(Id.) A witness testified that Tara seemed
upset, and as if she were crying. (Id. at 940–
43, 946–49.) The same witness also saw
taillights traveling in the same direction as
Tara, though he could not be sure whether it
was petitioner or not. (Id.)
As discussed supra, Tara was shot
shortly thereafter.
4. The Investigation
Suffolk County homicide detectives
went to speak with petitioner at 5:00 a.m. on
the day of Tara’s death. (See id. at 2904.)
Petitioner informed the detectives that he
had last seen Tara at 7:00 p.m. the previous
day. (See H. 12/20/04, at 50–52. 3 ) He
claimed that he had gone to a gas station
between 11:30 p.m. and 12:00 a.m., but
otherwise remained at home that night. (See
id.) After speaking to the police for
approximately ten minutes, petitioner asked
why he was being questioned about Tara.
(Id. at 52.) He was then informed that Tara
had been shot, at which point he became
emotional. (See id.) Petitioner then told the
detectives that his sister had seen Tara with
someone in her SUV, and that the police
should investigate Faines. (See id. at 52–53.)
Petitioner complied with the detectives’
request to search his car, answered all their
questions, and was cooperative. (See id. at

Petitioner then left Tara’s house with
Hardy. Petitioner said to Hardy that “he
wished he could kill that bitch and get away
with it.” (Id. at 2073.) Hardy testified that
petitioner had previously made similar
statements. (Id. at 2074.)
After petitioner and Hardy left, Tara
went on a date with Faines. (See id. at 1386–
89, 1831.) Tara drove Faines home at
approximately 11:58 p.m. (See id. at 1393,
1400, 1832, 1834.) Meanwhile, Darden saw
petitioner at the Milbook Apartments
between 10:00 and 10:30 p.m. that night
while she was going out for pizza with her
friend. (See id. at 2194.) Later on that night,
Darden invited petitioner back to her
apartment. (See id. at 2206.)
Darden and petitioner were in Darden’s
apartment at approximately midnight when
Tara rang the doorbell. (See id. at 2209.)
Darden got up to answer and told petitioner
that Tara was at the door. Petitioner tried to
leave the apartment through a back window.

“H. 12/20/04” refers to the transcript of the hearing
held on December 20, 2004.
3

3

53–54.) The police found nothing of interest
in petitioner’s car. (Tr. 2921.)

questioned petitioner, petitioner changed his
statement, saying that “[t]his is the spot
where they found my wife killed.” (Id. at
1609.)

The next day, the detectives visited
petitioner again at the Tuthill Funeral Home,
where they took petitioner’s written
statement. (See H. 12/20/04, at 55–56.) In
this statement, petitioner admitted to having
seen Tara between 11:00 and 11:30 p.m. on
the night of her death while he was with
Darden. (Tr. 2954.) According to petitioner,
Tara had accused him of having an affair.
(See id.) He claimed that he then returned
home to his mother’s house by 11:30 p.m.
and stayed there until the police arrived the
morning of September 3, 2003. (See id.)

As the troopers approached the car, they
smelled marijuana. (H. 12/16/04, at 16–17.)
Both petitioner and Lattimore admitted to
smoking marijuana and were arrested. (Id. at
16–17, 21, 25.) At the troopers’ barracks
petitioner was read his Miranda rights,
agreed to waive his rights, and consented to
further drug and alcohol level tests. (Id. at
30–33, 49–52.)
Investigator O’Sullivan (“O’Sullivan”)
was brought in from the East End Drug Task
Force to talk to petitioner. (H. 12/17/04, at
3–6. 5 ) While speaking to O’Sullivan,
petitioner said that he believed it was a sick
joke that he was picked up in the same place
that his wife was murdered. (Id. at 11.)
When O’Sullivan asked petitioner if he
knew anything about the murder, petitioner
began to cry and responded that he did not
know anything about it. (Id.) The petitioner
then became agitated and stated that he had
already spoken to the detectives about it.
(See id. at 12–14.)

While the police were conducting their
investigation, petitioner attempted to
withdraw money from Tara’s annuity
account, called her co-workers to try to
retrieve Tara’s last paycheck, and inquired
as to what benefits he was entitled to as the
living spouse of the deceased. (See id. at
2351–52,
2486,
2497–98,
2501.)
Acquaintances said that petitioner’s grief
following the murder was not genuine. (See
id. at 1862, 1865, 1873–74, 2093–94, 2312–
21, 2501.)
5. The Arrest

Sometime thereafter, Detective Mercer
of the Suffolk County homicide squad
arrived and arrested the petitioner. (See H.
12/20/04, at 67–70.) He placed petitioner in
his squad car and advised petitioner of his
Miranda rights. (See id. at 68–76) Detective
Mercer did not inform petitioner why he was
under arrest. (Tr. 2971.) Petitioner waived
his rights and responded to Detective
Mercer’s questions. (Id. at 2975.) However,
at police headquarters, petitioner refused to
sign the Miranda Warnings Card or

On September 30, 2003, New York State
Troopers stopped petitioner’s car because
the car’s rear license plate lamp was out, the
driver was not wearing his seatbelt, and the
car had crossed a double yellow line when it
made a turn. (H. 12/16/04, at 10–13. 4 ) As
the troopers pulled the car over, the
passenger, Terence Lattimore (“Lattimore”),
testified that petitioner said to him: “they
pulling us over in the same spot I killed my
wife.” (Id. at 1608.) When Lattimore
“H. 12/16/04” refers to the transcript of the hearing
held on December 16, 2004.

“H. 12/17/04” refers to the transcript of the hearing
held on December 17, 2004.

4

5

4

anything else, but he did not request a
lawyer. (See id. at 2978–79.)

Before trial, a combined Dunaway and
Huntley hearing was conducted to determine
whether the police had probable cause to
arrest the defendant and whether statements
made by petitioner to the police were given
voluntarily or not. At the hearing,
petitioner’s counsel sought to inquire into
whether petitioner had also been denied his
right to counsel, but that request was denied
(H. 12/16/04, at 3–6.) Following the hearing,
the hearing court concluded that the
observation of petitioner’s intoxication
while driving was sufficient to justify his
arrest. The hearing court also held that
petitioner’s
statements
were
made
voluntarily. Finally, the hearing court held
that petitioner’s statements were admissible
under Miranda. The court determined that
petitioner was not in custody when he gave
the statement at the funeral home. Moreover,
the court concluded that petitioner’s oral
statements made to O’Sullivan were made
after petitioner had been read his Miranda
rights. Similarly, the court concluded that
petitioner’s statements made to Detective
Mercer were made after petitioner was read
his Miranda rights. Although Detective
Mercer did lie about the state of petitioner’s
wife when she was found, the court found
that Detective Mercer did nothing to compel
petitioner to make oral statements.
Accordingly, petitioner’s motion to suppress
his oral and written statements was denied in
its entirety on January 5, 2005. (See Order,
Jan. 5, 2005.)

Detective Mercer questioned petitioner
about owning a .38 caliber gun, and
petitioner admitted to having owned one at
one time, but stated that he had sold it a long
time ago. (See id. at 2976.) Eventually,
petitioner asked whether he was being
arrested for the murder of his wife. (Id. at
3049.) Detective Mercer confirmed that he
was. (Id.) Detective Mercer proceeded to tell
petitioner (falsely) that, in fact, his wife had
spoken to the EMT workers about who had
shot her before she died. (See id. at 2979.)
Petitioner responded by saying “that can’t be
good for me.” (Id.) When Detective Mercer
stated further that Tara identified petitioner
as her shooter, petitioner stopped answering
the questions and responded “punch me,
beat me, kill me, my life’s over.” (See id. at
2980.) He also indicated regret over
providing a statement to the police at the
funeral home. (See id. at 2980–81.) After
that time, petitioner refused to answer any
more questions. (See id. at 3054.)
B. Procedural History
1. Pre-Trial Suppression Hearings
A grand jury returned an indictment
charging the petitioner with intentional
second degree murder, reckless second
degree murder, seventh degree criminal
possession of a controlled substance,
misdemeanor operating a motor vehicle
under the influence of drugs, and unlawful
possession of marijuana. Petitioner entered a
plea of not guilty to the charges against
him.6

Upon the request of defense counsel, on
February 24, 2005, the hearing court
amended its prior decision to address the
issue of whether Detective Mercer had
probable cause to arrest the defendant for
murder. The hearing court concluded that
there was probable cause to arrest petitioner
for second degree murder at that time.

6

The charge of reckless second-degree murder was
withdrawn during the trial.

5

night of Tara’s death. (See id. at 2123–34.)
He also testified that Faines had tried to sell
him a nine millimeter gun at some point. 7
(See id.)

2. Trial and Sentencing
The following details of petitioner’s trial
are relevant to the instant petition. At trial,
the prosecution presented its case by calling
police personnel, medical personnel, family
and friends of both parties, and a medical
examiner. The prosecution also introduced
petitioner’s written and sworn statement
made before his arrest. The prosecution
argued that petitioner’s relationship with
Tara was acrimonious and abusive by
presenting evidence that petitioner had
yelled at and physically attacked Tara. (See
Tr. 1508, 2388, 2562.) The prosecution also
presented testimony that petitioner stated on
more than one occasion that he wished he
could kill Tara and “get away with it.” (See
id. at 2073.) Having determined that Tara’s
death was caused by two gun shots to the
head, delivered from a .38 caliber pistol, the
prosecution also provided testimony
establishing that the petitioner had owned
such a gun, and that it had been seen on his
person recently before the murder took
place. (See id. at 1195, 2008, 2414.)

On January 16, 2006, following a jury
trial, petitioner was convicted of murder in
the second degree. He was sentenced to an
indeterminate prison term of twenty-five
years to life, to run concurrently with one
year’s imprisonment for possession of a
controlled substance in the seventh degree,
six months’ imprisonment for operating a
motor vehicle under the influence of drugs,
and fifteen days’ imprisonment for unlawful
possession of marijuana.
3. Appeal
Petitioner appealed his conviction to the
Appellate Division on the following
grounds: (1) the trial court refused to include
the lesser included charges of manslaughter
in the first degree and manslaughter in the
second degree in its jury instructions; (2) the
hearing court failed to suppress petitioner’s
statements to police; (3) ineffective
assistance of trial counsel; (4) insufficient
evidence; and (5) the sentence imposed was
excessive and unjust. The Appellate
Division affirmed petitioner’s conviction on
June 17, 2008. See People v Nash, 858
N.Y.S.2d 905 (N.Y. App. Div. 2008). The
New York Court of Appeals denied
petitioner’s motion for leave to appeal on
August 22, 2008. See People v. Nash, 11
N.Y.3d 739 (2008).

Defense counsel emphasized the
circumstantial nature of the prosecution’s
case, argued that the prosecution’s witnesses
were not credible, and maintained that the
prosecution had failed to prove the requisite
mens rea for second degree murder. He also
called two witnesses for the defense. The
first was a former police lieutenant and
private investigator who testified that a gun
does not make a metallic sound when it falls
on the ground. (See id. at 3106.) This
testimony was meant to discredit Welton’s
testimony about what she heard while Tara
and petitioner were arguing in the garage on
the night of Tara’s death. (See id. at 1176.)
The second witness was Christopher Stewart
(“Stewart”), who was then serving time at
the Elmira Correction Facility. Stewart
testified that he had seen Tara and Faines
arguing in a white Chevrolet Blazer on the

When asked why he did not follow up on Stewart’s
story, Detective James Madden testified that he had
not believed Stewart’s story to be credible based
upon what Stewart had said, where he had been at the
time, and his direction of travel. (See Tr. 3257–60.)
7

6

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)).

4. The Instant Petition
Petitioner filed the instant petition on
January 15, 2010. Respondent filed its
memorandum in opposition on March 18,
2010. On June 18, 2012, the Court granted
petitioner’s request to exhaust his ineffective
assistance of counsel claim in state court and
held the petition in abeyance. (See Order,
June 28, 2014, ECF No. 13.) In a letter dated
November 1, 2013, petitioner informed the
Court that he had exhausted his ineffective
assistance of counsel claims in state court.
This matter is now fully submitted, and the
Court has fully considered the submissions
of the parties.

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.

II. STANDARD OF REVIEW
To determine whether petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standard of review set
forth in 28 U.S.C. § 2254, as amended by
the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which provides, in
relevant part:

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). Additionally,
while “‘[s]ome 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. (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 . . . are

(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—
(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.
7

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. Unlawful Arrest
Petitioner claims that his statements
should have been suppressed because they
were obtained in violation of his Fourth
Amendment rights against illegal search and
seizure. Specifically, petitioner argues that
the police did not have probable cause to
arrest him.

III. DISCUSSION
Petitioner has argued that he is entitled
to habeas relief on four grounds: (1) the
hearing court should have suppressed his
post-arrest statements; (2) he was denied
effective assistance of counsel; (3) the
evidence presented at trial was insufficient
to support a finding of guilt beyond a
reasonable doubt; and (4) his sentence was
excessive. Respondent does not contest that
these arguments have been sufficiently
preserved for habeas review, but contends
that the petitioner’s claims are meritless. For
the following reasons, this Court concludes
that petitioner’s claims are patently without
merit and denies the petition in its entirety.

Under Stone v. Powell, this Court is
barred from reviewing petitioner’s Fourth
Amendment claim. See 428 U.S. 465 (1976).
“[A] federal habeas corpus court may not
review a Fourth Amendment claim, such as
illegal detention, ‘where the State has
provided an opportunity for full and fair
litigation’ of the claim.” McNeal v. Rdo, No.
88-CV-3435 (MGC), 1988 WL 108440, at
*3 (S.D.N.Y. Oct. 6, 1988) (citing Stone,
428 U.S. at 494), aff’d, 888 F.2d 126 (2d
Cir. 1989). In the Second Circuit, a federal
court on habeas review may only review
petitioner’s Fourth Amendment violation
claim if “‘(a) 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.’” Mejias v. Allard, No. 03-CV5195 (NGG)(LB), 2006 WL 119033, at *20
(E.D.N.Y. Jan. 13, 2006) (quoting Capellan
v. Riley, 975 F.2d 67, 70 (2d Cir. 1992)).
The Second Circuit has approved New
York’s corrective procedure, embodied in
New York Criminal Procedure Law § 710,
as facially adequate to redress alleged
Fourth
Amendment
violations.
See
Capellan, 975 F.2d at 70 n.1. Moreover,
there is no evidence of an unconscionable
breakdown in that process in this case. Here,
petitioner challenged the constitutionality of
his detention at both the pre-trial
suppression hearings and on appeal to the
Appellate Division. Having availed himself

A. Failure to Suppress Statements
Petitioner argues that his statements to
the police should have been suppressed for
two reasons: (1) the police lacked probable
cause to arrest him; and (2) Detective
Mercer’s failure to inform him about the
reason for his arrest, as well as his
affirmative misrepresentations during his
interrogation of petitioner, rendered the
petitioner’s statements involuntary and their
use a violation of the petitioner’s Miranda
rights. (See Pet. 6.)
For the following reasons, petitioner has
not demonstrated that the state court
decision was contrary to, or involved an
unreasonable interpretation of, federal law,
nor has he demonstrated that the state
court’s decisions resulted in a decision that
was based upon
an unreasonable
determination of the facts. Accordingly,
petitioner is not entitled to habeas relief on
the basis of this claim.

8

of New York’s corrective procedures
regarding his Fourth Amendment claim,
petitioner has had an opportunity for full and
fair litigation of the claim and may not raise
it on federal habeas review.

As an initial matter, the “ultimate issue
of voluntariness [of a confession] is a legal
question requiring independent federal
determination.” Nelson v. Walker, 121 F.3d
828, 833 (2d Cir. 1997) (citing Arizona v.
Fulminante, 499 U.S. 279, 287 (1991)); see
also Nova v. Bartlett, 211 F.3d 705, 707 (2d
Cir. 2000); Mincey v. Arizona, 437 U.S. 385,
396 (1978) (holding that habeas court is not
bound by state court’s determination that
statement was voluntary; “[i]instead, the
Court is under a duty to make an
independent evaluation of the record”).
Factual questions underlying a legal
determination are entitled to a presumption
of correctness under 28 U.S.C. § 2254(d),
however. Nelson, 121 F.3d at 833. In this
regard, the Second Circuit has noted that
“the statutory presumption refers to
historical facts, that is, recitals of external
events and the credibility of the witnesses
narrating them.” Id. (internal citation and
quotation marks omitted). Thus, “[i]f the
material facts were not adequately
developed at the State court hearing or the
District Court finds that the factual
determination is not fairly supported by the
record, the presumption of correctness is set
aside.” Id. (citation and internal quotation
omitted).

Even assuming arguendo that the Court
could review the underlying merits of this
claim, the Court concludes that the claim
fails on the merits. Based upon the facts
presented at the hearing, the state court had
sufficient evidence upon which to conclude
that there was probable cause for the police
to stop petitioner’s car, and later to arrest
him. During the Dunaway/Huntley hearing,
the arresting officer testified that he stopped
petitioner’s car because of traffic violations
and arrested petitioner for driving under the
influence of drugs after the petitioner failed
several sobriety tests. (See H. 12/17/04, at
13–25.) Certainly the officer was warranted
in arresting petitioner on the basis of his
observations of traffic violations and
petitioner under the influence of drugs. See,
e.g., Whren v. United States, 517 U.S. 806,
810 (1996) (holding that “the decision to
stop an automobile is reasonable where the
police have probable cause to believe that a
traffic violation has occurred”).
In sum, the Court is barred from
reviewing plaintiff’s Fourth Amendment
claim but, even if it could, concludes that the
claim is patently without merit.

When evaluating the voluntariness of a
confession, no one factor is determinative;
rather, the totality of the circumstances must
be evaluated. Green v. Scully, 850 F.2d 894,
901 (2d Cir. 1988). The factors to be
considered include (1) the characteristics of
the accused, (2) the conditions of
interrogation, and (3) the conduct of law
enforcement officials. Id. at 901–02. Here,
there is ample evidence to support the state
court’s determination that petitioner
voluntarily made incriminating statements
after being advised of his Miranda rights.
The factual findings of the New York courts
are presumed to be correct because they
were made after extensive development of

2. Voluntariness of Confession
Petitioner further claims that his
statements to the police should have been
suppressed because they were not made
voluntarily, and his waiver of his Miranda
rights was invalid, because of Detective
Mercer’s false statements and failure to
inform him that he was under arrest for
murder.

9

the material facts and were supported by the
record. The arresting officer advised
petitioner of his Miranda rights prior to the
petitioner’s discussion with O’Sullivan or
any other police officer. The state court
concluded that petitioner was capable of
understanding his Miranda rights, and he
did not argue otherwise at the Huntley
hearing. Moreover, petitioner affirmatively
agreed to speak with O’ Sullivan when he
was asked if he was willing to do so. (See H.
12/17/04, at 146.) Similarly, Detective
Mercer read petitioner his Miranda rights
prior to asking any questions. Petitioner
again agreed to speak with Detective
Mercer, answering questions about his
ownership of a .38 caliber gun during the car
ride to Suffolk County police headquarters.
At the station, there is no indication that the
conditions of petitioner’s interrogation with
Detective Mercer became coercive at all; for
instance, there is no evidence of threats or
promises made to compel petitioner to
speak.

murder. Petitioner, therefore, had reason to
know why he was being questioned.
Secondly,
petitioner
argues
that
Detective Mercer lied about his wife
identifying him as her shooter to the EMTs
attending her. However, affirmative
misrepresentation by police in an
interrogation, without more, is insufficient
to render a confession involuntary or a
Miranda waiver invalid. See, e.g., United
States v. Velasquez, 885 F.2d 1076, 1088
(3d Cir. 1989) (holding that police lies to
suspect about facts of case did not invalidate
otherwise valid Miranda waiver); Dallio v.
Spitzer, 170 F. Supp. 2d 327, 340 (E.D.N.Y.
2001) (“The fact that the police lie to a
suspect to elicit his confession does not
necessarily render it involuntary.” (internal
citation and quotation marks omitted)).
Instead, false statements by police are
considered as only one factor among many
in assessing the voluntariness of a suspect’s
statements. See, e.g., Dallio, 170 F. Supp. 2d
at 340. Here, the totality of the
circumstances in this case do not suggest
that petitioner’s confession was the product
of conduct that would overbear his will to
resist. Instead, petitioner’s confession was
“the product of an essentially free and
unconstrained choice by its maker.” United
States v. Moreno, 701 F.3d 64, 76 (2d Cir.
2012) (internal citation and quotation marks
omitted).

Petitioner argues that his waiver of
Miranda rights was invalid, and his
statements were involuntary, because the
police failed to inform him that he was
under arrest for murder. This particular
argument is without merit. Although the
police did not inform petitioner that he was
being questioned in relation to the murder of
his wife, the Supreme Court has held that
mere silence as to the charges of an arrest is
insufficient to invalidate a suspect’s waiver
of Miranda rights. See Colorado v. Spring,
479 U.S. 564, 576 (1987). Therefore, it was
unnecessary for Detective Mercer to inform
petitioner of the reasons for his arrest, and
the failure to do so does not render his
waiver
invalid.
Additionally,
while
Detective Mercer did not state that petitioner
was specifically under arrest for murder, the
Court notes that petitioner knew the
detective was investigating Tara’s death,
having spoken to him twice in relation to the

In sum, the Court determines that
petitioner’s confession was voluntary, and
his waiver of his Miranda rights was valid.
Therefore, there is no basis for habeas relief
on this claim.
B. Ineffective Assistance of Counsel
Petitioner also contends that he is
entitled to habeas relief because his trial
provided
constitutionally
ineffective
assistance. (Pet. 8.) In particular, petitioner

10

cites the following supposed failings of trial
counsel: (1) the failure to object to the
introduction of statements attributed to the
petitioner that were not the subject of the
Huntley hearing; (2) the failure to categorize
the petitioner’s statements as admissions
rather than confessions, and (3) the failure to
request a voluntariness charge for the jury as
support for petitioner’s argument.

typically the case, the lawyer has a
reasonable justification for the decision,”
and “‘strategic choices made after thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable.’” DeLuca v. Lord, 77 F.3d
578, 588 & n.3 (2d Cir. 1996) (quoting
Strickland, 466 U.S. at 690–91). “However,
‘strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.’” Id. (quoting
Strickland, 466 U.S. at 690–91).

1. Legal Standard
Under Strickland v. Washington, a
habeas petitioner is required to establish 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”; and
(2) “there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different.” 466 U.S. 668, 680, 694 (1984).

The second prong focuses on prejudice
to a petitioner. A 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.
“Reasonable probability” means that the
errors were 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 fact finder would
have had a reasonable doubt respecting
guilt.’” Henry v. Poole, 409 F.3d 48, 63–64
(2d Cir. 2005) (quoting Strickland, 466 U.S.
at 695). “‘An 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) (internal citation and
quotation marks omitted).

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
performance
inquiry
examines
the
reasonableness of 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. (quoting
Rompilla v. Beard, 545 U.S. 374, 408
(2005)). In assessing performance, a court
“must apply a ‘heavy measure of deference
to counsel’s judgments.’” Id. (quoting
Strickland, 466 U.S. at 691). “A lawyer’s
decision not to pursue a defense does not
constitute deficient performance if, as is
11

statements that could have been made. 8
Thus, counsel’s conduct was objectively
reasonable.

This Court proceeds to examine
petitioner’s ineffective assistance of counsel
claim, keeping in mind that he bears the
burden of establishing both deficient
performance and prejudice. United States v.
Birkin, 366 F.3d 95, 100 (2d Cir. 2004). As
set forth below, petitioner’s claim fails to
satisfy both prongs of the Strickland test.

Moreover, even if defense counsel’s
performance were deficient in some way,
petitioner has failed to prove that defense
counsel’s failure to prevent the admission of
the statements identified by petitioner
prejudiced his case. While all of petitioner’s
statements provided support to the
prosecution’s case, the most damaging
statement to petitioner’s defense was “that
can’t be good for me”—a statement
petitioner concedes his defense counsel
sought to suppress. In light of this statement
and the other evidence of guilt, which was
strong, petitioner has not carried his burden
of proving that admission of his other
statements caused him prejudice.

2. Application
a. Failure to Object to Statements
Petitioner argues that his counsel failed
to object to the admission in evidence of
certain incriminating statements. The
premise of petitioner’s position is that the
hearing court did not already rule on the
admissibility of these statements, and that
defense counsel did not object to their
admissibility. Petitioner is mistaken. In
defense counsel’s original omnibus motion
calling for the Huntley hearing, counsel
specifically sought to suppress the written
statements made to Detective Mercer
outside the funeral home, oral statements
made to State Troopers on the morning of
September 30, 2003, and statements
obtained from petitioner after his arrest by
detectives from the Suffolk County
Homicide Squad on September 30, 2003.
(See Def.’s Trial Motion.) The hearing court
addressed the admissibility of all these
statements and denied the motion to
suppress in its entirety. Thus, the record
demonstrates that defense counsel did
challenge the admissibility of petitioner’s
statements, and he cannot be faulted for not
objecting to their admission in evidence
after the hearing court reached its decision.
In particular, there were no additional
objections regarding the admissibility of the

b. Admission vs. Confession Charge
Next, petitioner contends that counsel’s
failure to request a jury charge explaining
the difference between an admission and a
confession warrants habeas relief. Petitioner
argues that the jury put undue emphasis on
the statements he made, taking them to be a
confession, and a direct acknowledgement
of guilt, rather than circumstantial evidence
of guilt.
Although the trial court did not instruct
the jury on the difference between an
admission and a confession, the trial court
did give an expanded circumstantial
evidence charge, and the trial court
cautioned the jury on deciding the case on
the basis of circumstantial evidence, alone,
telling the jury that they must find the
defendant not guilty if there was any
8

For the same reason, petitioner cannot show
prejudice from the failure to make any additional
objections.

12

inference of innocence based on the
circumstantial evidence. (Tr. 3480–84). In
light of this charge, it was not objectively
unreasonable for counsel to forego a request
for a more detailed charge of the kind
petitioner describes. Moreover, even if this
failure were objectively unreasonable,
petitioner has not shown that he was
prejudiced by this failure. He gives no
indication as to how such a charge would
have influenced the jury in any way, and
given the overwhelming evidence of
petitioner’s guilt (discussed infra), the Court
concludes that any such additional
instruction would not have changed the
outcome of the case.

However, New York law does not require a
trial judge to give a voluntariness instruction
if there is no genuine issue of fact
concerning the voluntariness of the
defendant’s statements. See, e.g., People v.
White, 811 N.Y.S.2d 473, 475 (N.Y. App.
Div. 2006) (upholding decision not to give
voluntariness instruction where defense had
“failed to raise a factual dispute in which
reasonable people could differ as to the
voluntariness of defendant’s statement”
(citing cases)); People v. Gutierrez, 787
N.Y.S.2d 266, 267 (N.Y. App. Div. 2004)
(“Since there was no other factual issue
raised at trial concerning the voluntariness
of defendant’s statement, the court was not
required to instruct the jury on that subject.”
(citing cases)).

c. Voluntariness Charge
Petitioner also contends that counsel
rendered ineffective assistance in failing to
request a voluntariness charge.

Here, as discussed supra in connection
with petitioner’s voluntariness claim, there
is simply no evidence in the trial record
indicating that plaintiff’s statements were
made involuntarily, and petitioner fails
entirely to point to any such evidence in his
habeas petition. Accordingly, it is unlikely
that the trial court would have given such an
instruction if requested, and the Court
cannot conclude that counsel acted
unreasonably in declining to request an
instruction that the trial court likely would
not have given. See, e.g., Shire v. Costello,
No. 07-CV-285, 2008 WL 2323379, at *12
(N.D.N.Y. June 2, 2008) (“Counsel cannot
now be deemed ineffective for failing to
make a argument or objection that stood

Under New York law, “when the
defense presents evidence at trial sufficient
to demonstrate a question of fact regarding
the voluntariness of the defendant’s
statement, the court must submit the issue to
the jury with instructions to ignore the
statement if it determines that it was
involuntarily made.” People v. Perretti, 719
N.Y.S.2d 145, 147 (N.Y. App. Div. 2000)
(citing N.Y. Crim. Proc. Law § 710.70(3);
People v. Graham, 55 N.Y.2d 144 (1982);
People v. Cefaro, 23 N.Y.2d 283 (1968)).9
9

The Court notes that the United States Constitution
does not require the submission of the voluntariness
issue to a jury after it has already been decided by a
judge. In Lego v. Twomey, the Supreme Court
explicitly rejected a state petitioner’s “contention
that, even though the trial judge ruled on his coercion
claim, he was entitled to have the jury decide the
claim anew.” 404 U.S. 477, 489 (1972). The Court
held that the Constitution does not require
“submission of voluntariness claims to a jury as well
as a judge.” Id. Thus, to the extent petitioner also
seeks habeas relief on the basis that the trial judge

failed to give a voluntariness instruction, such a claim
is meritless and would not entitle him to habeas
relief. See, e.g., Fernandez v. Lee, No. 10-CV-9011
(ALC)(JCF), 2012 WL 4473294, at *12 (S.D.N.Y.
July 12, 2012), report & recommendation adopted,
2012 WL 4478998 (S.D.N.Y. Sept. 28, 2012); White
v. Conway, No. 07-CV-1175, 2011 WL 1315592, at
*18 (N.D.N.Y. Mar. 31, 2011); Zapata v. Greene,
No. 03-CV-5730, 2005 WL 1521186, *13 (E.D.N.Y.
June 27, 2005).

13

little chance of success.” (citing United
States v. Arena, 180 F.3d 380, 396 (2d Cir.
1999)). Moreover, the absence of any
evidence supporting petitioner’s claim of
involuntariness means that petitioner
suffered no prejudice from counsel’s failure
to request a voluntariness instruction. Even
if counsel had requested a voluntariness
instruction and the trial court granted the
request, there is absolutely no evidence from
which the jury could have concluded that
petitioner’s statements had not been made
voluntarily. In sum, petitioner has not
carried his burden of showing objectively
unreasonable performance and a reasonable
probability that the result of his trial would
have been different had the jury been given
a voluntariness instruction. Accordingly, this
claim does not entitle petitioner to habeas
relief.

challenging the legal sufficiency of the
evidence in a state criminal conviction.
Einaugler, 109 F.3d at 840. A criminal
conviction in state court will not be reversed
if, “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);
see, e.g., Flowers v. Fisher, 296 F. App’x
208, 210 (2d Cir. 2008) (summary order);
Policano v. Herbert, 507 F.3d 111, 115–16
(2d Cir. 2007); Ponnapula v. Spitzer, 297
F.3d 172, 179 (2d Cir. 2002). A criminal
conviction will stand so long as “a
reasonable mind ‘might fairly conclude guilt
beyond a reasonable doubt.’” United States
v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)
(internal quotation marks omitted) (quoting
United States v. Mariani, 725 F.2d 862, 865
(2d Cir. 1984)). Even when “faced with a
record of historical facts that supports
conflicting inferences [a court] must
presume—even if it does not affirmatively
appear in the record—that the trier of fact
resolves any such conflicts in favor of the
prosecution, and must defer to that
resolution.” Wheel v. Robinson, 34 F.3d 60,
66 (2d Cir. 1994) (quoting Jackson, 443
U.S. at 326).

C. Sufficiency of the Evidence
Petitioner claims that the evidence
presented at trial was legally insufficient to
prove his guilt as to the second-degree
murder charge beyond a reasonable doubt,
thus violating his Fourteenth Amendment
right to due process. In support of this claim,
petitioner argues that the forensic evidence
and testimony presented at trial failed to
prove beyond a reasonable doubt that
petitioner possessed the requisite intent to be
found guilty of murder in the second degree.
(See Pet. 9.) Instead, he argues, the evidence
at best supports the view that petitioner shot
at his wife with the intention to seriously
injure, as opposed to kill, her, or that he
intended to frighten her and acted recklessly.
(Id.)

When considering the sufficiency of the
evidence of a state 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 the relevant New
York law, “[a] person 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 or of a third
person.” N.Y. Penal Law § 125.25(1).

1. Legal Standard
The law governing habeas relief from a
state conviction based on insufficiency of
evidence is well established. A petitioner
“bears a very heavy burden” when

14

2. Application

petitioner is not entitled to habeas relief on
this basis.

At trial, the prosecution presented
overwhelming
evidence
connecting
petitioner to the murder of Tara and his
intent to kill her. The trial record includes
multiple accounts of petitioner’s tumultuous
and sometimes violent relationship with
Tara. On one occasion, someone observed
petitioner threaten to kill Tara. Hardy also
testified that petitioner had indicated his
desire to kill Tara before the night of Tara’s
death. The same night that Tara was killed,
petitioner was observed fighting with Tara
while possessing a chrome revolver.
Following that argument, petitioner told his
friend Hardy that “he wished he could kill
that bitch and get away with it.” Later that
night, petitioner and Tara argued again, and
within minutes of that argument, Tara was
shot and killed. After Tara’s death,
petitioner tried to collect money belonging
to Tara’s estate. Additionally, just before
petitioner was arrested, he informed
Lattimore that the police were pulling them
over “in the same spot I killed my wife.”
Finally, petitioner’s statements to the police,
including his admission that he had owned a
handgun of the same caliber as the murder
weapon, and his comment that it could not
be good for him if Tara had identified her
killer before she died, provided even more
proof that petitioner killed Tara with the
specific intent to do so. Viewing this
evidence in a light most favorable to the
prosecution, and assuming the jury found
every prosecutorial witness credible, the
Court concludes that a reasonable trier of
fact could find beyond a reasonable doubt
that petitioner committed the crime of
second-degree murder. For purposes of
habeas review, it is immaterial that a
different jury could have inferred a lesser
mens rea than intent to kill; it suffices that a
jury reasonably could find beyond a
reasonable doubt petitioner’s intent to kill
based on this evidence. Accordingly,

D. Excessive Sentence
Finally, petitioner maintains that the
sentence imposed for second-degree
murder—an indeterminate period of twentyfive years to life—was unduly harsh.
For the purpose of habeas review, “[n]o
federal constitutional issue is presented
where, as here, the sentence is within the
range prescribed by state law.” White v.
Keane, 969 F. 2d 1381, 1383 (2d Cir. 1992);
see also Alfini v. Lord, 245 F. Supp. 2d 493,
502 (E.D.N.Y. 2003) (“It is well settled that
an excessive sentence claim may not be
raised as grounds for habeas corpus relief if
the sentence is within the range prescribed
by state law.” (collecting cases)); McCalvin
v. Senkowski, 160 F. Supp. 2d 586, 589
(S.D.N.Y. 2001) (“Sentencing decisions are
not cognizable on habeas corpus review
unless the sentence imposed falls outside the
range prescribed by state law.”); Thomas v.
Senkowski, 968 F. Supp. 953, 956–57
(S.D.N.Y. 1997) (dismissing excessive
sentence claim where the petitioner’s
sentence fell within the range prescribed by
state law).
In the instant case, petitioner was
convicted of second-degree murder under
New York law, which carries a maximum
sentence of life imprisonment. See N.Y.
Penal Law § 70.00. Because petitioner’s
sentence fell within the statutorily
prescribed range, there is no federal issue
cognizable on habeas review.10 See Burvick
v. Brown, No. 10-CV-5597 (JFB), 2013 WL
3441176, at *11 (E.D.N.Y. July 9, 2013)
10

Even assuming arguendo that the Court could
review the sentence, the Court concludes that it was
not excessive in light of the crime of conviction,
including the manner in which it was committed.

15

(finding no federal question for habeas
review where sentence was within
statutorily prescribed range); Bell v. Ercole,
631 F. Supp. 2d 406, 419 (S.D.N.Y. 2009)
(same). Accordingly, petitioner’s excessive
sentencing claim does not provide a basis
for habeas relief in this case.
IV. CONCLUSION
For the reasons set forth herein, the
Court concludes that petitioner has
demonstrated no basis for habeas relief
under 28 U.S.C § 2254. Petitioner’s claims
are plainly without merit. Therefore, the
petition for a writ of habeas corpus is
denied. 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 this
case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 21, 2014
Central Islip, NY
*

*

*

Petitioner proceeds pro se. Respondent
is represented by Thomas J. Spota, District
Attorney of Suffolk County, by Michael J.
Miller, 200 Center Drive, Riverhead, NY
11901.

16