Powell v. Graham

Filing 11

MEMORANDUM AND OPINION. For the reasons set forth in the attached memorandum and order, petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Petitioner has failed to point to any state court ruling that was contrary to, or an unreasonable application of, clearly established federal law, or that 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. The Court has reviewed all of petitioner's claims and finds them to be 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 appealabi lity shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close the case.SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/3/2013. Copy mailed by Chambers to pro se petitioner by first class mail on January 3, 2013.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-1961 (JFB)
_____________________

NATHAN POWELL,
Petitioner,
VERSUS

HAROLD GRAHAM,
SUPERINTENDENT OF AUBURN CORRECTIONAL FACILITY,
Respondent.
_____________________
MEMORANDUM AND ORDER
JANUARY 3, 2013
_____________________

JOSEPH F. BIANCO, District Judge:
Nathan
Powell
(“Powell”
or
“petitioner”) petitions this Court for a writ
of habeas corpus, pursuant to 28 U.S.C.
§ 2254, to vacate his conviction entered on
August 18, 2003 in the County Court,
Nassau County (“County Court”), for
manslaughter in the first degree (N.Y. Penal
Law § 125.20).
Petitioner seeks to overturn his
conviction on four grounds: (1) the County
Court judge should have recused himself
due to bias against petitioner’s attorney; (2)
petitioner’s plea was involuntary; (3) venue
in Nassau County was improper; and (4) the
prosecution withheld Brady evidence. 1

1 Petitioner

also raises two additional grounds: (1)
New York State’s statutes and practices regarding

Respondent seeks to dismiss the instant
petition because an adequate and
independent state procedural ground bars
petitioner’s arguments as to venue and the
alleged Brady violation that prevented state
review of the issues, and further, because all
of petitioner’s arguments are without merit.
For the reasons set forth below, the
Court concludes that all of petitioner’s
claims are without merit and that there is no
basis for habeas relief.

recusal and judicial disqualification do not meet
federal constitutional standards; and (2) the
procedural bars in C.P.L. § 440.10 should not be
applied. (Pet. at 13, 15.) As set forth infra, these
claims also fail on the merits.

adjournment, citing fear for his and his
client’s safety. (Id. at 55, 59.) The court
declined this request, but asked the court
officers to increase security. (Id. at 59-62.)

I. BACKGROUND
A. Underlying Facts
The following facts are adduced from
the instant petition and the record below.

Shortly after the court denied Liotti’s
request, one of the court officers noticed that
an audience member had a digital tape
recorder and had been recording. (Id. at 6364.) The court ordered that the tape be
erased. (Id. at 65-67.) Liotti objected to the
erasure and argued that it be confiscated and
examined by the court. (Id. at 64-67.) The
court denied this request. (Id. at 67.)

1. Pre-trial Hearings
On October 3, 2001, petitioner killed
Jawad Wassel (“Wassel”) with a pool cue in
Queens County; he was subsequently
arrested in Nassau County, where he was
found with the victim’s dismembered body.
(County Court Plea Minutes of June 4, 2003
(“Plea Tr.”) at 19.)

Although there is no record of a hearing
on March 10 or March 17, 2003, petitioner
alleges that there was an additional hearing.
(Pet’r’s Supplemental Br., Appellate
Division at 49-54; Pet. at 14.) According to
petitioner, at this hearing, the Nassau
County District Attorney admitted to
speaking with an FBI agent about the case
and that the District Attorney refused to turn
over the records or the name of the agent.
(Pet’r’s Supplemental Br., Appellate
Division at 49-50, Pet. at 14.)

Petitioner was indicted for two counts of
murder in the second degree (N.Y. Penal
Law § 125.25(1), (2)) and one count of
tampering with physical evidence (N.Y.
Penal Law § 215.40(2)). At the pre-trial
hearing on August 19, 2002, petitioner’s
attorney, Thomas F. Liotti (“Liotti”), stated
that he sent a letter to the Judicial Conduct
Commission concerning the conduct of the
presiding judge, Honorable Donald P.
DeRiggi, in a number of cases and asked the
judge to recuse himself. (County Court Hr’g
Mins. of Aug. 19, 2002 (“Aug 19, 2002
Tr.”) at 2-3.) The County Court denied the
request, noting that the objections were
without merit. (Id. at 3.)

2. Plea Agreement and Sentencing
On June 4, 2003, petitioner pled guilty to
one count of manslaughter in the first degree
in full satisfaction of the indictment. (Plea
Tr. at 23.) According to his plea allocution,
petitioner “killed Jawed Wassel on October
3, 2001 by striking him with a pool cue and
stabbing him, intending to cause his death
thereby.” (Id. at 19.) He was then arrested in
Nassau County, where he was found with
the victim’s body. (Id.) As demonstrated by
the following exchange between petitioner
and the court, petitioner waived his rights,
including the right to appeal:

Later in the hearing, Liotti alleged that
one of the members of the audience, Vita
Zaher (“Zaher”), verbally threatened to kill
petitioner during the recess. (Id. at 41.)
Liotti requested that the court remove Zaher
and, after a brief inquiry, the court did so.
(Id. at 42-53.) Liotti further asked the court
to remove other members of the audience
who were associated with Zaher or Wassel
and those that were part of the Afghan
community; the court denied this request.
(Id. at 53-56.) Liotti repeatedly requested an

THE COURT: You understand, sir,
that instead of pleading guilty you

2

have an absolute right to a jury trial
on these charges with the assistance
of counsel?

THE DEFENDANT: Yes.

THE DEFENDANT: Yes.

THE COURT:
And have you
discussed this with your lawyer and
do you understand it?

THE COURT: You understand that
if you choose to go to trial, which of
course, we are in the process of
doing, you would not have to take
the witness stand and testify unless
you decided to do so?

THE DEFENDANT: Yes.
THE COURT: You understand that
while you do have a right to appeal,
if you waive that right, that means
that no higher Court will review
what’s happening in this case, either
with respect to the sentence or any of
the steps which have led to your
conviction; do you understand?

THE DEFENDANT: Yes.
…
THE COURT: Do you understand
that by pleading guilty, you are
giving up these and other rights?

THE DEFENDANT: Yes.
…

THE DEFENDANT: Yes.
THE COURT: I find a knowing,
intelligent and voluntary waiver of
appellate rights. Mr. Powell, in
addition to waiving your right to
appeal, I want to make it clear to you
that while this case has transpired
there have been various defenses
presented to the Court, correct?

THE COURT: Do you understand
that a plea of guilty is the same as a
conviction after trial?
THE DEFENDANT: Yes.
THE COURT:
Has anybody
threatened you or in any way forced
you to plead guilty today?

THE DEFENDANT: Yes.
THE COURT:
The defense,
specifically, of justification and the
affirmative
defense
of
not
responsible by reason of defective or
diseased mind, correct?

THE DEFENDANT: No.
THE COURT: Are you doing so of
your own free will?
THE DEFENDANT: Yes.

THE DEFENDANT: Yes.
…
THE COURT: Insanity defense.
THE COURT: The district attorney
has asked that as a condition of this
plea you waive your right to appeal.
Did you hear that?

THE DEFENDANT: Yes.

3

THE COURT: So my question to
you, sir, and as we’ve discussed, and
you have to understand that you have
to specifically waive and withdraw
those defenses. Do you understand
what I’m saying?

you understand what I said?

THE DEFENDANT: I understand.
…

THE DEFENDANT:
understand, no.

THE COURT: . . . My sentence will
include the following: Restitution as
established, mandatory surcharge of
$200, a $10 Crime Victim Assistance
Fee, and I will sentence you to a
determinate
sentence
of
imprisonment of 20 years with a
five-year period of post-release
supervision. . . . Do you understand
everything I said?

THE COURT: I will repeat it. If,
between now and sentence date you
fail to cooperate with Probation or if
you give untruthful answers to the
questions asked of you by Probation,
or if you are validly arrested and
charged with a new crime, and
Probation is going to interview you;
do you understand?

THE DEFENDANT: You would
withdraw?
THE COURT: Excuse me?
I

don’t

THE DEFENDANT: Yes.
THE DEFENDANT: Yes.
THE COURT: And they are going to
ask you questions; do you
understand that?

(Id. at 12-17.) Furthermore, the County
Court and petitioner engaged in the
following colloquy, in which the County
Court conditioned the plea agreement on
petitioner being truthful with the Probation
Department:

THE DEFENDANT: Yes.
THE COURT: They are going to ask
you what happened on October 3rd
and October 4th; do you understand?

THE COURT: I am further advising
you, sir, that as a condition of this
plea of the following, that if between
now and sentence date you fail to
cooperate with Probation or if you
give untruthful answers to the
questions asked of you by Probation,
or if you are validly arrested and
charged with a new crime, any
commitment which I have given may
be withdrawn by me and I may
sentence you to the fullest extent of
the law, which is 25 years in jail, and
you will not be permitted to
withdraw your plea of guilty on
those grounds and - - withdrawn. Do

THE DEFENDANT: Yes.
THE COURT: And you just told me
under oath what happened, right?
THE DEFENDANT: Yes.
THE COURT: So if you tell them
something different, you will not be
telling them the truth, correct?
THE DEFENDANT: I understand,
yes.

4

stated that he did not commit a crime. (Presentencing Mins. of Aug. 4, 2003 (“Presentencing Tr.”) at 18.) Petitioner – again
through counsel – further stated that he
wanted to go to trial and that Judge
DeRiggi’s bias against petitioner’s attorney
and refusal to recuse himself induced
petitioner to enter the guilty plea. (Id. at 25,
28, 30.) Petitioner’s attorney also stated to
the County Court that he felt it was
imperative to accept the plea, even though
“[they] felt that [petitioner] had viable and
important defenses that [they] could raise
and [they] felt that this was a triable case
and one that [they] could possibly win.” (Id.
at 9.) On its own accord, the County Court
postponed the sentencing hearing in order to
determine whether petitioner had violated
the condition of the plea agreement that he
be truthful with the Probation Department.
(Id. at 31.)

THE COURT: So if that happens, or
you are validly arrested and charged
with a new crime, any commitment
that I have given may be withdrawn
by me and I may sentence you to
fullest extent under the law, which in
your case is 25 years in jail, and you
will not be permitted to withdraw
your plea of guilty on those grounds.
Do you understand?
THE DEFENDANT: Yes.
THE COURT: If you have any
questions, you know, ask your
lawyer, now is the time to do it. Do
you need any time to discuss
anything with him?
THE DEFENDANT: I just have one
question.

At the sentencing on August 18, 2003,
the County Court found, without a hearing,
that petitioner lied to the Probation
Department, violating the conditions of his
plea agreement. (Sentencing Mins. of Aug
18, 2003 (“Sentencing Tr.”) at 43-44.) The
County Court stated that “[t]he fact that
[petitioner] pled guilty to me and stated at
that time that he intended to kill the [victim]
in violation of the law and told probation
that it was a justified killing is the basis for
me considering giving him an enhanced
sentence.” (Id. at 4.) Consequently, the
County Court sentenced petitioner to an
enhanced term of twenty-five years. (Id. at
43-44.)

THE COURT: Go ahead. Counsel
and client are conferring.
(Whereupon the defendant and Mr.
Liotti confer.).
THE COURT: Okay, counsel and his
client have conferred.
Any
questions?
THE DEFENDANT: No.
THE COURT: Okay. Do you
understand
everything
that’s
happened here?
THE DEFENDANT: Yes.

It should also be noted that, according to
the sentencing transcript, petitioner’s
counsel had filed a lawsuit against Judge
DeRiggi that was served the day the parties
were picking a jury in petitioner’s case. (Id.
at 8.) Liotti again made a request for Judge
DeRiggi to recuse himself, which was

(Id. at 20-22.) The petitioner then pled
guilty and the County Court accepted the
plea. (Id. at 23.)
On August 4, 2003, at the pre-sentencing
hearing, the petitioner, through counsel,

5

2. Direct Appeals and Resentencing

denied. (Id. at 7-9.)

Petitioner applied to the Appellate
Division, Second Department (“Appellate
Division”) for leave to appeal the August 18,
2003 conviction on the following grounds:
(1) Judge DeRiggi should have recused
himself due to bias against petitioner’s
attorney; (2) Judge DeRiggi erred in denying
a hearing in his decision to enhance
petitioner’s sentence; (3) Judge DeRiggi
violated the terms of the plea agreement; (4)
Judge Deriggi erred in enhancing the
sentence based upon defendant’s alleged
inconsistent statements; and (5) venue in
Nassau County was improper. (Appellant’s
Br. at 8, 12, 16, 20, 24.) In petitioner’s pro
se supplemental brief, Powell restated his
initial claims and added that: (1) his plea
was not knowingly, intelligently, or
voluntarily entered; (2) New York’s venue
statute was unconstitutional; (3) New York’s
recusal statute was unconstitutional; (4)
there was a Brady violation; and (5) the
sentence was excessive. (Appellant’s
Supplemental Br., Appellate Division at 68.)

B. Procedural History
1. Post-Trial Motions
On October 3, 2003, petitioner’s
attorney filed a motion to vacate petitioner’s
conviction, pursuant to N.Y. C.P.L.
§ 440.10, on the grounds that the guilty plea
was not entered knowingly, intelligently, or
voluntarily and that the court breached the
sentencing agreement. The trial court denied
the motion on March 31, 2004, finding that
the claim was meritless. People v. Powell,
Motion Cal. C-455, Indictment No. 82N-02
(County Court, Nassau County March 31,
2004). Specifically, the Court ruled, inter
alia, that the plea was knowing, intelligent,
and voluntary, and that no judicial
misconduct had taken place. Id. Petitioner
did not seek leave to appeal.
On or about October 17, 2007, petitioner
filed a second motion to vacate his
conviction, pursuant to N.Y. C.P.L.
§ 440.10, on the grounds that his plea was
the result of undue psychological pressure
exerted by the County Court, that his
constitutional rights were violated pursuant
to Brady v. Maryland, 373 U.S. 83 (1963),
and that he should be allowed to introduce
polygraph evidence in his defense. The trial
court denied this second motion in its
entirety on March 13, 2008, finding that it
was procedurally barred by N.Y. C.P.L.
§ 440.10(3)(c). People v. Powell, Motion
Cal. C-682, Indictment No. 82N-02 (County
Court, Nassau County March 13, 2008).
The court explained that the petitioner could
not raise new grounds in a second Section
440.10 motion when they could have been
raised on appeal. Id. The court denied
petitioner’s request for leave to appeal on
July 24, 2008.

The
Appellate
Division
granted
petitioner leave to appeal, and on October 7,
2008, it modified the judgment. People v.
Powell, 55 A.D.3d 632 (2d Dept. 2008). The
Appellate Division found that the County
Court’s inquiry was insufficient for it to
have concluded that petitioner breached the
condition of the plea agreement, the latter of
which required him to be truthful with the
probation department. Id. at 634.
Accordingly, the Second Department
vacated the sentence and remanded the case
to the County Court for a hearing and
determination as to whether petitioner had,
in fact, violated the condition of his plea
agreement. Id. at 634-35. Regarding
petitioner’s recusal challenge, the Second
Department found that the judge’s refusal to

6

recuse himself was not improper. Id. at 633.
It further found that the waiver of
petitioner’s right to appeal was valid and
precluded
petitioner’s
challenge
to
jurisdiction in Nassau County, the
admissibility of polygraph evidence, and the
constitutionality of New York’s venue and
recusal statutes. Id. at 635. It also found all
of petitioner’s other arguments to be
meritless. Id.

On October 30, 2008, petitioner applied
to the Court of Appeals pro se for leave to
appeal the Appellate Division’s October 7,
2008 decision. The Court of Appeals denied
petitioner leave to appeal on January 23,
2009. People v. Powell, 874 N.Y.S.2d 14
(N.Y. 2009).
3. Instant Petition
On April 19, 2010, pro se petitioner filed
the instant habeas petition. Respondent filed
his response on June 8, 2010. Petitioner filed
a reply on June 28, 2010. The Court has
fully considered the submissions and
arguments of the parties.

On November 19, 2008, petitioner, his
counsel, and the prosecutor all agreed that
petitioner should be sentenced to the term of
imprisonment originally promised under the
plea agreement, and the County Court
reinstated the original sentence of twenty
years. (Resentencing Mins. of Nov. 19, 2008
(“Resentencing Tr.”) at 10.) Accordingly,
because the originally agreed upon term of
twenty years’ imprisonment was imposed,
the need for a hearing to determine whether
petitioner had violated the condition of his
plea agreement was obviated. (Id. at 5.) 2

II. STANDARD OF REVIEW
To determine whether petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standards of review
provided in 28 U.S.C. § 2254, as amended
by AEDPA, which provides in relevant part:

(d) An application for a writ of
habeas corpus on behalf of a person
in custody pursuant to the judgment
of a State court shall not be granted
with respect to any claim that was
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim –

According to respondent, after the resentencing
petitioner filed a notice of appeal to the Appellate
Division. (Resp’t’s Mem. of L. at 9, n.1.)
Respondent states that on or about May 7, 2010,
petitioner’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). (Id.) According to
respondent, as of about June 8, 2010, petitioner had
not filed a supplemental brief. (Id.) Petitioner does
not make any reference to this appeal in his petition,
and the Court was not provided with the brief
referenced by respondent. However, since that time,
the Court, in its own independent research, has
discovered that on November 23, 2010, the Second
Department affirmed the County Court’s decision
resentencing petitioner and stated that upon a review
of the record, it “agree[d] with the defendant's
assigned counsel that there are no nonfrivolous issues
which could be raised on appeal.” People v. Powell,
78 A.D.3d 1080 (2d Dept. 2010.) The Second
Department further stated that “[t]he defendant has
not, nor could he have, raised any nonfrivolous issues
in his supplemental pro se brief.” Id. It is unclear
whether or not petitioner sought leave to appeal the
Second Department’s decision to the Court of
Appeals.
2

(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

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)) (alteration in original).

required, and conclusions of law and mixed
findings of fact and conclusions of law are
reviewed de novo.’” Dolphy v. Mantello,
552 F.3d 236, 238 (2d Cir. 2009) (quoting
Spears v. Greiner, 459 F.3d 200, 203 (2d
Cir. 2006)).

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.

Petitioner argues that he is entitled to
habeas relief on four grounds: (1) Judge
DeRiggi should have recused himself
because he was biased against petitioner’s
attorney; (2) petitioner’s plea was not
knowing, intelligent, or voluntary; (3) venue
in Nassau County was improper; and (4) the
prosecution withheld Brady evidence.3

III. DISCUSSION

Respondent
first
contends
that
petitioner’s arguments concerning venue and
the alleged Brady violation are barred by an
adequate and independent state procedural
ground that prevented state review of the
issues. Further, respondent contends that all
of petitioner’s remaining claims are without
merit. For the reasons set forth below, the
Court agrees that the claims regarding venue
and Brady are procedurally barred. In an
abundance of caution, however, the Court
has analyzed the merits of all of petitioner’s
claims and concludes that they are without
merit.

AEDPA establishes a deferential
standard of review: “‘a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also be unreasonable.’” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). The Second
Circuit added that, while “‘[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. at 93 (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir. 2000)) (alteration in original). Finally,
“if the federal claim was not adjudicated on
the merits, ‘AEDPA deference is not

A. Effect of Petitioner’s Guilty Plea
Given petitioner’s guilty plea to the
charge of manslaughter in the first degree
(which the Court finds, for reasons
discussed infra, to be knowingly,
intelligently, and voluntarily entered), any

3

As stated supra, petitioner also raises two additional
grounds: (1) New York State’s statutes and practices
regarding recusal and judicial disqualification do not
meet federal constitutional standards; and (2) the
procedural bars in C.P.L. § 440.10 should not be
applied here. (Pet. at 13, 15.)

8

defect in the state court proceedings cannot
serve as grounds for habeas relief. See
Whitehead v. Senkowski, 943 F.2d 230, 233
(2d Cir. 1991) (“Generally a knowing and
voluntary guilty plea precludes federal
habeas corpus review of claims relating to
constitutional rights at issue prior to the
entry of the plea.”).

independent basis for its disposition of the
case,” Harris v. Reed, 489 U.S. 255, 261-62
(1989) (quoting Caldwell v. Mississippi, 472
U.S. 320, 327 (1985)) (internal quotation
mark omitted), by “‘clearly and expressly’
stat[ing] that its judgment rests on a state
procedural bar,” id. at 263 (quoting
Caldwell, 472 U.S. at 327). The procedural
rule at issue is adequate if it is “‘firmly
established and regularly followed’ by the
state in question.” Garcia v. Lewis, 188 F.3d
71, 77 (2d Cir. 1999) (quoting Ford v.
Georgia, 498 U.S. 411, 423-24 (1991)).
However, there is a “small category,” Lee v.
Kemna, 534 U.S. 362, 381 (2002), of
“exceptional cases in which [an] exorbitant
application
of
a
generally
sound
[procedural] rule renders the state ground
inadequate to stop consideration of a federal
question,” id. at 376. Nevertheless,
“principles of comity . . . counsel that a
federal court that deems a state procedural
rule inadequate should not reach that
conclusion ‘lightly or without clear support
in state law.’” Garcia, 188 F.3d at 77
(quoting Meadows v. Holland, 831 F.2d 493,
497 (4th Cir. 1987) (en banc)).

In sum, all of petitioner’s claims, with
the exception of his challenge to the validity
of his guilty plea (which the Court
concludes, as discussed infra, was voluntary,
knowing, and intelligent), and possibly his
Brady claim,4 are precluded from review
because of petitioner’s guilty plea. See
Crispino v. Allard, 378 F. Supp. 2d 393, 414
(S.D.N.Y. 2005) (“[I]f [petitioner] entered a
voluntary, knowing, and intelligent guilty
plea, any and all non-jurisdictional defects
raised in the indictment are waived.”).
However, even if petitioner’s claims
were not precluded by his guilty plea, his
claims for improper venue, recusal, and
Brady violations would still be procedurally
barred for the following reasons.

If a claim is procedurally barred, a
federal habeas court may not review the
claim on the merits unless the petitioner can
demonstrate both cause for the default and
prejudice resulting therefrom, or if he can
demonstrate that the failure to consider the
claim will result in a miscarriage of justice.
See Coleman, 501 U.S. at 750. Petitioner
may demonstrate cause by showing one of
the following: “(1) the factual or legal basis
for a petitioner's claim was not reasonably
available to counsel, (2) some interference
by state officials made compliance with the
procedural rule impracticable, or (3) the
procedural default was the result of
ineffective assistance of counsel.” McLeod
v. Graham, No. 10 Civ. 3778 (BMC), 2010
WL 5125317, at *3 (E.D.N.Y. Dec. 9, 2010)

B. Procedural Bar
1. Legal Standard
A petitioner’s federal claims may be
procedurally barred from habeas corpus
review if they were decided at the state level
on “independent and adequate” state
procedural grounds. Coleman v. Thompson,
501 U.S. 722, 729-33 (1991). To be
independent, the “state court must actually
have relied on the procedural bar as an

4 Courts

disagree on whether a Brady claim survives
a valid guilty plea. See, e.g., Hill v. West, 599 F.
Supp. 2d 371, 388 n.3 (W.D.N.Y. 2009) (collecting
cases). However, the Court need not decide this issue
because his Brady claim fails in any event, both
procedurally and on the merits, for the reasons
discussed infra.

9

claim will result in a miscarriage of justice.
Id. at 749-50.

(citing Bossett v. Walker, 41 F.3d 825, 829
(2d Cir. 1994)). Prejudice can be
demonstrated by showing that the error
“‘worked to his actual and substantial
disadvantage, infecting his entire trial with
error of constitutional dimensions.’” Torres
v. Senkowski, 316 F.3d 147, 152 (2d Cir.
2003). A miscarriage of justice is
demonstrated in extraordinary cases, such as
where a constitutional violation results in the
conviction of an individual who is actually
innocent. Murray v. Carrier, 477 U.S. 478,
496 (1986). To overcome procedural default
based on a miscarriage of justice, petitioner
must demonstrate that “in light of new
evidence, ‘it is more likely than not that no
reasonable juror would have found
petitioner guilty beyond a reasonable
doubt.’” House v. Bell, 547 U.S. 518, 537
(2006) (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)).

Further, petitioner’s Brady claim was
also found to be procedurally barred by the
County Court. People v. Powell, Motion
Cal. C-682, Indictment No. 82N-02. In his
motion to vacate the judgment, petitioner
asserted that his plea was coerced and that
his constitutional rights were violated under
Brady. The County Court stated that all of
“the grounds that the defendant now asserts
as the basis for vacatur of his judgment are
procedurally barred pursuant to C.P.L.
§440.10(3)(c), and People v. Skinner, 154
AD2d 216, 221.” Id. Consequently,
petitioner’s Brady claim is also procedurally
barred by an independent and adequate state
procedural ground.
Petitioner cannot
overcome this default because he has not
shown cause, prejudice, or a fundamental
miscarriage of justice.5

2. Application

On direct appeal, the Appellate Division
held that petitioner’s waiver of appellate
review when he pled guilty precluded
review of geographical venue and the
constitutionality of New York’s venue and
recusal statutes. People v. Powell, 55
A.D.3d at 635.
Therefore, because
petitioner’s claim of improper venue was
procedurally barred by an independent and
adequate state procedural ground, it is
procedurally barred from review for habeas
relief. See Coleman, 501 U.S. at 731-32
("Just as in those cases in which a state
prisoner fails to exhaust state remedies, a
habeas petitioner who has failed to meet the
State's
procedural
requirements
for
presenting his federal claims has deprived
the state courts of an opportunity to address
those claims in the first instance.").
Moreover, petitioner has not demonstrated
cause for his default, prejudice resulting
therefrom, or that a failure to consider his

5 To the extent petitioner indirectly questions the
legal validity of Section 440.10, the Court rejects any
such challenge. The Appellate Division’s reliance on
the procedural bars were not exorbitant in this case.
The Supreme Court concluded that in a limited
category of “exceptional cases,” the state appellate
court has applied a firmly established and regularly
followed procedural ground in an “exorbitant”
manner, so that the application of the ground was
inadequate, and federal courts were therefore not
barred from reviewing such a claim on the merits in a
habeas appeal. Lee, 534 U.S. at 376, 381. The Court
has considered the factors set forth in Cotto v.
Herbert, 331 F.3d 217, 240 (2d Cir. 2003), in
connection with this exception. That is,

(1) whether the alleged procedural violation
was actually relied on in the trial court, and
whether perfect compliance with the state
rule would have changed the trial court’s
decision; (2) whether state [case law]
indicated that compliance with the rule was
demanded in the specific circumstances
presented; and (3) whether petitioner had
substantially complied with the rule given
the realities of trial; and, therefore, whether
demanding perfect compliance with the rule

10

However, in an abundance of caution,
the Court has analyzed the merits of all of
petitioner’s claims. It concludes that none of
the claims provide a basis for granting
habeas relief in this case.

of N.Y., 712 F.2d 1566, 1570 (2d Cir. 1983),
“a federal [habeas] court will not lightly
intervene when such a claim is asserted.”
Gayle v. Scully, 779 F.2d 802, 806 (2d Cir.
1985). The “trial judge's intervention in the
conduct of a criminal trial would have to
reach a significant extent and be adverse to
the defendant to a substantial degree before
the risk of either impaired functioning of the
jury or lack of the appearance of a neutral
judge conducting a fair trial exceeded
constitutional limits.” Daye, 712 F.2d at
1572. When making such an assessment,
both the quantity and significance of the
statements ought to be weighed. Id.
(referring to the “quantity and nature of a
trial judge's questioning”).

C. Review on the Merits
The Court has considered all of
petitioner’s claims on the merits. For the
reasons set forth below, the Court concludes
that petitioner has failed to demonstrate any
basis for habeas relief.
1. Judge DeRiggi’s Alleged Bias and Failure
to Recuse Himself
Petitioner argues that Judge DeRiggi
was biased against petitioner and that his
conduct deprived petitioner of his
constitutional rights to due process and a fair
trial. The Court has reviewed this claim in
its entirety and finds it to be meritless.

The Second Circuit has acknowledged
that the standard for determining when
exactly a state judge engages in
impermissible intervention is “‘somewhat
ill-defined.’” Gayle, 779 F.2d at 806
(quoting Johnson v. Scully, 727 F.2d 222,
226 (2d Cir. 1984)). However, case law
addressing review of judicial intervention
claims in federal criminal trials provides
useful guidance here. In reviewing a federal
judge's conduct, the Second Circuit has
made clear that the judge's behavior must be
“so prejudicial that it denied . . . [petitioner]
a fair, as distinguished from a perfect, trial.”
United States v. Robinson, 635 F.2d 981,
984 (2d Cir. 1980). The issue is not one of
“whether the trial judge's conduct left
something to be desired, or even whether
some comments would have been better left
unsaid.” United States v. Pisani, 773 F.2d
397, 402 (2d Cir. 1985). “The test is whether
the jury was so impressed with the judge's
partiality to the prosecution that it became a
factor in determining the defendant's
guilt, . . . or whether ‘it appear[ed] clear to
the jury that the court believe[d] the accused
is guilty.’” United States v. Amiel, 95 F.3d
135, 146 (2d Cir. 1996) (quoting United

Under federal habeas review, a petitioner
faces a high hurdle in demonstrating that he
was constitutionally deprived of a fair trial
because of biased treatment by a state trial
judge. Although “prejudicial intervention by
a trial judge could so fundamentally impair
the fairness of a criminal trial as to violate
the Due Process Clause,” Daye v. Att’y Gen.

would serve a legitimate governmental
interest.
Id. (internal quotation marks omitted). The Court
concludes that the Appellate Division did not apply
the procedural bar in an exorbitant manner. In short,
there is no constitutional infirmity with respect to
Section 440.10, and no factual or legal basis to
prevent its application in this case. See, e.g., Bryant v.
Lempke, No. 08-cv-6103 (CJS)(VEB), 2009 WL
3188934, at *1 (W.D.N.Y. Sept. 30, 2009) (“To the
extent that Bryant claims, in his C.P.L. § 440.10
motion and coram nobis application, that C.P.L.
§§ 440.10(2)(a), 440.10(2)(c), and 440.30 are
unconstitutional, the Court denies leave to include
these claims as amendment would be futile.”).

11

Bar of Ariz., 686 F.2d 692, 701 (9th Cir.
1982) (“A judge is not disqualified merely
because a litigant sues or threatens to sue
him. Such an easy method for obtaining
disqualification should not be encouraged or
allowed.” (internal citations and quotation
marks omitted)). The court’s observation in
Ronwin is particularly applicable here,
where Mr. Liotti’s lawsuit was filed on the
day of jury selection for petitioner’s case.
(Sentencing Tr. at 8.)

States v. Nazzaro, 472 F.2d 302, 303 (2d
Cir. 1973)) (alterations in original).
The Second Department and the Nassau
County Court have already decided this
issue on the merits and determined that there
was no support for a claim of judicial
misconduct. See People v. Powell, 55
A.D.3d at 633; People v. Powell, Motion
Cal. C-455, Indictment No. 82N-02 (County
Court, Nassau County Mar. 31, 2004).
Therefore, AEDPA deference applies. Stated
differently, this Court must defer to the state
court’s decision unless it “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
it “resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).

Even if Judge DeRiggi were biased
against petitioner’s attorney, this would be
insufficient for purposes of establishing
judicial bias. Even under federal law,
“courts have consistently held that to require
recusal, judicial bias must be against a party,
not the party’s counsel.” United States v.
Helmsley, 760 F. Supp. 338, 344 (S.D.N.Y.
1991), aff’d, 963 F.2d 1522 (2d Cir. 1992).
Petitioner further claims that “where the
animosity [between the judge and the
attorney] is so virulent that this bias extends
to the party itself, causing direct judicial
harm, then this conduct . . . merits corrective
action by a [f]ederal [c]ourt.” (Pet. at 6.)
The record indicates that Judge DeRiggi’s
conduct and behavior was in fact
professional and appropriate. Petitioner
points to various rulings throughout the
hearing as evidence of harm, including the
judge’s refusal to adjourn after an alleged
death threat, refusal to recuse himself, and
refusal to eject audience members because
of their alleged Afghani descent. (Pet. at 79.) However, unfavorable rulings against a
party cannot themselves form a “[v]alid
basis for a bias or partiality motion.” Liteky
v. United States, 510 U.S. 540, 555 (1994).
Further, as mentioned supra, the judge took
Liotti’s claims of a death threat as credible,
removed the individual who allegedly made
the death threat, and agreed to increase
security. (Pre-sentencing Tr. at 41-62.)

Petitioner asserts that Judge DeRiggi’s
prior relationship with Liotti indicates a bias
against petitioner, the latter of which
violates petitioner’s due process rights.
Petitioner points to pending litigation
between Judge DeRiggi and Liotti as
evidence of bias against Liotti. However,
that litigation was unrelated to petitioner’s
matter. (See Resp’t’s Mem. of L. at 12-13,
n.2.) This Court agrees with the numerous
other courts that have concluded that there is
no federal law that requires automatic
recusal when there is pending litigation
between the presiding judge and a party
because such a rule would allow a pending
litigant to “judge shop” simply by filing a
lawsuit against the presiding judge. See In re
Bush, 232 Fed. App’x 852, 854 (11th Cir.
2007) (“A judge is not disqualified merely
because a litigant sues or threatens to sue
him.” (quoting United States v. Grismore,
564 F.2d 929, 933 (10th Cir. 1977)) (internal
quotation marks omitted); Ronwin v. State

12

389, 400 (1993). Normally, a guilty plea
may not be collaterally attacked because it
constitutes an admission as to all elements
of the charged crime. Salas v. United States,
139 F.3d 322, 324 (2d Cir. 1998). However,
a defendant may challenge a guilty plea on
the ground that it was not made knowingly
and voluntarily. United States v. Simmons,
164 F.3d 76, 79 (2d Cir. 1998). A conviction
that is based upon an involuntary plea of
guilty is inconsistent with due process of
law and is subject to collateral attack by
federal habeas corpus. McMann v.
Richardson, 397 U.S. 759, 772 (1970).

In sum, petitioner has failed to
demonstrate any judicial misconduct or bias
by Judge DeRiggi.6 As a result, this Court
finds that the judicial misconduct claim is
meritless. Habeas relief on this ground is
accordingly denied.
2. Validity of Plea
Petitioner argues that his guilty plea was
not entered knowingly, intelligently, or
voluntarily. Having reviewed this claim in
its entirety, the Court finds that it is without
merit.

The Court rejects petitioner’s argument
that his guilty plea was not knowing,
voluntary, and intelligent. To begin with, the
Appellate Division found petitioner’s
argument that his plea was not knowing,
voluntary, and intelligent to be meritless.
Powell, 55 A.D.3d at 635. In addition, in its
denial of petitioner’s first section 440.10
motion, the County Court found that “the
defendant entered his plea freely, voluntarily
and intelligently and his claim that such plea
should be vacated is without merit.” People
v. Powell, Motion Cal. C-455, Indictment
No. 82N-02, at 3. Therefore, AEDPA
deference applies.

The well-established standard for
determining the validity of a guilty plea is
“‘whether the plea represents a voluntary
and intelligent choice among the alternative
courses of action open to the defendant.’”
Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting North Carolina v. Alford, 400 U.S.
25, 31 (1970)). The Supreme Court has held
that, under the Due Process Clause, a trial
court can only accept a guilty plea which is
“done
voluntarily,
knowingly,
and
intelligently, ‘with sufficient awareness of
the relevant circumstances and likely
consequences.’” United States v. Adams,
448 F.3d 492, 497 (2d Cir. 2006) (quoting
Bradshaw v. Stumpf, 545 U.S. 175, 183
(2005)); accord Godinez v. Moran, 509 U.S.

Here, petitioner essentially argues that
his guilty plea was involuntary because he
was afraid that, due to Judge DeRiggi’s
alleged bias, he would be unable to obtain a
fair trial. However, before petitioner entered
his guilty plea, the following exchange took
place in which petitioner stated that he was
not being forced to plead guilty, and he
acknowledged that he was waiving his right
to a jury trial, right to testify, right to appeal,
and various defenses to the crime:

6

To the extent petitioner also claims that Section 14
of the New York Judiciary Law is unconstitutional,
that argument is patently without merit. As the
Supreme Court has explained, “most questions
concerning a judge’s qualifications to hear a case are
not constitutional ones, because the Due Process
Clause of the Fourteenth Amendment establishes a
constitutional floor, not a uniform standard. Instead,
these questions are, in most cases, answered by
common law, statute, or the professional standards of
the bench and bar.” Bracy v. Gramley, 520 U.S. 899,
904 (1997) (internal citations omitted). Here,
petitioner has failed to point to any constitutional
defect in the recusal provisions of New York
Judiciary Law.

THE COURT: You understand, sir,
that instead of pleading guilty you
have an absolute right to a jury trial

13

on these charges with the assistance
of counsel?

THE DEFENDANT: Yes.

THE DEFENDANT: Yes.

THE COURT:
And have you
discussed this with your lawyer and
do you understand it?

THE COURT: You understand that
if you choose to go to trial, which of
course, we are in the process of
doing, you would not have to take
the witness stand and testify unless
you decided to do so?

THE DEFENDANT: Yes.
THE COURT: You understand that
while you do have a right to appeal,
if you waive that right, that means
that no higher Court will review
what’s happening in this case, either
with respect to the sentence or any of
the steps which have led to your
conviction; do you understand?

THE DEFENDANT: Yes.
…
THE COURT: Do you understand
that by pleading guilty, you are
giving up these and other rights?

THE DEFENDANT: Yes.
…

THE DEFENDANT: Yes.
THE COURT: I find a knowing,
intelligent and voluntary waiver of
appellate rights. Mr. Powell, in
addition to waiving your right to
appeal, I want to make it clear to you
that while this case has transpired
there have been various defenses
presented to the Court, correct?

THE COURT: Do you understand
that a plea of guilty is the same as a
conviction after trial?
THE DEFENDANT: Yes.
THE COURT:
Has anybody
threatened you or in any way forced
you to plead guilty today?

THE DEFENDANT: Yes.
THE COURT:
The defense,
specifically, of justification and the
affirmative
defense
of
not
responsible by reason of defective or
diseased mind, Correct?

THE DEFENDANT: No.
THE COURT: Are you doing so of
your own free will?
THE DEFENDANT: Yes.

THE DEFENDANT: Yes.
…
THE COURT: Insanity defense.
THE COURT: The district attorney
has asked that as a condition of this
plea you waive your right to appeal.
Did you hear that?

THE DEFENDANT: Yes.
THE COURT: So my question to
you, sir, and as we’ve discussed, and

14

withdraw?

you have to understand that you have
to specifically waive and withdraw
those defenses. Do you understand
what I’m saying?

THE COURT: Excuse me?
THE DEFENDANT:
understand, no.

THE DEFENDANT: I understand.

I

don’t

(Id. at 12-16.) Petitioner then explained that
he “killed Jawed Wassel on October 3, 2001
by striking him with a pool cue and stabbing
him, intending to causes his death thereby.”
(Id. at 19.) The County Court found that
petitioner understood the nature and
consequences of the plea and that he was
accepting the plea voluntarily. (Id. at 22-23.)
Accordingly, based on the record, it is clear
that petitioner’s plea was entered knowingly,
voluntarily, and intelligently.

THE COURT: I will repeat it. If,
between now and sentence date you
fail to cooperate with Probation or if
you give untruthful answers to the
questions asked of you by Probation,
or if you are validly arrested and
charged with a new crime, and
Probation is going to interview you;
do you understand?

Petitioner further argues that he never
agreed to the condition that petitioner
cooperate with and be truthful to the
Probation Department. At the hearing on
June 4, 2003, the following exchange took
place between petitioner and the County
Court:

THE COURT: And they are going to
ask you questions; do you
understand that?

THE DEFENDANT: Yes.

THE DEFENDANT: Yes.
THE COURT: They are going to ask
you what happened on October 3rd
and October 4th; do you understand?

THE COURT: I am further advising
you, sir, that as a condition of this
plea of the following, that if between
now and sentence date you fail to
cooperate with Probation or if you
give untruthful answers to the
questions asked of you by Probation,
or if you are validly arrested and
charged with a new crime, any
commitment which I have given may
be withdrawn by me and I may
sentence you to the fullest extent of
the law, which is 25 years in jail, and
you will not be permitted to
withdraw your plea of guilty on
those grounds and - - withdrawn. Do
you understand what I said?

THE DEFENDANT: Yes.
THE COURT: And you just told me
under oath what happened, right?
THE DEFENDANT: Yes.
THE COURT: So if you tell them
something different, you will not be
telling them the truth, correct?
THE DEFENDANT: I understand,
yes.
THE COURT: So if that happens, or
you are validly arrested and charged
with a new crime, any commitment

THE DEFENDANT: You would

15

In short, the Court concludes that
petitioner has not demonstrated that the state
court’s decision as to the validity of his
guilty plea was contrary to, or an
unreasonable application of, clearly
established federal law, nor has petitioner
demonstrated that the decisions were an
unreasonable determination of the facts in
light of the evidence presented in the state
court proceedings – namely, petitioner’s
extensive plea colloquy with the court. Thus,
the Court rejects petitioner’s claim that his
guilty plea was not knowing, voluntary, and
intelligent.

that I have given may be withdrawn
by me and I may sentence you to
fullest extent under the law, which in
your case is 25 years in jail, and you
will not be permitted to withdraw
your plea of guilty on those grounds.
Do you understand?
THE DEFENDANT: Yes.
THE COURT: If you have any
questions, you know, ask your
lawyer, now is the time to do it. Do
you need any time to discuss
anything with him?

3. Improper Venue
THE DEFENDANT: I just have one
question.

Petitioner argues that the geographical
jurisdiction of Nassau County, as opposed to
Queens County, pursuant to C.P.L.
§ 20.40(2)(b) is unconstitutional and violates
his equal protection rights. The Court
concludes that this claim does not provide a
basis for habeas relief.

THE COURT: Go ahead. Counsel
and client are conferring.
(Whereupon the defendant and Mr.
Liotti confer.).

As a threshold matter, improper venue is
not a valid claim for habeas relief because
“[t]he application - or misapplication - of
state subject matter jurisdiction rules raises
no constitutional issues, due process or
otherwise.” United States v. Kerley, 416
F.3d 176, 182 (2d Cir. 2005). Where there is
no constitutional issue, there is no basis for
federal habeas relief. See United States ex
rel. Roche v. Scully, 739 F.2d 739, 741 (2d
Cir. 1984).

THE COURT: Okay, counsel and his
client have conferred.
Any
questions?
THE DEFENDANT: No.
THE COURT: Okay. Do you
understand
everything
that’s
happened here?
THE DEFENDANT: Yes.

Here, the statute provides, in relevant
part, that a homicide may be prosecuted in
any county in which “the victim’s body or a
part thereof was found,” even if the
homicide did not occur in that county. N.Y.
C.P.L. § 20.40(2)(b). There is nothing in
such a provision that violates federal
constitutional law. At his guilty plea,
petitioner stated that he was arrested in

(Id. at 20-22.)
Accordingly, after an
examination of the record, this Court finds
that the County Court went through a
detailed explanation of the requirement that
petitioner be truthful with the Probation
Department. Furthermore, petitioner stated
that he understood this condition and the
consequences of violating it.

16

different verdict.” Strickler, 527 U.S. at 281.

Nassau County with the body of the victim.
(Plea Tr. at 19.) Accordingly, venue was
proper in Nassau County.

With respect to a plea agreement, “the
Constitution does not require the prosecutor
to share all useful information with the
defendant” prior to the entry of the plea.
Ruiz, 536 U.S. at 629 (citing Weatherford v.
Bursey, 429 U.S. 545, 559 (1977)). The
Supreme Court held that “due process
considerations, the very considerations that
led this Court to find trial-related rights to
exculpatory and impeachment information
in Brady and Giglio [v. United States, 405
U.S. 150 (1972)], argue against the
existence of” any requirement to disclose
impeachment evidence prior to the entry of a
plea agreement. Id. at 631.

In sum, petitioner has not shown that
habeas relief is warranted based on improper
venue.
4. Non-Disclosure of Brady Material
Petitioner argues that the prosecution’s
alleged failure to disclose the name of an
FBI agent and a related investigation
constitutes a Brady violation. On careful
consideration, the Court disagrees.
Under Brady, “the suppression by the
prosecution of evidence favorable to an
accused upon request violates due process
where the evidence is material either to guilt
or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373
U.S. at 87. In order to prevail on a Brady
claim, petitioner must demonstrate that
material evidence favorable to his case was
not disclosed to him. See Kyles v. Whitley,
514 U.S. 419, 438 (1995) (“[T]he
prosecution's responsibility for failing to
disclose known, favorable evidence rising to
a material level of importance is
inescapable.”). “Such evidence is material
‘if there is a reasonable probability that, had
the evidence been disclosed to the defense,
the result of the proceeding would have been
different.’” Strickler v. Greene, 527 U.S.
263, 280 (1999) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). Failure
to disclose such material evidence merits
relief only if the prosecution's failure
“‘undermines confidence in the outcome of
the trial.’” Kyles, 514 U.S. at 434 (quoting
Bagley, 473 U.S. at 678). Furthermore,
“there is never a real ‘Brady violation’
unless the nondisclosure was so serious that
there is a reasonable probability that the
suppressed evidence would have produced a

Finally, where the prosecution does not
have control over, possession of, or
relationship to any of the records, the failure
to produce the records does not constitute a
Brady violation. See People v. Santorelli,
95 N.Y.2d 412, 422 (2000); see also
Morgan v. Salamack, 735 F.2d 354, 358 (2d
Cir. 1984) (“‘Clearly the government cannot
be required to produce that which it does not
control and it never possessed or
inspected.’” (quoting United States v.
Canniff, 521 F.2d 565, 573 (2d Cir. 1975))).
Petitioner would have to show that the
prosecution possessed FBI records and that
the production of those records would have
changed the outcome of the trial. Here,
petitioner has failed to establish either of
these facts. First, petitioner acknowledges
that records of any FBI investigation were
not in the prosecution’s control. (Pet’r’s
Supplemental Br., Appellate Division at 52.)
Thus, no Brady violation exists. See, e.g.,
Bell
v.
Napoli,
No.
08
Civ.
9900(PGG)(MHD), 2010 WL 8039333, at
*22 (S.D.N.Y. Aug. 24, 2010) (“Petitioner
has also failed to establish the second
element of the Strickler test for Brady

17

violations, because he has not shown that
either the police or the prosecution had a
copy of the surveillance footage in their
possession.”).

In sum, because petitioner is unable to
identify Brady material or show that a Brady
violation occurred, the Court finds no
ground for granting habeas relief.

Further, there is no evidence that any
alleged communications between the Nassau
County District Attorney’s Office and the
FBI agent were exculpatory or otherwise
constituted Brady material. In other words,
assuming that this information did in fact
exist, petitioner has not demonstrated that
this information was material to either guilt
or punishment. The alleged information
apparently relates to whether the victim
concealed something that motivated alleged
death threats targeting the petitioner. (Pet’r’s
Reply at 9). This information is not
exculpatory in any sense, as there is no
indication that it related to his factual guilt.
In short, there is no evidence that any Brady
material existed.

IV. CONCLUSION
For the foregoing reasons, petitioner has
demonstrated no basis for relief under 28
U.S.C. § 2254. Petitioner has failed to point
to any state court ruling that was contrary to,
or an unreasonable application of, clearly
established federal law, or that 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. The Court has reviewed all of
petitioner's claims and finds them to be
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 the case.

Even if the Court accepts the alleged
exculpatory nature of this information, it
still would not provide a basis for habeas
relief here. With respect to a guilty plea, the
prosecution is not required to disclose
impeachment material prior to the entry of
the plea. Ruiz, 536 U.S. at 633. Moreover,
the Supreme Court has never held that
exculpatory material (as opposed to
impeachment material) must be disclosed
prior to a guilty plea. Therefore, a state court
decision on that issue could not have been
“contrary to clearly established federal law,
as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). A
habeas petition may not be granted on an
issue of law that has not yet been resolved.
See Friedman v. Rehal, 618 F.3d 142, 15455 (2d Cir. 2010) (discussing Ruiz and
holding that, because no clearly established
federal law has been established as to the
application of Brady to a guilty plea, such a
claim was not cognizable on habeas review).

SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge

Dated: January 3, 2013
Central Islip, New York
***
Petitioner is proceeding pro se. Respondent
is represented by Judith R. Sternberg,
Assistant District Attorney, Nassau County
District Attorney’s Office, 262 Old Country
Road, Mineola, NY 11501.

18