Hernandez v. Lee

Filing 30

MEMORANDUM AND OPINION. For the reasons set forth herein, 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. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/11/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-4667 (JFB)

_____________________

JOSE HERNANDEZ,
Petitioner,
VERSUS

WILLIAM LEE,
Respondent.
___________________
MEMORANDUM AND ORDER
April 11, 2014
__________________

JOSEPH F. BIANCO, District Judge:

the jury was not instructed that it could draw
an adverse inference from the prosecution’s
failure to call most of the material witnesses
to the crime.

Jose
Hernandez
(hereinafter
“Hernandez” or “petitioner”) petitions this
Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging his conviction
in the Supreme Court of the State of New
York, County of Nassau (the “trial court”),
for murder in the second degree (N.Y Penal
Law § 125.25(1)) and gang assault in the
first degree (N.Y. Penal Law § 120.07).
Petitioner was sentenced to a term of
imprisonment of twenty-five years to life.

For the reasons set forth below, the
Court concludes that petitioner’s claims of
prosecutorial misconduct and failure to give
a missing witness charge are procedurally
barred. In any event, the Court has examined
all of the petitioner’s claims on the merits
and determines that there is no basis for
habeas relief.

Petitioner challenges his conviction on
the following grounds: (1) the prosecution
failed to establish his identity as the stabber
beyond a reasonable doubt; (2) the evidence
was insufficient to support a finding of guilt
beyond a reasonable doubt; (3) he was
denied the effective assistance of counsel;
(4) he was deprived of his right to a fair trial
by the comments of the prosecutor; and (5)
he was denied his right to a fair trial because

I. BACKGROUND
A. Facts
The following facts were adduced from
the petition and documents attached thereto,
as well as from the state court trial and
appellate record.

1

On November 16, 2005, Christian Pagan
(“Pagan”) was stabbed in the chest and groin
at 416 Clinton Street in Hempstead, New
York, which was the location of the Laundry
Palace. (Tr.1 at 654, 668.) Pagan was a
twenty-three year old member of the gang
Salvadorans With Pride (“SWP”), and the
Laundry Palace was a known SWP hangout.
(Id. at 601, 629.)

there were no identifiable fingerprints on the
black plastic bag. (Id. at 565.) Four latent
fingerprints were lifted from some of the
other recovered items, but none matched
petitioner’s or Yoni Martinez’s (“Martinez”)
prints.2 (Id. at 568–69.) Detective Stemmle
testified that the concrete pieces were not
good surfaces for fingerprint impressions
because they were too rough. (Id. at 561–
65.) Detective Aylward, the lead detective
on the investigation of Pagan’s death,
interviewed approximately six or seven
witnesses who were present at the Laundry
Palace that evening. (Id. at 544, 546.)

Police Officer Martino Derisi and his
partner Officer Espina arrived at the
Laundry Palace around 9:12 p.m. and found
Pagan lying face up in a pool of blood.
Officer Derisi called for an ambulance.
When emergency medical technicians
arrived at the scene at approximately 9:20
p.m., Pagan was in cardiac arrest. (Id. at
554–55.) On the way to Winthrop
University Hospital, ambulance medical
technicians attempted to revive Pagan, but
he eventually died at the hospital at 9:55
p.m. as a result of multiple stab wounds to
the chest and groin, resulting in perforations
to the heart and left lung. (Id. at 555–56,
666.) Doctor Brian O’Reilly performed an
autopsy on Pagan on November 17, 2005.
(Id. at 654.) A toxicology test revealed that
Pagan had approximately a .25 percent
blood alcohol content at the time of his
death. (Id. at 670–71.)

1. Evidence of Motive
There was evidence introduced at trial
regarding the events that preceded the death
of Pagan, which established a motive for the
killing. That evidence is summarized below.
On November 16, 2005, petitioner and
four of his friends gathered in Hempstead,
New York. (Id. at 739.) The group consisted
of petitioner, Martinez, Roquetta, Ardillo,
and Fantasma,3 (id. at 747), who were all
members of the El Salvadoran gang Mara
Salvatrucha, commonly known as MS-13.
(Id. at 622.) Martinez informed the group
that his friend was beaten with sticks the
prior week by members of MS-13’s rival
gang, SWP. (Id. at 748.) Petitioner and the
other members of the group agreed that they
should seek out revenge on an SWP member

On November 16, 2005, after Pagan was
taken to the hospital, several more police
officers went to the crime scene. (Id. at 609.)
Detective Bruce Schurmann of the Crime
Scene Search Section arrived at the Laundry
Palace at 10:45 p.m. and photographed and
videotaped the laundromat. (Id. at 487–88.)
He also dusted for fingerprints and collected
physical evidence, which included concrete
pieces, a stone, a black plastic bag, a t-shirt
and a sweatshirt. (Id. at 496, 501, 512.)
Detective Barbara Stemmle of the Latent
Fingerprint Section testified at trial that
1

2

Martinez is a friend and fellow gang member of
petitioner. He pled guilty to stabbing Pagan on July
21, 2006, and is now serving twelve years in prison.
(See Resp’t Supp. Aff. Ex. B.) In his plea allocution,
Martinez admitted to stabbing Pagan and stated that
petitioner had also stabbed Pagan. (Id.) Martinez’s
plea allocution was never introduced at petitioner’s
trial. The absence of Martinez’s plea allocution from
trial will be discussed in more detail infra.
3
Roquetta, Ardillo and Fantasma were the nicknames
petitioner used to identify the members of the group
he was with. (Tr. at 739.)

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

2

to get even for SWP’s assault on Martinez’s
friend. (Id. at 748.)

2. Eyewitness Testimony
At trial, only one eyewitness was called
by the prosecution to testify (id. at 575),
although there were approximately six or
seven customers in the Laundry Palace at
the time of the altercation (id. at 544, 46).
The prosecution called Lus Amanda
Rodriguez (“Rodriguez”), an employee of
the Laundry Palace who had worked there
for two years. (Id. at 575–76.) Rodriguez
was in the back office of the Laundry Palace
with her husband Miguel Quillen at around
9:10 p.m. on November 16, 2005. (Id.)
Rodriguez testified that a Hispanic man, a
dark-skinned man, and Pagan entered the
laundromat. (Id. at 580–81.) At trial,
Rodriguez testified that she heard a loud
noise from the back office, which sounded
like the front door slamming open. (Id. at
577.) It was at that point that she stood up to
observe what was happening in the main
area of the Laundry Palace. (Id. at 578–79.)
Although Rodriguez could not see anything
at the time of the first noise, she had a view
of the front doors when she heard a second
noise that sounded like something hitting the
coin kiosk.4 (Id.) Rodriguez testified that
two men entered the laundromat to confront
Pagan, who had been at the Laundry Palace
earlier to use the restroom. (Id. at 580–81.)
She described one of the men as Hispanic,
thin, and a little taller than 4’10’’. (Id.)
Rodriguez testified that the Hispanic man
was wearing a baseball cap and had a light
mustache. (Id.) Rodriguez described the
other man as black and tall. (Id. at 581).
Rodriguez testified that she made eye
contact with the stabber during the
altercation. (Id. at 597.)

Petitioner admitted in a sworn statement
to Detective Aponte that MS-13 and SWP
do not get along, and that his group wanted
to demonstrate to the members of SWP that
MS-13 was a more powerful gang. (Id. at
739.) The group decided to walk towards the
Laundry Palace, a known SWP hangout,
located on 416 Clinton Street in Hempstead,
New York. (Id. at 601, 629.) The exterior
wall of the Laundry Palace contained graffiti
of both MS-13 and SWP, which was a sign
of gang conflict. (Id. at 631–33.)
As petitioner’s group approached
Clinton Street, they picked up rocks and
broken pieces of concrete from the ground
to use to throw at the first SWP member
they could find. (Id. at 748.) Petitioner
placed concrete and rocks in his pockets,
while others carried bats, and Martinez
carried a knife in his waistband. (Id. at 748.)
When the group arrived at the Laundry
Palace, petitioner spotted Pagan. (Id.)
Petitioner knew that Pagan was an SWP
member because he witnessed Pagan graffiti
the Laundry Palace for SWP on a prior
occasion. (Id.) Petitioner then flashed MS13 hand signals to Pagan, who responded
with SWP hand gestures. (Id.) It was at that
point that some members of petitioner’s
group followed Pagan into the Laundry
Palace. (Id.) The altercation began at
approximately 9:15 p.m. (Id. at 601.) In a
sworn statement to the police, petitioner
stated that three members of his group
rushed in (id. at 748), while at trial an
employee of the laundromat (discussed
below) testified that only two members of
petitioner’s group went into the Laundry
Palace (id. at 581–85.)

At trial, Rodriguez testified that the thin
Hispanic man threw stones at Pagan. (Id.)
One of the stones struck Pagan in the face,
4

Rodriguez referred to the coin kiosk as the
“computer” at trial. (Id. at 578.)

3

causing him to bleed and then collapse onto
the ground. (Id. at 580.) Rodriguez said that,
once Pagan was on the ground, the thin
Hispanic man took out a knife and stabbed
Pagan once in the chest. (Id. at 581.) She
described the knife as about sixteen to
eighteen inches in length with a wooden hilt.
(Id.)

a sworn statement to Detective Aponte. (Id.
at 747.) Detective Aponte is certified by the
Nassau County Police Department as a
Spanish interpreter. (Id. at 731–32.)
In petitioner’s sworn statement to
Detective Aponte, he stated that he was with
a group of four other MS-13 members and
that they decided to seek out revenge on an
SWP member. (Id. at 747–48.) He claimed
that Martinez stabbed Pagan twice in the
chest with a knife that Martinez kept in his
waistband. (Id. at 748.) Petitioner further
stated that he did not participate in the
stabbing himself. (Id.) However, petitioner
admitted that he threw rocks at Pagan’s face
and chest both before and after Martinez
stabbed Pagan. (Id.) Petitioner also stated
that the two members who did not enter the
Laundry Palace were Roquetta and
Fantasma, but that the other three members
went inside. (Id.) Petitioner admitted in his
sworn statement that, after Pagan was
stabbed and he threw a rock at him, he fled
the Laundry Palace with Martinez and the
other four members of his group. (Id. at
748–49.)

Rodriguez testified that the Laundry
Palace was brightly lit during the entire
altercation (id. at 585), and that she was as
close as six feet from Pagan and at most
fifteen to twenty feet away at all times (id. at
585, 597). Rodriguez stated that, after the
thin Hispanic man stabbed Pagan, the
stabber and the tall black man left the
Laundry Palace and ran away. (Id. at 587–
88.) Two other Hispanic men who were
waiting outside also fled the scene. (Id. at
587–88.) Rodriguez testified that the entire
incident lasted no longer than one minute.
(Id. at 598.) Rodriguez made conflicting
statements as to whether she called the
police during the altercation or after the
fight had ended. (Id. at 607–09.)
On December 20, 2005, at 7:25 p.m.,
Rodriguez went to the Robbery Squad on
Newbridge Road in Bellmore, N.Y. to
identify Pagan’s stabber from a lineup. (Id.
at 588.) Rodriguez selected petitioner from
the lineup. (Id.) At trial, Rodriguez was not
able to identify petitioner as the stabber in
court. (Id.) However, the prosecution
introduced evidence, including photographs
of petitioner shortly after the murder, to
establish that petitioner’s appearance had
changed substantially from the time of the
lineup. (Id. at 779–81.)

B. Procedural History
1. State Court Proceedings
a. Pre-trial Suppression Hearing
From February 13 to 15, 2007, Judge
Calabrese held a pre-trial suppression
hearing to determine whether petitioner’s
oral, written, and videotaped statements
after his arrest were admissible. (Def.Appellant Br. at 4.) Petitioner argued that
his statements had been obtained in violation
of his constitutional right against selfincrimination. (Resp’t Aff. at 2; Def.
Appellant Br. at 7–8.) Petitioner claimed
further that he had been deprived of food
and sleep for twenty-six hours, and only
after that did he agree to give a sworn

3. Petitioner’s Sworn Statement
Petitioner was arrested and questioned
by Detective Milton Aponte on December
19, 2005. (Id. at 684, 739.) Without an
attorney present, petitioner voluntarily gave
4

statement about the events that occurred on
November 16, 2005. (Def.-Appellant Br. at
7.) Petitioner also contended that Detective
Aponte failed to take down the entirety of
his statement, but rather picked and chose
particular sentences. (Id. at 7.)

The prosecution tried to establish
petitioner’s intent to kill by noting that he
threw rocks at Pagan both before and after
he was stabbed. (Id. at 855, 860, 862.)
Further, the prosecution stressed that
petitioner had met with fellow MS-13
members earlier in the night and had made a
conscious decision to get even with SWP for
an assault on Martinez’s friend. (Id. at 853.)
The prosecution argued that petitioner’s
actions, therefore, clearly established his
intent to kill Pagan, a member of SWP who
was at the Laundry Palace, a known SWP
hangout. (Id. at 858–60.) The prosecution
argued that, even if petitioner had not
stabbed Pagan, he had acted in concert with
the other MS-13 members and his actions
showed his intent to kill Pagan. (Id. at 862,
864.)

Petitioner’s motion to suppress his
statements was denied in all respects on
February 22, 2007. (Id. at 8.) Judge
Calabrese found that the police had probable
cause to arrest petitioner,5 the identification
procedure was not suggestive, the lineup
was not suggestive, and that petitioner’s
statements were made after proper Miranda
warnings were administered. (Id.)
b. 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, an eyewitness, a medical
examiner, and fingerprint analysts. (Resp’t
Aff. at 4–6.) The prosecution also
introduced petitioner’s own sworn statement
made after his arrest through the testimony
of Detective Aponte. (Id. at 6.) The
prosecution’s case relied on Rodriguez’s
description of the events on November 16,
2005, as well as her subsequent
identification of petitioner in a lineup on
December 20, 2005. (Id. at 4–6.) The
prosecution argued that petitioner had
stabbed Pagan in the chest after first hitting
him with a rock, which caused Pagan to fall
to the floor. (Tr. at 855.) The prosecution
also argued, in the alternative, that even if
petitioner had not been the person who
fatally stabbed Pagan, he had acted in
concert with the other MS-13 members, one
of whom stabbed Pagan. (Id. at 853–54,
864.)

The defense focused its argument on
Rodriguez’s inability to identify petitioner in
court and the prosecution’s failure to call
any additional eyewitnesses to testify. (Id. at
807, 811–12.) Defense counsel also
attempted
to
impeach
Rodriguez’s
credibility through her cross-examination
and summation. Counsel considered calling
witnesses who had failed to identify
petitioner from a photo array. (Id. at 403.)
However, defense counsel later declined to
do so after Rodriguez failed to identify
petitioner in court. (Id. at 807.)
Defense counsel chose to not introduce
Martinez’s plea allocution, in which he
admitted to stabbing Pagan at the Laundry
Palace on November 16, 2005. (Id. at 232.)
Counsel was unable to find case law that
supported admitting only the portions of
Martinez’s plea allocution where he
admitted to stabbing Pagan. (Id. at 236.)
Defense counsel was concerned that, if part
of Martinez’s allocution were admitted into
evidence, the prosecution would be entitled
to introduce the other part of Martinez’s
allocution, in which Martinez stated that

5

As noted supra, Rodriguez identified petitioner as
Pagan’s stabber, which, the hearing court concluded,
created the probable cause necessary to arrest
petitioner.

5

sufficient to establish petitioner’s guilt for
murder in the second degree beyond a
reasonable doubt, and that the verdict was
not against the great weight of the evidence.
Id. Further, the Appellate Division held that
petitioner’s claim regarding the trial court’s
failure to give a missing witness charge was
unpreserved and unreviewable,6 and that the
prosecutorial misconduct claim was both
unpreserved and meritless. Id. at 840.
Finally, the Appellate Division found that
petitioner’s ineffective assistance of counsel
claim was meritless. Id. The court held that
petitioner had meaningful representation at
all stages of the proceedings. Id. Further, the
Appellate Division found that defense
counsel’s decision not to present evidence
about a codefendant’s arrest and plea
allocution, or photo arrays, reflected a
reasonable and legitimate strategy under the
circumstances and evidence presented. Id.
(citing People v. Benevento, 91 N.Y.2d 708,
713 (1998)).

petitioner had also stabbed Pagan. (Id. at
237.)
At the close of evidence, defense
counsel moved to dismiss the case on the
basis of insufficient evidence. The trial
judge denied defense counsel’s motion. On
March 13, 2007, the jury returned a guilty
verdict for murder in the second degree, and
a guilty verdict for gang assault in the first
degree. (Id. at 934–36.)
On April 25, 2007, petitioner was
sentenced to an indeterminate term of
imprisonment of twenty-five years to life for
his second degree murder conviction.
(Resp’t Mem. at 6.) Petitioner was also
sentenced to a concurrent, determinate term
of twenty-five years imprisonment with five
years’ post-release supervision for his
conviction of gang assault in the first degree.
(Id.)
c. The Direct Appeal

Petitioner’s application for leave to
appeal to the New York Court of Appeals
was denied on August 31, 2010. People v.
Hernandez, 15 N.Y.3d 805 (2010).

With the assistance of counsel, petitioner
filed an appeal from his conviction in the
Supreme Court of the State of New York,
Appellate Division, Second Department
(“Appellate Division”). Petitioner argued the
following: (1) the evidence was legally
insufficient to prove his guilt of murder in
the second degree; (2) the verdict was
against the great weight of the evidence; (3)
he was deprived of a fair trial as a result of
prosecutorial misconduct; (4) he was
entitled to a missing witness charge, which
the trial court did not provide; and (5) he
was denied the effective assistance of
counsel. (Def.-Appellant Br. at 15, 25, 33,
45, 53.)

2. The Instant Petition
Proceeding pro se, petitioner filed the
instant petition for a writ of habeas corpus,
together with his brief in support of the
petition, on November 8, 2010. Respondent
filed a memorandum of law in opposition to
the petition on March 2, 2011. The Court
heard oral argument via telephone on July
26, 2011. At the conclusion of oral
argument, the Court ordered respondent to
submit the following documents by
September 9, 2011: an affidavit from
petitioner’s trial attorney, Martinez’s guilty

On June 1, 2010, the Appellate Division
rejected petitioner’s claims and affirmed his
conviction. People v. Hernandez, 74 A.D.3d
839 (N.Y. App. Div. 2010). The Appellate
Division held that the evidence was legally

6

Defense counsel had not requested a missing
witness instruction at trial, and there were no
discussions concerning it on the record.

6

plea transcript, and statements by
eyewitnesses who had not testified at trial.
The Court also appointed Martin Goldberg,
Esq. (“Goldberg”) from the Court’s Habeas
Corpus Panel of Attorneys to represent
petitioner in this matter.

February 21, 2012. Petitioner filed a
response to respondent’s sur-reply on March
7, 2012 (also with the Court’s permission).
This matter is fully submitted, and the Court
has considered all of the parties’
submissions.

On August 29, 2011, respondent filed a
supplemental opposition to the petition.
Included in respondent’s supplemental
submission were three exhibits: (1) an
affidavit from petitioner’s trial counsel,
Dana Grossblatt, Esq. (“Grossblatt”), in
which she explained her trial strategy; (2)
the transcript of Martinez’s guilty plea; and
(3) letters from a private investigator to
Grossblatt, in which the private investigator
memorialized his interviews with Martinez
and other witnesses to the Pagan stabbing
who had failed to identify petitioner in photo
arrays (but who did not testify at petitioner’s
trial). In response to respondent’s
supplemental
opposition,
petitioner’s
counsel (Goldberg) submitted a letter to the
Court on October 3, 2011. In essence,
Goldberg’s letter explained why petitioner’s
ineffective assistance claim could not meet
the test for ineffective assistance of counsel
set forth in Strickland v. Washington. At the
conclusion of the letter, petitioner’s counsel
disclosed that he was currently co-counsel
with petitioner’s trial counsel (Grossblatt)
on a pending criminal case in state court, but
that he had met Grossblatt only one week
earlier. After receiving this letter, in an
abundance of caution, the Court relieved
Goldberg from his representation of
petitioner on December 5, 2011. The Court
then appointed Richard Langone, Esq.
(“Langone”) from the Court’s Habeas
Corpus Panel of Attorneys to represent
petitioner.

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”). Section 2254
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—
(1) resulted in a decision that
was contrary to, or involved
an unreasonable application
of, clearly established Federal
law, as determined by the
Supreme Court of the United
States; or
(2) resulted in a decision that
was
based
on
an
unreasonable determination
of the facts in light of the
evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). “‘Clearly established
Federal law’” is comprised of “‘the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of

Petitioner, represented by Langone, filed
a reply to respondent’s supplemental
opposition on January 31, 2012. With leave
of the Court, respondent filed a sur-reply on
7

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)).

III. DISCUSSION
A. Procedural Bar
A petitioner’s 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
independent basis for its disposition of the
case” by “clearly and expressly stat[ing] that
its judgment rests on a state procedural bar.”
Harris v. Reed, 489 U.S. 255, 261–63
(1989) (internal quotation marks omitted).
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) (internal
quotation marks omitted). However, there is
a “small category” 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.” Lee v.
Kemna, 534 U.S. 362, 376, 381 (2002).
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
(quotation marks omitted).

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.
AEDPA establishes a deferential
standard of review: “‘a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also be unreasonable.’” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). The Second
Circuit added that, while “‘some increment
of incorrectness beyond error is required . . .
the increment need not be great; otherwise,
habeas relief would be limited to state court
decisions so far off the mark as to suggest
judicial incompetence.’” Id. at 93 (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir. 2000)). Finally, “if the federal claim
was not adjudicated on the merits, ‘AEDPA
deference is not required, and conclusions of
law and mixed findings of fact and
conclusions of law are reviewed de novo.’”
Dolphy v. Mantello, 552 F.3d 236, 238 (2d
Cir. 2009) (quoting Spears v. Greiner, 459
F.3d 200, 203 (2d Cir. 2006)).

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.
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
8

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-CV-3778 (BMC), 2010
WL 5125317, at *3 (E.D.N.Y. Dec. 9, 2010)
(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 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”
and
would
require
“new
reliable
evidence . . . that was not presented at trial.”
House v. Bell, 547 U.S. 518, 536–37 (2006).

request for a missing witness charge or an
objection to the jury instructions.
Failure to preserve an issue for state
appellate review by not objecting to the
language used by the trial court during the
jury charge or not requesting a different jury
instruction on the basis that the trial court’s
instruction was improper is an adequate and
independent procedural ground recognized
in New York State. See N.Y. C.P.L.
§ 470.05; see Murray, 477 U.S. at 485–93
(contemporaneous objection rule is an
independent and adequate state ground);
Wainwright v. Sykes, 433 U.S. 72, 86–92
(1977) (same); Glenn v. Bartlett, 98 F.3d
721, 724–26 (2d Cir. 1996) (same); Owens
v. Portuondo, No. 98-CV-6559 (AJP), 1999
WL 378343, at *6 (S.D.N.Y. June 9, 1999)
(same); Torres v. Irvin, 33 F. Supp. 2d 257,
263–65, 273–75 (S.D.N.Y. 1998) (same);
Vera v. Hanslmaier, 928 F. Supp. 278, 285
(S.D.N.Y. 1996) (“Failure to object at trial is
an independent and adequate state
procedural bar.”); Jamison v. Smith, No. 98CV-3747 (FB), 1995 WL 468279, at *2
(E.D.N.Y. July 26, 1995) (“Courts in this
circuit have consistently held that the failure
to object contemporaneously . . . constitutes
an adequate and independent basis for
barring habeas review.”); Anderson v.
Senkowski, No. 92-CV-1007, 1992 WL
225576, at *4 (E.D.N.Y. 1992) (same),
aff’d, 992 F.2d 320 (2d Cir. 1993). As stated
supra, the Appellate Division held that this
claim was unpreserved for review.
Hernandez, 74 A.D.3d at 840. Because the
Appellate Division dismissed petitioner’s
claim on an independent and adequate state
law ground, the Court is procedurally barred
from reviewing this claim.

1. Missing Witness Charge
Petitioner’s claim that the trial court
failed to issue a missing witness charge to
the jury is procedurally barred because the
state court relied on a firmly established
procedural rule to deny this claim. The
Appellate Division denied petitioner’s claim
that he was denied a fair trial because the
jury had not been instructed that it could
draw an adverse inference from the absence
of certain eyewitnesses. Defense counsel did
not object, or ask for a missing witness
charge, during the trial. Defense counsel
also did not request a different instruction on
the basis that the court’s instruction was
improper. Hernandez, 74 A.D.3d at 840.
Therefore, the record was devoid of any

Moreover, petitioner has demonstrated
neither “cause and prejudice” for his
procedural default, nor that failure to
consider his claim will result in a
miscarriage of justice. In his petition and
9

memorandum of law, petitioner has wholly
failed to explain why neither he nor his
defense counsel objected to the language
used by the trial court during the jury
charge, and why they both failed to request a
different jury instruction on the basis that
the trial court’s instruction was allegedly
improper.7
Accordingly,
petitioner’s
improper jury charge claim is procedurally
barred.

preserved for appellate review represented
an independent and adequate state
procedural ground even though court
addressed merits of claim “in the interest of
justice”); Velasquez v. Leonardo, 898 F.2d
7, 9 (2d Cir. 1990) (holding that state
decision denying claims as procedurally
barred but also addressing merits rested on
adequate and independent state ground).
Finally,
petitioner
has
neither
demonstrated “cause and prejudice” from
the failure to raise this issue, nor established
that the failure to consider this claim would
result in a miscarriage of justice.
Accordingly, his prosecutorial conduct
claim is procedurally barred.

2. Prosecutorial Misconduct
Additionally, petitioner’s claim that he
was denied his right to a fair trial due to
prosecutorial misconduct is procedurally
barred because the state court relied on a
firmly established procedural rule to deny
this claim. Hernandez, 74 A.D.3d at 840.
Defense counsel never informed the trial
court that she believed the prosecutor was
committing misconduct or that her actions
were so egregious that they denied
petitioner’s right to a fair trial. Therefore,
the Appellate Division decided that
petitioner’s prosecutorial misconduct claim
was unpreserved for review. Id.

For the aforementioned reasons,
petitioner’s missing witness charge and
prosecutorial misconduct claims are
procedurally barred. However, in an
abundance of caution, this Court addresses
the merits of the claims infra, and finds that
they are meritless.
B. Merits
For the reasons set forth below, the
Court concludes that there is no basis for
habeas relief.

Furthermore, the fact that the Appellate
Division ruled in the alternative on the
merits
of
petitioner’s
prosecutorial
misconduct claim does not preserve
petitioner’s claim for review. Id.; see also
Fama v. Comm’r of Corr. Servs., 235 F.3d
804, 810–11 & n. 4 (2d Cir. 2002)
(“[W]here a state court says that a claim is
‘not preserved for appellate review’ and then
ruled ‘in any event’ on the merits, such a
claim is not preserved”); Glenn v. Bartlett,
98 F.3d 721, 724–25 & n. 3 (2d Cir. 1996)
(holding that state decision that denied
prosecutorial misconduct claim as not

1. Sufficiency of the Evidence Claim
a. Legal Standard
The law governing habeas relief from a
state conviction based on insufficiency of
the evidence is well established. A petitioner
“bears a very heavy burden” when
challenging the legal sufficiency of the
evidence in an application for a writ of
habeas corpus. Einaugler v. Sup. Ct. of the
State of N.Y., 109 F.3d 836, 840 (2d Cir.
1997) (quoting Quirama v. Michele, 983
F.2d 12, 14 (2d Cir. 1993)). A criminal
conviction in state court will not be reversed

7

In other words, even if defense counsel had
requested a missing witness charge, it is unclear from
the record that it would have been granted, and,
therefore, petitioner’s counsel was not ineffective.
This claim is discussed in more detail, supra.

10

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); see also Policano v.
Herbert, 507 F.3d 111, 115-16 (2d Cir.
2007) (stating that “[i]n a challenge to a
state criminal conviction brought under 28
U.S.C. § 2254 . . . the applicant is entitled to
habeas corpus relief if it is found that upon
the record evidence adduced at the trial no
rational trier of fact could have found proof
of guilt beyond a reasonable doubt” (quoting
Jackson, 443 U.S. at 324)); Ponnapula v.
Spitzer, 297 F.3d 172, 179 (2d Cir. 2002)
(“[W]e review the evidence in the light most
favorable to the State and the applicant is
entitled to habeas corpus relief only if no
rational trier of fact could find proof of guilt
beyond a reasonable doubt based on the
evidence adduced at trial.”). 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). 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).

b. Application
Petitioner argues that the prosecution
failed to present sufficient evidence to prove
his guilt beyond a reasonable doubt. This
Court also construes petitioner’s claim that
the prosecution failed to establish his
identity as the stabber beyond a reasonable
doubt as a legal sufficiency claim.8 Upon
review of the record, it is clear that the
prosecution presented sufficient evidence
from which a rational trier of fact could
conclude beyond a reasonable doubt that
petitioner was guilty of murder in the second
degree, either on the theory that petitioner
had been the principal actor or an
accomplice.
i. Petitioner as the Principal Actor
Under New York law, a person is guilty
of second degree murder when the following
elements are proven beyond a reasonable
doubt: (1) “[w]ith intent to cause death of
another person, he causes the death of such
person or of a third person”; or (2) “[u]nder
circumstances
evincing
a
depraved
indifference to human life, he recklessly
engages in conduct which creates a grave
risk of death to another person, and thereby
causes the death of another person.” N.Y.
Penal Law § 125.25.

8

To the extent that petitioner is also raising a weight
of the evidence claim, this Court cannot review it. A
“weight of the evidence” claim is based on state law.
See Correa v. Duncan, 172 F. Supp. 2d 378, 381
(E.D.N.Y. 2001) (“A ‘weight of the evidence’
argument is a pure state law claim grounded in New
York Criminal Procedure Law § 470.15(5), whereas a
legal sufficiency claim is based on federal due
process principles.”). The Court cannot consider a
purely state law claim on federal habeas review. See,
e.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(“[F]ederal habeas corpus relief does not lie for errors
of state law . . . ”). Therefore, to the extent petitioner
raises a claim that his conviction was against the
weight of evidence, the Court does not consider it.

11

Petitioner argues that there was
insufficient evidence presented at trial to
establish his guilt beyond a reasonable
doubt. (Def.-Appellant Br. at 15.) Petitioner
asserts that the case was “troubling” because
it involved the testimony of only one
eyewitness, who could not identify
petitioner in court. (Id.) Further, petitioner
claims that there was a lack of physical
evidence to establish that he had been the
person who had stabbed Pagan. (Id. at 21.)

groin. (Def.-Appellant Br. at 17.) This Court
finds that there was evidence introduced by
the prosecution to construe Rodriguez’s and
Dr. O’Reilly’s testimonies in a consistent
manner. The jury could have found that
Pagan was stabbed upon entering the
Laundry Palace, since a blood trail led from
the front doors to the coin kiosk. (Resp’tAppellant Br. at 15.) Therefore, the jury
could have found that Rodriguez’s
testimony was credible because she only
witnessed the events that occurred after
Pagan was near the coin kiosk. It would be
consistent with the physical evidence and
Dr. O’Reilly’s testimony if Pagan had been
stabbed once near the entrance of the
Laundry Palace before Rodriguez came out
of the back office to witness what was
occurring near the coin kiosk. The stab that
Rodriguez witnessed therefore could have
been the second or third stab.

Although the prosecution only called
one eyewitness, Rodriguez viewed the
altercation from only fifteen to twenty feet
away, at times being as close as six feet to
Pagan. (Tr. at 585, 597.) Rodriguez testified
to making eye contact with Pagan’s
assailant. (Id. at 597.) She also testified that
the Laundry Palace was brightly lit. (Id. at
585). The jury could have concluded that her
testimony was reliable based on her vicinity
to the altercation and the viewing conditions
of the Laundry Palace. Additionally,
Rodriguez testified that a Hispanic man
stabbed Pagan in the chest. (Id. at 580–81.)
She also testified to identifying petitioner as
Pagan’s stabber in a lineup on December 19,
2005. Rodriguez could not identify
petitioner in court, but the prosecution
introduced evidence to establish that
petitioner’s appearance had changed since
the lineup. Petitioner argues that his
appearance could not have changed to the
point where Rodriguez would not have been
able to identify him in court. However, the
prosecution
entered
photographs
of
petitioner in evidence, and the jury certainly
had a sufficient rational basis to find
Rodriguez’s
testimony
and
prior
identification of petitioner to be credible.

The prosecution also introduced other
evidence that could have led a rational jury
to find beyond a reasonable doubt that
petitioner fatally stabbed Pagan. The
prosecution presented evidence that
petitioner agreed with other MS-13
members to get even with a member of
SWP.
The
prosecution
introduced
petitioner’s own sworn statement, in which
he stated that he and his friends went to the
Laundry Palace carrying knives, rocks, and
bats to seek revenge on a SWP member.
In sum, a rational trier of fact could have
concluded that petitioner was guilty beyond
a reasonable doubt of fatally stabbing Pagan.
Accordingly, petitioner cannot be granted
habeas relief on the basis of insufficient
evidence.
ii. Petitioner as an Accomplice

Petitioner also argues that Rodriguez’s
testimony that he stabbed Pagan once in the
chest was inconsistent with the medical
examiner’s testimony that Pagan had two
stab wounds in the chest and one near his

Under New York State law, a person
may be held accountable for aiding or acting
in concert “when, acting with the mental
12

culpability required for the commission
thereof, he solicits, requests, commands,
importunes, or intentionally aids such person
to engage in such conduct.” N.Y. Penal Law
§ 20.00.

petitioner had thrown rocks at Pagan, that he
shared the intent to kill Pagan with the
primary stabber both before and during the
stabbing. See People v. James, 198 A.D.2d
146 (N.Y. App. Div. 1993) (finding that it
was reasonable for the jury to infer intent to
kill after defendant beat the complainant
after it was apparent that the stabber had
homicidal intent). The jury also could have
inferred that, when petitioner initially threw
a rock at Pagan, which caused him to fall to
the floor, the throwing of the rock was done
in order to aid Martinez by making Pagan
vulnerable and easier to attack. See People
v. Martinez, 30 A.D.3d 353, 353–354 (N.Y.
App. Div. 2006) (holding evidence was
sufficient to establish defendant acted in
concert where defendant knocked the victim
down and the codefendant inflicted fatal
injuries). The jury could have rationally
discredited the argument that petitioner had
not known that Martinez’s knife would be
used to kill, but only thought it would be
used to injure. (Def.-Appellant Br. at 31.)

Petitioner also argues that there was not
enough evidence to establish his guilt
beyond a reasonable doubt under a theory of
acting in concert. (Def.-Appellant Br. at 21.)
Petitioner asserts that there was insufficient
evidence to establish his intent to kill Pagan,
and that the prosecution’s evidence did not
lead exclusively to the inference that, by
throwing stones at Pagan, he intended to
effect death. (Id. at 29.) This Court
concludes that there was legally sufficient
evidence to sustain a conviction on an
accomplice theory of liability.
Petitioner admitted in his own sworn
statement to the police that he wanted to
seek revenge on a member of SWP. (Tr. at
739.) He also admitted that he went to the
Laundry Palace armed with rocks (Id. at
740.) Petitioner witnessed the other MS-13
members in his group carry rocks, knives,
and bats to the Laundry Palace. (Id. at 73940.) The jury heard testimony about the
rivalry between MS-13 and SWP (id. at
739), and could have rationally inferred that
by seeking revenge or getting even that the
gang (including petitioner) wanted to cause
the death of an SWP member. The jury also
heard evidence that established petitioner’s
intent to kill Pagan from the circumstances
surrounding Pagan’s death. See In re
Tatiana N., 899 N.Y.S.2d 21, 24 (N.Y. App.
Div. 2010) (“the necessary knowledge and
intent [to prove accessorial liability] need
not be admitted directly or verbally
acknowledged. They may be established
through the actions of the accused, based on
the entire series of events.”). Petitioner
admitted to throwing rocks at Pagan both
before and after he was stabbed. The jury
could have rationally inferred that, if

Thus, even if the jury did not find
beyond a reasonable doubt that petitioner
fatally stabbed Pagan, there was sufficient
evidence to establish that petitioner acted in
concert with the intent to cause Pagan’s
death. Accordingly, petitioner cannot be
granted habeas relief on the basis of
insufficient evidence.
iii. One Eyewitness
Petitioner claims in his brief that the
prosecution’s case against him was troubling
because it only involved one eyewitness,
Rodriguez, whose testimony may have
conflicted with Dr. O’Reilly’s testimony.
However, the credibility of Rodriguez’s
testimony was within the province of the
jury, and, as noted supra, there was more
than a sufficient basis for a rational jury to
find her credible. Additionally, as discussed
supra, her testimony could have been found
13

11 (1985)). “Remarks of the prosecutor in
summation do not amount to a denial of due
process unless they constitute ‘egregious
misconduct.’” United States v. Shareef, 190
F.3d 71, 78 (2d Cir.1999) (quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 647
(1974)). For a claim of prosecutorial
misconduct to rise to the level of
constitutional error, “it is not enough that the
prosecutors’ remarks were undesirable or
even universally condemned.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986)
(quotation marks omitted). “There must
instead, be a showing that ‘[petitioner]
suffered actual prejudice because the
prosecutor’s comments during summation
had a substantial and injurious effect or
influence in determining the jury’s verdict.’”
Alexander v. Phillips, No. 02-CV8735(SAS)(FM), 2006 U.S. Dist. LEXIS
8926, at *40–41 (S.D.N.Y. Feb. 21, 2006)
(report & recommendation) (quoting Bentley
v. Scully, 41 F.3d 818, 824 (2d Cir. 1994));
see also Dawkins v. Artuz, 152 F. App’x 45,
46–47 (2d Cir. 2005) (“To warrant granting
the writ, the prosecutorial misconduct must
have ‘so infected the trial with unfairness as
to make the resulting conviction a denial of
due process.’” (quoting Darden, 477 U.S. at
181)). “[N]ot every trial error or infirmity
which might call for the application of
supervisory
powers
correspondingly
constitutes a ‘failure to observe that
fundamental fairness essential to the very
concept of justice.’” Donnelly, 416 U.S. at
642 (quoting Lisenba v. California, 314 U.S.
219, 236 (1941)). The Court must then
review such comments by a prosecutor
narrowly to determine whether they “so
infected the trial with unfairness as to make
the resulting conviction a denial of due
process.” Darden, 477 U.S. at 181 (quoting
Donnelly, 416 U.S. at 642).

to be consistent with Dr. O’Reilly’s
testimony.
The prosecution’s case cannot be
deemed insufficient for only calling one
eyewitness to testify at trial. See, e.g.,
United States v. Gonzalez, 110 F.3d 936,
940–41 (2d Cir. 1997) (“It is well settled
that where, as here, the government’s case is
based primarily on eyewitness testimony
describing criminal activity, ‘any lack of
corroboration [with physical evidence] goes
only to the weight of the evidence, not to its
sufficiency. The weight is a matter for
argument to the jury, not a ground for
reversal on appeal.’” (quoting United States
v. Roman, 870 F.2d 65, 71 (2d Cir. 1989)));
Bossett v. Walker, 41 F.3d 825, 830 (2d Cir.
1994) (“Although appellants emphasize the
lack of physical evidence connecting them
to the murder and contend that the testifying
witnesses were not credible, a conviction
may be based on circumstantial evidence
and inferences based upon the evidence and
the jury is exclusively responsible for
determining a witness’ credibility.” (internal
quotation marks omitted)). Indeed, the
Second Circuit has held that “the testimony
of a single, uncorroborated eyewitness is
generally sufficient to support a conviction.”
United States v. Danzey, 594 F.2d 905, 916
(2d Cir. 1979). In short, petitioner’s claim
that the evidence was insufficient to
establish his guilt beyond a reasonable doubt
because it rested on the testimony of only
one eyewitness is without merit.
2. Prosecutorial Misconduct Claim
a. Legal Standard
“A criminal conviction ‘is not to be
lightly overturned on the basis of a
prosecutor’s comments standing alone’ in an
otherwise fair proceeding.” Gonzalez v.
Sullivan, 934 F.2d 419, 424 (2d Cir. 1991)
(quoting United States v. Young, 470 U.S. 1,

To overcome this burden, petitioner
must show that he “suffered actual prejudice
because the prosecutor’s comments during
14

summation had a substantial and injurious
effect or influence in determining the jury’s
verdict.” Bentley, 41 F.3d at 824. Factors
considered in determining such prejudice
include: “(1) the severity of the prosecutor’s
conduct; (2) what steps, if any, the trial court
may have taken to remedy any prejudice;
and (3) whether the conviction was certain
absent the prosecutorial conduct.” Id.;
accord United States v. Thomas, 377 F.3d
232, 245 (2d Cir. 2004); Floyd v. Meachum,
907 F.2d 347, 355 (2d Cir. 1990). “In
addition, in determining whether a
prosecutor’s conduct was unconstitutional, a
court ‘must not only weigh the impact of the
prosecutor’s remarks, but must also take into
account defense counsel’s [remarks] . . . . If
the prosecutor’s remarks were ‘invited,’ and
did no more than respond substantially in
order to ‘right the scale,’ such comments
would not warrant reversing a conviction.’”
Everett v. Fischer, No. 00-CV-6300, 2002
WL 1447487, at *2 (E.D.N.Y. July 3, 2002)
(quoting Young, 470 U.S. at 13–14)
(alterations in original).

personal knowledge of where the
eyewitnesses were “at the time Jose Miguel
Hernandez stabbed the victim to death.” (Tr.
at 790–91.) Petitioner argues that, by
phrasing the question in that way, the
prosecutor usurped the jury’s function as
fact-finder and contravened all notions of
fairness. (Def.-Appellant Br. at 51.) Finally,
petitioner argues that the prosecutor failed to
observe fundamental fairness by presenting
a case that petitioner stabbed Pagan.
Petitioner claims that this was unfair
because stabbing Pagan was something that
“Martinez already admitted to doing” in his
plea allocution. (Id. at 46.)
As noted supra, petitioner’s claims are
unpreserved for review by this Court
because defense counsel did not ask for a
curative instruction or request a mistrial
after the prosecutor’s redirect question to
Detective Aponte or the comments in
summation. However, even assuming the
prosecutorial misconduct claim is preserved
for review by this court, the Court concludes
that the claim lacks merit.

b. Application
i. Severity
In the instant case, petitioner asserts
several
instances
of
prosecutorial
misconduct that, he claims, deprived him of
a fair trial. First, petitioner argues that the
prosecutor introduced evidence in his
summation that was outside the record.
(Def.-Appellant Br. at 48.) Specifically,
petitioner claims that the prosecutor
committed misconduct in her summation
when she said that Rodriguez had
uncommon courage and did not “take off”
during the altercation, as many people
would do. (Tr. at 843.) Additionally,
petitioner claims that the prosecutor
committed misconduct when he phrased a
redirect question in a prejudicial manner.
(Def.-Appellant Br. at 48.) Specifically,
petitioner points to the prosecutor’s question
asking Detective Aponte if he had any

First, the prosecutor’s question to
Detective Aponte regarding whether he
knew where the eyewitnesses were when
petitioner “stabbed the victim to death,”
while improperly phrased, did not rise to the
level of depriving petitioner of his right to a
fair trial. See, e.g., Toro v. Herbert, Nos. 01CV-3386 (JBW), 03-MISC-0066 (JBW),
2003 WL 22992059, at *6 (E.D.N.Y. Sept.
29, 2003) (finding that petitioner was not
denied a fair trial where prosecutor referred
to defendant as a cold-blooded murderer).
Petitioner did not suffer prejudice from the
prosecution’s question because it was
already apparent that the prosecution’s
position was that petitioner fatally stabbed
Pagan. (Resp. Br. at 39.) Furthermore, the
prosecutor’s question was not phrased so
15

egregiously so as to have a substantial and
injurious effect on the petitioner. The
prosecutor’s phrasing of his question, while
objectionable, certainly did not deprive
petitioner of his right to a fair trial.

convincing story if they had wanted to lie
and that the witnesses had to face crossexamination by defense counsel were
legitimate comments on the credibility of the
People’s witnesses, and a fair response to
defense counsel’s attack on the credibility of
the People’s witnesses in his summation.”).
Here, the prosecutor’s summation was a fair
response to defense counsel’s attempts to
impeach Rodriguez’s credibility.

Second, the prosecutor’s laudatory claim
that Rodriguez did not “take off” during the
altercation, as many people would do, did
not improperly introduce evidence outside
the record or vouch for her credibility. (Tr.
at 843.) Defense counsel attempted to
impeach Rodriguez’s credibility during
summations by saying that she was a
“simple woman” who could not even spell
her own name. (Id. at 812.) The prosecutor,
therefore, responded to the defense
counsel’s argument against Rodriguez’s
credibility by praising Rodriguez’s courage
for not leaving the scene and calling the
police. The Second Circuit has noted that
prosecutors are allowed to advocate
vigorously during closing remarks and may
use colorful adjectives in summation. See
United States v. Jaswal, 47 F.3d 539, 544
(2d Cir. 1995); accord Coble v.
Quarterman, 496 F.3d 430, 438 (5th Cir.
2007) (rejecting habeas claim that trial
counsel was ineffective for failing to object
to prosecutor’s comments during closing
arguments describing petitioner as “a coldblooded, merciless, remorseless killer”).
Stating that Rodriguez was a courageous
woman because she did not “take off” when
the altercation began was certainly within
the bounds of vigorous advocacy. Moreover,
“[u]nder the invited or fair response
doctrine, the defense summation may open
the door to an otherwise inadmissible
prosecution rebuttal.” United States v.
Tocco, 135 F.3d 116, 130 (2d Cir. 1998)
(citing United States v. Robinson, 485 U.S.
25, 32 (1988)); see also Everett v. Fischer,
No. 00-CV-6300, 2002 WL 1447487, at *3
(E.D.N.Y.
July
3,
2002)
(“[T]he
prosecutor’s statements that the People’s
witnesses could have invented a more

In any event, even assuming arguendo
that the prosecutor’s comments in
summation were improper, the Court finds
that they were not sufficiently severe to
warrant habeas relief when considered in
light of other facts. See, e.g., Bradley v.
Meachum, 918 F.2d 338, 343 (2d Cir. 1990)
(holding
that
although
prosecutor’s
comment that he “would take one Carmella
Ricciardelli to ten other witnesses”
impermissibly bolstered the credibility of
the witness, a writ of habeas corpus was still
not appropriate where the improper behavior
was limited to summation and did not
permeate the trial); Martin v. Brown, No.
08-CV-0316 (JFB), 2010 WL 1740432, at
*15 (E.D.N.Y. Apr. 29, 2010) (“In any
event, even assuming arguendo that these or
other comments by the prosecutor were
improper, they were not severe or egregious
and certainly did not render the trial so
unfair as to deprive petitioner of his due
process rights. Within the lengthy
summation that involved an analysis of the
trial evidence, the challenged comments did
not play a substantial role in the summation,
much less the entirety of the trial.”).
Third, petitioner’s claim that the
prosecutor presented an unfair case because
Martinez had already admitted to stabbing
Pagan is wholly without merit. In the same
plea allocution where Martinez admits to
stabbing Pagan, he states that petitioner also
stabbed Pagan. (Resp’t Supp. Aff. Ex. B, at
12.)
16

ii. Steps to remedy prejudice

In sum, the three factors to determine
prejudice from prosecutorial misconduct
weigh heavily in respondent’s favor.
Accordingly, assuming arguendo that this
Court is not procedurally barred from
entertaining
petitioner’s
claim
of
prosecutorial misconduct, the Court
concludes that the claim lacks merit because
the prosecutor’s alleged misconduct was not
so egregious so as to deprive petitioner of
his right to a fair trial.

In addition, any potential prejudice from
the prosecutor’s
allegedly improper
comments and questions was cured by jury
instructions which reminded jurors that the
arguments and questions of counsel are not
evidence. See, e.g., Thompson v. Burge, No.
05-CV-2914 (JFB), 2007 WL 2020185, at
*16 (E.D.N.Y. July 6, 2007). At the
beginning of trial, the judge informed the
jury that questions are not evidence, and that
no inferences should be drawn from
questions. (Tr. at 456.) Furthermore, before
summations, the trial judge informed the
jury that the statements of the lawyers
during summations are not evidence, and
that if their statements contradicted the
jury’s interpretation of the evidence, the jury
should rely on what they saw and heard. (Id.
at 798–800.) Additionally, after the
prosecutor asked Detective Aponte if he
knew where the other witnesses were when
petitioner “stabbed the victim to death,” the
court properly sustained defense counsel’s
objection as to form and cured the error. (Id.
at 790–91.) Accordingly, “any potential
threat to petitioner’s constitutional rights
was effectively neutralized by the trial judge
instructions.”
Thompson,
2007
WL
2020185, at *16; see United States v. Rivera,
971 F.2d 876, 885 (2d Cir. 1992)
(concluding that the trial court’s instructions
cured any prejudice arising from
prosecutorial error).

3. Missing Witness Charge
a. Legal Standard
To obtain a missing witness instruction
under New York law, a defendant must
establish three factors concerning the
witness in question: (1) the witness had
knowledge material to the trial; (2) the
witness was expected to give noncumulative
testimony favorable to the party against
whom the charge is sought; and (3) the
witness is available to the party who would
be expected to call the witness. McCrone v.
Brown, No. 07-CV-77 (JKS), 2008 WL
724234, at *9 (N.D.N.Y. Mar. 17,
2008) (citing People v. Savinon, 100 N.Y.2d
192 (2003)); see also Davis v. Mantello, 42
F. App’x 488, 491 (2d Cir. 2002). The Court
provides these factors as background rather
than a standard under which to consider
petitioner’s claim. This is because the failure
to
provide
a missing witness charge in
accordance with New York law is a matter
of state law for which habeas relief is
unavailable. See, e.g., Kirkby v. Filion, 644
F. Supp. 2d 299, 307 (W.D.N.Y.
2009) (“Kirkby’s missing witness charge
claim raises only an issue of state law that
cannot justify federal habeas relief.”).
Instead, on habeas review, the Court may
consider only whether the failure to provide
a missing witness charge violated
petitioner’s federal constitutional rights.

iii. Certainty of conviction
absent misconduct
Finally, the Court concludes that the
alleged misconduct was so minor (and
addressed by the trial court’s instructions)
that, given the evidence introduced at trial,
conviction was still certain absent the
conduct in question.
* * *
17

The Second Circuit has observed that a
“missing witness charge invites the jury to
draw an adverse inference against a party
that fails to call a witness whose
‘production . . . is peculiarly within [its]
power.’” United States v. Gaskin, 364 F.3d
438, 463 (2d Cir. 2004) (quoting United
States v. Mittelstaedt, 31 F.3d 1208, 1216
(2d Cir. 1994)). Further, as the Second
Circuit has explained, “[b]ecause we
recognize that ‘an aura of gamesmanship’
frequently
accompanies
requests
for missing witness charges, we afford [trial]
judges considerable discretion in deciding
when they should and should not be
given.” Id. (citations omitted); see also Reid,
961 F.2d at 377 (noting that the decision to
issue a missing witness charge “lies in the
sound discretion of the trial court” (citation
and quotation marks omitted)). Moreover,
“[l]ike the failure to give any other jury
instruction, the failure to issue a missing
witness instruction does not raise a
constitutional issue and cannot serve as the
basis for federal habeas relief unless the
failure ‘so infected the entire trial that the
resulting conviction violated due process.’”
Kloskin v. Conway, 501 F. Supp. 2d 429,
444 (W.D.N.Y. 2007) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
Finally, “[w]here, as here, the alleged error
is one of omission, it ‘is less likely to be
prejudicial than a misstatement of the law,’
thereby making the petitioner’s ‘burden . . .
especially heavy.’” Crews v. Herbert, 586 F.
Supp. 2d 108, 114 (W.D.N.Y. 2008)
(quoting Henderson v. Kibbe, 431 U.S. 145,
155 (1977)).

should have been called as a witness at trial
because he was the lead detective on the
investigation of Pagan’s death. (Def.Appellant Br. at 54.) Petitioner states that
Detective Aylward would have contributed
material testimony since he was present at
the Laundry Palace on the night of
November
16,
2005,
interviewed
eyewitnesses,
and
conducted
the
investigation regarding Pagan’s death. (Id.)
Further, petitioner argues that, since the
other eyewitnesses at the Laundry Palace
potentially viewed the altercation between
Pagan and members of petitioner’s group,
the prosecution should have called them
once Rodriguez was unable to identify
petitioner in court. (Id. at 55–58.) Petitioner
claims that these eyewitnesses would have
offered material and noncumulative
testimony because there was a “very real
issue” of whether petitioner was the stabber.
(Id. at 60.)
Petitioner also argues that all of the
witnesses were under the prosecution’s
control. Petitioner asserts that Detective
Aylward was clearly under control of the
prosecution as the lead detective of the
investigation. (Id. at 61.) In addition,
petitioner maintains that at least some of the
five eyewitnesses were under the
prosecution’s control because the police
were able to find and interview them about
the events that took place at the Laundry
Palace on November 16, 2005. (Id. at 60.)
Petitioner claims that all that was needed for
their presence at trial was an order to
produce by the prosecution because two of
the eyewitnesses were incarcerated. (Id.)

b. Application
As noted supra, defense counsel neither
requested a missing witness charge at any
point during the trial, nor objected to the
trial court’s final charge, which did not
contain a missing witness instruction. (Tr. at
908;
Def.-Appellant
Br.
at
57.)
Consequently, there is no evidence in the

Petitioner claims that habeas relief is
appropriate because the jury was not
instructed that it could draw an adverse
inference from the prosecution’s failure to
call material witnesses to the crime.
Petitioner argues that Detective Aylward
18

record to evaluate the basis for the trial
court’s failure to give a missing witness
charge, and this Court is procedurally barred
from hearing this claim. See supra.
Nonetheless, in an abundance of caution,
this Court considers the merits of
petitioner’s claim and determines that it
lacks merit.

463 (quoting United States v. Torres, 845
F.2d 1165, 1170–71 (2d Cir. 1988)); see
also Reid v. Senkowski, 961 F.2d 374, 377
(2d Cir. 1992) (noting that decision to
issue missing witness charge “lies in the
sound discretion of the trial court”) (citation
and quotation marks omitted)).
More importantly, even if the failure to
give a missing witness instruction violated
New York law in this case, there is no basis
to conclude that such error was of a
constitutional magnitude that it warrants
habeas relief. It is entirely speculative to
suggest that the failure by the court to give
a missing witness charge had any impact on
the trial. Indeed, as discussed infra in
conjunction with petitioner’s ineffective
assistance of counsel claim, defense counsel
did highlight the absence of eyewitnesses
from trial both on cross-examination and in
her summation. Accordingly, the Court
cannot say that the failure to give a missing
witness instruction violated petitioner’s
federal constitutional rights. See, e.g., Davis
v. Smith, No. 06-CV-1389 (JKS), 2009 WL
236506, at *7 (N.D.N.Y. Feb. 2,
2009) (“Even if state law had called for
the missing witness charge, its absence
certainly did not so infect the entire trial as
to deny Petitioner due process where, as
here, the prosecutor’s comments during his
opening statement were equivocal, defense
counsel was permitted to comment on the
absence of any eye-witness testimony during
summation, and the jury was instructed to
limit itself to the evidence actually
presented.”); Toland v. Walsh, No. 04-CV0773 (GLS), 2008 WL 65583, at *14–15
(N.D.N.Y. Jan. 4, 2008) (denying habeas
relief where possibility that missing witness
would give favorable testimony was “based
upon nothing other than mere conjecture”
and “federal habeas relief cannot be granted
upon claims that are rooted in speculation”);
Brown v. Conway, No. 06-CV-3555, 2007
U.S. Dist. LEXIS 85924, at *12 (E.D.N.Y.

As an initial matter, it is unclear whether
the circumstances of petitioner’s case even
warranted a missing witness charge.
Specifically, based on this Court’s review of
the record, it appears likely that the uncalled
eyewitnesses would have given cumulative
testimony. The eyewitnesses were present
during the altercation at the Laundry Palace
that resulted in the death of Pagan on
November 16, 2005, just as Rodriguez was.
Additionally, Rodriguez was right beside her
husband, who was one of the uncalled five
witnesses, during the incident. (Tr. at 599).
It is unlikely that their perspective on the
events would be different. See Davis, 42 F.
App’x at 491–92 (finding testifying witness
and missing witness were together
throughout duration of the crime, and
missing witness therefore would have added
no new information). The Court is aware
that Cynthia Ruiz (“Ruiz”) and Kelbi Roque
(“Roque”), two eyewitnesses to Pagan’s
stabbing who were interviewed by defense
counsel’s investigator, provided accounts
that were slightly different from Rodriguez’s
testimony. (See Resp’t Supp. Aff. Ex. C.)
For example, Ruiz and Roque stated that
four men entered the Laundry Palace. (Id. at
3.) However, Ruiz corroborates Rodriguez’s
testimony that only one person stabbed
Pagan. Roque never saw anyone stab Pagan.
(Id. at 6.) Even though Ruiz and Roque gave
slightly different accounts of events, in
comparing their accounts to that of
Rodriguez, this Court believes that the trial
court would not have abused its broad
discretion in declining to give a missing
witness instruction. See Gaskin, 364 F.3d at
19

distorting effects of hindsight.” Id. (quoting
Rompilla v. Beard, 545 U.S. 374, 389
(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
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.’” Id. (quoting DeLuca v.
Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996)).
Moreover, “strategic choices made after less
than complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.” Id.

Nov. 19, 2007) (denying habeas relief in
part
because
“failure
to
give
a missing witness charge will rarely support
reversal or habeas relief since reviewing
courts recognize the aura of gamesmanship
that frequently accompanies requests for a
missing witness charge as to which the trial
judge will have a surer sense than any
reviewing court” (citation and quotation
marks omitted)). Accordingly, even
assuming arguendo that petitioner’s missing
witness charge claim were properly
preserved for habeas review, the Court
determines that the claim is without merit.
4. Ineffective Assistance of Counsel
a. Legal Standard
Under the standard set forth in
Strickland v. Washington, a defendant is
required to demonstrate two elements in
order to state a successful claim for
ineffective assistance of counsel: (1)
“counsel’s representation fell below an
objective standard of reasonableness,”; 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 it
“undermine[s] 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

The first prong requires a showing that
counsel’s performance was deficient.
However, constitutionally 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
20

affidavit submitted with respondent’s
supplemental opposition. (See Resp’t Supp.
Aff. Ex. A, Aff. of Dana Grossblatt, Esq.,
Aug. 2, 2011 (“Grossblatt Aff.”).10)
According to her affidavit, on October 10,
2006, defense counsel first learned of three
witnesses who had failed to identify
petitioner in a photo array. (Id. ¶ 5.) The
very next day, she demanded these
witnesses’ names, dates of birth, addresses,
and phone numbers from the District
Attorney’s office. (Id. ¶ 6.) On October 13,
2006, an ADA provided defense counsel
with three names: Roque, Ruiz, and Miguel
Quillen (“Quillen”). (Id.) Defense counsel
“immediately sent an investigator out in
search of the witnesses.” (Id.) Defense
counsel’s investigator could not locate
Quillen, but he did manage to interview
Ruiz and Roque. (Id. ¶¶ 8–9.) Ruiz and
Roque gave somewhat different accounts of
what happened at the Laundry Palace when
Pagan was stabbed. (See id.) Accordingly,
defense counsel explained her strategy as
follows:

trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice ‘may be made with the benefit of
hindsight.’” Hemstreet v. Greiner, 491 F.3d
84, 91 (2d Cir. 2007) (quoting Mayo v.
Henderson, 13 F.3d 528, 534 (2d Cir.
1994)).
The Court proceeds to examine
petitioner’s claim, keeping in mind that the
habeas petitioner bears the burden of
establishing both deficient performance and
prejudice. United States v. Birkin, 366 F.3d
95, 100 (2d Cir. 2004).
b. Application
Petitioner contends that he received
ineffective assistance of counsel because his
trial counsel (1) failed to call Detective
Aylward and certain eyewitnesses; (2) failed
to introduce Martinez’s plea allocution in
evidence; and (3) failed to request a missing
witness charge. For the following reasons,
this Court determines that petitioner’s claim
of ineffective assistance of counsel is
without merit.
i. Failure to Call Detective Aylward
and the “No-Hit” Witnesses9

The Court may consider defense counsel’s affidavit
in deciding petitioner’s ineffective assistance of
counsel claim. See Sparman v. Edwards, 154 F.3d 51,
52 (2d Cir. 1998) (“We believe that a district court
facing the question of constitutional ineffectiveness
of counsel should, except in highly unusual
circumstances, offer the assertedly ineffective
attorney an opportunity to be heard and to present
evidence, in the form of live testimony, affidavits, or
briefs.”). Moreover, because defense counsel’s
affidavit is consistent with the other evidence in the
record (including the transcript of Martinez’s plea
allocution and summaries of the interviews between
defense counsel’s private investigator and two of the
no-hit witnesses), the Court need not hold an
evidentiary hearing. See, e.g., Nix v. United States,
111 F. Supp. 2d 186, 189 (E.D.N.Y. 2000) (noting
that Sparman “suggests that live testimony is not
invariably necessary where the record in the form of
‘affidavits or briefs’ clearly and convincingly
supports an inference that may be drawn without the
assistance of such testimony”).
10

Petitioner argues that his counsel was
ineffective for failing to call witnesses that
had been unable to identify him from police
photographs.
Petitioner
claims
that
testimony regarding these witnesses’
inability to identify him would have
undermined Rodriguez’s testimony, in
which she stated that she had been able to
identify petitioner in a lineup.
Defense counsel explained why she did
not call the “no-hit” witnesses at trial in an
“No-hit” refers to the witnesses’ failure to identify
petitioner in photo arrays as one of the men who had
attacked Pagan in the Laundry Palace on November
16, 2005.
9

21

At that point, I had already
decided that I did not
necessarily want to call Ruiz
and Roque as witnesses at
trial because, in light of their
recollections of the night in
question, I did not think that
their testimony would be
helpful to the petitioner.
Their
respective
stories
contradicted each other to
some degree, and neither
account
excluded
the
possibility that the petitioner
had stabbed the decedent.
Moreover,
their
stories
certainly did not exclude the
possibility that the petitioner
had participated in the attack.
I also feared that there was a
chance that Ruiz and/or
Roque might even identify
the petitioner as one of the
attackers in court. I decided
to try to figure out a way to
present evidence regarding
the “no hit” photo arrays,
without actually calling Ruiz
or Roque as witnesses.

associated with calling Ruiz or Roque,
defense counsel focused on Rodriguez’s
inability to identify petitioner in court, and
also highlighted to the jury that other
eyewitnesses, whom the prosecution had not
called to testify, had been present during the
crime. (Id. ¶¶ 16–17.)
In light of defense counsel’s affidavit,
the Court concludes that defense counsel’s
decision not to call Ruiz or Roque was a
reasonable one. Specifically, Rodriguez, the
prosecution’s only eyewitness, failed to
identify petitioner in court. Defense counsel
acted reasonably in relying on Rodriguez’s
failure to identify petitioner as a hole in the
prosecution’s case and a reason for the jury
to discount Rodriguez’s testimony. At best,
Ruiz and Roque likely would have
corroborated most of what had already been
testified to by Rodriguez, with the added
risk that they could have identified petitioner
in the court room either as the stabber or as a
participant in the attack on Pagan. Under
these circumstances, it was a sound trial
strategy not to call Ruiz or Roque.
It was also reasonable trial strategy for
defense counsel not to call Detective
Aylward. The prosecution called other
detectives who worked on the case, and
defense counsel reasonably could have
concluded that their testimony was not
strong enough to support a conviction, and
that Detective Aylward’s testimony would
not have advanced the defense theory of the
case.

(Id. ¶ 10.) Once trial started, defense counsel
attempted to elicit testimony about these “no
hit” witnesses from the police witnesses. (Id.
¶ 12.) The trial court held that it would not
allow such evidence to be admitted through
police witnesses because it would constitute
hearsay. (Id.) Ultimately, defense counsel
withdrew her attempt to introduce evidence
of the “no hit” witnesses because she was
“concerned that such testimony would open
the door to evidence regarding Rodriguez’s
positive identification of the petitioner in a
photo array.” (Id. ¶ 13.) Defense counsel
made her final decision not to call Ruiz or
Roque “when Rodriguez, the People’s only
eyewitness, failed to identify the petitioner
in court.” (Id. ¶ 16.) Given the risks

Therefore, this Court determines that
defense counsel made a reasonable strategic
choice in not calling the “no hit” witnesses
or Detective Aylward, and instead relying
on Rodriguez’s failure to identify petitioner
in court. See, e.g., United States v. Best, 219
F.3d 192, 201 (2d Cir. 2000) (“[C]ounsel’s
decision as to ‘whether to call specific
witnesses—even ones that might offer
22

exculpatory evidence—is ordinarily not
viewed as a lapse in professional
representation.’” (quoting United States v.
Schmidt, 105 F.3d 82, 90 (2d Cir. 1997))).
Accordingly, petitioner has failed to
establish the first prong of Strickland, and is
not entitled to habeas relief on the basis of
this claim.

explained her decision-making process as
follows:
I did not pursue the
admission of Martinez’s plea
minutes because the court
had made clear that it was not
inclined to permit this
evidence, and, in any case, I
feared that it would open the
door to evidence regarding
Martinez’s inculpation of the
petitioner during his plea
proceeding. I came to the
conclusion that Martinez’s
certificate of conviction
would not do anything to
help the petitioner’s case
because the People were
arguing that the crime was a
gang assault and that the
petitioner was acting in
concert. I had also sent my
investigator to speak with
Martinez. Based on the
investigator’s notes (which I
have turned over to A.D.A.
Rabinowitz), I learned that
Martinez told the investigator
that, not only had the
petitioner thrown a rock at
the deceased, but that the
petitioner had also stabbed
him. Ultimately, I decided
that any evidence regarding
Martinez would not help the
petitioner’s case, and, if
anything, might backfire.

ii. Failure to Introduce
Martinez’s Plea Allocution
Next, petitioner argues that defense
counsel was ineffective for failing to
introduce Martinez’s plea allocution in
evidence. As noted supra, in Martinez’s plea
allocution, he admitted to fatally stabbing
Pagan in response to an SWP attack on his
cousin. Martinez also implicated petitioner
in the stabbing.
Defense counsel’s affidavit also explains
why she did not offer Martinez’s plea
allocution in evidence. In her affidavit,
defense counsel avers that she ordered the
transcript of Martinez’s plea allocution
shortly after it occurred. (Grossblatt Aff.
¶ 4.) After reading the transcript, she learned
that Martinez “had also inculpated the
petitioner by stating that the petitioner had
stabbed the decedent as well.” (Id.) After
petitioner’s trial began, defense counsel
sought to introduce in evidence Martinez’s
admission to stabbing Pagan without
opening the door to evidence that Martinez
had also inculpated petitioner. (Id. ¶ 11.) In
the alternative, defense counsel sought to
admit in evidence Martinez’s certified
conviction. (Id. ¶ 12.) The trial court
expressed skepticism toward defense
counsel’s attempt to admit in evidence
Martinez’s plea allocution or certified
conviction, and advised defense counsel to
research the admissibility of such evidence.
(Id. ¶ 12.) Defense counsel then abandoned
her effort to admit this evidence. She has

(Id. ¶ 14.)
Defense
counsel’s
strategy
was
reasonable. If she had successfully admitted
in evidence the portion of Martinez’s plea
allocution favorable to petitioner, the trial
court would have needed to admit the entire
transcript—including the portion in which
23

F.3d 238, 247 (2d Cir. 2006) (“As a general
rule, a habeas petitioner will be able to
demonstrate that a trial counsel’s decisions
were objectively unreasonable only if there
[was] no . . . tactical justification for the
course taken.” (internal citations and
quotation marks omitted)).

Martinez directly inculpated petitioner—
under the rule of completeness. See, e.g.,
People v. Maerling, 46 N.Y.2d 289, 298–99
(1978) (when an out-of-context admission is
unfairly prejudicial to the party against
whom it is offered, the remainder should be
included to place it in an accurate
perspective). Moreover, even if the trial
court admitted in evidence only that portion
of Martinez’s plea allocution favorable to
petitioner, defense counsel correctly
observed that Martinez’s allocution did not
negate the possibility that petitioner had
acted as a second stabber or accomplice.
Indeed, the physical evidence did not rule
out the possibility of petitioner as an
accomplice or second stabber. Although
Rodriguez witnessed only one stab to
Pagan’s chest, Dr. O’Reilly testified that
Pagan had suffered three stab wounds. (Tr.
at 564.) Further, there was evidence that a
trail of blood led from the front door of the
Laundry Palace to the coin kiosk (id. at
506), and Rodriguez had only witnessed the
events once the men were near the coin
kiosk (id. at 578–79). In addition,
Martinez’s plea allocution would not have
ruled out the possibility that petitioner had
acted in concert with the other members of
his group to kill Pagan by throwing rocks
both before and after Pagan was stabbed.
Thus, even if the jury believed that Martinez
had been the only individual to stab Pagan,
petitioner’s decision to throw a rock at
Pagan during the stabbing (which was a
rational conclusion to draw from the
evidence introduced at trial) could have led
a rational jury to believe that petitioner had
acted with the requisite intent to establish
his guilt under a theory of acting in concert.

iii. Failure to Request a
Missing Witness Charge
Finally, defense counsel was not
ineffective by failing to request such a
missing witness instruction. Instead, defense
counsel’s affidavit makes clear that she
made a strategic choice to question various
witnesses, such as Detective Aponte and
Rodriguez, about the presence of other
eyewitnesses at the Laundry Palace on
November 16, 2005. (Grossblatt Aff. ¶ 17.)
Defense counsel referred to the absence of
these eyewitnesses in her summation. (Id.)
Thus, defense counsel was able to
communicate to the jury that the prosecution
had failed to call some eyewitnesses.
Overall, defense counsel’s decision to
highlight
the
absence
of
certain
eyewitnesses through cross-examination and
summation, rather than through a missing
witness instruction, falls within the realm of
sound trial strategy. Accordingly, this
strategic decision does not rise to the level
of a Sixth Amendment violation. See, e.g.,
Best, 219 F.3d at 201 (“Actions or omissions
by counsel that ‘might be considered sound
trial strategy’ do not constitute ineffective
assistance.’” (quoting Strickland, 466 U.S.
at 689)); Gersten v. Senkowski, 426 F.3d
588, 607 (2d Cir. 2005) (“Strategic choices
made
by
counsel
after
thorough
investigation . . .
are virtually
unchallengeable . . . and there is a strong
presumption that counsel’s performance
falls ‘within the wide range of reasonable
professional
assistance.’”
(quoting
Strickland, 466 U.S. at 689–90)).

For the foregoing reasons, defense
counsel did not provide constitutionally
deficient representation in making a
strategic choice not to offer in evidence
Martinez’s plea allocution or certified
conviction. See, e.g., Lynn v. Bliden, 443
24

Furthermore, for the reasons addressed
supra, even if defense counsel had requested
a missing witness charge, it is unclear
whether the trial court would have granted
the request. Defense counsel and the
prosecutor were both allowed to look over
police interviews with other eyewitnesses,
and neither decided to call additional
eyewitnesses. From the record, it is not clear
that the uncalled eyewitnesses had material,
noncumulative testimony to proffer at trial.
Defense counsel cannot have provided
ineffective assistance by failing to request an
instruction that would not have been given.
See, e.g., Davis v. Mantello, 42 F. App’x
488, 491–92 (2d Cir. 2002) (finding trial
counsel not ineffective where testifying
witness and missing witness were together
throughout duration of the crime, and
missing witness would have added no new
information). Accordingly, this claim of
ineffective assistance of counsel also fails
the first prong of the Strickland test.11

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 the
case.
SO ORDERED.

_____________________
JOSEPH F. BIANCO
United States District Judge
Dated: April 11, 2014
Central Islip, New York
* * *
Petitioner is represented by Richard M.
Langone, Langone & Associates, PLLC, 600
Old Country Road, Suite 328, Garden City,
NY 11530. Respondent is represented by
Kathleen M. Rice, District Attorney, Nassau
County, by Sarah Rabinowitz, 262 Old
Country Road, Mineola, NY 11501.

* * *
In sum, with respect to all claims in this
petition, this Court concludes that each of
them is without merit, and that the state
court determinations were not contrary to, or
based on an unreasonable application of,
clearly established law, nor were they an
unreasonable determination of the facts in
light of the state court record. Thus, the
petition is denied in its entirety on the
merits.
IV. CONCLUSION
For the reasons set forth herein, this
Court concludes that the Petitioner has
demonstrated no basis for habeas relief
under 28 U.S.C. § 2254. All of Petitioner’s
11

The Court also concludes that, even assuming
petitioner established the first requirement of
Strickland, he also has failed to establish any
prejudice from defense counsel’s alleged errors.

25