Mazariego v. Kirkpatrick

Filing 16

MEMORANDUM AND OPINION: For the reasons set forth herein, the Court concludes that petitioner's claims that (1) Detective Londono was improperly certified as an expert and that his testimony was therefore improperly allowed; (2) his conviction f or attempted assault in the second degree was against the weight of the evidence; and (3) he should have been resentenced on all counts when he was resentenced on the attempted gang assault in the first degree count are all procedurally barred from f ederal habeas review. However, even if those claims were not procedurally barred, the Court finds that all the claims set forth in the petition are substantively without merit because the state court's rulings were not contrary to, or an unreas onable application of, clearly established federal law. Therefore, the petition for a writ of habeas corpus is denied in its entirety, and 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 close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/26/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-2290 (JFB)
_____________________

JONI MAZARIEGO,
Petitioner,
VERSUS

MICHAEL KIRKPATRICK, SUPERINTENDENT,
Respondent.
___________________
MEMORANDUM AND ORDER
July 26, 2017
___________________

JOSEPH F. BIANCO, District Judge:

one and one-third to four years on the
attempted assault charge, with a period of
five years’ post-release supervision. The
gang assault conviction was later reduced to
attempted gang assault in the first degree, in
violation
of
N.Y.
Penal
Law
§§ 110.00/120.07. Petitioner was resentenced
to fifteen years on this amended charge, with
five years’ post-release supervision, to run
concurrently with the sentences for the other
charges, which were not disturbed.

Joni Mazariego (hereinafter “petitioner”
or “Mazariego”) petitions this Court for a
writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging his conviction in state
court.
Petitioner was found guilty of
manslaughter in the first degree, in violation
of N.Y. Penal Law § 125.20[1]; gang assault
in the first degree, in violation of N.Y. Penal
Law § 120.07; and attempted assault in the
second degree, in violation of N.Y. Penal
Law §§ 110.00/120.05[2]. Mazariego was
sentenced to concurrent determinate
sentences of twenty years on the
manslaughter and the gang assault charges, as
well as a concurrent indeterminate term of

In the instant habeas petition, petitioner
challenges his conviction, claiming that his
constitutional rights were violated on the
following grounds: 1 (1) he was denied
effective assistance of trial counsel when

1

Petitioner also claims in the habeas petition that guilt
of gang assault in the first degree was not established
beyond a reasonable doubt. (See Pet., ECF No. 1, at 8.)
However, petitioner is not raising this ground at the

federal level because that count was reduced to
attempted gang assault in the first degree by the New
York Appellate Division. (See id.)

1

counsel failed to request a charge for the
lesser included offense of manslaughter in
the second degree; (2) his conviction for
attempted assault in the second degree was
against the weight of the evidence; (3) he was
prejudiced at trial by the testimony of a nonexpert, whom the trial court wrongly deemed
an expert; (4) his conviction for manslaughter
in the first degree was not supported by
legally sufficient evidence and was against
the weight of the evidence; and (5) he should
have been resentenced on the manslaughter
in the first degree and attempted assault in the
second degree counts when he was
resentenced on the attempted gang assault in
the first degree count. (Pet. at 3-6.)

Gang, a rival of MS-13. (Id. at 612.) Soon
after the gang signs were thrown, Galindo,
Pareja, and Miranda left the bar. (Id. at 61316.) Petitioner and his fellow gang members
followed the Sur Trece gang members out of
the El Pacifico and attacked them. (Id.at 61621.) Petitioner was seen on a surveillance
video pulling what looked like a knife from
his pocket, motioning as if he was opening
the knife, and seconds later making stabbing
motions towards Galindo. (People’s Exh. 3.)
The video also shows that petitioner appeared
to be wearing an Ace bandage on his hand
throughout the altercation. (T. 441.) Galindo
later died from blood loss resulting from a
perforated heart, which was caused by stab
wounds. (Id. at 490-91.) During the brawl,
Pareja was also stabbed, and Miranda was
punched and hit with a belt. (Id. at 640-42.)
At trial, Antonio Gutierrez, an acquaintance
of Mazariego, testified that petitioner
admitted to him that he had “killed
somebody” at the El Pacifico Bar. (Id. at
564.) Furthermore, Detective Gonzalo
Londono of the Nassau County Police
Department, who has extensive experience
investigating MS-13 and other gangs,
testified at trial to explain the events that took
place at the El Pacifico bar. (Id. at 409-73.)
The trial court deemed Londono an expert in
MS-13. (Id. at 419.)

For the reasons discussed below,
petitioner’s request for a writ of habeas
corpus is denied in its entirety.
I.

BACKGROUND AND PROCEDURAL
HISTORY
A.

Background

The following facts are adduced from the
instant petition and underlying record.
Petitioner’s conviction arose from a
gang-related altercation. On December 23,
2010, Mazariego and some of his fellow MS13 gang members went to the El Pacifico bar
in Hempstead, New York. (T. 2 475-76, 63839.) Erik Miranda (“Miranda), John Pareja
(“Pareja”),
and
Plutarco
Galindo
(“Galindo”), members of the Sur Trece gang,
were also at the El Pacifico bar that evening.
(Id. 607-12.) Soon after arriving at the bar,
petitioner and his friends noticed Galindo and
Pareja and “threw” MS-13 gang signs at
them. (Id. at 611-12.) Mazariego and his
fellow gang members believed that Galindo
and Pareja were members of the 18th Street

Following a jury trial, petitioner was
convicted on May 9, 2012 of manslaughter in
the first degree (N.Y. Penal Law
§ 125.20[1]); gang assault in the first degree
(N.Y. Penal Law § 120.07); and attempted
assault in the second degree (N.Y. Penal Law
§§ 110.00/120.05[2]). (T. 820-22.) During
the trial, the prosecutor requested that
petitioner be charged with manslaughter in
the first degree and gang assault in the second
degree as lesser included offenses to murder
in the second degree and gang assault in the

2

“T.” refers to the transcript of petitioner’s criminal
trial. (ECF No. 5.)

2

Mazariego, 986 N.Y.S.2d 235 (App. Div. 2d
Dep’t 2014). The case was then remanded for
resentencing on the attempted gang assault
count only. Id. On May 28, 2015, petitioner
was denied leave to appeal to the New York
State Court of Appeals. See People v.
Mazariego, 25 N.Y.3d 1074 (2015).

first degree, respectively. (Id. at 663-64.)
Petitioner’s attorney joined in this request
and made no additional request for additional
lesser-included offense charges. (Id. at 67576.)
On July 18, 2012, petitioner was
sentenced to concurrent determinate
sentences of twenty years on the
manslaughter in the first degree count and the
gang assault in the first degree count, with a
period of five years’ post-release supervision.
(Sentencing Tr., ECF No. 5-10, at 15-16.)
Further, petitioner was sentenced to an
indeterminate term of one and one-third to
four years on the attempted assault in the
second degree count, with all counts to run
concurrently. (Id. at 16.)
B.

On June 26, 2014, petitioner was
resentenced to fifteen years in prison and five
years’ post-release supervision on the
attempted gang assault count, to run
concurrently with the other convictions,
which were not disturbed. (See Minutes of
Resentencing, ECF No. 5-18.) On February
22, 2016, petitioner appealed from his
resentencing to the Appellate Division,
arguing that the trial court was in error by
failing to resentence petitioner on all the
counts of which he was convicted. (See
Petitioner’s Appellate Division Sentencing
Br., ECF No. 5-19.) However, on October
12, 2016, the Appellate Division held that
petitioner was not entitled to be resentenced
on the manslaughter in the first degree and
attempted assault in the second degree
counts. See People v. Mazariego, 38
N.Y.S.3d 820 (App. Div. 2d Dep’t 2016).
Petitioner did not seek leave to appeal to the
New York Court of Appeals.

Procedural History

On August 19, 2013, petitioner appealed
to the Supreme Court, Appellate Division,
Second Judicial Department. He argued that:
(1) gang assault in the first degree was not
proven beyond a reasonable doubt;
(2) defense counsel rendered ineffective
assistance by failing to request the lesserincluded offense of manslaughter in the
second degree; (3) the conviction for
attempted assault in the second degree was
against the weight of the evidence; (4) the
trial court erred in deeming Detective
Londono an expert, which made Londono’s
testimony improper bolstering or opinion
evidence; and (5) there was insufficient
evidence
to
convict
petitioner
of
manslaughter in the first degree and the
conviction on that count was against the
weight of the evidence. (See Petitioner’s
Appellate Division Br., ECF No. 5-11.) On
May 28, 2014, the Appellate Division
reduced the conviction for gang assault in the
first degree to attempted gang assault in the
first degree and otherwise affirmed the
judgement of the trial court. See People v.

C.

The Instant Petition

On April 20, 2016, while his second
appeal was pending with the Appellate
Division, petitioner filed for habeas corpus
relief in this Court (the “Petition”). Petitioner
claimed that he is entitled to relief because:
(1) defense counsel provided ineffective
assistance by failing to request a lesserincluded charge of manslaughter in the
second degree; (2) the conviction for
attempted assault in the second degree was
against the weight of the evidence;
(3) Detective Londono’s testimony was
improperly admitted, which constituted

3

vacated the stay of the Petition and allowed
respondent forty-five days to reply to the
Petition. (ECF No. 10.) On May 3, 2017,
respondent filed its brief in opposition to the
Petition. (See Resp’t Br., ECF No. 11.) On
May 24, 2017, petitioner filed his reply. (ECF
No. 13.)

improper bolstering; and (4) the conviction
for manslaughter in the first degree was not
supported by sufficient evidence and was
against the weight of the evidence. (See Pet.
at 3.) Petitioner also raised the ground that his
sentence should be vacated because
petitioner was not resentenced on the counts
of manslaughter in the first degree and
attempted assault in the second degree. (Id. at
6.) As petitioner acknowledges, that claim
was still pending in the Appellate Division
when it was submitted in the Petition. (Id at
7.) Petitioner also abandoned his federal
habeas claim that the conviction for gang
assault in the first degree was not proven
beyond a reasonable doubt. (Id. at 8.)

The Court has fully considered the
parties’ submissions, as well as the
underlying record.
II.

STANDARD OF REVIEW

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

On May 10, 2016, this Court filed an
Order to Show Cause ordering the respondent
to reply to the Petition within thirty days from
the filing of the Order. (ECF No. 4.) On June
9, 2016, respondent filed in this Court a
motion to dismiss the Petition because it
contains both exhausted and unexhausted
claims. (ECF No. 5.) On January 9, 2017,
this Court denied the motion and stayed the
Petition on the conditions that petitioner file
any motions not yet filed in state court within
thirty days and that petitioner return to
federal court by advising the Court in writing
within thirty days after exhausting state
remedies. (ECF No. 6.)

(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

In a letter dated January 21, 2017,
petitioner wrote to this Court to request that
this Court order the Appellate Division to
forward him both the decision and the order
on the appeal from his resentence. (ECF No.
7.) On January 27, 2017, this Court declined
to direct the Appellate Division to do so, but
it continued the stay of the Petition, pending
the exhaustion of petitioner’s state remedies.
(ECF No. 8.) In a letter dated March 10,
2017, petitioner wrote to this Court to declare
that he had exhausted his state remedies.
(ECF No. 9.) On March 21, 2017, this Court

(2) resulted in a decision that was
based on an unreasonable
determination of the facts in light
of the evidence presented by the
State court proceedings.
28 U.S.C. § 2554. “Clearly established
Federal law” is compromised of “the

4

Cir. 2009) (quoting Spears v. Greiner, 459 F.
3d 200, 203 (2d Cir. 2006)).

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)).

III.
A.

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 413. A decision is an “unreasonable
application” of clearly established federal
law if a state court “identifies the correct
governing legal principles from [the Supreme
Court’s] decisions but unreasonably applies
that principle to the facts of [a] prisoner’s
case.” Id.

1.

DISCUSSION
Procedural Bar
Failure to Exhaust

As a threshold matter, a district court
shall not review a habeas petition unless “the
applicant has exhausted the remedies
available in the courts of the state.” 28
U.S.C. § 2254(b)(1)(A). Although a state
prisoner need not petition for certiorari to the
United States Supreme Court to exhaust his
claims, see Lawrence v. Florida, 549 U.S.
327, 333 (2007), petitioner must fairly
present his federal constitutional claims to
the highest state court having jurisdiction
over them. See Daye v. Attorney Gen. of
N.Y., 696 F.2d 186, 191 n.3 (2d Cir. 1982) (en
banc). Exhaustion of state remedies requires
that a petitioner “fairly presen[t] federal
claims to the state courts in order to give the
State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (quoting Picard v. Connor, 404 U.S.
270, 275 (1971) (quotation marks omitted)
(alteration in original)).

AEDPA establishes a deferential
standard of review: “a federal habeas court
may not issue the writ simply because the
court concludes in its independent judgment
that the relevant state-court decisions applied
clearly established federal law erroneously or
incorrectly. Rather, that application must 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. (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 feelings of fact and
conclusions of law are reviewed de novo.’”
Dolphy v. Mantello, 552 F.3d 236, 238 (2d

However, “it is not sufficient merely that
the federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
On the contrary, to provide the State with the
necessary “opportunity,” the prisoner must
“fairly present” his claims in each
appropriate state court (including a state
supreme court with powers of discretionary
review), alerting that court to the federal
nature of the claim and “giv[ing] the state
courts one full opportunity to resolve any
constitutional issues by invoking one
complete round of the State’s established
appellate review process.” O’Sullivan v.

5

claims are . . . to be deemed exhausted.”
DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d
Cir. 2004) (citing Harris v. Reed, 489 U.S.
255, 263 n. 9 (1989); Grey v. Hoke, 933 F.2d
117, 120 (2d Cir. 1991)). Therefore, for
exhaustion purposes, “a federal habeas court
need not require that a federal claim be
presented to a state court if it is clear that the
state court would hold the claim procedurally
barred.” Keane, 118 F.3d at 139 (quoting
Hoke, 933 F.2d at 120).

Boerckel, 526 U.S. 838, 845 (1999); see also
Duncan, 513 U.S. at 365-66. “A petitioner
has ‘fairly presented’ his claim only if he has
‘informed the state court of both the factual
and legal premises of the claim he asserts in
federal court.’” Jones v. Keane, 329 F.3d
290, 294-95 (2d Cir. 2003) (quoting Dorsey
v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)).
“Specifically, [petitioner] must have set forth
in state court all of the essential factual
allegations asserted in his federal petition; if
material factual allegation were omitted, the
state court has not had a fair opportunity to
rule on the claim.” Daye, 696 F.2d at 191-92
(citing Picard, 404 U.S. at 276; United States
ex rel. Cleveland v. Casscles, 479 F.2d 15,
19-20 (2d Cir. 1973)). To that end, “[t]he
chief purposes of the exhaustion doctrine
would be frustrated if the federal habeas court
were to rule on a claim whose fundamental
legal basis was substantially different from
that asserted in state court.” Id. at 192
(footnote omitted).

However, “exhaustion in this sense does
not automatically entitle the habeas petitioner
to litigate his or her claims in federal court.
Instead, if the petitioner procedurally
defaulted on those claims, the prisoner
generally is barred from asserting those
claims in a federal habeas proceeding.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006)
(citing Gray v. Netherland, 518 U.S. 152, 162
(1996); Coleman, 501 U.S. at 744-51).
“[T]he procedural bar that gives rise to
exhaustion provides an independent and
adequate state-law ground for the conviction
and sentence, and thus prevents federal
habeas corpus review of the defaulted claim,
unless the petitioner can demonstrate cause
and prejudice for the default.” Netherland,
518 U.S. at 162 (citations omitted).

2. State Procedural Requirements
Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural
requirements deprives the state courts of an
opportunity to address the federal
constitutional or statutory issues in a
petitioner’s claim. Coleman v. Thompson,
501 U.S. 722, 731-32 (1991). “[A] claim is
procedurally defaulted for the purposes of
federal habeas review where ‘the petitioner
failed to exhaust state remedies and the court
to which the petitioner would be required to
present his claims in order to meet the
exhaustion requirement would now find the
claims procedurally barred.’” Reyes v.
Keane, 118 F.3d 136, 140 (2d Cir. 1997)
(quoting Coleman, 501 U.S. at 735)
(additional citations and emphasis omitted).
Where the petitioner “can no longer obtain
state-court review of his present claims on
account of his procedural default, those

The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect that state
judgments must be accorded. See House v.
Bell, 547 U.S. 518, 536 (2006). Petitioner’s
federal claims also may be procedurally
barred from habeas corpus review if they
were decided at the state level on adequate
and independent grounds. See Coleman, 501
U.S. at 729-33. The purpose of this rule is to
maintain the delicate balance of federalism
by retaining a state’s rights to enforce its laws
and to maintain its judicial procedures as it
sees fit. Id. at 730-31.

6

was not fairly presented to “[t]he state courts
in order to give the State the opportunity to
pass upon and correct alleged violations of its
prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995) (quoting Picard v.
Connor, 404 U.S. 270, 275 (1971).)
Accordingly, the claim was not properly
exhausted and cannot be considered by this
Court.

Once it is determined that a claim is
procedurally barred under state rules, a
federal court may still review such a claim on
its merits if the petitioner can demonstrate
both cause for the default and that prejudice
results therefrom, or if he can demonstrate
that the failure to consider the claim will
result in a miscarriage of justice. Id. at 750
(citations omitted). 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).
3.

Additionally, all three of petitioner’s
claims failed to raise a constitutional question
before any New York appellate court. With
respect to the trial court’s ruling on the expert
testimony claim, petitioner cited solely to
cases from the Appellate Division and the
trial level. (See Petitioner’s Appellate
Division Brief at 28-29.) As for the weight of
the evidence claim, petitioner cited solely to
People v. Danielson, 9 N.Y.3d 342 (2007).
(See Petitioner’s Appellate Division Brief,
ECF No. 5-19, at 27-28.) Furthermore, on the
resentencing claim, petitioner cited solely to
Section 380.20 of the New York Criminal
Procedure Law and a series of New York
cases. (See Petitioner’s Appellate Division
Sentencing Brief.) Since petitioner failed to
argue that any of these purported errors
deprived him of any federal constitutional
rights, petitioner failed to present errors of a
constitutional magnitude to the state courts,
making these claims procedurally defaulted.
See Carvajal v. Artus, 633 F.3d 95, 107 (2d
Cir. 2011) (petitioner’s claims were
procedurally barred when he relied solely on
“state court decisions interpreting state
statutory law” on appeal).

Application

As a threshold matter, respondent argues
that petitioner’s claims that (1) the trial court
made an erroneous evidentiary ruling in
certifying Detective Londono as an expert
and
therefore
improperly
admitted
Londono’s testimony; (2) the conviction for
attempted assault in the second degree was
against the weight of the evidence; and
(3) petitioner should have been resentenced
on all counts when he was resentenced on the
attempted gang assault in the first degree are
procedurally barred from habeas review by
the Court. The Court agrees.
With respect to the resentencing claim,
Mazariego failed to appeal to the New York
State Court of Appeals. Petitioner properly
appealed his resentence to the Appellate
Division, which rejected the appeal. See
People v. Mazariego, 38 N.Y.S.3d 820 (App.
Div. 2d Dep’t. 2016). After the appeal was
rejected, petitioner had thirty days to seek
leave to the Court of Appeals, which he failed
to do. See C.P.L. §§ 460.10(5)(a), 460.20,
460.30(1). Thus, petitioner’s claim that he
should have been resentenced on all counts
when he was resentenced on the attempted
gang assault in the first degree count was not
properly raised on appeal, and therefore, it

To overcome a procedural bar, petitioner
must “demonstrate cause for the default and
actual prejudice as a result of the alleged
violation of federal law, or demonstrate that
failure to consider the claims will result in a
fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750.
However,
petitioner has failed to meet his burden.

7

counsel’s actions under all circumstances,
keeping in mind that a “fair assessment of
attorney performance requires that every
effort be made to eliminate the distorting
effects of hindsight.” Id. (quoting Rompilla
v. Beard, 545 U.S. 374, 408 (2005)). In
assessing performance, a court must apply a
“heavy measure of deference to counsel’s
judgments.” Id. (quoting Strickland, 466
U.S. at 691). “A lawyer’s decision not to
pursue a defense does not constitute deficient
performance if, as is typically the case, the
lawyer has reasonable justification for the
decision,” DeLuca v. Lord, 77 F.3d 578, 588
n.3 (2d Cir. 1996), and “strategic choices
made after thorough investigation of law and
facts relevant to plausible options are
virtually unchallengeable.” Id. at 588 (citing
Strickland, 466 U.S. at 690-91). 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.

Petitioner has not provided any explanation
for his failure to properly exhaust all of his
claims in state court or for his failure to raise
federal constitutional issues in state court.
Thus, because petitioner has not provided
a satisfactory explanation for his failure to
properly exhaust these claims in state court,
and because petitioner has demonstrated
neither prejudice resulting from the default
nor a miscarriage of justice, the claims are
procedurally barred from review by this
Court. In any event, assuming arguendo that
these claims are reviewable, they are without
merit, as is set forth infra.
B.

The Merits

1. Ineffective Assistance of Trial Counsel
a.

Standard

Under the standard promulgated by
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to demonstrate
two elements in order to state a successful
claim for ineffective assistance of counsel:
(1) “counsel’s representation fell below an
objective standard of reasonableness,” and
(2) “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result
of the proceeding would have been
different.” Id. at 688, 694.

The second prong focuses on prejudice to
the petitioner. The petitioner is required to
show that there is “a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. In
this context, “reasonable probability” means
that the errors were of a magnitude such that
they “undermine[] confidence in the
[proceeding’s] outcome.” Pavel v. Hollins,
261 F.3d 210, 216 (2d Cir. 2001) (quoting
Strickland, 466 U.S. at 694). “The question
to be asked in assessing the prejudice from
counsel’s errors . . . is whether there is a
reasonable probability that, absent the errors,
the factfinder would have had a reasonable
doubt respecting guilt.” Henry v. Poole, 409
F.3d 48, 63-64 (2d Cir. 2005) (quoting
Strickland, 466 U.S. at 695.)

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 trial

8

b.

same video shows Mazariego leaving the
scene with that knife in his hand. Therefore,
although petitioner claims that it would be
reasonable to find recklessness as opposed to
intent “in a common stabbing with multiple
wounds to the chest whereby the attacker
makes these several thrusts trying to find a
way to get around the breastbone protecting
the heart from the attacker’s assault,” such
repeated thrusts indicate deliberate action,
not recklessness, under New York law. (Pet.
at 11.) Thus, because petitioner was not
entitled to the lesser-included offense charge,
the performance of trial counsel for petitioner
was not objectively unreasonable, as
requesting the charge would have been futile.
See Graziano v. United States, 2013 WL
298116, at *12 (E.D.N.Y. Jan. 25, 2013)
(counsel’s failure to make “a meritless
motion was certainly not ineffective”).
Accordingly, petitioner’s claim of ineffective
assistance of counsel must fail.

Application

Here, petitioner’s claim fails to satisfy the
first prong of Strickland.
It was not
objectively unreasonable for petitioner’s trial
counsel to fail to request that manslaughter in
the second degree be submitted to the jury.
Petitioner argues that the lesser-included
charge of manslaughter in the second degree
would have been advantageous to petitioner
and that there was no legitimate reason to fail
to make the request. In New York, it is settled
law that a lesser-included charge is warranted
only when: (1) the more serious crime cannot
be committed unless the lesser offense also
is; and (2) there is a reasonable view of the
evidence that would support a finding that the
accused committed only the lesser, but not
the greater, offense. See C.P.L. §§1.20(37),
300.50(1); People v. Glover, 57 N.Y.2d 61,
63 (1982). Here, the first prong of the lesserincluded offense analysis is satisfied.
Manslaughter in the second degree (Penal
Law §125.15[1]) (recklessly causing the
death of a person) is a lesser-included offense
of murder in the second degree (Penal Law
§125.25[1]) (causes the death of a person or
another with the intent to cause the death of a
person).

Although Mazariego’s failure to show
deficient performance disposes of his
ineffective assistance claim, the Court also
finds that, even assuming arguendo that trial
counsel’s performance was deficient, any
alleged deficiencies in his trial counsel’s
performance did not result in prejudice to
petitioner’s case.
“In evaluating the
prejudice suffered by a petitioner as a result
of counsel’s deficient performance, the court
looks to the ‘cumulative weight error’ in
order to determine whether the prejudice
‘reache[s] the constitutional threshold.’”
Sommerville v. Conway, 281 F. Supp. 2d 515,
519 (E.D.N.Y. 2003) (quoting Lindstadt v.
Keane, 239 F.3d 191, 202 (2d Cir. 2001)).
“The defendant must 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. For the reasons
discussed supra, particularly the video
evidence that indicates that petitioner

However, the second prong of the New
York test is not satisfied, as there is no
reasonable view that Mazariego acted
recklessly, as opposed to intentionally, in
stabbing Galindo. In New York, it is settled
law that “[r]epeated shots, blows or acts of
violence point towards deliberate action.”
People v. Sanducci, 195 N.Y. 361, 367-68
(1909). As was discussed supra, petitioner
approached Galindo and Pareja and insulted
them. Petitioner and his fellow MS-13 gang
members then followed Galindo outside the
bar and attacked him and his friends. A
surveillance video appears to show petitioner
opening a knife and seconds later making
stabbing motions towards Galindo, and this

9

principles.”); see also Lewis v. Jeffers, 497
U.S. 764, 780 (1990) (“[F]ederal habeas
corpus relief does not lie for errors of state
law.”). However, the Court will construe
the pro se petition as asserting sufficiency of
the evidence claims under the Fourteenth
Amendment’s
Due
Process
Clause.
See Einaugler v. Supreme Court of the State
of N.Y., 109 F.3d 836, 839 (2d Cir.
1997) (stating that due process prohibits
“conviction ‘except upon proof beyond a
reasonable doubt of every fact necessary to
constitute the crime with which [the
defendant] is charged’” (quoting In re
Winship, 397 U.S. 358, 364 (1970))).

intentionally stabbed Galindo, there is no
basis to conclude that, absent counsel’s
purported deficiencies, there was a
reasonable probability that the result of the
proceeding would have been different had
petitioner’s
counsel
requested
a
manslaughter in the second degree charge.
Accordingly, petitioner did not receive
constitutionally deficient assistance of trial
counsel with respect to the failure to request
a charge for manslaughter in the second
degree.
Thus, Mazariego’s request for
habeas relief on the ground of ineffective
assistance of trial counsel is denied. See, e.g.,
Jackson v. Morgenthau, No. 07 Civ. 2757
(SAS) (THK), 2009 WL 1514373, at *15-16
(S.D.N.Y. May 28, 2009) (finding effective
assistance of counsel and dismissing habeas
petition when petitioner claimed that trial
counsel did not sufficiently challenge the
evidence supporting the indictment).

With respect to the attempted assault in
the second degree claim, the Appellate
Division ruled on the merits that “the verdict
of guilt as to . . . attempted assault in the
second degree was not against the weight of
the evidence.” People v. Mazariego, 986
N.Y.S.2d 235, 237 (App. Div. 2d Dep’t.
2014). With respect to the manslaughter in
the first degree claim, the Appellate Division
ruled on the merits that the evidence at
petitioner’s trial was “legally sufficient to
establish [his] guilt of that offense beyond a
reasonable doubt.” Id. For the reasons set
forth below, the Court concludes that these
rulings were neither contrary to, nor an
unreasonable application of, clearly
established federal law, nor were they
unreasonable determinations of the facts in
light of the entire record. Thus, these claims
do not entitle petitioner to habeas relief.

2. Sufficiency of the Evidence Claims
Petitioner claims that his conviction for
attempted assault in the second degree was
against the weight of the evidence and that his
conviction for manslaughter in the first
degree was both not supported by legally
sufficient evidence and was against the
weight of the evidence (Pet. at 3.). Both
claims implicate a common legal standard, so
they are consolidated here for purposes of
this Memorandum and Order.
As an initial matter, “weight of evidence”
is the name of a specific claim under New
York State law and, thus, is not cognizable on
federal habeas review. See, e.g., 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

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 evidentiary sufficiency in a writ
of habeas corpus. Einaugler v. Supreme
Court of N.Y., 109 F.3d 836, 840 (2d Cir.

10

b.

1997) (quoting Quirama v. Michele, 983
F.2d 12, 14 (2d Cir. 1993)). A criminal
conviction in state court will not be reversed
if, “after viewing the evidence in the light
most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); 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)). 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 resolved 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). Petitioner cannot prevail on a
claim of legally insufficient evidence unless
he can show that, viewing the evidence in the
light most favorable to the prosecution, “‘no
rational trier of fact could have found proof
of guilt beyond a reasonable doubt.’”
Flowers v. Fisher, 296 F. App’x. 208, 210
(2d Cir. 2008) (quoting Jackson, 433 U.S. at
324). 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).

Application

1. Attempted Assault in the Second
Degree Count
Notwithstanding that the Court has
determined that petitioner has procedurally
defaulted on his claim regarding the
sufficiency of the evidence of the attempted
assault in the second degree conviction, the
Court nonetheless proceeds to analyze the
merits of this claim.
Petitioner argues that his conviction for
attempted assault in the second degree was
not based on legally sufficient evidence. (Pet.
at 16.) The Appellate Division rejected this
claim on the merits, holding that, “the verdict
of guilt as to . . . attempted assault in the
second degree was not against the weight of
the evidence.” People v. Mazariego, 986
N.Y.S.2d 235, 237 (App. Div. 2d Dep’t.
2014). For the reasons set forth below, the
Court concludes that the Appellate Division’s
ruling was not contrary to, or an unreasonable
application of, clearly established federal
law, nor was it an unreasonable
determination of the facts.
In New York, “[a] person is guilty of
assault in the second degree when . . . [w]ith
intent to cause serious physical injury to
another person, he causes such injury to such
person or a third person by means of a deadly
weapon or a dangerous instrument.” N.Y.
Penal Law § 120.05[2]. Also, in New York,
“[a] person is guilty of an attempt to commit
a crime when, with intent to commit a crime,
he engages in conduct which tends to effect
the commission of such crime.” N.Y. Penal
Law §110.00.
Petitioner contends that this conviction is
not supported by legally sufficient evidence
because “Mr. Miranda testified that he was
beaten with a belt by the bouncer himself.”

11

established federal
§ 2254(d)(1).

(Pet. at 16.) Petitioner misconstrues the
standard for liability for attempted assault. As
was discussed supra, petitioner is liable for
attempted assault in the second degree if the
jury found that petitioner had the intent to
cause serious physical injury to Miranda and
engaged in conduct to effect the crime, even
if he himself did not cause Miranda’s
injuries. Furthermore, under New York law,
“[w]hen one person engages in conduct
which constitutes an offense, another person
is criminally liable for such conduct when,
acting with the mental 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.

law. See 28

U.S.C.

2. Manslaughter in the First Degree
Count
Petitioner also argues that his conviction
for manslaughter in the first degree was not
supported by legally sufficient evidence.
(Pet. at 20.) Petitioner claims that his codefendant killed Galindo, which insulates
petitioner from liability for the manslaughter
in the first degree count. The Appellate
Division rejected this claim on the merits,
holding that the evidence at petitioner’s trial
was “legally sufficient to establish [his] guilt
of that offense beyond a reasonable
doubt.” People v. Mazariego, 986 N.Y.S.2d
235, 237 (App. Div. 2d Dep’t. 2014). For the
reasons set forth below, the Court concludes
that the Appellate Division's ruling was not
contrary to, or an unreasonable application
of, clearly established federal law. Nor was it
an unreasonable determination of the facts.

The evidence here is sufficient to support
petitioner’s conviction. First, petitioner was
part of the MS-13 group that attacked
Miranda. (T. 616-21; People’s Exhibit 3.)
Second, Miranda and another witness both
testified that, contrary to petitioner’s claim,
another individual, not the bouncer, attacked
Miranda with the belt. (T. 477-78, 639-42.)
Therefore, it was reasonable for the jury to
conclude that petitioner intended to cause
serious physical injury to Miranda and that
petitioner engaged in conduct to effectuate
the assault in the second degree with a deadly
weapon or a dangerous instrument, either by
attempting to assault Miranda himself or by
aiding another individual who attempted to
assault Miranda.

In New York, “[a] person is guilty of
manslaughter in the first degree when . . .
[w]ith intent to cause serious physical injury
to another person, he causes the death of such
person or of a third person.” N.Y. Penal Law
§ 125.20[1]. Furthermore, New York law
holds that “[w]hen one person engages in
conduct which constitutes an offense, another
person is criminally liable for such conduct
when, acting with the mental 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.
Therefore, contrary to petitioner’s contention
that he cannot be convicted of manslaughter
in the first degree because he claims he did
not stab Galindo, whether petitioner
committed the stabbing is not dispositive in
regard to his criminal liability for this count
because he could have been criminally liable

In sum, the Court concludes that the
evidence was legally sufficient for a rational
trier of fact to find petitioner guilty of
attempted assault in the second degree
beyond a reasonable doubt. Therefore, the
Court finds that petitioner’s sufficiency of
the evidence claim is without merit, and thus,
the state court’s ruling was not contrary to, or
an unreasonably application of, clearly

12

In sum, the Court concludes that the
evidence was legally sufficient for a rational
trier of fact to find petitioner guilty of
manslaughter in the first degree beyond a
reasonable doubt. Therefore, the Court finds
that petitioner’s sufficiency of the evidence
claims are without merit, and thus, the state
court’s ruling was not contrary to, or an
unreasonably application of, clearly
established federal law. See 28 U.S.C.
§ 2254(d)(1).

by aiding the crime. See People v. Duncan,
46 N.Y.2d 74, 80 (1978) (“There is no
distinction between liability as a principal
and criminal culpability as an accessory.”)
The evidence here is sufficient to support
petitioner’s conviction. First, petitioner was
part of the group of MS-13 gang members
that followed Galindo, Pareja and Miranda
out of the El Pacifico bar and attacked them,
resulting in Galindo’s death. (T. 616-21.)
Second, Antonio Gutierrez testified that
petitioner told him that he “killed somebody”
at the bar. (Id. at 564.) Third, petitioner was
seen on a surveillance video making motions
that could be reasonably construed as
opening a knife and stabbing Galindo.
(People’s Exh. 3.) Finally, even disregarding
Gutierrez’s testimony
and the video
evidence that could reasonably be construed
as petitioner stabbing Galindo, petitioner was
seen on the videotape fighting with Galindo,
supporting a conviction as an accessory. (Pet.
at 20.)

3. Admission of Detective Londono’s
Expert Testimony
Notwithstanding that the Court has
determined that petitioner has procedurally
defaulted on his claim regarding expert
testimony, the Court nonetheless proceeds to
analyze the merits of this claim.
Petitioner argues that the trial court
improperly certified Detective Gonzolo
Londono as an expert witness. (Pet. at 18.)
Specifically, petitioner argues that the trial
court was in error by certifying Londono as
an expert in the MS-13 gang and “allow[ing]
him to testify as to gang history, the
identification of persons seen on a
surveillance video, the throwing of gang
signs by persons on the video, and his opinion
and explanation of what he saw on the video
as it was played to the jury . . . depriv[ing]
petitioner of due process right[s] guaranteed
by the U.S. [C]onstitution.” (Id.) This Court
disagrees.

Petitioner argues that, since he was
wearing a bandage on his hand at the time of
the stabbing, he could not have possibly
stabbed Galindo. (T. 441.) However, as noted
above, a manslaughter in the first degree
conviction does not require that petitioner
actually stabbed Galindo. See Duncan, 46
N.Y.2d at 80. Since petitioner was part of the
group that fought the Sur Trece gang
members and was seen on the surveillance
video fighting with Galindo, it was
reasonable for the jury to find both that
petitioner intended to seriously injure
Galindo and that he intentionally aided
another MS-13 gang member in the killing of
Galindo, even if he did not commit the
stabbing himself, which is sufficient to find
criminal liability under New York law. See
N.Y. Penal Law §§ 20.00, 125.20[1].

a. Legal Standard
It is well-settled that “[e]rroneous
evidentiary rulings do not automatically rise
to the level of constitutional error sufficient
to
warrant
issuance
of
a
writ
of habeas corpus.” Taylor v. Curry, 708 F.2d
886, 891 (2d Cir. 1983); see generally Estelle
v. McGuire, 502 U.S. 62, 67 (1991)

13

law, and (2) whether the error amounted to
the denial of the constitutional right to a
fundamentally fair trial. See Wade v.
Mantello, 333 F.3d 51, 59 n.7 (2d Cir.
2003); Davis v. Strack, 270 F.3d 111, 123-24
(2d Cir. 2001). As set forth below, the Court
has reviewed petitioner’s objections
regarding certifying Londono as an expert
and allowing his testimony under this twopart test and concludes that they do not
warrant habeas relief.

(“[H]abeas corpus relief does not lie for
errors of state law.” (quoting Lewis v.
Jeffers, 497 U.S. 764, 780 (1990)). Instead,
for a habeas petitioner to prevail in
connection with a claim regarding an
evidentiary error, the petitioner must “show
that the error deprived [him] of a
fundamentally fair trial.” Taylor, 708 F.2d at
891; see also Zarvela v. Artuz, 364 F.3d 415,
418 (2d Cir. 2004) (“Even erroneous
evidentiary rulings warrant a writ
of habeas corpus only where the petitioner
‘can show that the error deprived [him] of a
fundamentally fair trial.’” (quoting Rosario
v. Kuhlman, 839 F.2d 918, 925 (2d Cir.
1988)). In other words, “[t]he introduction of
improper evidence against a defendant does
not amount to a violation of due process
unless the evidence ‘is so extremely unfair
that its admission violates fundamental
conceptions of justice.’” Dunnigan v.
Keane, 137 F.3d 117, 125 (2d Cir.
1998) (quoting Dowling v. United States, 493
U.S. 342, 352 (1990)).

b. Application
As to the first part of the two-part analysis,
under New York law, expert testimony may
be introduced into evidence “when it would
help to clarify an issue calling for
professional or technical knowledge,
possessed by the expert and beyond the ken
of the typical juror.” De Long v. Erie County,
60 N.Y.2d 296, 307 (1983). “A witness’s
qualification to testify as an expert rests in the
discretion of the trial court, and its
determination will not be disturbed in the
absence of a serious mistake, an error of law,
or abuse of discretion.” Werner v. Sun Oil
Co., 65 N.Y.2d 839, 840 (1985).

To constitute a denial of due process
under this standard, the erroneously admitted
evidence must have been “sufficiently
material to provide the basis for conviction or
to remove a reasonable doubt that would have
existed
on
the
record
without
it.”
Dunnigan, 137
F.3d
at
125 (quoting Johnson v. Ross, 955 F.2d 178,
181 (2d Cir. 1992)); see also Collins v.
Scully, 755 F.2d 16, 19 (2d Cir.
1985) (holding that evidence must be
“crucial, critical, highly significant”)
(citation omitted). Moreover, the court “must
review the erroneously admitted evidence in
light of the entire record before the
jury.” Dunnigan, 137 F.3d at 125 (citation
omitted). In making this due process
determination, the Court should engage in a
two-part
analysis,
examining
(1) whether the trial court’s evidentiary
ruling was erroneous under New York State

Under this standard, the trial court did not
make an erroneous evidentiary ruling under
New York law by qualifying Detective
Londono as an expert on the MS-13 gang.
Even accepting as true petitioner’s contention
that Detective Londono “has no specialized
training in gangs other than that given to all
police officers,” the trial court was within its
discretion in deeming him an expert. (Pet. at
18). Detective Londono has investigated
many gang-related murders throughout his
career, he previously worked for one year on
an FBI task force tasked with combating gang
violence on Long Island, and he previously
traveled to El Salvador to work with local
police on crimes related to the MS-13 gang
(T. 409-20.) Therefore, Detective Londono

14

certainly had the requisite knowledge to give
him expertise about MS-13 beyond the
knowledge of a “typical juror.” De Long, 60
N.Y.2d at 307. Contrary to petitioner’s claim
that Detective Londono “was not anymore
likely to understand what was going on than
the jury that viewed the same video,”
Detective Londono had the experience and
knowledge “to testify as to the gang history,
the identification of persons seen on a
surveillance video, the throwing of gang
signs by persons on the video, and his opinion
and explanation of what he saw on the video”
due to his extensive experience investigating
MS-13. (Pet. at 18.)

which he was convicted. Therefore, even if
Detective Londono’s testimony was
improper under New York law, that
testimony was not a violation of petitioner’s
constitutional due process rights because it
was not “sufficiently material to provide the
basis for conviction or to remove a
reasonable doubt that would have existed on
the record without it.” Dunnigan, 137 F.3d
at 125.
4. Resentencing
Notwithstanding that the Court has
determined that petitioner has procedurally
defaulted
on
his
claim
regarding
resentencing, the Court nonetheless proceeds
to analyze the merits of this claim. Petitioner
argues that, under New York State
Procedural Law § 380.20, he should have
been resentenced on all counts when he was
resentenced on the gang assault in the first
degree count. This claim has no merit. 3

Assuming arguendo that the trial court
erroneously deemed Detective Londono an
expert and that his testimony was therefore
improper under New York law, this
purported error would not violate petitioner’s
due process right to a fair trial. As was
discussed supra, petitioner was seen on video
as part of the group that attacked the Sur
Trece gang members. That video also shows
petitioner directly participating in the brawl,
and an independent witness testified that
petitioner admitted to him that he murdered
somebody on the night of the crimes for
which petitioner was convicted. Therefore,
even without Detective Londono’s testimony
to explain MS-13 and petitioner’s role in the
brawl, there was overwhelming evidence to
convict petitioner of all of the crimes for

a. Legal Standard
New York Criminal Procedure Law holds
that “[t]he court must pronounce sentence in
every case where a conviction is entered. If
an accusatory instrument contains multiple
counts and a conviction is entered on more
than one count the court must pronounce
sentence on each count.” C.P.L. § 380.20. As
set forth below, the Court has reviewed
petitioner’s claim that he should have been

3

To the extent petitioner raises a claim under
the Eighth Amendment, his sentence is not
disproportionate to the crimes for which he was
convicted. The Eighth Amendment forbids
only
extreme
sentences
which
are
“grossly
disproportionate” to the crime of conviction. Lockyer
v. Andrade, 538 U.S. 63, 72-73 (2003). “The gross
disproportionality principle reserves a constitutional
violation for only the extraordinary case.” Id. at
77. Outside of the context of capital punishment,
successful challenges to the proportionality of
particular sentences under the Eighth Amendment
have been “exceedingly rare.” Rummel v. Estelle, 445
U.S. 263, 272 (1980). The Supreme Court

in Lockyer held that a state appeals court’s
determination that a habeas petitioner’s sentence of
two consecutive prison terms of 25 years to life for
petty theft under California’s “Three Strikes” law was
not disproportionate, did not constitute cruel and
unusual punishment, and was not an unreasonable
application of clearly established Supreme Court
law. Lockyer, 538 U.S. at 77. Under the applicable
standards, given petitioner’s violent conduct, his
sentence can hardly be considered contrary to, or an
unreasonable application of clearly applicable federal
constitutional law.

15

IV.

resentenced on all counts and concludes that
it does not warrant habeas relief.

CONCLUSION

In sum, the Court concludes that
petitioner’s claims that (1) Detective
Londono was improperly certified as an
expert and that his testimony was therefore
improperly allowed; (2) his conviction for
attempted assault in the second degree was
against the weight of the evidence; and (3) he
should have been resentenced on all counts
when he was resentenced on the attempted
gang assault in the first degree count are all
procedurally barred from federal habeas
review. However, even if those claims were
not procedurally barred, the Court finds that
all the claims set forth in the petition are
substantively without merit because the state
court’s rulings were not contrary to, or an
unreasonable application of, clearly
established federal law.

b. Application
As a threshold matter, petitioner’s claim
implicates only state law and is therefore not
cognizable on habeas review. See Jenkins v.
Stallone, 2015 WL 1788713, at *7, n.8
(N.D.N.Y. Apr. 17, 2015) (noting that a claim
based on an “alleged failure to meet the
requirements of CPL 380.20” would not be
cognizable on habeas corpus review because
“federal habeas relief does not lie to correct
errors of state law”). Thus, as was discussed
supra, the claim cannot be heard pursuant to
AEDPA.
Assuming arguendo that this claim could
be heard on federal habeas review,
petitioner’s claim still fails. The sentencing
court did in fact pronounce a sentence on all
other counts when sentence was imposed on
the modified attempted gang assault in the
first degree count. (See Minutes of
Resentencing, ECF No. 5-18 (holding that
the sentence on the attempted gang assault in
the first degree count would run concurrently
to all other counts).) Furthermore, even
without this pronouncement, the sentencing
court complied with C.P.L. § 380.20, as the
conviction was remanded solely on the
attempted gang assault in the first degree
count. See People v. Mazariego, 986
N.Y.S.2d 235 (App. Div. 2d Dep’t. 2014)
(remanding the matter solely for sentencing
on the attempted gang assault in the first
degree count). Thus, given that the trial court
was under no state law duty to resentence
petitioner on all counts, petitioner’s claim
that he should have been resentenced on all
counts fails.

Therefore, the petition for a writ of
habeas corpus is denied in its entirety, and
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 close
this case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: July 26, 2017
Central Islip, New York
***
Petitioner is proceeding pro se. Respondent
is represented by John B. Latella and Tammy
J. Smiley, Assistant District Attorneys,

16

Nassau County District Attorney’s Office,
262 Old Country Road, Mineola, NY 11501.

17