Tucker v. Yelich
Filing
20
MEMORANDUM AND OPINION. For the reasons stated herein, petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Accordingly, the instant habeas petition 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 close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/24/2017. (Consalvo, Mikayla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-4931 (JFB)
_____________________
CORDELL TUCKER,
Petitioner,
VERSUS
BRUCE YELICH, SUPERINTENDENT, BAREHILL CORRECTIONAL FACILITY,
Respondent.
___________________
MEMORANDUM AND ORDER
August 24, 2017
__________________
_
charge, and 2 and one-third to 7 years for the
criminal possession charge; as well as the
following
determinate
terms
of
imprisonment: 7 and one-half years followed
by three years of post-release supervision for
the assault conviction, and 30 days for the
unlicensed operation conviction. (Answer,
ECF No. 12, ¶ 49; Sent’g Tr., ECF No. 1256, at 18-20.) The sentencing court ordered
that the manslaughter sentence be served
consecutively to the remainder of his
sentence. (Sent’g Tr. 20.)
JOSEPH F. BIANCO, District Judge:
Cordell Tucker (hereinafter “petitioner”)
petitions this Court for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254,
challenging his conviction in state court.
(Pet., ECF No. 1.)
On May 24, 2014, petitioner was
convicted of manslaughter in the second
degree (N.Y. Penal Law (“Penal Law”)
§ 125.15(1)); grand larceny in the third
degree (Penal Law § 155.35); assault in the
second degree (Penal Law § 120.05(4));
unlawful fleeing a police officer (Penal Law
§ 270.35); criminal possession of stolen
property in the third degree (Penal Law
§ 160.50); and aggravated unlicensed
operation of a motor vehicle (N.Y. Vehicle &
Traffic Law (“VTL”) § 511.1). (Pet. 1.) On
June 27, 2013, petitioner was sentenced to the
following
indeterminate
terms
of
imprisonment: 5 to 15 years for the
manslaughter conviction, 2 and one-third to 7
years for the unlawful fleeing conviction, 2
and one-third to 7 years for the grand larceny
In the instant habeas petition, petitioner
challenges his conviction on the following
grounds: (1) petitioner’s Fourteenth
Amendment rights were violated under
Batson v. Kentucky, 479 U.S. 79 (1986);
(2) the verdict was against the weight of the
evidence; (3) the sentence imposed was cruel
and unusual in violation of the Eighth
Amendment;
(4)
petitioner’s
Sixth
Amendment rights were violated because he
was not present when his sentence was
amended; (5) the police violated their own
procedure in the course of the events at issue;
1
and (6) ineffective assistance of counsel.
(See Pet. 5-11.) For the reasons discussed
below, petitioner’s request for a writ of
habeas corpus is denied in its entirety.
I.
A.
and the individuals to her manager. (Id. at
32-33.)
At approximately 1:00 p.m. that day,
Suffolk County Deputy Sheriff John Rung
(“Deputy Sheriff Rung”) was alone in a
marked sheriff’s unit located at the center
median of the Long Island Expressway east
of exit 67. (Id. at 54.) He received a radio
notification about the black Lincoln Town
Car with New Jersey license plates. (Id.) The
notification stated that the vehicle’s
occupants, two black men wearing red
clothing, were wanted for a Riverhead
larceny. (Id. at 54-55.) Soon after, Deputy
Sheriff Rung saw a black Lincoln Town Car
with New Jersey plates being operated by a
driver fitting the description issued in the
notification. (Id. at 55.) He also saw a black
woman in the front passenger seat and a black
man in the back seat. (Id.) He pulled out
from the median and followed the Town Car.
(Id.) Deputy Sheriff Rung notified dispatch
that he was following the vehicle, and he
noticed that the license plate did not match
the number stated in the notification. (Id.)
He conducted a registration check on the
plate. (Id.) Dispatch notified him that the
plate came back “no hit,” meaning it was
either an old plate that had not been registered
to a car for years, or was fake. (Id. at 56.)
BACKGROUND
Factual Background
The following facts are adduced from the
instant petition and underlying record.
1. The Underlying Crimes
At just past 11:00 a.m. on June 27, 2011,
two black men dressed in red entered the True
Religion Clothing Company at the Tanger
Outlets in Riverhead, New York. (Tr. 3 1 at
29-30.) Sales associate Shannon Holm
(“Holm”) asked one of the men if they needed
help, and they both declined. (Id. at 30.) The
men left the store, informing her that they
would return. (Id.) Later, the men returned
with a black woman. (Id. at 31.) Holm again
asked one of the men if they needed help.
(Id.) The man, who was later identified to be
petitioner, declined. (Id.) Holm noticed that
he was sweating profusely. (Id.) Afterwards,
Holm heard the store alarm sound. She saw
the two men and woman pick up merchandise
from the tables and run out of the store. (Id.)
The merchandise was valued at over $5,000.
(Id. at 44.)
Deputy Sheriff Rung pulled the vehicle
over near exit 64. (Id. at 57-58) A K9 unit
pulled up behind Deputy Sheriff Rung’s
vehicle. (Id. at 58.) Deputy Sheriff Rung
exited his car and approached the vehicle.
(Id.) Deputy Sheriff Greg Negra (“Deputy
Sheriff Negra”), who operated the K9 unit,
accompanied him. (Id.) As they approached
the vehicle, petitioner placed it into drive and
sped away. (Id. at 58-59.) The officers
returned to their respective vehicles and
Holm ran out of the store after the group.
(Id. at 31.) She asked passing shoppers if
they had seen people carrying jeans. (Id. at
32.) Some pointed to a black Lincoln Town
Car driving erratically out of the parking lot.
(Id.) Holm read the license plate and noted
that petitioner was driving the car. (Id. at 32.)
She returned to the store and described the car
1
“Tr. 3” references the May 15, 2013 trial transcript
of the underlying criminal proceeding. (ECF No. 1247.)
2
followed the vehicle off exit 64 and onto a
service road. (Id. at 59.) Petitioner drove all
over the roadway, reaching 60 miles per hour
very quickly. (Id.) Petitioner approached
Route 112, which runs north and south, and
made a right turn without stopping, heading
north. (Id. at 59-61.) He drove over a
median, causing debris and pieces of his
vehicle to fly. (Id. at 61-62.) Petitioner drove
south on Route 112, running a red light and
driving in the northbound lane. (Id. at 62; Tr.
4 2 at 56; Tr. 53 at 100.) Deputy Sheriff Rung
followed in the northbound shoulder of Route
112. (Tr. 3 at 62-63.) Other vehicles were
traveling north in the northbound lane. (Id. at
65; Tr. 4 at 56.) The road was congested, and
petitioner was driving aberrantly and fast.
(Tr. 4 at 67, 82.) Petitioner’s speed reached
55 miles per hour in a 40 miles per hour zone.
(Tr. 5 at 100.) He also drove onto the
sidewalk. (Id. at 99.)
the vehicle was speeding directly toward her.
(Id. at 61.) The vehicle came extremely close
to her. (Id. at 62.)
Petitioner then exited the parking lot and
drove at almost twice the posted 30 miles per
hour speed limit. (Tr. 5 at 102-03.) Petitioner
ignored a stop sign and subsequently made a
turn at an intersection despite a red light and
a “no turn on red” sign. (Id. at 104-05.)
Petitioner drove through another red light.
(Id. at 105-06.) Petitioner accelerated to a
high rate of speed and merged onto Sunrise
Highway. (Id. at 106.) He sped past other
vehicles, sometimes driving on the shoulder
and/or in close proximity to other vehicles.
(Id. at 106-07.) Deputy Sheriff Negra
estimated that petitioner was driving over
100 miles per hour. (Id. at 108.) Another
police vehicle began following petitioner
with its emergency lights activated. (Id.)
Petitioner repeatedly attempted to evade the
third police vehicle. (Id. at 108-09.)
When petitioner drove onto the sidewalk,
Deputy Sheriff Rung notified dispatch that he
and Deputy Sheriff Negra were backing off,
which he thought might lead petitioner to
slow down. (Tr. 3 at 66-67.) Deputy Sheriff
Rung returned to the southbound lane, where
he drove behind Deputy Sheriff Negra. (Id.
at 67.) At this time, they were a “couple of
hundred feet” behind petitioner’s vehicle.
(Tr. 4 at 105.)
Petitioner then took a service road. (Tr. 4
at 121.) When he approached an intersection
at Lincoln Avenue, he collided with a Subaru.
(Tr. 6 at 101-03.) The Subaru was propelled
10 feet into the air. (Id. at 78.) It spun around
and stopped on the west side of Lincoln
Avenue. (Id. at 103.) The airbags deployed.
(Tr. 7 5 at 24.) When the car stopped, Alan
Sacher (“A. Sacher”), the driver of the
Subaru, realized his left knee was “split
open” and saw that his wife, Gail Sacher (“G.
Sacher”), who was seated in the front
passenger seat, was unconscious and barely
breathing. (Id.) He yelled for help and yelled
Petitioner subsequently turned into a
Walgreen’s parking lot. (Tr. 3 at 70-71.) At
that time, Maureen Fiametta was leaving
Walgreen’s and heard a loud bang. (Tr. 6 4 at
60.) She looked to her left and saw a black
vehicle coming into the parking lot toward
her. (Id.) She started running forward, and
2
“Tr. 4” references the May 16, 2013 trial transcript
of the underlying criminal proceeding. (ECF No. 1248.)
4
“Tr. 6” references the May 21, 2013 trial transcript
of the underlying criminal proceeding. (ECF No. 1250.)
3
5
“Tr. 5” references the May 20, 2013 trial transcript
of the underlying criminal proceeding. (ECF No. 1249.)
“Tr. 7” references Part 1 of the May 22, 2013 trial
transcript of the underlying criminal proceeding.
(ECF No. 12-51.)
3
at his wife to wake up. (Id. at 20-25.) She
did not respond. (Id.)
2. The Dismissal of Potential Jurors
Deborah Morton and Raul Williams
Deputies surrounded the Town Car. (Tr.
6 at 105.) The man in the back seat, Rashawn
Smith, was trying to climb out of the vehicle.
(Tr. 5 at 16.) Deputy Sheriff Negra took him
out of the car and handcuffed him. (Id.)
Another officer handcuffed petitioner. (Id. at
17.) A search of the vehicle revealed three
bags of clothing, which were revealed to be
from the True Religion Outlet Store and
various other stores. (Id. at 19, 37-38; Tr. 6
at 81, 84; Tr. 7 at 17.) Another officer
handcuffed Essence Smith, the woman seated
in the front passenger seat of the vehicle. (Tr.
5 at 18.) All were placed under arrest. (Id.)
On May 13, 2013, jury selection in
petitioner’s trial commenced. (Jury Tr. 1 7 at
1.)
During voir dire, prospective juror
Deborah Morton (“Morton”) stated that she
was the mother of two adult children and was
a longtime resident of Babylon, she was
unemployed and babysat in her spare time,
and she previously ran an after-school
program and worked for a non-profit
organization. (Id. at 44, 81-82.) The People
asked the panel of prospective jurors if
anyone had positive or negative feelings
toward the police. (Id. at 92.) In response,
Morton said that she did “from time to time
feel that they should not be above the law as
the rest of us.” (Id.) The trial court asked if
she could take each person as an individual
and not “give them more credibility or less
credibility because they’re police officers
. . . .” (Id. at 93.) Morton replied,
“Absolutely yes, yes.” (Id.) The People
subsequently used a peremptory challenge to
excuse Morton. (Id. at 115.)
Both A. and G. Sacher were taken by
emergency responders. (Tr. 7 at 42.) G.
Sacher died of blunt impact injuries to her
torso. (Id.) A. Sacher suffered broken wings
of his vertebrae and a broken sternum with a
hematoma behind it. (Id. at 27.) He later
developed blood clots heading toward his
lungs, which required surgery and invasive
treatments, and he also later developed fluid
around his heart caused by trauma from the
crash. (Id. at 28-29.)
Later, petitioner insisted he was not
thinking and was not in the right state of mind
during the pursuit. (Tr. 8 6 at 77.) He said that
he was only acting to get away because he
was scared, and he thought the police would
harm him. (Id. at 76, 79-80, 97.) He also said
he was not aware of the danger he was
creating. (Id. at 77.) In addition, petitioner
stated that he did not know how fast he was
going. (Id. at 79.)
Defense counsel made a Batson challenge
in response, noting that Morton was the only
African American in the panel. (Id.) The
trial court stated that, in light of case law
indicating that the striking of even one
African-American potential juror could be a
pattern, it would allow the challenge. (Id.)
The People responded that Morton’s
statement that the police should not be above
the law indicated that Morton had some
animosity toward the police, which formed
the basis of the use of the peremptory
challenge to strike her. (Id. at 115-16.) The
trial
court
accepted
this
as
a
nondiscriminatory reason. (Id. at 116.)
Defense counsel argued that Morton had
6
7
“Tr. 8” references Part 2 of the May 22, 2013 trial
transcript of the underlying criminal proceeding.
(ECF No. 12-52.)
“Jury Tr. 1” references the May 13, 2013 transcript
of the jury selection in the underlying criminal
proceeding. (ECF No. 12-54.)
4
made clear that she would be impartial to
police witnesses. (Id.) However, the trial
court accepted the People’s reason as a nondiscriminatory reason to challenge Morton.
(Id.) 8
sentence in his absence. (Pet. 2.)
His
conviction was affirmed. (Answer ¶ 51.)
Petitioner requested leave to appeal to the
New York State Court of Appeals, but the
request was denied on November 4, 2015.
(Id.; see also People v. Tucker, 26 N.Y.3d
1043 (2015).)
Jury selection continued on May 14,
2013. (Jury Tr. 2 9 at 1.) The People
attempted to exercise a for-cause challenge as
to Raul Williams (“Williams”) on the ground
that he did not give a satisfactory answer as
to whether his brother-in-law’s drug
conviction would influence his decisionmaking in petitioner’s trial. (Id. at 73-74.)
The trial court denied the request because
Williams had stated unequivocally that he
could be fair, his brother-in-law’s conviction
was for out-of-state conduct, and that, even
though he felt the particular police officers
involved in that conduct did not do the right
thing, he could judge police officers fairly.
(Id. at 74.)
The People subsequently
exercised a peremptory challenge as to
Williams. (Id. at 80.) Defense counsel did
not object to the challenge. (Id.)
4. The Instant Petition
On August 29, 2016, petitioner filed a
petition for writ of habeas corpus in this
Court. On November 23, 2016, respondent
opposed the writ. (Resp’t Br. Opp’n (“Opp’n
Br.”), ECF No. 12-1.) On January 23, 2017,
petitioner filed a reply affidavit in support of
his petition. (Pet’r Reply Br. Supp., ECF No.
15.) The Court has fully considered the
parties’ submissions.
II.
STANDARD OF REVIEW
To determine whether a 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:
3. Procedural History
Following petitioner’s May 24, 2014
conviction and June 27, 2013 sentencing,
petitioner appealed his conviction to the New
York
Appellate
Division,
Second
Department, on the following grounds:
(1) his Fourteenth Amendment rights were
violated by the exclusion of a juror of the
same race during voir dire; (2) the verdict
was against the weight of the evidence;
(3) his sentence was harsh and excessive; and
(4) the sentencing court amended his
(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 –
8
The trial court noted that, had the People challenged
Morton for cause, the challenge would have been
rejected. (Id.) After the court denied defense’s Batson
challenge, defense counsel asked for a moment before
proceeding, and the Court asked the People if there
was any point the People wanted to add to the record
concerning the Morton peremptory challenge. (Id.)
The People also cited Morton’s present unemployment
and sporadic employment history as reasons for the
challenge. (Id. at 117.) Defense counsel made no
further objections to the challenge. (Id.)
9
“Jury Tr. 2” references the May 14, 2013 transcript
of the jury selection in the underlying criminal
proceeding. (ECF No. 12-55.)
5
(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
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly. Rather, that application must
also be unreasonable.” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). The Second
Circuit added that, while “[s]ome increment
of incorrectness beyond error is required . . .
the increment need not be great; otherwise,
habeas relief would be limited to state court
decisions so far off the mark as to suggest
judicial incompetence.” Id. (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)).
(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. § 2554. “Clearly established
Federal law” is comprised of “the holdings,
as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the
relevant state-court decision.” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
III.
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 principle from [the Supreme
Court’s] decisions but unreasonably applies
that principle to the facts of [a] prisoner’s
case.” Id. AEDPA establishes a deferential
standard of review: “a federal habeas court
may not issue the writ simply because that
DISCUSSION
A. Ground One: Batson Challenges
The first ground on which petitioner
seeks relief is that his Fourteenth
Amendment rights were violated under
Batson v. Kentucky, 479 U.S. 79 (1986). (Pet.
5, 15.) In particular, petitioner argues that the
People impermissibly exercised peremptory
challenges to strike jurors Morton and
Williams on the basis of race. (Id. at 15.)
1. The Williams Challenge 10
The Court determines that it is
procedurally barred from reviewing
10
The Court notes that respondent failed to
specifically address petitioner’s Batson claim as to
Williams, but the Court has nonetheless determined it
is procedurally barred. See Taylor v. Sabourin, 269 F.
Supp. 2d 20, 22 (E.D.N.Y. 2003) (“Respondent fails
to address both issues in his opposition brief, nor does
petitioner in his traverse brief. Consequently, the
court treats these arguments as abandoned.
Regardless, the court holds that petitioner’s arguments
on both issues lack merit . . . .”); McCrary v. Lee, No.
12-CV-2867 (SJF), 2013 WL 5937420, at *4
(E.D.N.Y. Oct. 29, 2013) (“[N]either Rule 5, nor any
6
petitioner’s claim as to Batson for the
following reasons.
‘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).
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) (alteration in original)).
The Court determines that petitioner’s
claim as to Raul Williams is procedurally
barred from habeas review. There is no
evidence that petitioner has raised this claim
in any proceeding before his habeas petition.
(See, e.g., Appeal Br., People v. Tucker, No.
2013-07272 (N.Y. App. Div. 2d Dep’t Oct. 2,
2014) (not discussing Williams) 11; People v.
Tucker, 2013-07272 (N.Y. App. Div. 2d
Dep’t May 21, 2015) (only peremptory
challenge discussed is Morton challenge) 12.)
In fact, petitioner did not object to the
peremptory challenge as to Williams at trial,
which is itself an “adequate and independent
basis for barring habeas review.” Jamison v.
Smith, No. 98-CV-3747 (FB), 1995 WL
468279, at *2 (E.D.N.Y. July 26, 1995); see
also Wainwright v. Sykes, 433 U.S. 72, 86-92
(1977) (contemporaneous objection rule is an
independent and adequate state ground);
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.
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
11
other Section 2254 Rule or federal statute, provides
that any allegation in a Section 2254 habeas petition
that is not specifically denied or addressed by the
respondent is deemed admitted.”).
Respondent provided this document at ECF No. 12-
9.
12
8.
7
Respondent provided this document at ECF No. 12-
Glenn v. Bartlett, 98 F.3d 721, 724-26 (2d
Cir. 1996); Owens v. Portuondo, No. 98-CV6559 (AJP), 1999 WL 378343, at *6
(S.D.N.Y. June 9, 1999) (citing cases), aff’d,
205 F.3d 1324 (2d Cir. 2000); Torres v. Irvin,
33 F. Supp. 2d 257, 263-65, 273-75
(S.D.N.Y. 1998); 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.”). Thus, he has failed to
“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, 513 U.S. at 365.
In Batson, the Supreme Court set forth a
three-part test for a trial court evaluating
whether peremptory challenges were
exercised in a discriminatory manner: (1) “a
trial court must decide whether the party
challenging the strike has made a prima facie
showing that the circumstances give rise to an
inference that a member of the venire was
struck because of his or her race”; (2) “[i]f the
party making the Batson challenge
establishes a prima facie case, the trial court
must require the nonmoving party to proffer
a race-neutral explanation for striking the
potential juror”; and (3) “if the non-moving
party proffers a race-neutral explanation, the
trial court must determine whether the
moving party has carried his or her burden of
proving that the strike was motivated by
purposeful discrimination.”
Galarza v.
Keane, 252 F.3d 630, 635-36 (2d Cir. 2001)
635-36 (citing Batson, 476 U.S. at 96-98).
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 v. Thompson, 501 U.S. 722, 750
(1991). However, petitioner has failed to
meet his burden. 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.
“[W]hen reviewing a Batson challenge in
the context of a habeas petition, a trial court’s
conclusion that a peremptory challenge was
not exercised in a discriminatory manner is
entitled to a presumption of correctness,
except, inter alia, to the extent that the trial
court did not resolve the factual issues
involved in the challenge or if the finding is
not fairly supported by the record.” Galarza,
252 F.3d at 635. As the Second Circuit
explained in Watson v. Ricks,
Thus, because petitioner has not provided
a satisfactory explanation for his failure to
properly exhaust the Williams claim in state
court, and because petitioner has failed to
demonstrate either prejudice resulting from
the default or a miscarriage of justice, the
claim is procedurally barred from review by
this Court. Accordingly, the Court denies
habeas relief as to the Williams claim on this
ground.
On direct appellate review of
a Batson ruling, we generally
afford ‘great deference’ to a
district court’s determination
of
discriminatory
intent
because that question of fact
often turns on the court’s
evaluation
of
witness
credibility. When a state trial
court’s Batson ruling is
challenged under § 2254, our
review is further limited by
[AEDPA], under which we
2. The Morton Challenge
For the reasons discussed below, the
Court concludes that petitioner’s Batson
claim as to Morton is without merit.
8
will not identify constitutional
error unless the record
‘compel[s] the conclusion that
the trial court had no
permissible alternative but to
reject the prosecutor’s raceneutral justifications.
question, Morton’s response about feelings
she has towards police could reasonably be
interpreted to indicate a bias against law
enforcement. Although petitioner points to
Morton’s affirmance that she could take each
person as an individual and not “give them
more credibility or less credibility because
they’re police officers,” (Jury Tr. 1 at 93),
the People were free to exercise a peremptory
challenge based on their general sense that
she was, notwithstanding this statement,
biased against officers. Further, even if
“[r]easonable minds reviewing the record
might disagree” about how to view the
proffered justification, “on habeas review
that does not suffice to supersede the trial
court’s credibility determination” that the
challenge to Morton was not based on
discriminatory intent. Rice v. Collins, 546
U.S. 333, 341-42 (2006). 13 In short, the
Court determines that the Second
Department’s decision that the trial court
properly denied the Batson challenge is not
contrary to, or an unreasonable application of
clearly established federal law. 14
427 Fed. App’x 60 (2d Cir. 2011) (citations
omitted).
In the instant action, the appropriate focus
is the third part of the Batson test, namely,
“the trial court[’s . . .] determin[ation]
whether the moving party has carried his or
her burden of proving that the strike was
motivated by purposeful discrimination.”
Galarza, 252 F.3d at 635-36 (citation
omitted). Here, the trial court determined
that the People provided a nondiscriminatory
reason for exercising their peremptory strike,
namely, that Morton stated that she did “from
time to time feel that [the police] should not
be above the law as the rest of us.” (Jury Tr.
1 at 92, 116.)
The Court finds this
justification did not compel a finding of
pretext. The Second Circuit has made clear
that “a juror’s perceived bias against law
enforcement can constitute a race-neutral
explanation for a peremptory challenge.”
Green v. Travis, 414 F.3d 288, 300 (2d Cir.
2005) (citing U.S. v. Rudas, 905 F.2d 38, 4041 (2d Cir. 1990)); Rudas, 905 F.2d at 41
(“The Government had a basis for believing
that [the potential juror] might be prejudiced
against law enforcement officers and thus not
be an impartial juror.”). In the context of the
Accordingly,
the
Court
denies
petitioner’s request for habeas relief on the
ground that the trial court improperly rejected
defense counsel’s Batson challenge as to
Morton.
B. Ground Two: Sufficiency of the
Evidence
The second ground on which petitioner
seeks relief is that the verdict was against the
weight of the evidence. (Pet. 6, 16.) 15 In
13
The People also noted Morton’s unemployment
history and sporadic employment. However, those
additional justifications were unnecessary in light of
the sufficiency of the initial justification, and do not in
any way undermine the sufficiency of the initial
justification.
claim and determines that it does not undermine the
Court’s determination as to Morton. First, it is not
clear to the Court from the record that Williams was a
minority. Second, even assuming Williams was a
minority, the sufficiency of the People’s justification
as to him is clear—namely, his brother-in-law’s drug
conviction.
14
The Court notes that, even though petitioner’s claim
as to Williams is procedurally barred, the Court has
considered the claim in the context of the Morton
15
“Weight of evidence” is the name of a specific claim
under New York State law and, thus, is not cognizable
9
particular, petitioner argues that the People
failed to prove petitioner’s guilt beyond a
reasonable doubt with respect to the charge
of manslaughter in the second degree because
the evidence shows he was in fact guilty of
the lesser included charge of criminally
negligent homicide. (Id. at 16.) In support of
his contention, petitioner states that he did
not perceive the risk or the danger he created
in the course of the highway pursuit, as would
be required for a conviction of manslaughter
in the second degree, because he was scared
and nervous. (Id.)
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) (quoting
United States v. Mariani, 725 F.2d 862, 865
(2d Cir. 1984)).
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. Supreme Court 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 if, “after
viewing the evidence in the light most
favorable to the prosecution, any rational trier
of fact could have found the essential
elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in original); see 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
It is axiomatic that “[w]here there are
conflicts in the testimony, we must defer to
the jury’s resolution of the weight of the
evidence and the credibility of the
witnesses.” United States v. Ware, 577 F.3d
442, 447 (2d Cir. 2009). This is because the
task of assessing witness credibility rests
solely with the jury. Id. (citing United States
v. Josephberg, 562 F.3d 478, 487 (2d Cir.
2009)). Therefore, “the jury is free to believe
part and disbelieve part of any witness’s
testimony. . . .” Id. This rule applies whether
the evidence being weighed by the jury is
direct or circumstantial. Id.
When considering the sufficiency of the
evidence of a state conviction, “[a] federal
court must look to state law to determine the
elements of the crime.” Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
In order to prove petitioner’s guilt of the
crime of manslaughter in the second degree,
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
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))).
10
the People were required to show that he
recklessly caused G. Sacher’s death. Penal
Law § 125.15. Under Penal Law § 15.05, a
person is said to be reckless when he is
112 (id. at 62); he drove 55 miles per hour in
a 40 miles per hour zone on Route 112 (Tr. 4
at 56), almost twice the 30 miles per hour
speed limit near the Walgreen’s parking lot
(Tr. 5 at 102-03), and nearly 100 miles per
hour on the Sunrise Highway (id. at 108); he
drove on the sidewalk on Route 112 (Tr. 5 at
99) and in the shoulder on the Sunrise
Highway (id. at 107); he made an illegal turn
(id. at 104-05); he refused to comply when
multiple police vehicles attempted to pull
him over (id. at 108-09; Tr. 3 at 56-58); he
nearly hit a pedestrian (Tr. 6 at 60-62); and,
of course, he tragically hit the Sachers’
Subaru, which was legally traveling through
an intersection (Tr. 6 at 101-03). “[V]iewing
the evidence in the light most favorable to the
prosecution,” the Court determines that this
evidence far surpasses Asaro’s requirement
of an “additional affirmative act aside from
driving faster than the posted speed limit,” 21
N.Y.3d at 684, and unquestionably enables
“any rational trier of fact” to determine
petitioner acted recklessly as required by
Penal Law § 125.15. See Jackson, 443 U.S.
at 319.
aware of and consciously
disregards a substantial and
unjustifiable risk that such
result will occur or that such
circumstance exists. The risk
must be of such nature and
degree that disregard thereof
constitutes a gross deviation
from the standard of conduct
that a reasonable person
would observe in the
situation.
A criminal defendant has been held to act
recklessly when he drives a vehicle at a high
rate of speed and crashes into another car.
See, e.g., People v. Asaro, 21 N.Y.3d 677,
680 (2013). In the context of automobile
collisions that involve speeding, the New
York Court of Appeals has held that “the
culpable risk-creating conduct necessary to
support a finding of recklessness or criminal
negligence
generally
requires
some
additional affirmative act aside from driving
faster than the posted speed limit.” Id. at 684
(citation omitted).
The Court has considered petitioner’s
testimony that he was not aware of such a risk
during the pursuit. However, the Court
determines that this testimony does not affect
its ruling. As noted above, “the jury is free to
believe part and disbelieve part of any
witness’s testimony. . . .” Ware, 577 F.3d at
447. Further, this Court “must defer to the
jury’s resolution of the weight of the
evidence.” Id. It was the role of the jury, and
not of this Court, to determine whether to
credit petitioner’s subjective testimony, and
whether, in the face of overwhelming
evidence showing that petitioner grossly
violated traffic laws over an extended period
of time and distance, petitioner’s testimony
indicated that he did not drive recklessly.
There is no constitutional basis to disturb the
jury’s decision in this case based upon the
sufficiency of the evidence.
Respondent argues there was ample
evidence in the underlying case to show that
petitioner recklessly caused G. Sacher’s
death. (Opp’n Br. 9.) The Court agrees. The
following
evidence
overwhelmingly
demonstrates that petitioner acted recklessly,
i.e., was aware of a substantial and
unjustifiable risk, and disregarded that risk:
he sped away from Deputy Sheriffs Rung and
Negra when they approached his vehicle (Tr.
3 56); he drove all over the roadway on the
Long Island Expressway (id. at 59); he drove
over a median on Route 112 (id. at 61-62); he
ran a red light on Route 112 (id. at 62); he
drove on the wrong side of the road on Route
11
Accordingly, the Court denies the habeas
petition on this ground.
“within the statutory limits in place at the
time of his conviction and sentence”).
C. Ground Three: Eighth Amendment
Here, it is undisputed that petitioner’s
sentence falls within the statutory range
prescribed by state law at the time the crimes
were committed. See Penal Law § 70.00.
Petitioner takes issue with the fact that he was
sentenced to the maximum term allowed for
each of his convictions, but that does not
present a constitutional issue. White v.
Keane, 969 F.2d at 1383.
Further,
petitioner’s complaint that he was not offered
a plea is without merit because there is no
constitutional right to a plea bargain. 16
Weatherford v. Bursey, 429 U.S. 545, 560-61
(1977); see, e.g., Miller v. Cnty. of Nassau,
467 F. Supp. 2d 308, 321 (E.D.N.Y. 2006);
Johnson v. Conway, No. 07-CV-445 (LEK)
(DRH), 2008 WL 2405709, at *12 (N.D.N.Y.
Dec. 10, 2007). Thus, petitioner’s claim that
he is entitled to habeas relief because the
sentence imposed on him was cruel and
unusual is without merit, and the Court
denies it.
The third ground on which petitioner
seeks relief is that the sentence imposed was
cruel and unusual in violation of the Eighth
Amendment. (Pet. 8, 17.) In particular,
petitioner argues that he was sentenced as a
first-time offender to the maximum sentence
allowed and he was not offered a plea, and
that he was sentenced in this way because he
exercised his right to trial. (Id. at 17.)
The Eighth Amendment, which prohibits
the infliction of “cruel and unusual
punishments,” U.S. Const. amend. VIII, bans
excessive prison terms that are “grossly
disproportionate” to the crime committed.
Lockyer v. Andrade, 538 U.S. 63, 72-73
(2003); Ewing v. California, 538 U.S. 11, 2021 (2003). The “grossly disproportionate”
standard, however, is “applicable only in the
‘exceedingly rare’ and ‘extreme’ case.”
Lockyer, 538 U.S. at 73 (quoting Harmelin v.
Michigan, 501 U.S. 957, 1001 (1991)).
Moreover, a sentence does not run afoul of
the Eighth Amendment’s prohibition of
“cruel and unusual punishments” if the
sentence is within the range prescribed by
state law. White v. Keane, 969 F.2d 1381,
1383 (2d Cir. 1992) (“No federal
constitutional issue is presented where, as
here, the sentence is within the range
prescribed by state law.”); see also Mendoza
v. Miller, No. 04-CV1270 (LEK), 2008 WL
3211277, at *9 (N.D.N.Y. Aug. 6, 2008)
(denying the Eighth Amendment claim of a
drug offender sentenced to an indeterminate
term because petitioner’s sentence was
D. Ground Four: Presence at Sentencing
The fourth ground on which petitioner
seeks relief is that petitioner’s Sixth
Amendment rights were violated because he
received an amended Uniform Sentence and
Commitment form (the “amended form”)
after his sentence. (Pet. 9, 18.) 17 Because
this correction occurred when petitioner was
not present, petitioner claims his statutory
right to be present at the time of sentencing
under N.Y.C.P.L. § 380.40 was violated. (Id.
at 18.) As a threshold matter, rights provided
by state law cannot form the basis for habeas
relief in federal court. Rios v. Artuz, No. 07-
16
To the extent that petitioner also claims that he was
sentenced to the maximum because he exercised his
right to trial, there is no evidence to support a
constitutional claim for retaliatory sentencing by the
sentencing court.
17
Respondent provided the amended form at ECF No.
12-17.
12
CV-330 (NGG), 2007 WL 1958899, at *9 n.4
(E.D.N.Y. June 29, 2007). Thus, petitioner’s
claim that his right to be present under
N.Y.C.P.L. § 380.40 is not cognizable in the
instant action.
Law § 1104, emergency vehicle drivers must
drive with due regard for the safety of others.
(Id. at 19.) Petitioner asserts that, in the
course of the pursuit, the police pursued him
at high speed northbound in a southbound
lane in violation of the law, and that this was
not justified because petitioner had not
committed a violent crime. (Id.)
Petitioner also cites the Sixth
Amendment in asserting this ground for
relief, which is a cognizable basis for federal
habeas review. Defendants have both Sixth
Amendment and Due Process rights to be
present when they are sentenced. U.S. v.
DeMartino, 112 F.3d 75, 78 (2d Cir. 1997).
However, petitioner’s claim as to his
constitutional rights is also without merit.
Simply put, defendant was not sentenced or
resentenced when the form was amended.
Instead, the form was amended to reflect the
actual sentence he received. Petitioner does
not have a constitutional right to be present
for such an administrative act, which does not
rise to the level of imposing a new sentence
“in place of the vacated sentence”—which is
an act that would trigger the constitutional
right to be present. U.S. v. DeMott, 513 F.3d
55 (2d Cir. 2008). 18
The Court determines that this claim is
procedurally barred because petitioner did
not exhaust the claim in state court. There is
no evidence that petitioner raised this claim
in any proceeding before his habeas petition.
(See, e.g., Appeal Br., People v. Tucker, No.
2013-07272 (N.Y. App. Div. 2d Dep’t Oct. 2,
2014) (no mention of police violating their
own procedure); People v. Tucker, 201307272 (N.Y. App. Div. 2d Dep’t May 21,
2015) (same).) Thus, petitioner has failed to
“fairly presen[t] his [claim] 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, 513 U.S.
at 365.
Further, just as with petitioner’s Batson
claim as to Williams, petitioner has failed to
meet the burden required to overcome the
procedural bar. See Coleman, 501 U.S. at
750.
Petitioner has not provided any
explanation for his failure to properly exhaust
his claim in state court. Thus, because
petitioner has not provided a satisfactory
explanation for his failure to properly exhaust
this claim in state court, and because
petitioner has failed to demonstrate either
prejudice resulting from the default or a
miscarriage of justice, the claim is
procedurally barred from review by this
In light of the foregoing, the Court
determines that habeas relief is not warranted
on the ground that petitioner was not present
when
his
Uniform
Sentence
and
Commitment form was amended.
E. Ground Five: Violations of Police
Procedure
The fifth ground on which petitioner
seeks relief is that the police violated their
own procedure in the course of the pursuit.
(Pet. 11, 19.) In particular, petitioner argues
that, under New York Vehicle and Traffic
18
Even assuming petitioner had the constitutional
right to be present when his form was corrected and
that right was violated, the error would be subject to
harmless error analysis. DeMott, 513 F.3d at 55. On
that separate and independent basis, habeas relief is
not warranted because the amended form merely
reflects the sentence imposed at the sentencing hearing
at which petitioner was present, thus making it an
uncontestable fact that his presence would not have
altered the outcome of the administrative act.
13
Court. Accordingly, the Court denies habeas
relief as to this claim on this ground.
Although petitioner requested new
counsel at trial, there is no evidence that
petitioner raised an ineffective assistance of
counsel claim in any proceeding before his
habeas petition. (See, e.g., Appeal Br.,
People v. Tucker, No. 2013-07272 (N.Y.
App. Div. 2d Dep’t Oct. 2, 2014) (no mention
of ineffective assistance of counsel); People
v. Tucker, 2013-07272 (N.Y. App. Div. 2d
Dep’t May 21, 2015) (same).)
Thus,
petitioner has failed to “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, 513 U.S. at 365.
Although petitioner’s claim that the
police violated their own procedure in the
course of the pursuit is procedurally barred
from habeas review for a failure to exhaust
the claim in state court, the Court also
concludes that it is without merit for the
separate and independent ground that the
claim does not implicate federal rights. In
particular, the law invoked by petitioner in
this claim is state law, and, even assuming the
law provides a right to petitioner, and even
assuming that the police violated that right in
the course of the pursuit, as noted above, state
law cannot form the basis for habeas relief in
federal court. Rios, 2007 WL 1958899, at *9
n.4. Thus, petitioner’s claim that he is
entitled to habeas relief because the police
violated their own procedure in the course of
the pursuit is not cognizable in the instant
action. For these reasons, the claim does not
provide a basis for habeas relief.
Further, just as with petitioner’s Batson
claim as to Williams and his claim that the
police violated their own procedure in the
course of the pursuit, petitioner has failed to
meet the burden required to overcome the
procedural bar. See Coleman, 501 U.S. at
750.
Petitioner has not provided any
explanation for his failure to properly exhaust
this claim in state court. Thus, because
petitioner has not provided a satisfactory
explanation for his failure to properly exhaust
his ineffective assistance of counsel claim in
state court, and because petitioner has failed
to demonstrate either prejudice resulting
from the default or a miscarriage of justice,
the claim is procedurally barred from review
by this Court. Accordingly, the Court denies
habeas relief as to the ineffective assistance
of counsel claim on this ground.
F. Ground Six: Ineffective Assistance of
Counsel
The final ground on which petitioner
seeks relief is ineffective assistance of
counsel. (Pet. 11, 20.) In particular,
petitioner argues that his counsel failed to
effectively represent him because he failed to
file certain motions, he did not visit petitioner
frequently, including at critical times before
trial, and this same counsel continued to
represent him at trial even after he requested
(and was denied) new counsel, which
petitioner asserts to have been a conflict of
interest. (Id. at 20.)
2. Merits Analysis
Although
petitioner’s
ineffective
assistance of counsel claim is procedurally
barred from habeas review, the Court, in an
abundance of caution, has analyzed the
merits of the claim and concludes that it is
without merit for the reasons discussed
below.
1. Procedural Bar
The Court determines that petitioner’s
ineffective assistance of counsel claim is also
procedurally barred because he did not
exhaust the claim in state court.
Under the standard promulgated in
14
professional
judgments
support
the
limitations on investigation.’” Id. (quoting
Strickland, 466 U.S. at 690-91).
Strickland v. Washington, 466 U.S. 668
(1984), a defendant is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: (1) that “counsel’s representation
fell below an objective standard of
reasonableness,” id. at 688; and (2) that
“there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different,”
id. at 694.
The second prong focuses on prejudice to
the petitioner, who is required to show that
there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694. “Reasonable
probability” means that the errors were of a
magnitude such that they “undermine
confidence in the outcome.” Pavel v.
Hollins, 261 F.3d 210, 226 (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 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). “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). However, “[u]nlike the determination
of trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice may be made with the benefit of
hindsight.” Hemstreet v. Greiner, 491 F.3d
84, 91 (2d Cir. 2007) (citations omitted).
Defendants bear the burden of establishing
both deficient performance and prejudice.
United States v. Birkin, 366 F.3d 95, 100 (2d
Cir. 2004).
The first prong requires a showing that
counsel’s performance was deficient.
However,
“[c]onstitutionally
effective
counsel embraces a ‘wide range of
professionally competent assistance,’ and
‘counsel is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional judgment.’” Greiner
v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 690). The
performance
inquiry
examines
the
reasonableness of counsel’s actions under all
circumstances, keeping in mind that a “‘fair
assessment of attorney performance requires
that every effort be made to eliminate the
distorting effects of hindsight.’” Id. (quoting
Rompilla v. Beard, 545 U.S. 374, 408
(2005)). In assessing performance, a court
“must apply a ‘heavy measure of deference to
counsel’s
judgments.’”
Id.
(quoting
Strickland, 466 U.S. at 691). For instance, 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,”
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 (quoting
Strickland, 466 U.S. at 690). “However,
‘strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
Petitioner has failed to demonstrate how
defense counsel’s failure to file certain
15
motions 19 or to visit him frequently fell
outside the “wide range of professionally
competent assistance.” Strickland, 466 U.S.
at 690. Moreover, in analyzing the trial
transcript, the Court concludes that the record
shows that counsel’s performance was not
constitutionally defective. Further, petitioner
has failed to demonstrate that any prejudice
resulted from the alleged ineffective
representation. See Whidbee v. United States,
09-CV-780 (CPS), 2009 WL 2242341, at *5
(E.D.N.Y. July 27, 2009) (finding complaints
of “poor communication with his
attorney . . . legally insufficient in the
absence of some showing of prejudice
resulting from the lack of communication”).
Indeed, as discussed supra, the evidence of
petitioner’s guilt was overwhelming and,
therefore, there is no reason to believe that
absent the alleged deficiency the jury would
have reached a different conclusion. See
Butts v. Walker, No. 01-CV-5914 (JG), 2003
WL 22670921, at *8 (E.D.N.Y. Nov. 6,
2003).
does not create a conflict of interest in and of
itself. Id. at 296. In White, the Court
“decline[d] to adopt any broad rule that
would suggest that, simply by expressing
dissatisfaction
with
his
attorney’s
performance, a defendant can create a
‘conflict of interest’ that can be said to
require the attorney to choose between
advancing the attorney’s own cause and that
of her client.” Id. The Court found
insufficient that the defendant disagreed with
his attorney about, inter alia, whether to file
certain motions, that he raised complaints of
this nature before the trial court, and that he
made requests for substitute counsel,
characterizing such conduct as “routine.” Id.
Petitioner’s claim here is no different. Thus,
petitioner’s ineffective counsel claim
concerning an alleged conflict of interest fails
as well.
Accordingly, based on the foregoing,
petitioner’s ineffective assistance of counsel
claim fails in its entirety.
IV.
Petitioner’s argument that habeas relief is
warranted because his counsel continued to
represent him after he requested that the trial
court replace him also fails.
Generally
speaking, the Sixth Amendment right to
counsel includes the right to conflict-free
counsel. Strickland, 466 U.S. at 692; see,
e.g., Wright v. La Clair, No. 03-CV-4956
(DLI), 2009 WL 705689 (E.D.N.Y. Mar. 16,
2009). If a petitioner “can demonstrate that
his attorney labored under an actual conflict
of interest and that the ‘actual conflict of
interest adversely affected his lawyer’s
performance,’” he “is entitled to a
presumption of prejudice.” U.S. v. White,
174 F.3d 290, 295 (2d Cir. 1999) (citation
omitted). However, the Second Circuit has
clearly stated that requesting new counsel
CONCLUSION
For the foregoing reasons, petitioner has
demonstrated no basis for relief under 28
U.S.C. § 2254. Accordingly, the instant
habeas petition 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
close this case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 24, 2017
19
The Court notes that petitioner did not specify which
motions he thought defense counsel wrongly failed to
make. Thus, there is no basis to conclude ineffective
assistance of counsel on that ground.
16
Central Islip, New York
***
Petitioner is proceeding pro se. Respondent
is represented by Rosalind C. Gray, Suffolk
County District Attorney’s Office, 200
Center Drive, Riverhead, NY 11901.
17
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