Hansen v. Johnson

Filing 14

MEMORANDUM AND ORDER: For the reasons described in the Court's accompanying Memorandum and Order, the 1 petition for a writ of habeas corpus is respectfully denied. Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal f rom this Order would not be taken in good faith, and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court is requested to enter judgment denying this petition, mail a copy of this Memorandum and Order and judgment to Petitioner, note mailing on the docket, and close this case. SO Ordered by Judge Kiyo A. Matsumoto on 1/10/2022. (Tavarez, Jennifer)

Case 2:21-cv-00409-KAM Document 14 Filed 01/10/22 Page 1 of 16 PageID #: 4711

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
Nicholas Hansen,
Petitioner,
MEMORANDUM & ORDER

-against-

21-CV-409
James Johnson,
Acting Superintendent,
Green Haven Correctional Facility,
Respondent.
-----------------------------------X
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Petitioner Nicholas Hansen (“Petitioner”) is
incarcerated pursuant to a judgment of conviction imposed in New
York State Supreme Court, Suffolk County.

Petitioner seeks a

writ of habeas corpus pursuant to 28 U.S.C. Section 2254, and
alleges that his state custody violates his federal and
constitutional rights due to the ineffective assistance of his
trial counsel.

(ECF No. 1, Petition for Habeas Corpus (“Pet.”),

filed 01/25/21, at 1.)

For the reasons set forth below, the

petition is DENIED.
BACKGROUND
I.

Petitioner’s 2013 Trial
On December 13, 2013, Petitioner was convicted after a

jury trial in New York State Supreme Court, Suffolk County, of
one count each of Attempted Murder in the Second Degree (N.Y.
Penal Law § 125.25), Criminal Sale of a Controlled Substance in
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the First, Second, and Third Degrees (N.Y. Penal Law § 220.43, §
220.41, § 220.39), two counts of Criminal Use of a Firearm in
the First Degree (N.Y. Penal Law § 265.09), two counts of
Criminal Possession of a Weapon in the Second Degree (N.Y. Penal
Law § 265.03), and seven counts of Criminal Possession of a
Controlled Substance in the Second Degree (N.Y. Penal Law §
220.18).

(ECF No. 11-9, Trial Transcript (“Tr.”), filed

08/16/21, at 145-152.)

On February 26, 2014, Petitioner was

sentenced to a determinate prison term of twenty-three years,
with five years post-release supervision for the second-degree
attempted murder conviction, and concurrent determinate prison
terms for each of the remaining convictions. (ECF No. 11-9,
Sentencing Proceeding, filed 08/16/21; ECF No. 6-1, at 190-193;
Respondent’s Memorandum of Law in Opposition to Petition for a
Writ of Habeas Corpus (“Resp’t Mem.”), filed 04/08/21, at 3-4.)
II.

Post-Conviction Proceedings in State Court
Petitioner appealed his conviction to the Appellate

Division, Second Department, challenging only the conviction of
attempted murder in the second degree and the conviction of
criminal use of a firearm in the first degree.
Appellant’s Brief, filled 08/16/21, at 66.)

(ECF No. 11-3,

The court affirmed

the convictions on September 27, 2017, in People v. Hansen, 61
N.Y.S.3d 614 (2d Dep’t 2017).

On January 18, 2018, the New York

Court of Appeals denied Petitioner leave to appeal the decision
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of the Appellate Division.

People v. Hansen, 30 N.Y.3d 1105

(2018); (Pet. at 2.)
On March 21, 2018, Petitioner filed a motion pursuant
to N.Y. Criminal Procedure Law § 440.10-1(h) seeking to vacate
his conviction, or alternatively, for a hearing, on the basis
that his conviction was obtained in violation of his Sixth
Amendment right to effective assistance of counsel.
3.)

(Pet. at

Petitioner argued that his trial counsel failed to advise

him that the decision whether to testify was ultimately his to
make.

(Id.)

On January 13, 2020, the New York State Supreme

Court, Suffolk County, denied Petitioner’s application pursuant
to N.Y. Criminal Procedure Law § 440.10(3)(a), finding that
Petitioner failed to place his desire to testify on the record
prior to his sentence.

(ECF No. 11-4, 440 Decision (“440

Dec.”), filed 08/16/21, at 14.)

The court further denied the

application on the merits, holding that Petitioner’s claim of
ineffective assistance of counsel failed under a Strickland
analysis.

(See id. at 14-17.)

On March 4, 2020, Petitioner

appealed the denial of his Section 440 motion to the Appellate
Division of the Supreme Court, Second Judicial Department,
pursuant to N.Y. Criminal Procedure Law § 450-15 and § 460.15.
(ECF No. 11-1, Notice of Appeal to the Appellate Division, filed
08/16/21, at 5.)

The Appellate Division denied Petitioner’s

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application on June 8, 2020.

(ECF No. 1, Denial of Leave to

Appeal 440.10 Decision, filed 01/25/21, at 29.)
III. The Instant Habeas Petition
On January 20, 2020, a week after the Supreme Court,
Suffolk County denied Petitioner’s § 440.10 motion, Petitioner
filed the instant habeas petition, raising a single claim of
ineffective assistance of trial counsel.
Mem. at 4.)

(Pet. at 5; Resp’t

Specifically, Petitioner claims that on the third

day of jury selection, he expressed to trial counsel his desire
to testify, and trial counsel responded using explicit language
instructing Petitioner that he would not be testifying and
threatened to withdraw from the case if Petitioner asked to
testify again.

(Pet. at 5.)

Petitioner further claims that

trial counsel told Petitioner’s mother and sister that there was
no need for him to testify at trial, and failed to inform
Petitioner that it was his constitutional right to decide
whether to testify.

(Id.)

Respondent opposes Petitioner’s

application for a writ of habeas corpus, and asserts that
Petitioner’s claim is procedurally barred because the state
court rejected the same claim on adequate and independent state
law grounds.

(Resp’t Mem. at 4.)

Respondent further argues

that the Petitioner’s claim of ineffective assistance of counsel
is without merit because the state court’s determination did not
result “in a decision that was contrary to, or involved an
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unreasonable application of, clearly established Federal law[.]”
(Id.); 28 U.S.C. § 2254(d).
STANDARD OF REVIEW
Title 28, Section 2254 provides that:
a district court shall entertain an
application for a writ of habeas corpus on
behalf of a person in custody pursuant to
the judgement of a State court only on the
ground that he is in custody in violation of
the Constitution or laws or treaties of the
United States.
28 U.S.C. § 2254.

A habeas petition shall not be granted unless

the petitioner “has exhausted the remedies available in the
courts of the State.”

28 U.S.C. § 2254(b)(1)(A); see also

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.”); Rosa v.
McCray, 396 F.3d 210, 217 (2d Cir. 2005), cert. denied, 546 U.S.
889 (2005).

A habeas petitioner’s state remedies are considered

exhausted when the petitioner has: “(i) presented the federal
constitutional claim asserted in the petition to the highest
state court (after preserving it as required by state law in
lower courts) and (ii) informed that court (and lower courts)
about both the factual and legal bases for the federal claim.”
Ramirez v. Attorney Gen. of N.Y., 280 F.3d 87, 94 (2d Cir.
2001); see also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.
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1994), cert. denied, 514 U.S. 1054 (1995) (“To fulfill the
exhaustion requirement, a petitioner must have presented the
substance of his federal claims to the highest court of the
pertinent state.”) (internal quotation marks and citation
omitted).
Where a claim has been exhausted, the Antiterrorism
and Effective Death Penalty Act (AEDPA) requires that federal
courts afford deference when reviewing state court decisions and
“demands that state-court decisions be given the benefit of the
doubt.”

Renico v. Lett, 599 U.S. 766, 773 (2010).

Thus, a

federal court is entitled to grant habeas relief only where the
state court’s adjudication of the federal claim resulted in a
decision that was either: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2)
“based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”

28

U.S.C. § 2254(d).
A state court decision is “contrary to” clearly
established federal law 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] Court has on a set of materially indistinguishable
facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000).
6

A state

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court decision involves “an unreasonable application of...
clearly established Federal law” when the state court
“identifies the correct governing legal principle from [the]
Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.”

(Id.)

This standard requires

the state court’s decision to be “more than incorrect or
erroneous;” rather, the state court’s decision “must be
objectively unreasonable.”
(2003).

Lockyer v. Andrade, 538 U.S. 63, 75

Thus, “a federal habeas court may not issue the writ

simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
that application must also be unreasonable.”

Rather,

Williams, 529 U.S.

at 411.
DISCUSSION
Here, there is no dispute as to the timeliness of
Petitioner’s claim under the applicable one-year statute of
limitations for federal habeas petitions, nor is there any
dispute that Petitioner has exhausted his claim in state court.
Rather, Respondent argues that Petitioner’s ineffective
assistance of counsel claim is procedurally barred because the
state court rejected the claim on adequate and independent state
law grounds, and—even if the claim was not procedurally barred—
the state court’s decision was neither contrary to, nor did it
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involve an unreasonable application of Strickland v. Washington.
(Resp’t Mem. at 4.)
I.

Procedural Bar Based on Independent and Adequate State
Law Ground
In reviewing a habeas corpus petition from a state

prisoner, a federal court may not consider the merits of a
federal constitutional claim when the state court refused to
review the merits of the claim on an adequate and independent
state law ground.

Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991);

Coleman v. Thompson, 501 U.S. 722, 729–30 (1991); Wainwright v.
Sykes, 433 U.S. 72, 81 (1977).

Under the adequate and

independent state grounds doctrine, the federal court must honor
a state holding that is a sufficient basis for the court’s
judgment, even where the state court also relies on federal law
when ruling on the merits.
(1989).

Harris v. Reed, 489 U.S. 255, 264

Therefore, federal habeas review is not permitted where

the state court explicitly invokes a state procedural bar rule
as a separate basis for decision.

Velasquez v. Leonardo, 898

F.2d 7, 9 (2d Cir. 1990).
In the instant application, Petitioner seeks a writ of
habeas corpus claiming ineffective assistance of trial counsel
based upon trial counsel’s alleged failure to advise him of his
constitutional right to decide whether to testify.

(Pet. at 6.)

Petitioner raised this claim in state court in his motion to

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vacate his conviction pursuant to Criminal Procedure Law §
440.10-1(h) (“440 motion”).

On January 20, 2020, the Supreme

Court, Suffolk County, denied Petitioner’s motion under N.Y.
Criminal Procedure Law § 440.10-3(a), reasoning that Petitioner
failed to place known facts on the trial record prior to
sentencing and waited four years to assert his claim.
at 13.)

(440 Dec.

The court noted that Petitioner failed to raise his

objections when defense counsel was given the opportunity to
call witnesses and declined to express his dissatisfaction at
sentencing.

(440 Dec. at 12.)

When denying Petitioner’s 440

motion on state procedural grounds, the court noted that the
claim was also meritless because Petitioner failed to establish
ineffective assistance of counsel based on the standard set
forth in Strickland v. Washington.

(440 Dec. at 14-17).

Although Justice Camacho rejected Petitioner’s claim
of ineffective assistance of counsel on both procedural and
merit-based reasoning, it is clear that the court invoked
Section 440.10(3)(a) as a separate basis for its decision.1
(Id.)

Section 440.10(3)(a) constitutes an adequate and

independent state law ground that precludes federal habeas

1

 Justice Camacho denied defendant’s application in accordance with Section
440.10(3)(a) and then further explained that “[e]ven if the defendant’s selfserving, unsubstantiated assertions were enough to survive the procedural
hurdles, his claim of ineffective assistance of counsel would fail under a
Strickland analysis.” (440 Dec. at 14.)  

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review.

See Pooler v. Rice, No. 14-CV-3089 (JMA), 2017 WL

2684023, at *8 (E.D.N.Y. June 20, 2017); see also Chrysler v.
Guiney, 14 F. Supp. 3d 418, 454 (S.D.N.Y. 2014), aff’d, 806 F.3d
104 (2d Cir. 2015); Witt v. Racette, No. 10-CV-9180, 2012 WL
3205177, at *8 (S.D.N.Y. Aug. 7, 2012) (“Federal courts have
recognized Section 440.10(3)(a) as an adequate and independent
procedural bar that precludes federal habeas review.”).

Here,

though the state court in making its finding regarding Section
440.10 did not explicitly “specify whether its merits holding
was in the alternative to its procedural bar-holding[,]” “the
statement that the claim was procedurally barred was clear and
express, and it was not hypothetical or ambiguous.”

Williams v.

Artus, No. 11-CV-5541 (JG), 2013 WL 4761120, at *33 (E.D.N.Y.
Sept. 4, 2013).

Accordingly, because the state court’s decision

rested on a state procedural bar, this Court is precluded from
reviewing the claim on the merits unless Petitioner can overcome
the procedural bar.
A petitioner can overcome a procedural default by
showing both cause for noncompliance with the state rule and
actual prejudice resulting from the alleged constitutional
violation.

Smith v. Murray, 477 U.S. 527, 533 (1986).

To

establish cause for a procedural default, a petitioner must show
that “some objective factor external to the defense impeded

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counsel’s efforts to comply with the state’s procedural
rule.”

Murray v. Carrier, 477 U.S. 478, 488 (1986).

For

Petitioner to establish actual prejudice, a petitioner must show
not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.

United States. v. Frady, 456 U.S.

152, 170 (1982).
Here, Petitioner has failed to demonstrate cause as to
why he was unable to comply with state procedures.

The court

held in its 440 Decision that Defendant failed to place known
facts on the trial record and “waited four years to assert these
facts for the first time.”

(440 Dec. at 14.)

The court also

noted that the defendant failed to place his desire to testify
on the record, despite having the opportunity to do so;
defendant failed to raise the issue when defense counsel was
asked if he planned to call witnesses and declined to discuss
the issue during the pre-sentence investigation and at
sentencing.

(440 Dec. at 12.)

Because Petitioner has not

demonstrated why he failed to express his desire to testify in
state court, Petitioner has failed to show cause for his
procedural default.

See Dominguez v. Rock, No. 12-CV-3269

(NGG), 2016 WL 542120, at *8 (E.D.N.Y. Feb. 9, 2016) (citing

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Murray 477 U.S. at 498) (“Petitioner has not shown, and cannot
show, cause for his default, since no apparent facts or
circumstances prevented him from raising his sufficiency
challenge in state court.”).
Because Petitioner has not established cause for the
procedural default, the court need not decide whether he
suffered actual prejudice.

Stepney v. Lopes, 760 F.2d 40, 45

(2d Cir. 1985); Dominguez, 2016 WL 542120, at *8–9; Horton v.
Ercole, 557 F. Supp. 2d 308, 323 (N.D.N.Y. 2008).

Nonetheless,

Petitioner has not established actual prejudice resulting from
the alleged violation. The Supreme Court, Suffolk County
reviewed the merits of Petitioner’s claim to ensure that it was
given fair review and that the resulting decision did not create
undue prejudice. Accordingly, Petitioner has not overcome the
procedural default, and Petitioner’s claim of ineffective
assistance of counsel is procedurally barred from federal
review.
II.

Ineffective Assistance of Counsel Claim
Even if Petitioner’s claim was not procedurally

barred, Petitioner’s claim would fail on the merits.2

2

Although the Court’s view remains that Petitioner’s claim is procedurally
barred, the Court acknowledges that the allegations regarding the behavior of
Petitioner’s trial counsel are both serious and concerning.

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Ineffective assistance of counsel claims are governed by the
standard set forth by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984).

Under Strickland, to determine

whether counsel was ineffective, a court must assess whether
petitioner had “reasonably effective assistance” of counsel,
such that counsel’s actions neither: (1) fell below an objective
standard of reasonableness (the “performance prong”); nor (2)
caused a reasonable probability that the result of the trial
would have been different but for counsel’s unprofessional
errors (the “prejudice prong”).

Strickland, 466 U.S. at 687-96.

In determining whether to grant federal habeas review, the court
must decide “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 562 U.S. 86, 105 (2011).
Under the performance prong, a petitioner challenging
a conviction must show that counsel’s representation “fell below
an objective standard of reasonableness.”
at 688.

Strickland, 466 U.S.

A court reviewing counsel’s performance must afford

substantial deference and must make “every effort...to eliminate
the distorting effects of hindsight” by evaluating counsel’s
decisions at the time they were made.
689.

Strickland, 466 U.S. at

Therefore, a reviewing court must operate on the

presumption “that counsel’s conduct falls within the wide range

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of reasonable professional assistance.”

Strickland, 466 U.S. at

689; see also Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009).
Under the prejudice prong, Petitioner must prove 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.

Merely showing

that the errors had some effect on the outcome of the proceeding
is insufficient.

(Id. at 693.)

Instead, “[c]ounsel’s errors

must be ‘so serous as to deprive the defendant of a fair trial,
a trial whose result is reliable.’” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 687).
Both the Strickland standard and the AEDPA are highly
deferential, and “when the two apply in tandem, review is
‘doubly’ so.”

Harrington, 562 U.S. at 105 (quoting Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009).

The state court reviewed

Petitioner’s ineffective assistance of counsel claim on the
merits, and held that “[t]he defendant has failed to demonstrate
the absence of strategy or other legitimate explanation for
counsel’s alleged shortcoming” and, therefore, failed to satisfy
the performance prong of Strickland.

Therefore, this Court

considers the claim under the “doubly” deferential standard.
In denying petitioner’s 440.10 motion, Justice Camacho
determined that, from an objective standpoint, the record
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revealed “the existence of a trial strategy that may have been
pursued by a reasonably competent attorney.”

(440 Dec. at 10.)

After reviewing Petitioner’s arguments, the court explained that
“it was a reasonable strategy to advise the defendant against
testifying even if defense counsel employed forceful persuasion
tactics[,]” and further, that it was certainly reasonable for
trial counsel to avoid subjecting the defendant to vigorous
cross-examination.

(Id.)

This court agrees that Petitioner has failed to show
that trial counsel was ineffective under the Strickland
standard.

Because there are legitimate strategic reasons why

trial counsel advised Petitioner against testifying, the court
holds that Justice Camacho did not unreasonably apply Strickland
in his denial of petitioner’s 440.10 motion.
CONCLUSION
For the foregoing reasons, the petition for a writ of
habeas corpus is denied.

Pursuant to 28 U.S.C. § 1915(a)(3),

the Court certifies that any appeal from this Order would not be
taken in good faith, and therefore in forma pauperis status is
denied for purpose of an appeal.
369 U.S. 438 (1962).

See Coppedge v. United States,

The Clerk of Court is respectfully

requested to enter judgment denying this petition, mail a copy
of this Memorandum and Order and judgment to Petitioner, note

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mailing on the docket, and close this case.

SO ORDERED.
Dated:

Brooklyn, New York
January 10, 2022

____/s/_____________________
KIYO A. MATSUMOTO
United States District Judge

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