Kulakov v. Superintendent

Filing 23

MEMORANDUM DECSION AND ORDER: ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus 1 is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. The Clerk of the Court is to enter judgment accordingly. Signed by Judge James K. Singleton on 11/30/2012. (ptm) (Copy served on petitioner by regular mail)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
VLADIMIR KULAKOV,
No. 9:10-cv-01312-JKS
Petitioner,
MEMORANDUM DECISION
vs.
SUPERINTENDENT, Great Meadow
Correctional Facility,
Respondent.

Vladimir Kulakov, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Kulakov is currently in the custody of the New York
Department of Corrections and Community Supervision, incarcerated at the Great Meadow
Correctional Facility. Respondent has answered, and Kulakov has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Kulakov was convicted by a Clinton County jury of Attempted Murder in the First
Degree (N.Y. Penal Law §§ 110.00/125.27[1](a)(i), (b)), Assault in the First Degree (N.Y. Penal
Law § 120.10[4]), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law
§ 265.03[2]), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law
§ 265.02[7]), Grand Larceny in the Third Degree (N.Y. Penal Law § 155.35), Criminal
Possession of Stolen Property in the Third Degree (N.Y. Penal Law § 165.50), and Criminal
Possession of Stolen Property in the Fourth Degree (N.Y. Penal Law § 165.45[5]). In January
2007 the Clinton County Court sentenced Kulakov as a second felony offender to an aggregate
prison term of twenty-five years to life, plus a consecutive indeterminate term of twelve and onehalf to twenty-one years, to be followed by five years of supervised release. The Appellate

Division, Third Department, affirmed Kulakov’s conviction and sentence, and the New York
Court of Appeals denied leave to appeal on July 22, 2010.1 Kulakov timely filed his Petition for
relief in this Court on October 31, 2010, and his Amended Petition on November 4, 2010.
While his appeal was pending, Kulakov filed three motions to vacate his conviction under
N.Y. Criminal Procedure Law § 440.10 (“CPL § 440.10 motion”) in the Clinton County Court.
All three were denied and, to the extent that Kulakov sought leave to appeal, leave was denied
prior to the date his conviction became final.
In December 2010, after he filed his Petition for relief in this Court, Kulakov filed a
motion to for a new trial in the Clinton County Court, which the court treated as a motion under
CPL § 440.10 and denied. The Appellate Division denied leave to appeal, and the Court of
Appeals dismissed Kulakov’s petition for leave to appeal on May 24, 2011.2
II. GROUNDS RAISED/DEFENSES
In his Amended Petition Kulakov asserts four grounds, raising seven claims: (1) his
confession was false (induced by force and threats); (2) his confession was signed without the
presence of a notary; (3) his confession was induced by beatings by the State Troopers; (4A) he
was denied the right to present a defense by the prosecution; (4B) he was denied the right to
proceed pro se; (4C) alternatively to proceeding pro se, he was denied the appointment of
substitute counsel; and (4D) trial counsel failed to present evidence that Kulakov’s statements to
the police were coerced. Respondent contends that, except for his claims that he was denied the

1

People v. Kulakov, 898 N.Y.S.2d 373 (App. Div.), lv. denied, 933 N.E.2d 1057 (N.Y.
2010) (Table).
2

People v. Kulakov, 949 N.E.2d 980 (N.Y. 2011) (Table).
2

right to appear pro se or, alternatively that he was denied the right to have substitute counsel
appointed (Grounds 4B and 4C), Kulakov’s claims are unexhausted, but deemed exhausted and
procedurally barred. Respondent also contends that Kulakov’s claim that he was denied the right
to proceed pro se (Ground 4B) is procedurally barred. Respondent raises no other affirmative
defenses.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”3 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision.”4 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts.5 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court

3

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
4

Williams, 529 U.S. at 412 (alteration added).

5

Early v. Packer, 537 U.S. 3, 10 (2002).
3

‘unreasonabl[y] appli[ed] clearly established Federal law.’”6 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”7 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.8 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”9 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial
and injurious effect or influence in determining the outcome.10 Kulakov “bears the burden of
proving by a preponderance of the evidence that his constitutional rights have been violated.”11
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue

6

Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam).
7

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
8

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).

9

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
10

Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
11

Hawkings v. Castello, 460 F.3d 238, 264 (2d Cir. 2006) (internal quotation marks and
citations omitted).
4

the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.12
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.13 Under AEDPA, the state court’s findings of fact are presumed to be correct unless the
petitioner rebuts this presumption by clear and convincing evidence.14 Although pre-AEDPA
precedent established that deference is due to the findings of state appellate courts,15 the Second
Circuit has left the question open with respect to AEDPA cases.16 In the absence of a clear
indication from the Second Circuit to the contrary, this Court can find no principled reason not to
apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are
presumed to be correct.

12

Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).

13

Cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining “how federal courts in
habeas proceedings are to determine whether an unexplained order . . . rests primarily on federal
law,” and noting that federal courts must start by examining “the last reasoned opinion on the
claim . . . . ”); Jones v. Stinson, 229 F.3d 112, 118 (2d. Cir. 2000).
14

28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(“Factual determinations by state courts are presumed correct absent clear and convincing
evidence to the contrary . . . .” (citing 28 U.S.C. § 2254(e)(1))).
15

Sumner v. Mata, 449 U.S. 539, 547 (1981); Ventura v. Meachum, 957 F.2d 1048, 1055
(2d Cir. 1992).
16

See Boyette v. Lefevre, 246 F.3d 76, 88 n.7 (2d Cir. 2001).
5

IV. DISCUSSION
A.

Procedural Deficiency
Kulakov “bears the burden of proving by a preponderance of the evidence that his

constitutional rights have been violated.”17 Claims stated in conclusory terms, unsupport by
factual averments, are insufficient to establish that a petitioner’s constitutional rights were
violated. In this case, Kulakov has presented his claims in essentially conclusory terms with
little, if any, evidentiary support. Without some evidence upon which this Court might find that
some constitutional right was infringed, or some reason to excuse the absence of such evidence,
granting a writ of habeas corpus in this case would be inappropriate.18 Despite the obvious
deficiency in Kulakov’s Petition, this Court will nonetheless address each of Kulakov’s claims
and the defenses raised as best it can under the circumstances.
B.

Exhaustion
This Court may not consider claims that have not been fairly presented to the state

courts.19 Unexhausted claims must be dismissed.20 To be exhausted, the claim must have been
presented to the highest state court that may consider the issue presented.21 “[F]or purposes of
exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific

17

Hawkins, 460 F.3d at 246.

18

Id. (citing Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a
federal court cannot grant “habeas relief on the basis of little more than speculation with slight
support”)).
19

28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases).

20

See Rhines v. Weber, 544 U.S. 269, 275-78 (2005); Engle v. Issac, 456 U.S. 107, 125
n.28 (1982); Rose v. Lundy, 455 U.S. 509, 510 (1982).
21

See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
6

federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to
relief.”22 A mere appeal to a broad constitutional guarantee, e.g., due process, is insufficient to
present the substance of a constitutional claim to the state courts.23 A petitioner satisfies the fair
presentation aspect of the exhaustion requirement by presenting the essential factual and legal
premises of his federal constitutional claim to the appropriate state courts.24 An issue is
exhausted when the substance of the federal claim is clearly raised and decided in the state court
proceedings, irrespective of the label used.25 Exhaustion does not require Kulakov to cite the
“book and verse on the federal constitution.”26 A petitioner who does not cite the “book and
verse of the Constitution” may nonetheless “fairly present to the state courts the constitutional
nature of his claim” through:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance
on state cases employing constitutional analysis in like fact situations, (c) assertion
of the claim in terms so particular as to call to mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation.27
Grounds 1, 2 and 3: Confession Induced by Force/Threats
After his arrest, Kulakov made an inculpatory statement to the police, which was then
reduced to writing and signed by Kulakov. Kulakov contends that his “confession” was false and

22

Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (citing Picard v. Connor, 404 U.S.
270 (1971)).
23

See Id. at 163; Anderson v. Harless, 459 U.S. 4, 7 (1982).

24

Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009) (citing Reese, 541 U.S. at 30-34);
Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005).
25

Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005).

26

Picard, 404 U.S. at 278.

27

Daye v. Attorney General of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
7

that he made up the facts based upon what he had been told. In his first three grounds, Kulakov
contends that at the time of his arrest, the arresting State Troopers took him into the woods and
brutally beat him. Later, the interrogating detective placed a gun to Kulakov’s head and forced
Kulakov to sign his confession outside the presence of a notary.
Prior to trial, the Clinton County Court held a combined Mapp/Huntley hearing.28 At the
conclusion of the hearing, at which Kulakov testified, the County Court found the testimony of
the police officers credible and a lack of any credible evidence to support Kulakov’s claims of
improper police conduct. The court denied Kulakov’s motion to suppress his statement. At trial,
Kulakov again testified that he was beaten by the State Troopers, threatened by the interrogating
detective, and forced to sign the incriminating statement.
As Respondent correctly notes, despite a direct appeal and five CPL § 440.10 motions
(four of which were actually filed), Kulakov never at any time presented to the state courts the
facts underlying his first three grounds in the Amended Petition before this Court. Consequently,
Kulakov has failed to properly exhaust his state-court remedies as to those grounds.
However, the Court need not rely on this basis as it may deny the petition on the merits
notwithstanding the lack of exhaustion of state court remedies,29 particularly where the grounds
raised are plainly meritless.30 In this case, the Clinton County Court, after hearing the evidence,
including Kulakov’s testimony that he was beaten and threatened, denied Kulakov’s Huntley
28

Mapp v. Ohio, 367 U.S. 643 (1961) (a shorthand reference to the hearing held on the
admissibility of evidence obtained as a result of a police search); People v. Huntley, 371 N.E.2d
794 (N.Y. 1977) (a shorthand reference to the procedure under New York law for seeking
suppression of statements made to law enforcement officers).
29

28 U.S.C. § 2254(b)(2).

30

See Rhines v. Weber, 544 U.S. 269, 277 (2005).
8

motion.31 Likewise, after hearing essentially the same testimony,32 the jury at least inferentially
rejected it. Kulakov misperceives the role of a federal court in a habeas proceeding challenging
state-court findings of fact. Under Jackson, the constitutional standard for sufficiency of the
evidence is whether, “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.”33 This Court must, therefore, determine whether the Appellate Division
unreasonably applied Jackson. In making this determination, this Court may not usurp the role
of the finder of fact by considering how it would have resolved any conflicts in the evidence,
made the inferences, or considered the evidence.34 Rather, when “faced with a record of
historical facts that supports conflicting inferences,” this 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 defer to that resolution.”35 Kulakov bears the burden of establishing by
clear and convincing evidence that these factual findings were erroneous;36 a burden Kulakov has
failed to carry. The record does not compel the conclusion that no rational trier of fact could
have found that Kulakov’s statement to the police was voluntary and uncoerced, especially

31

Docket No. 15-2 at 114-25.

32

Trial Transcript, Docket No. 15-58 at 303.

33

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel
v. Brown, 130 S. Ct. 665, 673 (2010) (reaffirming this standard).
34

Jackson, 443 U.S. at 318-19.

35

Id. at 326; see McDaniel, 130 S. Ct. at 673-74.

36

28 U.S.C. § 2254(e)(1).
9

considering the double deference owed under Jackson and AEDPA. Kulakov is not entitled to
relief under his first, second, or third grounds.
Ground 4A: Denial of Right to Present a Defense; 4D: Ineffective Assistance of Counsel
In Ground 4A, Kulakov contends that the prosecutor denied him the right to present his
claim that his “confession” was false and the result of improper police conduct. In Ground 4D,
Kulakov contends that his trial attorney failed to present the facts of his alleged “false”
confession to the court. As with his first three grounds, Kulakov did not present the factual basis
for either of these claims to the state courts on direct appeal or his various post-conviction
motions collaterally attacking his conviction. Also, like this first three grounds, even if
addressed on the merits, Kulakov would not prevail on either of these claims.
First, as with his first three grounds, Kulakov presents both claims in a purely conclusory
manner, unsupported by any facts. Without some evidence upon which this Court might find that
the prosecution did, in fact, prevent Kulakov from presenting a defense or evidence that his
counsel failed to present it, or some reason to excuse the absence of such evidence, granting a
writ of habeas corpus in this case would be inappropriate.37
Second, as noted above, the record clearly shows that Kulakov’s claim that his confession
was the result of police misconduct was presented at both the pretrial Mapp/Huntley hearing and
again at trial to the jury. Not only has Kulakov failed to support his contention that the
prosecution prevented the presentation of a defense or that trial counsel failed to present the court
with the defense, the record clearly refutes it. Kulakov is not entitled to relief under either
Ground 4A or Ground 4D.

37

Hawkins, 460 F.3d at 246.
10

C.

Procedural Default
Under the adequate-and-independent-state-ground doctrine, federal courts may not review

the judgment of a state court that “rests on a state-law ground that is both ‘independent’ of the
merits of the federal claim and an ‘adequate’ basis for the court’s decision.”38 Because this
doctrine applies on federal habeas review, and because the state-law ground may be a procedural
bar,39 federal habeas courts often speak of an “adequate and independent procedural bar” to
federal review of a claim or simply of a “procedurally barred” federal claim. A federal habeas
court lacks jurisdiction to evaluate questions of federal law decided by a state court where the
state court judgment “rests on a state law ground that is independent of the federal question and
adequate to support the judgment.”40
Ground 4B: Denial of Right to Appear Pro Se
Kulakov contends that the trial court denied him the right to appear pro se. Kulakov
presented this claim in his second CPL § 440.10 motion. The Clinton County Court denied
Kulakov’s claim holding that it “must deny the motion to set aside this verdict under CPL
§ 440.10(2)(c) since sufficient facts appear in the record to permit [Kulakov] to have [this] issue
adequately reviewed on appeal from his conviction and he has failed to do so.”41 New York
Criminal Procedure Law § 440.10[2], a default procedural rule established by statute, is an

38

Harris v. Reed, 489 U.S. 255, 260 (1989).

39

Id. at 261-62.

40

Coleman v. Thompson, 501 U.S. 722, 729 (1991).

41

Docket No. 15-37 at 3.
11

independent and adequate state ground precluding review by this Court.42 Kulakov is
procedurally barred from bringing Ground 4B.
In addition, as is discussed below in more detail below, the record refutes Kulakov’s
claim that he was not permitted to appear at trial pro se. Thus, not only is Kulakov’s claim
procedurally barred, but it is factually unsupported. Kulakov is not entitled to relief under
Ground 4B.
D.

Merits
Ground 4C: Failure to Appoint Substitute Counsel
Kulakov contends that the trial court erred in not appointing substitute counsel. The

Appellate Division addressed this issue on direct appeal and rejected it.
County Court did not err in permitting [Kulakov] to proceed pro se. The
court discussed with [Kulakov] the advantages of representation by counsel as well
as the pitfalls of self-representation, and allowed his assigned attorney to remain as
standby counsel. When [Kulakov] made statements indicating that he misunderstood
the role of counsel or the court, the court explained that hybrid representation was not
permitted and that the court could not advise [Kulakov] on the law during the trial.
[Kulakov’s] request prior to the commencement of jury selection was timely, he was
unequivocal in his desire to represent himself, he had not been disruptive and his
discussion with the court exhibited a knowing and intelligent waiver of his right to
counsel. He answered the court’s questions regarding the roles of the prosecutor and
defense, as well as the general nature of the charges, and detailed his prior selfrepresentation in two separate cases. Having satisfied itself that [Kulakov] was
informed of the consequences of forgoing counsel and knowingly chose to proceed
pro se, the court properly granted [Kulakov’s] request, but continued his attorney as
standby counsel.
[Kulakov] cannot now argue that County Court should have assigned him
new counsel. Although he stated prior to his pretrial hearing that he was dissatisfied
with counsel and did not know what he wanted to do if he could not get another
attorney, he waived his request by agreeing with the court’s suggestion to allow
continued representation by his assigned counsel for the hearing. When he became
dissatisfied with his self-representation, he told the court that he did not want to

42

Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
12

continue pro se, but also did not want assigned counsel to represent him. That was
not a clear request for the court to assign him new counsel. In any event, the court
would have been justified in denying a request for new counsel that was made during
the trial. Hence, the court was never in a position where it was required to assign
new counsel to represent [Kulakov].43
Based upon the record before it, this Court cannot find that the Clinton County Court
erred in failing to appoint new counsel when Kulakov changed his mind and no longer desired to
proceed with self-representation. The Supreme Court has “reject[ed] the claim that the Sixth
Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel.”44 The
Supreme Court has further stated that criminal defendants “have no cognizable [Sixth
Amendment claim] so long as they are adequately represented by attorneys appointed by the
courts.”45 “[W]hile the right to select and be represented by one’s preferred attorney is
comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an
effective advocate for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.”46 “While a defendant has a right to
counsel of his choice under the Sixth Amendment, it is not an absolute right. Absent a conflict
of interest, a defendant in a criminal case does not have the unfettered right to retain new
counsel.”47 “In determining whether to allow a defendant to retain new counsel, the court must
consider the risks and problems associated with the delay, and whether substitutions would

43

Kulakov, 898 N.Y.S.2d at 375-76 (citations omitted).

44

Morris v. Slappy, 461 U.S. 1, 13-14 (1983).

45

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989).

46

Wheat v. United States, 486 U.S. 153, 159 (1988).

47

United States v. Brumer, 528 F.3d 157, 160 (2d Cir. 2008) (internal quotation marks
and ellipsis omitted).
13

disrupt the proceedings and the administration of justice.”48 Under federal law, a district court’s
denial of a request to substitute counsel is reviewed for abuse of discretion.49 The Supreme
Court has never held that abuse of discretion is an appropriate basis for granting federal habeas
relief. Indeed, quite to the contrary, the Supreme Court has suggested that, while abuse of
discretion is an appropriate standard on direct review, in a federal habeas proceeding it is not.50
Kulakov has not raised an question of constitutional dimension.
Even if Kulakov has raised an issue cognizable in this Court, under the facts presented,
this Court cannot find that the decision of the Appellate Division “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”51 Kulakov is not entitled to relief under
Ground 4C.

48

Id. (internal quotation marks and ellipsis omitted).

49

See id. at 161; see also Slappy, 461 U.S. at 11-12 (noting in such cases that “broad
discretion must be granted trials on matters of continuances; only an unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to
the assistance of counsel.” (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964))).
50

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (“It is not even whether it was an abuse of
discretion for her to have done so—the applicable standard on direct review. The question under
AEDPA is instead whether the determination of the Michigan Supreme Court that there was no
abuse of discretion was “an unreasonable application of . . . clearly established Federal law.
§ 2254(d)(1)”)
51

28 U.S.C. § 2254(d).
14

V. CONCLUSION AND ORDER
Kulakov is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.52 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.53
The Clerk of the Court is to enter judgment accordingly.
Dated: November 30, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

52

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)).
53

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
15